J and L, R (on the application of) v London Borough of Hillingdon (2017) EWHC 3411 (Admin)

This is a very interesting judicial review, concerning the interrelation of a council’s housing duties under Part 6 and Part 7 Housing Act 1996 and duties to children under s.17 Children Act 1989. The brief factual background, taken from the judgment is:

The First Claimant, J, is a 27-year-old single parent caring for L, her eight-year-old son. J has a history of depression resulting from prolonged periods of abuse when she was a child. She is heavily dependent upon her family (who live locally) for emotional and practical support.

L, the Second Claimant, suffers from a range of disabilities including autism, global development delay, learning difficulties, long-standing ataxia and uncontrolled epilepsy. L receives Disability Living Allowance at the higher rate both for care and mobility. His ataxia means that he is very unsteady and he frequently trips and falls. L is prone to frequent and severe seizures without warning. His learning difficulties mean that his mental age is several years lower than his chronological age.

L has poor sleep patterns and wakes up at least five times during the night. He has a prescribed wheelchair which he uses outside. This is required when he is tired, especially after a seizure.

The Claimants currently live in a privately rented bungalow in the London Borough of Hillingdon. L’s wheelchair does not fit through the doors of the bungalow and no adjustments have been made to the building to accommodate L. There have been ongoing disrepair issues with the property, including dampness and mould. The bungalow is also in an area, near Heathrow, that is due for major redevelopment. The land surrounding the Claimant’s bungalow has been acquired for this redevelopment. The Claimants’ landlord is engaged in negotiations to sell his land, and has informed that Claimants that he will require possession of the bungalow when the land has been sold. There is, as a result, no incentive for the landlord to address the issues of disrepair or to carry out any modifications to the Claimants’ home.

The bungalow is situated next to an industrial car park by the airport which is used by commercial vehicles. There is no fence or other protective barrier between the car park and the bungalow. Cars come and go 24 hours a day, seven days a week. In front of the bungalow is a busy road. There is no safe place for the L to transfer between his wheelchair and car. As a result of his autism, L has no sense of danger and, in the past, has run out in front of approaching vehicles on the busy main road. His delayed cognitive processing means that, if he does, he is not able to respond in time to an instruction to “stop!”, thereby putting him in further danger.

In 2015, J had requested to be added to the housing register. Hillingdon, despite being provided with medical needs information, decided that J was ‘suitably housed’ and refused the application.

A review was requested in November 2015. Following a school occupational therapist writing to the council “children with disabilities team’ with concerns, a council occupational therapist assessment was carried out in February 2016. This made a series of recommended ‘requirements’, including a home with level access, a safe place for transfer to a car, and recommended an enclosed garden. this was sent to the Housing department. Hillingdon Housing refused to change their view that J was ‘suitably housed’.

J applied again to join the housing register in February 2017. Hillingdon did not reply. J then instructed solicitors. A letter before action stated

that the failure to deal with L’s urgent need for safe and appropriate accommodation was a breach of their duties under both Parts 6 and 7 of the Housing Act 1996. The letter also contended that the Defendant was in breach of the duties that it owed to L as a children’s services authority and stated: “The family desperately needs a suitable home, and support, both to assist them in managing their current home and long term, to ensure that [L’s] multiple needs are met and that his mother has support with his care and her own needs”. The steps that the Claimants’ solicitors required the Defendant to carry out were identified as follows:

i) to determine the Claimant’s housing register application, assessed in accordance with the Defendant’s published scheme;
ii) to confirm that the Defendant would immediately commence inquiries into J’s Part VII Housing Act 1996 application (homelessness), and provide details of the steps that it would be taking to discharge its duty under s.188(1);

iii) to carry out an assessment of L’s need for services in accordance with s.17 Children Act 1989 and to confirm that the Defendant accepted that L was a ‘child in need’ by reason of his disabilities;

iv) to provide an effective plan, identifying L’s needs and how it was proposed that they would be met; such plan should address the urgent accommodation needs as well as the need for other services and support;

v) to confirm that the Defendant would now carry out a parent carer’s assessment, and provide a time by which that would be completed; and

vi) to ensure that, in relation to the steps identified in (i) to (v), that the Defendant complied with s.11 Children Act 2004 and ensured that there was liaison between the housing and children services departments of the Defendant as required by R (M and A) –v- London Borough of Islington [2016] EWHC 332 (Admin)

Hillingdon’s response simply stated that, as before, J had ‘no identified housing need’ and they had already considered the OT assessment. Remarkably, on the same day, Hillingdon Legal also replied, saying the housing application was “currently being processed” and had been “passed onto [sic] a medical advisor“. Assurance was given that as soon as the medical opinion was received the housing department of the Defendant would liaise with the children’s services department to establish whether the further information needed to be taken into account.” Enclosed was a second occupational therapist assessment, which basically concluded the same as the first.

After some further correspondence, the judicial review was issued on 6 July 2017. The same day(!) Hillingdon sent J’s solicitors a ‘Child and Family Assessment’ dated 5 June 2017. This was ostensibly carried out, by social services, as part of the assessment of the housing application. The CAF assessment was neither well informed on the housing position nor well considered, but did conclude (to housing dept) “may your department possibly re-open the housing application in respect of [J].”

The housing ‘medical advisor’ (I am told this was ‘Now Medical’) then did a ‘report’ (though containing little by way of medical assessment) which stated:

“I’m surprised to see [the 5 June 2017] letter requesting rehousing, which seems somewhat at odds with her (sic) own full C&F report of 5 Jun 2017 in which she (sic) states: ‘the actual property seems appropriate as per Housing team’s description’. I therefore think her letter may pose a risk of unhelpfully raising expectations.Regarding her specific points:

(a) I acknowledge that traffic and other noise may be disturbing, but I can’t find anything to indicate it is intolerable for him, and seems unavoidable in an urban borough close to Heathrow.

(b) maintaining any child’s safety on a road remains a normal parenting role

(c) I recommend use of a bathboard and seat, or other aid to facilitate bathing…

In summary, it remains my view that the current accommodation is suitable on specific medical grounds.”

Hillingdon housing dept then refused the application, quoting the medical advisor’s report and adding

Further your landlord… was contacted on 13^th July. He stated he has no plans to sell the property and he has not been approached regarding a redevelopment of the area. [The landlord] advised he is willing to do everything within his means to ensure the property is safe for you and [L] to occupy. He has confirmed he is willing to engage with Social Services to consider adapting the property so it can meet you and [L]’s needs.

And so the matter came to hearing.

J’s grounds were:

i) The decision that the Claimants have no identified housing needs is unlawful as it is outside the range of reasonable responses in light of its occupational therapist’s identification of the “main issue” being that L “has no sense of danger and has run off at times, posing a large risk with lorries on their driveway”. In doing so, the Defendant has failed to have regard to the need to safeguard and promote the welfare of L as required by s.11 Children Act 2004 (Ground 1);

ii) The Defendant has failed to produce a lawful assessment of L’s needs and J’s needs as his carer. It was not entitled, in the C&F Assessment, to conclude that L’s needs could adequately be addressed by the measures put in place by J when the assessment itself recognised that “the location of the house, coupled by the fact that (L) has no danger awareness poses a health and safety risk for (L)”, a view also expressed in the OT Assessments. The Defendant also erred in that this decision was inconsistent with the duty placed on it by s.11 Children Act 2004 (Ground 2);

iii) The Defendant has acted unlawfully in failing to ensure that its housing and children’s services department co-operate in a manner which ensures that they safeguard and promote the welfare of L and failed to comply with its duty under s.11 Children Act 2004, alternatively there is no evidence that it did so (Ground 3).

Hillingdon’s defence was that the decisions were legitimate and the CAF did not identify an urgent housing need.

The court held:

The CAF assessment described the risk to L as ‘tolerable’ only in the short term, as it envisaged the housing situation being dealt with by the Part VI application.

What is clear, in my view, is that the author clearly thought that the risk to L was only “tolerable” as a temporary measure. It was tolerable only pending alternative accommodation. In the meantime, the only identified way of mitigating or eliminating the risk was supervision by J. In respect of L’s bathing, that was recognised as not being a long-term solution because the constant supervision that it required would mean that L would not be able to develop the independence in personal care that otherwise would be an important objective in his development. Likewise, the risk presented by the road was constant. The supervision required by J to eliminate or mitigate that risk would be one of ceaseless vigilance when L was being transferred to the car or whenever he was near the road. Given that L had been assessed as “being challenging in different settings”, “very active” and that he had limited understanding of danger, the sort of parental supervision that would be required of J went well beyond that which could be expected of the parent of a 8-year-old without L’s disabilities. By analogy, if parents had an unfenced cliff edge at the end of their garden, one way of managing the risk of their child falling off the cliff would, no doubt, be parental supervision. However, given the risk of human error or even a moment’s inattention by an otherwise diligent parent, it would be no substitute (on anything other than a short-term basis) for adequately fencing off the cliff edge. That was the position with J and L, and I am satisfied that the social worker appreciated that and was making his recommendations accordingly.

That conclusion seems to me to be fortified by the conclusion that J and L’s housing situation was not of “such urgency that it would require action outside the usual housing application and bidding process”. That is a recognition that there was a problem that needed solving, but that it was not of such pressing urgency that it required intervention through, I infer, the s.17(6) Children Act 1989 route. The reason that it was not of such urgency was that the social worker considered that the housing need was going to be assessed by the housing department.

In addition, the CAF assessment did not meet the ‘Working Together’ Guidance, as it was too unfocused and did not identify what was to be done by whom and when.

There was a lack of integration between social services and housing.

The successful management or elimination of the identified risks to L required a much greater level of co-operation between the social services and housing departments of the Defendant. I note in the letter of 16 June 2017 that it was said that there was ongoing co-operation between the two departments and that the decision of the housing officer “will be informed by consultation with the social services officer”, but there is no evidence of any such consultation (or other co-operation) having taken place. More worryingly, the 16 June 2017 letter suggests that the Defendant does not regard “compartmentalisation” as being artificial and that J and L’s “requested outcomes can clearly be separated into the Social Services and Housing categories”. As I noted at the hearing, it is clearly for each local authority to decide how it will approach the carrying out of s.17 assessments (so long as it does it in accordance with the Working Together Guidance). In some instances, it may be appropriate to carry out separate analyses of relevant matters by each team. There is force in the point made in the 16 June 2017 letter that different expertise resides with each department. Nevertheless, in order for assessments to be holistic, “integrated in approach” and “a continuing process and not an event”, if different departments make separate assessments, then someone must take responsibility for carrying out the overall review. In this case, the social services department’s involvement ended when it signed off the C&F Assessment on 5 June 2017.

The Medical Assessment was poor and inappropriate.

It may well be that the doctor thought that the Claimants did not qualify under Paragraph 12.4 of the Housing Policy (see paragraph 40 above). The only medical issue that had been raised in the C&F Assessment was L’s heightened sensitivity to noise, but even this was not investigated properly. The doctor should have limited his opinion to stating, if that was his view, that L did not qualify for housing allocation under Paragraph 12.4 on that ground. Instead, he included his views of the points raised in the 5 June 2017 letter. Only the first of those was within his expertise, and the other two were superficial responses to issues that had no medical dimension and upon which he should not have been commenting upon at all. Unfortunately, the Medical Assessment was later to have a significant impact on the ultimate housing decision.

And the decision letter relied on the medical assessment word for word, amongst other failings.

i) The decision-maker has relied – word for word – on the Medical Assessment without apparently recognising that it was no part of the doctor’s job to assess the scope of the parental role and its effectiveness of mitigating the risks to L or to make recommendations as to L’s bathing (which failed to address the risk to L at all).

ii) Based on this, the decision-maker concluded that “the current accommodation is suitable on specific medical grounds”.

iii) There is no reference to (or apparent consideration of) the recommendations in the C&F Assessment or any previous OT Assessments.

iv) In relation to housing need, reliance is placed on uncertain assurances from J’s landlord (with no detail) as to unspecified future adaptations to the property to meet L’s needs. This apparently ignored completely the social worker’s clear conclusion in the C&F Assessment that adaptations would not be possible because J would not qualify for a Disabled Facilities Grant.

v) The Decision Letter so comprehensively fails to grasp the nature of the risks to L identified in the C&F Assessment and the proposal of how those risks were to be addressed that it is impossible to conclude that there had been any discussion of the C&F Assessment, still less co-operation, with the social services department. It is difficult to see how the Decision Letter could have been written in the terms it was if the author had had a discussion with the author of the C&F Assessment.

What was revealed was a complete lack of any plan to address L’s needs.

the stark reality is that the Defendant had no plan in place for addressing and meeting L’s identified needs. Given that social services had closed their file, it also appears to have had no internal mechanism even to recognise that this was the position. Had the process been properly integrated and holistic, the negative housing decision would have been picked up as important – because it left L’s identified needs unaddressed – and referred back to social services for further consideration. The Defendant failed to provide a mechanism allowing the situation to “be reviewed regularly to analyse whether sufficient progress [had] been made to meet [L’s] needs and the level of risk faced by [L]” (paragraph 55 in the Working Together Guidance).

The housing decision letter contained no address to s,11 Children Act duties to promote L’s welfare. It was not even recognised as a factor.

The Housing Policy had not even been met as there was no proper consideration as to whether the situation met the hardship criteria:

There is no evidence that the “panel of officers (Hardship Panel)” had undertaken a review “to determine whether priority for re-housing is necessary”. That is the case even though Paragraph 12.6 of the Housing Policy notes that “a combination of factors [can] make the need for re-housing more urgent than when considered separately” and the 5 June 2017 letter to the housing department accompanying the C&F Assessment expressly referred to the “unique mutually reinforcing factors” that the social worker thought should be considered.

Hillingdon hadn’t considered ‘other urgent welfare reasons’ under its own housing policy. Albeit obiter, the court suggested:

If a local authority, acting collaboratively through its housing and social services departments, carries out a s.17 assessment and identifies housing as a critical issue in relation to the welfare of a child in need, then, consistent with the Working Together Guidance, arguably it needs to devise a coordinated and holistic plan as how that need is to be addressed. If the authority’s allocation policy (under s.166A Housing Act 1996) has a broad category such as “other urgent welfare reasons” then, given this requires for subjective assessment and evaluation, it seems to me also arguable that s.11 has a very real role to play in the housing decision particularly in light of the need actively to promote the welfare of the child in need.

This was not about a decision about accommodation under s.17 Children Act (or at least not yet)

Analysed properly the sequence of events was:

i) in the C&F Assessment, the social worker did not consider that the housing need was so acute that it required s.17(6) assistance and the issue of housing need would be considered by the housing department of the Defendant (see paragraph 58 above);

ii) the Decision Letter (the principal decision under challenge) refused housing under Part VI of the Housing Act; and

iii) in light of the that negative decision, there remained unaddressed risks to L arising from his housing situation identified in the C&F Assessment that the Defendant should have reconsidered under its s.17 duty and the Working Together Guidance. It did not do so.

Reaching stage (iii) would not mean that the Defendant necessarily had to provide accommodation under s.17(6) (although that would be an option). For example, although not relevant for the decisions I have to make, I was told that the Defendant had recently investigated erecting a fence as a means of reducing or eliminating the risk to L from the road. That has not proved possible, but it shows that it is for the Defendant to determine the way in which it chooses to address the risks to L.

It also didn’t help Hillingdon to point to J’s parallel homeless application. Partly because Part VI and Part VII Housing Act 1996 were separate systems, but also because Hillingdon had also subsequently rejected J’s homelessness application, so there was no prospect of the homelessness accommodation fulfilling the s.17 duty.

Hillingdon’s decision was unlawful.