4 January 2018, by Connor Johnston
R (J and L) v Hillingdon LBC  EWHC 3411 (Admin), 21 December 2017
J was a single parent with a history of depression, stemming from extended periods of abuse she suffered as a child. Her 8-year old son, L, suffered from ‘a range of disabilities including autism, global development delay, learning difficulties, long-standing ataxia and uncontrolled epilepsy’. The effect of his conditions, among other things, was that he had a mental age lower than his chronological age, slept badly, waking numerous times in the night, was prone to seizures, was unsteady on his feet (frequently tripping and falling) and needed to use a wheelchair outside on occasions when he was tired e.g. after a seizure.
J and L lived together in a privately rented bungalow in the area of Hillingdon LBC. No adjustments had been made to the building to accommodate L’s needs and his wheelchair would not fit through the door. The property was also affected by damp and mould. J’s landlord had informed her that the land on which the property was built had been acquired as part of the Heathrow airport development, meaning there was little incentive for him to bring the property up to scratch.
J sought an allocation of social housing from Hillingdon LBC under Part 6, Housing Act 1996 in September 2015. In November 2015, Hillingdon decided that the family were ‘suitably housed’ and had ‘no identifiable housing need’. In December 2015 J asked for a review of that decision. Evidence from an occupational therapist was obtained making a number of significant recommendations as to J’s accommodation needs, including the need for a wheelchair adapted property and level access to a shower to reduce the risk of drowning during a seizure. Nevertheless, Hillingdon upheld their decision that J and L had no identified housing needs. J had no legal representation at that time and so did not seek to challenge this.
In February 2017, J applied once more to join Hillingdon’s housing register. Hillingdon did not respond and so J sought legal advice. A letter before claim was sent contending that Hillingdon was in breach of its duties under both Parts 6 and 7 Housing Act 1996. Hillingdon were asked to assess J’s application in accordance with its allocation scheme, start making inquiries into a homelessness application and commence an assessment under s17 Children Act 1989, with an appropriate level of cooperation between the departments responsible for these functions. Further evidence from an occupational therapist was obtained.
Hillingdon agreed to make inquiries into J’s homelessness application under Part 7 Housing Act 1996, but in respect of the application under Part 6 Housing Act 1996 for an allocation of social housing, determined, once again, that J and L had ‘no identified housing need’ because they lived in a two-bedroom bungalow and had access to a garden.
A ‘child and family assessment’ under s17 Children Act 1989 was completed on 5 June 2017. Within the assessment it was accepted that L was a child in need and this his primary unmet needs related to his accommodation, rather than J’s ability to care for him. The assessment highlighted two particular risks: that of L drowning in the bath and of being run over on the busy road outsider the house. But the assessment concluded that the risk to L’s safety in the accommodation was ‘tolerable’ and not of ‘such urgency that it would require action outside the usual housing application’.
J’s homelessness application was subsequently refused on the basis that it was not accepted that she was homeless as the accommodation was reasonable for her to continue to occupy. (That decision was under appeal at the time of the instant claim). The application under Part 6 was subsequently reconsidered but, on 20 July 2017, was refused once again as there was ‘no identified medical or housing need’. The refusal was justified with reference to a medical assessment completed by a Doctor who had not met J or L.
On J and L’s application for judicial review, Nicklin J held that:
- The conclusion within the s17 assessment that the risk to L was ‘tolerable’ was premised on alternative accommodation being made available. I.e. it was tolerable as a temporary measure pending alternative accommodation.
- No consideration was given in the assessment to what needed to be done and when, if this accommodation was not provided.
- As such the assessment was flawed. It failed to identify what was to be done, when and by whom. See R (J) v Caerphilly County Borough Council  2 FLR 860.
- In particular, there had been a failure to cooperate with the housing department by making it clear that action was required on their part.
- In addition, the assessment failed to meet the requirements set out in the statutory guidance.
- The Doctor, in the medical assessment, had strayed well beyond his expertise giving ‘superficial answers’ to issues that ‘had no medical dimension.’ The allocation decision of 20 July 2017 had relied word for word on the medical assessment, without any recognition of the limits of the Doctor’s role.
- The allocation decision also failed to consider the occupational therapists’ evidence.
- It also failed to take account of the conclusion within the s17 assessment that adaptations at the property were not possible.
- It also ‘comprehensively’ failed to grasp ‘the nature of the risks to L’ and failed completely to ‘actively promote the welfare of L’ c.f. s11 Children Act 2004 and R (HC) v Secretary of State for Work and Pensions  UKSC 73 at  per Baroness Hale.
- It was impossible to tell from ‘an objective evidence-based analysis’ whether the decision maker had fulfilled the obligation under s11 Children Act 2004 (Nzolameso v Westminster City Council  UKSC 22,  PTSR 549 at - and R(E) v Islington LBC  EWHC 1140 (Admin),  ELR 458 at -).
- As such Hillingdon’s decision making process was flawed.
- The fact of J’s application for homelessness assistance did not remedy the situation since the application had been refused.
The judgment is available here: R (J and L) v Hillingdon LBC  EWHC 3411 (Admin)