This was the conjoined hearing of an application for Judicial Review of both Barnet and Portsmouth Councils, both JRs bought by Yvonne Hossack and here represented by Stephen Knafler. It makes a distinct contrast and counterpoint to R (Garbet) v Circle 33 Housing Trust and another [2009] EWHC 3153 (Admin) [our note here]. It also makes important findings for anyone dealing with local authority policy or service provision decisions affecting people with disabilities. Apologies for the lengthy note, but detail is unavoidable…

Again, the issue was the withdrawal of resident warden services in sheltered housing schemes. Both Portsmouth and Barnet sought to replace sleep in or resident warden services with mobile services. Judicial reviews of these decision were joined by the Court. By the time the matters came to hearing the Claimant’s grounds against Barnet were:

First, it is submitted that in reaching the decision in question Barnet failed to fulfill its statutory duty under section 49A(1) of the [Disability Discrimination Act 1995] to have due regard to the six needs there set out, each of which identifies a particular goal the achievement of which would further the overall aim of the Act to eliminate discrimination and harassment of disabled persons and to promote equality of opportunity for them in society. Secondly, it is submitted, Barnet failed to follow its own Equality Scheme 2007/8-2010/11, adopted to comply with The Disability Discrimination (Public Authorities) (Statutory Duties) Regulations 2005 (the Regulations) made under the Act, because it did not sufficiently involve disabled persons or groups representing their interests in the decision making process. The final submission is that Barnet failed to follow the statutory code of practice called The Duty to Promote Disability Equality: Statutory Code of Practice (the Code) made by the Disability Rights Commission (now named the Equality and Human Rights Commission and to which I shall refer as the Commission) under section 53A(1C) of the Act, in respect of such involvement or the assessment of the impact of the proposals on disabled persons.

Against Portsmouth, the Claimant argued that ‘a preliminary impact assessment in that case carried out by a policy development manager in the Housing Service, which concluded that the proposed changes would or could have no adverse effect or impact on members of equality groups including disability groups’, was in breach of the statutory duty or alternatively was Wednesbury unreasonable.

Both Portsmouth and Barnet argued that they had complied with their statutory duty, with Barnet further arguing that that it ‘carried out a robust consultation exercise with residents and interested groups, including those representing the interests of disabled persons. Finally, it says that there was no duty to carry out a full equality impact assessment and that the assessment which was carried out was adequate.’

S.49 provides that:
“[49A General Duty.]
[(1) Every public authority shall in carrying out its functions have due regard to-
a) the need to eliminate discrimination that is unlawful under this Act;
b) the need to eliminate harassment of disabled persons that is related to their disabilities;
c) the need to promote equality of opportunity between disabled persons and other persons;
d) the need to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons;
e) the need to promote positive attitudes towards disabled persons, and
f) the need to encourage participation by disabled persons in public life."

[...]
[49D Power to impose specific duties]
[(1) The Secretary of State may by regulations impose on a public authority, other than a relevant Scottish authority or a cross-border authority, such duties as the Secretary of State considers appropriate for the purpose of ensuring the better performance by that authority of its duty under section 49A(1).."

The s.49D power was used to bring in the Disability Discrimination (Public Authorities) (Statutory Duties) Regulations 2005 in 2005.

Further, Barnet and Portsmouth were under a duty to consider the Duty to Promote Disability Equality: Statutory Code of Practice produced by the Disability Rights Commission, which included guidance that an impact assessment should be carried out. The recommendations of the Code are non-binding, but regard must be had to it.

The Court considered the procedures adopted by Barnet and Portsmouth at some length. In January 2009, Barnet, seeking to reduce spend on support for sheltered housing by £950,000 had embarked on a consultation which revealed that:

(88%) of those responding felt that sheltered housing residents would be disadvantaged if current services were replaced by the new proposed floating support services. The five most frequently made points were: floating support would not meet the needs of residents; current levels of support would be reduced, peace of mind would be adversely affected; support would not be available as and when needed; and the new service would be impersonal.

Barnet had disbanded its Disability Panel set up under the DES and the replacement Disability Equality Advisory Group had only had 3 members and was defunct at this point. Two senior adult services managers drafted an equality impact assessment in 3 pages, which included:

11. Is there evidence or any other reason to suggest that it could have a different effect or adverse impact on any section of the community? Or more specifically, one or more of the six equality strands?

No. No adverse impact, subject to the majority of existing funding being available for re-investment.

No figures were available on how many people likely to be affected were disabled. The report for Council (and recall that none of this had had any input from a Disability panel or advisory group) stated:

4.2 The key risks identified in the consultation are those relating to tenants' health and welfare, in particular, the most vulnerable tenants, and the related key risk of increases in social care spending. The preferred option (option 3) would best address the risks identified through the public consultation of changes to sheltered housing. There are a number of complexities to implementing the preferred option and it will be necessary to work closely with sheltered housing providers and tenants in planning and bedding down new service provision to mitigate these risks further.
-----
5 EQUALITIES AND DIVERSITY ISSUES
5.1 The Equality Impact Assessment indicates that the preferred service option would promote greater diversity in provision as support will be available to people living in their own homes. The council's 2006 review of sheltered housing in the borough found BME groups represented only 7% of sheltered housing tenants, just half the census rate. In contrast, analysis of floating support usage in Barnet shows 19% of older people entering services were from BME groups. This inequality is reinforced by the current distribution of expenditure on Supporting People services for older people with over 60% of investment directed to services for sheltered housing tenants who make up less than 3% of the borough's older residents. The proposal is to commission services that are needs-led and available to all, unlike current sheltered housing provision that discriminates against those populations who are less likely to wish to choose this housing tenure.

Note the complete lack of any specific address to disability equality. Option 3 was the 'mobile warden' option raised in the consultation and aimed to save £400.000.

In Portsmouth, where cost savings of roughly 50% were sought, a survey of 66 random sheltered housing residents in May 2009 produced the result:

45 said that a night time response was important. Personal safety and security was mentioned by 28 residents and speed of response by 22 residents

Portsmouth soon after wrote to the residents to tell them that 'European working time directives, the Council's Local Pay Review and reductions in the Government's Supporting People funding for sheltered housing' meant that changes were necessary to 'minimize charges to residents'. Meetings were arranged to 'specifically talk about the changes'. This was described by Portsmouth as a 'consultation'.

An equality impact assessment form was filled out by a Policy Assessment Manager, who had apparently 'undergone training on equality issues and attends Portsmouth Fairness and Equality Group'. Her recommendation was that no full assessment needed to be carried out because:

One of the main concerns raised by a number of residents was the perceived reduction in security. Rather than have someone asleep on the premises from 22.00pm until 09.00am, there will be a roaming team covering all the seven schemes. Although initially this seems like a reduction in cover, in reality the change will lead to a more responsive service. Currently one sleeping member of staff may be hard to wake and some residents may not wish to wake them. Although the roaming team could not be at each scheme physically for the whole night they will make regular checks (up to three or four per night). In addition to this, they will know about any residents who have night time habits, and the day team will update them of any particular issues that may have occurred prior to the night service.

The report recommending the changes to the housing executive committee of the Council that was to approve the changes stated that, following consultation, two objections to the proposed scheme had been received from residents and that an equalities impact assessment showed 'that the service changes will continue to provide a fair and accessible service to all our residents.'

Held

On the claimed failure to have regard to the s.49A(1) duty:

The claimants alleged a failure to have regard to the duty, particularly (d) to take account of a disabled persons' disabilities, even if that means 'more favourable' treatment, and (f) to encourage participation in public life.

Neither decision had expressly addressed the Act or its requirements. Following R (Chavda) v London Borough of Harrow [2007] EWHC 3064 (Admin) and R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), there was no requirement to have specific reference to the Act or the Section. Howvever, ‘what is required is that the duty is exercised in substance, with rigour and an open mind.’

It is not the case that the Claimant’s must show an absence of due regard in the sense of Wednesbury unreasonableness, R (Meany & Others) v Harlow District Council [2009] EWHC 559 (Admin) applied. While the Court was prepared to accept that ‘regard was had in the preparation of the respective reports in each case by officers who had relevant training and experience and say that they had the duty in mind’, there was a failure ‘to bring the duties adequately to the attention of the decision makers in making these particular decisions’.

Further, such awareness as they may have been did not amount to a substantial, rigorous and open minded approach. There may be some references to disabilities in the reports and documents, but nothing to show that ‘due regard was had, for example, to the need to take account of disabled persons’ disabilities even where that involves treating disabled people more favourably than other persons’.

Portsmouth’s argument that there was no need to raise these issues with the decision makers where there was no impact on disabled persons does not sit with the note that these were radical changes in the impact assessment that was carried out, nor the results of their information gathering, which raised the time difference in response for a warden as likely to have a significant impact on peace of mind of residents. Regard must be had to such fears in assessing impact. The evidence was that the impact would be more than minor, meaning that the s.49A(1) duty should have been put before the decision-makers.

Neither authority in my judgment had any or sufficient regard to such an impact upon those residents with disabilities as a separate group or to the need to recognise that the taking into account of those disabilities may involve treating disabled persons more favourably than others. References in the documentation before the decision makers in each case to disabilities or to rights of equality do not fulfil the requirement of such recognition. Nor does a general awareness amongst officers or decision-makers of the duty under section 49A(1). In my judgment, it follows that in both cases there has been a failure to comply with that duty and in particular sub-section (d). That alone is sufficient to vitiate each of the decisions.

On consultation and involvement
The Claimants argued for a duty to consult,, breached here, a legitimate expectation raised by DES that disabled people would be involved in decisions affecting them, citing R v Devon County Council ex parte Baker [1995] 1 All ER 73. Portsmouth denied that any such duty arose, but the representations of the DES in both cases did give rise to a legitimate expectation of consultation, so a duty arose.

A consultation must be carried out properly, ‘ it must be undertaken at a time when the proposals are still at a formative stage. Sufficient reasons must be given to allow those consulted to give intelligent consideration and an intelligent response. There must also be adequate time for such a response’.

Barnet’s consultation met this requirement. Portsmouth’s quite simply didn’t. Its purported consultation letter was providing information on a planned change, not seeking views. No alternatives were raised or considered and the concerns of residents ignored, despite the known results of the May 2009 survey.

However, there was no breach of a legitimate expectation raised by DES that consultation would be through a particular process. There was no such process specified by DES.

As for the Code, the court in Brown at paragraphs 119 and 120 accepted three propositions as to its effect. Firstly, a public authority must take it into account when considering disability issues. If it decides to depart from it cogent reasons must be given and they must be convincing. There are however no higher positive duties to comply with the code. Secondly, if a breach of a general duty under section 49A(1) is alleged and it appears to the court that relevant guidance given by the Code has not been followed without cogent reason, then that may be a powerful factor which leads the court to conclude that there is a breach of statutory duty. Thirdly, it is for the public authority to explain clearly and convincingly the reason for the lapse.

It is clear that the involvement of disabled persons envisaged by the Code in decisions affecting them goes beyond mere consultation. Applying those propositions in these cases, in my judgment for the reasons given above Barnet involved disabled persons in its decision in a substantive way, but Portsmouth did not. For the reasons given in paragraphs 58, 59 and 63 above, each of those authorities however in my judgment failed to adopt an approach to mainstream disability equality in the decision challenged and in that regard there is a breach of Code which is a factor supporting the conclusion that each is in breach of its statutory duty.

On Impact Assessments
The Claimants did not pursue criticisms of the failure to carry out full impact assessments.

However, the criticisms that the officers who carried out the impact assessments came to Wednesbury unreasonable conclusions were justified in the case of Portsmouth, for the reasons given above. Barnet’s impact assessment posed the question whether the proposed changes ‘could have a different or adverse impact on any of what were referred to as the equality strands, including disability’. The answer did not deal with the issue and was therefore Wednesbury unreasonable.

Remedy
The decisions were quashed in each case and the matter to be reconsidered. it was not for the court to express a view as to the outcome of that reconsideration.

This is a long note, but there is a lot in this judgment, in particular on the conjoined effect of the DDA, the 2005 Regulations and the ‘Statutory Code’. Anyone involved in making or contesting local authority policy and service provision decisions likely to have an impact on people with disabilities should look at this case very closely.

The claimant was, and had been since July 2001, an assured tenant of sheltered accommodation which was currently provided by the defendant. When the claimant moved to her current accommodation there was a resident warden and it was common ground that the tenancy agreement obliged the defendant to provide a resident warden (although no-one could actually find the relevant tenancy agreement). It was also common ground that the agreement provided for the defendant to vary the services it provided after consultation with the claimant.

In or around April 2008, it appears that new management arrangements were put in place and, at this stage, the problems began to emerge. There was some confusion (and I put it no higher than that) as to whether or not a resident warden would be provided (in fact, the same resident warden who had been working at the site since 2001) or whether there would be a move to a ‘floating’ warden service (see [13]-[19]). When it eventually became clear that the plan was to move to a ‘floating’ warden service, the claimant and other residents protested and sought to persuade the defendant to retain the resident warden service. It was said (rather disingenuously in the view of Mumby LJ at [24]) that the existing warden wanted to retire.

At this stage, the claimant instructed solicitors who threatened to seek judicial review of the decision to retire the resident warden and not to replace her with another resident warden. It was said that the claimant had a legitimate expectation that a resident warden service would be provided. At this stage, it appears that the defendant acknowledged that some form of consultation would have to take place regarding the future of the resident warden service.

A claim for judicial review was issued on January 29, 2009, relying on the legitimate expectation argument. HHJ McKenna (sitting as a deputy High Court Judge) granted an ex parte interim injunction requiring the defendant to continue providing a resident warden until the matter could come back before him a few days later. When the case did come back before him, the Judge discharged the injunction and gave directions for an acknowledgement of service to be filed and the case immediately to be placed before a High Court Judge ([2009] EWHC 384 (Admin)). This was done and Pitchford J listed the matter for a rolled up hearing – which is what Mumby LJ was dealing with.

Between the order of Pitchford J and the judgment, the defendant commenced a process of consultation during which a number of options were offered and voted on by the residents, with the most popular option (a specialist support service) being what the defendant decided to provide for a pilot period of one year. Perhaps surprisingly, no application to amend the Grounds in light of these developments was made (at [54]).

The hearing itself does not appear to have been an entirely satisfactory one. Shortly before the hearing, the claimant had indicated that she intended to seek a Protective Costs Order but, in the end, did not pursue this. It was also clear that there was a significant amount of evidence filed, not very much of which appears to have assisted his Lordship (see his comments at [64]), and – at least as regards the evidence from the Claimant – he found to be “curious… for what it does not say…” (at [68]). In addition, as the case was argued before the Court of Appeal gave judgment in Weaver, the parties were given permission to submit written submissions on that case once the judgment was handed down.

Mumby LJ was of the view that the only matter before him was the legality of  “the Defendant’s decision not to continue to provide a resident warden following [the retirement of the original warden]…” (at [60]). This required him to consider “the nature and content of the relevant obligations (if any) owed by the Defendant to the Claimant” and then whether “the Defendant breached any of those obligations” (at [61]).

It was clear that the only obligations between the parties were found in the tenancy agreement. The obligations (insofar as material) were to provide a Warden Service (which, in the factual context of the case, meant a resident warden) and to consult before varying the services (at [72] and [76]). Framing those obligations as “legitimate expectations” added nothing. They were contractual obligations and the entire extent of the obligation was contained in the contract (at [78]-[79]).

It was also clear that the defendant had breached those obligations. There was no doubt that it had not consulted prior to making the changes to the resident warden service (at [80]-[81]). The fact that an “equivalent service” may have been provided pending consultation was irrelevant. Whether or not sheltered housing ‘required’ a resident warden was similarly irrelevant. The contract provided for consultation and that had not been complied with (at [84]).

Thus, the defendant was in breach of its (contractual) obligations to the claimant in failing to provide a resident warden without consulting the claimant.

The problem was one of relief. Even if this was a public law claim (which his Lordship declined to decide – at [89]), a quashing order would be inappropriate and a declaration would be sufficient. A declaration to that effect would be made. Permission to move for JR was also granted (at [90]-[93]).

The claimant had indicated that she intended to advance further arguments relating to a pure private law claim and designed to knock out the power of the defendant to vary the services provided at all. Those arguments (at [95]-[96]) are much more (legally) important but, as Mumby LJ said, will need to form part of another case.

So. What we’ve got here is quite a narrow judgment on the interpretation and application of one tenancy agreement. Mumby LJ is plainly right that there had been a breach of the obligations of the tenancy, but, with the greatest respect, his analysis on whether this is a public/private law dispute is remarkable. Permission to move for Judicial Review was granted, but the court declined to hold that this is a public law dispute!? If this is a private law matter then permission is not needed and the case should be transferred to the QBD / county court. If permission is needed (and granted) then this must be a public law case. I can understand why Mumby LJ didn’t want to deal with Weaver but, frankly, this is a terrible cop-out. For what it’s worth, this appears to me to be an entirely private law matter, where relief should sound in either an injunction to restrain the breach of contract or damages.

A victory then, for the claimant, but perhaps not of the general importance or significance that sheltered housing campaigners might wish. Having said that, if they pursue the additional arguments that they sketched out at the end of the judgment then we might get a much more interesting result. Given the criticism which his Lordship expressed of the defendant (see [28], in particular), one imagines that they’d be advised to settle any further private law claim brought against them.

This was an appeal heard by the House of Lords over the course of four days in July, but with judgment delivered by the new Supreme Court.  We reported the Court of Appeal’s judgment here.  At issue was to what extent the courts could review the decision of a local authority that an individual is over the age of 18.  On one view this case turns on a narrow point about construction of the Children Act 1989 and does not really need a lengthy examination on a housing law blog.  I’m going to suggest that there is plenty of juicy stuff in here, albeit obiter, that is worthy of consideration.

The normal order of things is of course for young people to claim to be older than they really are.  Scores of cottage industries churning out fake IDs have depended on this pretty much since the dawn of time.  Claiming to be younger than one really is has long been the preserve of Hollywood actresses, supermodels and footballers of a certain nationality (allegedly).

However, there are certain benefits to being found to be under 18.  It opens the door to accommodation under the 1989 Act.  Someone over 18 is not capable of being a “child in need” under s.20(1) and cannot therefore be entitled to accommodation under that section.  There are other legal consequences that flow from this, see for instance the discussion in R (M) v Hammersmith & Fulham [2008] UKHL 14.

Everyday experience tells us that assessing someone’s age accurately is no easy task.  It will be clear that the decision in these cases is an important one to get right.  Quite apart from the resource implications, which are not insignificant, wrongly classifying a child as an adult, or vice versa, can lead to serious consequences for them.  In this regard it is probably better to exercise any element of doubt in favour of assessing someone as younger rather than older.  As an ILPA report has stated “the risks of wrongly treating children as adults are considerably higher than the other way round.  This is because the children’s system has in-built support and supervision to prevent children from being harmed.  No such safeguards exist in the adult system.”  This was endorsed by the Children’s Commissioner for England before the Court of Appeal in this case.

Facts

The facts of these cases can be very briefly stated.  The appellants arrived as unaccompanied asylum seekers.  They claimed to be under 18, but social workers decided that they were over the age of 18, despite there being some medical evidence in both cases to suggest that they were under 18.  In A’s case there was some documentary evidence too, while in the other an immigration judge had accepted that M was 17 years old.

Issues

There were three issues before the House of Lords, identified by Lady Hale at [13]:

1. is the duty imposed by s.20(1) owed only to a person who appears to the local authority to be a child, so that their decision can only be challenged on Wednesbury principles, or is the duty owed to any person who in fact is a child, so that a court can determine the issue on the balance of probabilities?
2. is the issue of whether someone is a child is one of precedent fact to be decided by a court on the balance of probabilities?
3. does s.20(1) give rise to a civil right so that Art 6 of the ECHR is engaged and, if so, is the process whereby social workers assess age coupled with the availability of JR on Wednesbury principles sufficient compliance with Art 6?

Children Act 1989

It may be helpful to set out a few of the relevant provisions of the 1989 Act here.

Section 17(10):

For the purposes of this Part a child shall be taken to be in need if—

(a)   he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;

(b)   his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or

(c)  he is disabled,

and “family” , in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.

Section 20(1):

Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of—

(a)  there being no person who has parental responsibility for him;

(b)  his being lost or having been abandoned; or

(c)  the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.

Section 105(1):

In this Act—

… “child” means, subject to paragraph 16 of Schedule 1, a person under the age of eighteen

Note that paragraph 16 of Schedule 1 does not apply in this case.

‘Child’ or ‘Child in Need’?

So ‘child’ is defined as “a person under the age of eighteen”.  This is the definition used throughout the Act.  As the appellants argued the definition was not:

[14] … “a person who appears to the local authority to be under the age of eighteen” or “a person whom the local authority or any other person making the initial decision reasonably believes to be under the age of eighteen”.  Reaching the conclusion that this is what it means in section 20(1) requires, as the Court of Appeal accepted, words to be read in section 20 which are not there.

The respondent LAs argued (see [20]) that “child in need” was a composite term of art that requires the sorts of professional value judgment that Parliament cannot have intended should be made by the courts.

Lady Hale gave the lead judgment, with which all members of the Court agreed.  In her opinion:

[26] … The 1989 Act draws a clear and sensible distinction between different kinds of question. The question whether a child is “in need” requires a number of different value judgments. What would be a reasonable standard of health or development for this particular child? How likely is he to achieve it? What services might bring that standard up to a reasonable level? What amounts to a significant impairment of health or development? How likely is that? What services might avoid it? Questions like this are sometimes decided by the courts in the course of care or other proceedings under the Act. Courts are quite used to deciding them upon the evidence for the purpose of deciding what order, if any, to make. But where the issue is not, what order should the court make, but what service should the local authority provide, it is entirely reasonable to assume that Parliament intended such evaluative questions to be determined by the public authority, subject to the control of the courts on the ordinary principles of judicial review. Within the limits of fair process and “Wednesbury reasonableness” there are no clear cut right or wrong answers.

[27] But the question whether a person is a “child” is a different kind of question. There is a right or a wrong answer. It may be difficult to determine what that answer is. The decision-makers may have to do their best on the basis of less than perfect or conclusive evidence. But that is true of many questions of fact which regularly come before the courts. That does not prevent them from being questions for the courts rather than for other kinds of decision makers.

[28] …In section 20(1) a clear distinction is drawn between the question whether there is a “child in need within their area” and the question whether it appears to the local authority that the child requires accommodation for one of the listed reasons.  In section 17(10) a clear distinction is drawn between whether the person is a “child” and whether that child is to be “taken to be” in need within the meaning of the Act.

Lord Hope agreed at [51]:

The question is whether the person is, or is not, under the age of eighteen. However difficult it may be to resolve the issue, it admits of only one answer. As it is a question of fact, ultimately this must be a matter for the court.

This leads into whether or not the question is one of jurisdictional or precedent fact.  In the Court of Appeal Ward LJ thought this was not a precedent fact case because he viewed the question as whether a person was a “child in need”.  Lady Hale thought that this was looking at the wrong question:

[32] However, as already explained, the Act does draw a distinction between a “child” and a “child in need” and even does so in terms which suggest that they are two different kinds of question. The word “child” is undoubtedly defined in wholly objective terms (however hard it may be to decide upon the facts of the particular case). With a few limited extensions, it defines the outer boundaries of the jurisdiction of both courts and local authorities under the 1989 Act. This is an Act for and about children. If ever there were a jurisdictional fact, it might be thought, this is it.

Lord Hope again agreed:

[53] … The question whether the child is “in need” is for the social worker to determine. But the question whether the person is or is not a child depends entirely upon the person’s age, which is an objective fact. The scheme of the Act shows that it was not Parliament’s intention to leave this matter to the judgment of the local authority.

Therefore, where there is a dispute, the courts can determine an applicant’s age on the balance of probabilities as part of judicial review proceedings.  JR can be adapted to deal with the determination of questions of fact, see R (Wilkinson) v Broadmoor Special Health Authority [2001] EWCA Civ 1545 (see in the present case Lady Hale at [33] and Lord Hope’s comments on the practical consequences at [54].

Article 6

Although this was enough to deal with the appeal both Lady Hale and Lord Hope went on to consider whether a civil right was being determined and therefore whether Article 6 was engaged.  Although this part of the opinions is strictly obiter, it is still very important and will presumably have an impact in other situations, so all of [35]-[45] and [55]-[65] are worth looking at.  It will become apparent that there was here a slight divergence of opinion on whether Art 6 applied.

Firstly, it will be remembered that in Runa Begum the House of Lords had assumed without deciding that a claim to be provided with accommodation under Part VII of the Housing Act 1996 could give rise to a civil right.  However, there is no Strasbourg case that has gone that far.  The appellants relied on a series of Russian cases (such as Teteriny v Russia and Sypchenko v Russia), which they claimed did establish this proposition.  Both Lady Hale and Lord Hope noted that there did not appear to be any argument on the point in the Russian cases and they did not assist the Court.

Lady Hale concluded at [40] that:

…[I]f a right such as this is a “civil right” at all, it must lie close to the boundary of the concept and not at the core of what it entails. If so, this may have consequences for the second question, which is what article 6 requires.

Lord Hope was prepared to go further.  I won’t break the whole thing down, but after considering the authorities at [55]-[64] he concluded that:

[65] …I think that it can now be asserted with reasonable confidence that the duty of the local authority under section 20(1) of the 1989 Act to provide accommodation for any child in need within their area who appears to them to require accommodation as a result of the factors mentioned in that subsection does not give rise to a “civil right” within the meaning of article 6(1) of the Convention.

Given her conclusion Lady Hale went on to consider what Art 6 required, if it was engaged.  She said that:

[44] I would be most reluctant to accept, unless driven by Strasbourg authority to do so, that article 6 requires the judicialisation of claims to welfare services of this kind. Unlike the arguments based upon statutory construction and jurisdictional fact, Mr Howell’s [counsel for A] argument cannot sensibly distinguish between the determination of age and the determination of the other criteria of entitlement. Every decision about the provision of welfare services has resource implications for the public authority providing the service. Public authorities exist to serve the public. They do so by raising and spending public money. If the officers making the decisions cannot be regarded as impartial, and the problem cannot be cured by the ordinary processes of judicial review based upon the usual criteria of legality, fairness and reasonableness or rationality, then tribunals will have to be set up to determine the merits of claims to children’s services, adult social services, education services and many more. Resources which might be spent on the services themselves will be diverted to the decision-making process. Such a conclusion would be difficult, if not impossible, to reconcile with the decision of this House in Runa Begum. The degree of judicialisation required of an administrative decision, in the view of Lord Hoffmann in Alconbury, depends upon the “nature of the decision”.

[45] If this is a civil right at all, therefore, I would be inclined to hold that it rests at the periphery of such rights and that the present decision-making processes, coupled with judicial review on conventional grounds, are adequate to result in a fair determination within the meaning of article 6.

Lord Walker acknowledged the force of Lord Hope’s reasoning on Article 6, but preferred to leave the point open.  Lords Scott and Neuberger agreed with Lady Hale.

I think that this result must be right, it is the one that gives effect to what must have been the intention behind the Act.  Make no mistake though, this is going to leave the Admin Court with some difficult decisions to deal with.  If you doubt this then look back at the Guidelines for Paediatricians quoted at [5] in the CA’s judgment, or see the difficulties that Collins J identified at [15]-[32] in the connected case (reported by us here).

While at first blush I find the idea that this is not a civil right quite a difficult one to accept, I must admit that the argument is quite compelling.  This does seem to be the correct interpretation of the Strasbourg case law. It will be interesting to see whether this will affect the appeal in Ali v Birmingham which the Supreme Court finished hearing two days before this judgment was handed down.  In the CA Ward LJ had been comforted by the decision in Ali that JR did provide compliance with the standard required by Art 6.  Apparently both Lord Hope and Lady Hale heard the appeal in that case (it’s shown with Tomlinson as the lead case, but Tomlinson dropped out of proceedings at the CA stage).  Of course the present case was heard before judgment in Crompton v UK, but I’m not sure that that case takes the argument any further.

1. The courts can review whether a person is a “child” for the purposes of the Children Act 1989, this is a separate question to whether they are “in need”;
2. Ordinary domestic judicial review can be adapted to deal with this where necessary;
3. If s.20(1) does give rise to a “civil right” for Art 6 purposes it is close to the boundary of that concept (per Baroness Hale); or
4. The duty of a LA under s.20(1) does not give rise to a “civil right” (per Lord Hope);
5. If it is a civil right conventional judicial review is enough to comply with Art 6.

The appeal was therefore allowed.  Points 3, 4 and 5 are obiter.

Our report on the Court of Appeal decision is here.

Not sure how we missed this one and thanks to the Legal Action housing updates for the elbow to the ribs.

This was a permission hearing on an application for judicial review of Plymouth Council’s handling of a child in need under s.17 Children Act 1989, specifically how accommodation needs were dealt with.

S was an 11 year old child who was autistic and had behavioural difficulties. He lived with his mother and brother. it was not in issue that he was a child in need for the purposes of the Act. The family lived in a two bed flat, which placed severe pressure on his mother and his 6 year old brother.

S.17(6) of the Children Act states:

The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation and giving assistance in kind or, in exceptional circumstances, in cash.

Assessment of children in need under s.17 is shaped by the 2000 guidance “Framework for the assessment of children in need and their families”, and it is made clear that Local Authorities are to have regard to this guidance and that although not statutory in effect, it should be complied with “unless local circumstances indicate exceptional reasons which justify a variation”.

The document states that a core assessment must be carried out:
“… an in-depth assessment which addresses the central or most important aspects of the needs of a child and the capacity of his or her parents or caregivers to respond appropriately to these needs within the wider family and community context.” [chapter 3.11]

and the conclusion of an assessment should result in:

• an analysis of the needs of the child and the parenting capacity to respond appropriately to those needs within their family context;
• identification of whether and, if so, where intervention will be required to secure the wellbeing of the child or young person;
• a realistic plan of action (including services to be provided), detailing who has responsibility for action, a timetable and a process for review. [chapter 4.1]

Note the emphasis on a ‘realistic plan of action’.

A core assessment had not been carried out when judicial review proceedings were issued. Over the following year (!) prior to this permission hearing, a core assessment was produced by Plymouth. The Claimant maintained that the assessment did not contain a realistic course of action. Amongst issues such as respite care and identification of carers, was the problem of accommodation for the family.

Both Social Services and housing departments accepted that the family required a 3 bed property. The mother’s transfer application had been rised to band B priority from band C in a CBL scheme, but no suitable properties had become available on which the mother’s bid was successful. Private sector accommodation had been raised as an alternative by social services. The mother would lose her secure tenancy and her transfer status, effectively starting from scratch.

There was nothing unlawful about the way her transfer application was dealt with under the allocation scheme. However, Plymouth Social Services’ position on assistance with a private sector tenancy was that they were:

willing to assist [the mother] to secure three-bedroom accommodation in the private rented sector to the extent that they will provide financial assistance by giving her money for a deposit on a property and 1 month’s rent in advance. [The mother] will be entitled to housing benefit to assist her with the rent, but if her housing benefit is less than the contractual rent, the defendants will not fund the shortfall in rent on a continuing basis, because it is likely that she will be re-housed by the housing department, provided she actively pursues her transfer application, particularly if bids for flats and maisonettes and properties in a greater number of areas in Plymouth than she has currently considered.

Held:

34. Initially it seemed to me that what Ms Thornley says in those paragraphs goes as far as Plymouth City Council could reasonably be expected to go. They plainly feel that the mother ought soon to be able to obtain adequate housing through the housing department and, accordingly, have limited their offer of assistance to S to providing a deposit and 1 month’s rent in advance. They are not willing to bridge any gap between housing benefit and actual rent, because they take the view that the mother can adequately re-house herself and her children in council housing. But I have been persuaded by Mr Wise that what Ms Thornley says in those paragraphs does not, in the end, amount to a realistic plan of action, including services to be provided. It does not engage with specifics at all. It does not identify any sample property, or properties, that Plymouth City Council put forward as appropriate for the family in the private market. It does not, accordingly, engage with the actual cost of renting such a property, nor the difference between that cost and the housing benefit to which the mother is, or may be, entitled. In other words, it is long on principle but very short on detail.

35. It does seem to me that the local authority have got to be much more proactive in working together with the mother to see exactly what might be available in the private sector, what it would cost, the extent of housing benefit that the mother can obtain towards that cost and the extent, if any, to which Plymouth City Council ought to, and is willing to, bridge any difference. In short, the alternative of renting in the private sector with financial help from Plymouth City Council needs a great deal more exploration than has so far been done. It is only when Plymouth City Council, working no doubt in co-operation with the mother, have come up with a fully-costed and detailed alternative for renting in the private sector that they can be said to have actually produced a realistic plan of action in relation to accommodation.

Permission granted for JR for a declaration that the core assessments did not yet provide the required realistic course of action. The parties urged to go back to Plymouth and focus on sensible and realistic ways of helping S.

This is useful, albeit only a permission hearing, in focussing on the kind of practical detail and concern a core assessment needs to contain. It is clear that simply identifying possible courses of action and setting a fixed response (e.g. on aid with rent) is not sufficient – the issue is what constitutes a realistic course of action.

Ms A is an orphan from Somalia who arrived in the UK when she was 16 1/2 years old. She claimed asylum upon her arrival in the UK, but this was rejected on the basis that she was a child. Upon the determination of her asylum claim she was released into the care of the London Borough of Hillingdon (Hillingdon). She immediately told social workers that she wanted to move to Leicester to live with a family of Somalis that she knew.

She moved to Leicester – of her own volition (such that Hillingdon thought she had run away and reported her to the police as a missing person) – in August 2007 and approached Leicester City Council (“Leicester”), and the legal conundrum began.

Hillingdon took the view that, by leaving their area voluntarily, Ms A had ceased to be owed any duty by them under s.20 Children Act 1989 and, in their view, Leicester now had to care for her as they saw fit. Leicester did not agree with this, pointing out that Hillingdon had not undertaken any assessment of her needs and, hence, could not have discharged any duties owed to Ms A. The two local authorities could not agree as to the way forward and Ms A was forced to issue judicial review proceedings against them both, seeking to determine which one of them was responsible for assessing and meeting her needs.

The case came on before Collins J in April 2008 when his Lordship expressed himself in robust (but entirely appropriate terms).

“This is a disgraceful squabble between the two councils at the expense of a vulnerable young persons”

Following this, a consent order was produced which had the effect at least of requiring a proper s.20 assessment to be carried out and identified needs to be met, subject to the local authorities arguing amongst themselves as to who should pay for it. Permission was subsequently granted to move for Judicial Review against both local authorities.

The claim was allowed. It was necessary for Hillingdon to have carried out an assessment under s.20, Children Act 1989. As Dyson LJ said in the Liverpool case “an assessment of needs will always be required.” Unless and until that was done, there could be no discharge of the s.20 duty. The duty “endures until such an assessment has taken place” and, depending on the result of the assessment, the duty may “survive such an assessment.” (at [48]).

Importantly, the mere fact that Ms A moved away from Hillingdon did not end their duty. The whole purpose of s.20 was to protect vulnerable children. The local authority must “display the infinite patience of a good parent and not take advantage of what may be impulsive and unwise acts to absolve themselves of [that] duty.”

That failing did not, however, absolve Leicester. Leicester could not refuse to offer support to Ms A. They were on notice that Hillingdon were denying responsibility and, during that time, Ms A was present in Leicester’s area. It should not have been “beyond the wit of two local authorities with access to legal advice and substantial – albeit not unlimited – resources to devise plans and contingencies for such situations” (at [51]). It was unlawful to defer the assessment until the two authorities could sort out who would discharge any identified needs. There was no reason why Hillingdon and Leicester could now owe concurrent duties to Ms A (at [55])

This is an important case. It should (although I’m not hopeful) end the disgraceful attempts by some social services authorities to avoid their s.20 obligations by letting/moving/encouraging a child to move to another area. If they can each owe the duty then there is no incentive to try these sorts of things. The appropriate approach is, as Collins J said, for the two authorities to agree that one of them will do the assessment and meet any identified needs on a “without prejudice” basis and to enable them to fight about the costs later if needed.

What Gladstone did when he accosted a prostitute was to offer her a place to sleep, protection from any bully or “mackerel” who might be exploiting her, and an opportunity to think over the following handsome proposition: If she wished to do so, on due consideration, she could go to the home or hostel Gladstone helped to maintain, to stay there, eating three square meals a day and receiving any medical attention she might need, until she was in a fit state to take up the job that Gladstone’s assistants and associates undertook to find for her. If the prostitute found any of this attractive, Gladstone would escort her to his home where she would spend the night under Mrs. Gladstone’s care. [Anthony West. From the New York Review of Books]

Gordon Brown, in a rather less directly hands on manner, has announced ’supervised homes’ for 16 and 17 year old mothers.

From his conference speech:

And I do think it’s time to address a problem that for too long has gone unspoken, the number of children having children. For it cannot be right, for a girl of sixteen, to get pregnant, be given the keys to a council flat and be left on her own.

From now on all 16 and 17 year old parents who get support from the taxpayer will be placed in a network of supervised homes. These shared homes will offer not just a roof over their heads, but a new start in life where they learn responsibility and how to raise their children properly. That’s better for them, better for their babies and better for us all in the long run. [full speech here]

The briefing is that this means that any 16 or 17 year old mother who seeks local authority housing or applies as homeless will get a place in these supervised homes.

What Gordon actually meant, however, has been the subject of some debate, with many seeing this as an embrace of the Daily Mail worldview. One brave soul insists that Gordon wasn’t suggesting that teenagers become pregnant as a means of getting housing of their own, which sits oddly, to say the least, with the first line quoted above.

But, while the rhetoric was undoubtedly aimed at the Mail, I wonder instead about whether this is an effective or adequate means to the end sought.

If we are charitable, what is being said is that 16 and 17 year olds with a child or children need help and support in independent living and looking after their children. That strikes me as pretty much indisputable in general, whether the support is from family or others.

But why is the 16/17 year old seeking local authority housing assistance the filter or trigger point for this?

Some, perhaps many, of those seeking housing assistance are doing so simply because there is no way they can be accommodated with their family, but they still have the full aid of their family in supporting themselves and their child as much as if they remained at the family home. Others will remain in the family home, thus outside the new scheme, but lack any support from their family in learning how to look after themselves and their child. Others yet will be outside the family home, lack support but not applying for local authority housing.

A more nuanced approach may come in a developed bill, if one happens, but from Gordon’s speech it appears that housing is being used as a trigger in a thoroughly indiscriminate way, when what is perhaps more properly at issue is a social services duty (s.17 or s.20 Children Act, particularly).

We have noted the all too frequent lack of effective integration between housing and social services departments on under 18 year olds, and ensuing case law, on many occasions on this blog, and of course, these may be departments belonging to different local authorities altogether. On that view, anything that integrates housing support and support in independent living and childcare is potentially a good thing. But at first sight, the plan put forward by our new Gladstone will miss many of those in need of support while imposing it on others who aren’t. Still, the sound bite must have been irresistable.

And then, leaving aside the inevitable questions over funding and delivery, what happens at 18? Will there be a pathway to social housing and if so, in what form?

This is somewhat off our usual turf here at Nearly Legal, but should be of interest to anyone involved in public law challenges. This case involved a challenge to a decision by Hammersmith and Fulham to start charging (or more accurately, recommence charging) for home care services.

Three claimants, Deborah Domb, Dulce Sobral and Moses Bushiwa, challenged this decision claiming that it breached a legitimate expectation (in their manifesto before the 2006 local elections the local Conservative party stated that “A Conservative Council will not reintroduce Home Care Charging”) and it was a breach of the equality duties.

In the High Court Sir Michael Harrison disagreed ([2008] EWHC 3277 (Admin), but not on BAILII as far as I can tell). The claimants appealed, with the Equality and Human Rights Commission intervening in their support, but the Court of Appeal only considered the arguments on the equality duties, permission having been refused on the legitimate expectation issue.

Hammersmith and Fulham – home care services

The Council has roughly 1800 users of home care services. In 2006 the then Labour administration stopped charging. In May of that year power shifted to the Conservatives. The Council struggled with its budgeting, having pledged to cut council tax by 3%, and in 2007 cut the number of users of home care services by excluding those classified as having lower moderate needs. This still wasn’t enough, so they then considered two possibilities: either excluding everyone with moderate needs or charging for the service again, which would need to be paid by service users with income above a certain level. After consultation and carrying out a Predictive Equality Impact Assessment (PEIA) the Council decided to bring back charging. They estimated that some 600 of the 1,800 users would have to pay.

Equality Duties

In the Court of Appeal the argument was whether the Council had breached the three equality duties, covering race, gender and disability, contained in s 71 of the Race Relations Act 1976, s 49A of the Disability Discrimination Act 2005, and s 76A of the Sex Discrimination Act 1976. There are various components to these duties, but the key one in this case was the equality of opportunity duty. For disability this means that public authorities have to have due regard to “the need to promote equality of opportunity between disabled persons and other persons”: DDA, s49A(1)(c). The gender and race duties have similarly worded provisions.

The “big point” on behalf of the Claimants, advanced by David Wolfe, was that the Council could hardly be said to have taken the disability equality duty into account when the only two options being considered were imposing charges or raising the eligibility threshold. The whole budgetary canvas should be considered. If money needed to be saved then the council tax reduction could have been abandoned, or many other ways of saving or raising money could have been considered. Rix LJ did not agree. In his judgment it was not possible to go behind the decision to reduce council tax by 3%. At [61] he said that it was:

“mistaken to suggest that all possible theoretical options had to be regarded as being open… Decision making would simply become impossible on such a basis. One has to start somewhere, and the budget decisions which had already been taken, whether final or capable of being revisited, are not capable of being impugned in these proceedings.”

The Claimants also argued that the PEIA had found that the proposed policy would have a negative impact on female service users and those from an ethnic minority background. Rix LJ agreed with the submissions of Tim Kerr QC, on behalf of the Council, that this was not the case. Although ethnic minority residents were more likely to receive home care services, they were also less likely to have income to render them liable for the charge and so they were not disproportionately affected. Similar arguments were accepted with regard to the higher number of female service users.

Sedley LJ and Lord Clarke MR agreed with Rix LJ, but Sedley LJ expressed some dissatisfaction with this case. He felt that the premise that the decision to cut council tax by 3% had to be implemented was “highly debatable” ([78]) and that parts of the PEIA were “Panglossian”. He concluded at [80] that:

The object of this exercise was the sacrifice of free home care on the altar of a council tax reduction for which there was no legal requirement… there is at the back of this a major question of public law: can a local authority, by tying its own fiscal hands for electoral ends, rely on the consequent budgetary deficit to modify its performance of its statutory duties? But it is not the issue before this court

Comment

“But they haven’t done an equality impact assessment” is a fairly common complaint, although even that can be of less use to a challenge than people think; see, for instance, R(Brown) v SSWP [2008] EWHC 3158 (Admin) and R(Meany) v Harlow DC [2009] EWHC 559 (Admin). However, in this case the Council had carried out an assessment, and seemingly a fairly detailed one at that.

I do feel some sympathy with Hammersmith and Fulham. Most LAs charge for their home care services (about 97% charge according the Council’s evidence, which seems right), and a lot will only provide services to people classified as criticial or substantial. The Council’s charging rate was below the average for London boroughs. Yet they didn’t need to make this decision. As Sedley LJ says the Council tied its own hands.

Those of you particularly interested in EIAs might want to look at a current consultation which considers this very topic. It is open until the end of this month.

This was an application for Judicial Review of a decision of the Social Security Commissioner refusing leave to appeal a decision of the Social Security Appeal Tribunal. What was at issue was the calculation of awards of housing benefit, specifically, the decision that the Claimant’s accommodation was not ‘exempt accommodation’ under paragraph 4 of Schedule 3 to the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006 SI No 217. This provides that:

the “eligible rent” used to decide an award of housing benefit will not be decided by the maximum rent based on determinations made by a rent officer if it relates to “exempt accommodation”. So far as material, paragraph 4(10) of Schedule 3 defines “exempt accommodation” as including accommodation which is:

“…provided by a non-metropolitan county council …, a housing association, a registered charity or a voluntary organisation where that body or a person acting on its behalf also provides the claimant with care, support or supervision.” (CSS)

What was key was the definition of ‘person acting on its behalf’. If the Claimant was successful, the level of housing benefit payable would not be limited by the rent officer’s determination, which in this case meant there was a considerable shortfall.

The Claimant has learning difficulties and had always required support. Prior to October 2004, the Claimant had been in a Social Services hostel. After October 2004, he was an assured tenant of Rivendell Lake Housing Association Limited.

The necessary package of support to enable the Claimant to live at the Rivendell property (i.e. the necessary CSS) was commissioned and funded through Walsall Social Services and provided by Lifeways Community Care. Initially the Claimant’s full rent was paid by housing benefit. However, following the SSC decision in R (H) 2/07, which also involved Rivendell, Walsall decided that the accommodation was not exempt and set a maximum rent some £130 per week short of the full rent. The Claimant sought to appeal that decision and paid what he could, some £2,600, to the rent account. The appeal was unsuccessful.

In 2007, Rivendell bought possession proceedings, obtained possession and a money judgment for over £5000. The Claimant was re-accommodated by Walsall/Lifeways, but the money judgment remained. The Claimant continued to pursue appeals, with this application resulting. There was a challenge to the rightness of the decision in R (H) 2/07 and further evidence on the nature of the relation between Rivendell and Lifeways.

Lifeways’ contract with Walsall provided that:

i) Lifeways contracted to maintain its registration as a domiciliary care agency and to provide CSS to any individual identified by Walsall, pursuant to a commissioning agreement in the form of an Individual Service Agreement;

ii) Lifeways contracted to provide care and support services up to specified standards; and

iii) Lifeways was required to implement Walsall’s goals of (a) giving service users a choice of where, and with whom, they live, (b) promoting the community involvement of the service user, (c) separating housing from care provision wherever possible, and (iv) giving service users choice over who provides their care and support (see the annexed Service Specification).

There was a written agreement between Rivendell and Lifeways dated 2004. It stated that:

i) The preamble states that Rivendell is a non-profit making voluntary body formed to provide housing for vulnerable people, that Lifeways is registered as a provider of domiciliary care under the National Care Standards Act 2000 and that it is the intention of the parties to provide accommodation “in a supportive environment for persons with learning disabilities (the Scheme)”.

ii) The function of Rivendell under the agreement was to acquire suitable property, to let it to tenants proposed by Lifeways and to attend to all housing-related matters.

iii) The essential function of Lifeways under the agreement was to select appropriate tenants and, thereafter, to provide the tenants with appropriate levels of CSS in accordance with a care plan and pursuant to a contract with a commissioning body (i.e. the relevant local authority, in this case Walsall): see, in particular, Lifeways’ specified responsibilities as set out in paragraph 5.2 of the agreement.

There was also a 2005 agreement, unsigned, but on which both had acted, which stated that:

Lifeways will provide all necessary care, support and supervision services … for all tenants of the Property on behalf of [Rivendell]

The question was therefore whether this arrangement between Rivendell and Lifeways meant that Lifeways were providing CSS ‘on behalf of’ Rivendell in such a manner as to satisfy the statutory exemption.

The Claimant argued that this was a joint venture by Rivendell and Lifeways. Rivendell could not provide the CSS, Lifeways could not provide the accommodation, such that each was dependent on the other, so:

pursuant to the terms of the 2004/2005 Agreement, the provision of CSS by Lifeways was therefore complementary to the provision of accommodation by Rivendell and was one that was therefore in the interests of Rivendell and for the benefit of Rivendell. Mr Knafler [for the Claimant] submitted that, on any view, Rivendell and Lifeways were engaged in a “joint venture” such that the services of each were essential to the success of the Scheme. He also submitted that, in reality, Lifeways operated as a representative of or was “akin” to an agent of the joint venture and/or the Scheme and, thus, of Rivendell.

Secondly, the expression “on its behalf” in paragraph 4(10) of Schedule 3 to the CP Regulations was intended to distinguish between accommodation provided by specified not-for-profit agencies that “catered for” or was “involved with” persons who required CSS and accommodation that did not; and that the phrase should be construed accordingly. It should be given a wide meaning, implying ‘for the benefit of’ or ‘in the interests of’.

Both the Secretary of State, intervening, and Walsall argued that ‘on its behalf’ had the narrow sense of ‘in its place’ or ‘instead of’ and that this was the intention of the Regulation. The legislation envisaged the care provider providing CSS in circumstances where the accommodation provided would otherwise be required to do so.

It was clear from the agreement between Rivendell and Lifeways, which was accepted to have contractual force, that this was not the case. The Claimant’s interpretation wold render the clear link intended in the legislation as fundamentally meaningless.

Held:
1. Rivendell was never, at any stage, required or expected to provide the Claimant with any CSS. The contractual duty to provide CSS was between Lifeways and Walsall.

2. There was nothing in the tenancy agreement between Rivendell and the Claimant which went beyond what would ordinarily be expected to be provided for in such an agreement. There was no sense in which Lifeways contributed to this landlord/tenant relationship or was in any way necessary to enable Rivendell to provide the accommodation in question.

3. Rivendell’s involvement was not necessary for Walsall to discharge its duty to provide the Claimant with CSS.

4. Rivendell could not be said to have derived sufficient benefit from Lifeways’ provision of CSS to bring it under ‘on behalf of’. That was so whether the wider or narrower meaning was preferred, but in any event, it was the narrower construction of the phrase that should be applied, given its legislative history and the subsequent consistent policy framework. The issue of the role of the accommodation provider in the provision of CSS.

5. On the interpretation of the phrase ‘on behalf of’:

The full wording of the relevant part of paragraph 4(10) of Schedule 3 is “where that body or a person acting on its behalf also provides the claimant with care, support or supervision.” In my view, applied to the factual circumstances of this case, the words “that body” plainly refer to the landlord, Rivendell. The primary focus must, therefore, be on whether the second organisation (here, Lifeways) is providing care, support or supervision which “that body” (i.e. Rivendell) would otherwise be providing to the Claimant. In other words, the crucial question is whether Lifeways is providing CSS in place of Rivendell (i.e. the narrow construction).

Furthermore, the use of the word “also” in the statutory wording is significant. It indicates that either the landlord provides both housing and CSS, or, that the care provider operates in place of the landlord, since it is the landlord who would otherwise “also” be providing such services.

6. While the SSC in Chorley BC v IT (2009) UKUT 107 (AAC) had expressed concern at the absurdity of the effect of the Regulation, this was a matter for the Secretary of State rather than the reinterpretation of the Regulation by the Courts. The Secretary of State had indicated that the issue was under consideration in view of the broad changes in the delivery of accommodation and support since the legislation was enacted.

Application dismissed.

Highlights include:

(a) Richard Drabble QC giving the key note speech. Richard has had a very active year in the housing field having appeared in Manchester CC v Pinnock, R (Weaver) v L&Q, Hanoman v LB Southwark and Austin v LB Southwark;

(b) Jan Luba QC outlining the expected developments in housing law in 2010. Given that Jan’s work in Holmes-Moorhouse v LB Richmond, Austin v LB Southwark, R (Ahmed) v Newham, R (Aweys) v BCC / Moran v Manchester CC, his insight into the coming 12 months is not something you’d want to miss.

(c) HHJ Platt, DJ Sterlini and DJ Backhouse giving a perspective from the county court bench. If you wanted to know how the changes and developments of the last year are playing out at the ‘coal face’ then you couldn’t ask for three better informed commentators.

(d) Claer Lloyd-Jones of the TSA and their plans for the future regulation of housing law.

(e) Professor David Cowan (who we here at NL have a bit of a soft spot for) of Bristol University and Arden Chambers, whose work on Ground 8 might (we hope) eventually lead to its abolition or restriction.

Other friends of NL who are speaking include James Stark, Dawn McPherson, Jonathan Manning and Chris Johnson.

We can’t recomend the HLPA conference highly enough. The majority of your NL team will be in attendance. Do come and say hello.