B, R (on the application of) v Calderdale Metropolitan Borough Council [2003] EWHC 1832 (Admin)

Case No CO/3150/2002

[2003] EWHC 1832 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Thursday 24th July 2003

Strand,

London, WC2A 2LL

Before

THE HONOURABLE MR JUSTICE STANLEY BURNTON

Between

BClaimant

CALDERDALE METROPOLITAN BOROUGH COUNCILDefendant

The Queen on the application of :

(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

Gerry Facenna (instructed by Mr G J Norrie, Chief Law and Administration Officer, Calderdale MBC) for the Defendant for Claire Miskin (instructed by Ridley and Hall) for the Claimant

Judgment

Mr Justice Stanley Burnton :

Introduction

[1]This is an application for judicial review of the Defendant’s refusal to provide to the Claimant a disabled facilities grant under section 23 of the Housing Grants, Construction and Regeneration Act 1996 (“the Act”). The Claimant seeks(i) a quashing order to quash the decision of the Defendant to refuse to provide a grant to the Claimant on behalf of his son DB;

(ii) a mandatory order requiring the Defendant to provide the Claimant with a grant sufficient up to the limit allowed by law to finance the construction of an extra bedroom at the Claimant’s home.

[2]The Claimant contends that his application for a grant is one that the Defendant is bound to approve because its purpose is within section 23(1)(b) of the Act, i.e. it is for the purpose of making his dwelling safe for the disabled occupant (his son DB) and other persons residing with him. Ms Miskin, on his behalf, disclaimed reliance on paragraph (d) of section 23(1).

[3]The Defendant disputes that the purpose of the requested grant is within section 23(1)(b). In addition, by way of alternative, it contends that it is not satisfied that the works that the Claimant wishes to carry out are necessary and appropriate to meet DB’s needs. On this basis, it is precluded from making a grant by section 24(3) of the Act.

The statutory provisions

[4]Section 1 of the Act, in Chapter 1, provides, so far as is material:

“1. (1) Grants are available from local housing authorities in accordance with this Chapter towards the cost of works required for— (a) the improvement or repair of dwellings, houses in multiple occupation or the common parts of buildings containing one or more flats, (b) the provision of dwellings or houses in multiple occupation by the conversion of a house or other building, and (c) the provision of facilities for disabled persons in dwellings and in the common parts of buildings containing one or more flats. … (4) A grant for the provision of facilities for a disabled person— (a) in a dwelling, or (b) in the common parts of a building containing one or more flats, is referred to as a ‘disabled facilities grant’.” (a) the improvement or repair of dwellings, houses in multiple occupation or the common parts of buildings containing one or more flats, (b) the provision of dwellings or houses in multiple occupation by the conversion of a house or other building, and (c) the provision of facilities for disabled persons in dwellings and in the common parts of buildings containing one or more flats. (b) in the common parts of a building containing one or more flats, is referred to as a ‘disabled facilities grant’.”

[5]Mandatory disabled facilities grants, i.e. grants that the local authority is obliged to make, are the subject of section 23(1). Discretionary grants are the subject of section 23(2). The relevant provisions of section 23, and section 24(1) and (3), are as follows:

“23. (1) The purposes for which an application for a disabled facilities grant must be approved, subject to the provisions of this Chapter, are the following— (a) facilitating access by the disabled occupant to and from the dwelling or the building in which the dwelling or, as the case may be, flat is situated; (b) making the dwelling or building safe for the disabled occupant and other persons residing with him; (c) facilitating access by the disabled occupant to a room used or usable as the principal family room; (d) facilitating access by the disabled occupant to, or providing for the disabled occupant, a room used or usable for sleeping; (e) facilitating access by the disabled occupant to, or providing for the disabled occupant, a room in which there is a lavatory, or facilitating the use by the disabled occupant of such a facility; (f) facilitating access by the disabled occupant to, or providing for the disabled occupant, a room in which there is a bath or shower (or both), or facilitating the use by the disabled occupant of such a facility; (g) facilitating access by the disabled occupant to, or providing for the disabled occupant, a room in which there is a washhand basin, or facilitating the use by the disabled occupant of such a facility; (h) facilitating the preparation and cooking of food by the disabled occupant; (i) improving any heating system in the dwelling to meet the needs of the disabled occupant or, if there is no existing heating system in the dwelling or any such system is unsuitable for use by the disabled occupant, providing a heating system suitable to meet his needs; (j) facilitating the use by the disabled occupant of a source of power, light or heat by altering the position of one or more means of access to or control of that source or by providing additional means of control; (k) facilitating access and movement by the disabled occupant around the dwelling in order to enable him to care for a person who is normally resident in the dwelling and is in need of such care; (l) such other purposes as may be specified by order of the Secretary of State. (2) An application for a disabled facilities grant may be approved, subject to the provisions of this Chapter, for the purpose of making the dwelling or building suitable for the accommodation, welfare or employment of the disabled occupant in any other respect. (3) … 24. (1) The local housing authority— (a) shall approve an application for a disabled facilities grant for purposes within section 23(1), and (b) may if they think fit approve an application for a disabled facilities grant not for a purpose within that provision but for the purpose specified in section 23(2), subject to the following provisions. (2) … (3) A local housing authority shall not approve an application for a disabled facilities grant unless they are satisfied— (a) that the relevant works are necessary and appropriate to meet the needs of the disabled occupant, and (b) that it is reasonable and practicable to carry out the relevant works having regard to the age and condition of the dwelling or building. In considering the matters mentioned in paragraph (a) a local housing authority that is not itself a social services authority shall consult the social services authority.” “The relevant works” are the works in respect of which the grant is sought: section 2(2)(a) of the Act. (a) facilitating access by the disabled occupant to and from the dwelling or the building in which the dwelling or, as the case may be, flat is situated; (b) making the dwelling or building safe for the disabled occupant and other persons residing with him; (c) facilitating access by the disabled occupant to a room used or usable as the principal family room; (d) facilitating access by the disabled occupant to, or providing for the disabled occupant, a room used or usable for sleeping; (e) facilitating access by the disabled occupant to, or providing for the disabled occupant, a room in which there is a lavatory, or facilitating the use by the disabled occupant of such a facility; (f) facilitating access by the disabled occupant to, or providing for the disabled occupant, a room in which there is a bath or shower (or both), or facilitating the use by the disabled occupant of such a facility; (g) facilitating access by the disabled occupant to, or providing for the disabled occupant, a room in which there is a washhand basin, or facilitating the use by the disabled occupant of such a facility; (h) facilitating the preparation and cooking of food by the disabled occupant; (i) improving any heating system in the dwelling to meet the needs of the disabled occupant or, if there is no existing heating system in the dwelling or any such system is unsuitable for use by the disabled occupant, providing a heating system suitable to meet his needs; (j) facilitating the use by the disabled occupant of a source of power, light or heat by altering the position of one or more means of access to or control of that source or by providing additional means of control; (k) facilitating access and movement by the disabled occupant around the dwelling in order to enable him to care for a person who is normally resident in the dwelling and is in need of such care; (l) such other purposes as may be specified by order of the Secretary of State. (2) An application for a disabled facilities grant may be approved, subject to the provisions of this Chapter, for the purpose of making the dwelling or building suitable for the accommodation, welfare or employment of the disabled occupant in any other respect. (3) … (a) shall approve an application for a disabled facilities grant for purposes within section 23(1), and (b) may if they think fit approve an application for a disabled facilities grant not for a purpose within that provision but for the purpose specified in section 23(2), subject to the following provisions. (a) that the relevant works are necessary and appropriate to meet the needs of the disabled occupant, and (b) that it is reasonable and practicable to carry out the relevant works having regard to the age and condition of the dwelling or building. In considering the matters mentioned in paragraph (a) a local housing authority that is not itself a social services authority shall consult the social services authority.”

[6]The predecessor of the Department of Transport, the Environment and the Regions gave guidance in relation to section 23(1)(b) in Circular 17/96:

“Making a dwelling or building safe 17. Section 23(1)(b) is a new provision enabling grant to be given for certain works to the dwelling or building to make it safe for the disabled person and other persons residing with him. This may be the provision of lighting where safety is an issue or for adaptations designed to minimise the risk of danger where a disabled person has behavioural problems which cause him to act occasionally or regularly in a boisterous or violent manner damaging the house, himself and perhaps other people. Where such need has been identified, grant is available to carry out appropriate adaptations to eliminate or minimise that risk. 18. For those with hearing difficulties, an enhanced alarm system, which may be required in the dwelling to provide improved safety for the disabled occupant in connection with the use of cooking facilities or works to provide means of escape from fire could also qualify for mandatory grant under subsection (1)(b). 19. It would be inappropriate to be prescriptive on the particular works covered under subsection (b) but they might include the provision of specialised lighting, toughened or shatterproof glass in certain parts of the dwelling to which the disabled person has normal access or the installation of guards around certain facilities such as fires or radiators to prevent the disabled person harming himself. Sometimes reinforcement of floors, walls or ceilings may be needed, as may be cladding of exposed surfaces and corners to prevent self injury. The Community Learning Disability Team, local Challenging Behaviour Resource Team, or RNIB may be able to advise. In these cases it will be for housing and social services authorities between them to decide on the most appropriate adaptations to be provided.”

The facts

[7]Mr B, the Claimant, is a tenant of Pennine Housing 2000, an independent housing organisation which took over ownership and management of the Defendant’s social housing in 2001. The Claimant and his wife havefour children, DB, aged 12 years; SB, aged 8 years; RB, aged 7 years and LB, aged 3 years.

[8]The Defendant Council (“Calderdale”) is the local government authority of the area where the Claimant and his family live.

[9]The Claimant’s oldest son DB suffers from dyspraxia, i.e. impairment of the organisation of movement, and Asperger’s Syndrome, a form of autism. He has complex needs and displays challenging and aggressive behaviour, particularly towards his siblings. It is common ground that he is a disabled person as defined in section 100 of the Act.

[10]The family live in a three-bedroom house in which the two younger children share a bedroom and DB shares a bedroom with his brother SB. DB’s aggressive behaviour towards his siblings is difficult to manage and the problem is exacerbated by the lack of space in the home.

[11]In November 1998 the Claimant and his wife applied to Calderdale for a disabled facilities grant to pay for the conversion of the loft in their council house into an extra bedroom. Owing to the fact that Calderdale did not at that time have an occupational therapist on staff to assess DB’s needs, there was a significant delay before DB could be assessed by Calderdale’s new Occupational Therapist, Amanda Greenhalgh (then Amanda Rosebury), in December 1999.

[12]Mrs Greenhalgh produced her report in January 2000. Her summary of Mr and Mrs B’s reasons for requesting a grant for a loft conversion did not mention a risk of injury to either DB or SB if they shared a bedroom: the closest to such a claim was the statement that “Due to DB’s behavioural problems, both boys cannot be allowed in their bedroom to play at the same time”. Mrs Greenhalgh found that DB had access to the facilities essential for daily living and that, while the family would no doubt benefit from an extra bedroom, the problems they faced were essentially overcrowding and lack of space and not problems that should or could be addressed by way of a disabled facilities grant. Following a letter from the Claimant and his wife, Mrs Greenhalgh visited DB at school and, in a letter dated 12 April 2000, confirmed her earlier decision that a disabled facilities grant was not appropriate. In that letter and in her original report Mrs Greenhalgh recommended alternative options to assist the family to manage DB’s behaviour, including advice and support from Calderdale’s specialist healthcare professionals. At that time the application for a disabled facilities grant was made only under paragraph (d) of section 23(1), and not under paragraph (b). In view of the lack of any suggestion of lack of safety, that refusal to make a grant was unexceptionable.

[13]In a letter dated 24 October 2000, Paul Hodgkinson, a senior practitioner in Calderdale’s Social Services Department, stated that DB’s school had confirmed that they had no significant problems with him.

[14]In their letter to the Director of Social Services dated 3 January 2001, Mr and Mrs B stated:

“Ever since (SB) moved into (DB’s) room in June 1997 we have had problems with (DB) being violent towards him. This violence has increased, becoming much worse over the past 18 months or more. He also hurts his sister, but not always as frequently. He hurts (SB) on a daily basis. Some examples of his behaviour towards (SB) are: - Jumps on him, slams drawers shut whilst (SB’s) hands are in them, trips him up, falls on him deliberately, hits and kicks him, swings him by his arms into bedroom furniture, swings him round by his legs (usually banging his head into furniture), breaks his toys, heated a magnet on his radiator and burnt (SB’s) cheek with it, picks him up and drops him, shoves him into furniture, throws toys at him (including large toys), lifts him into air and slams him onto floor (thinks it’s okay because it’s a wrestling move), knocks him down then jumps on him – and elbows him in chest or stomach (also a wrestling move), stamps hard on his fingers and toes. At night (DB) is usually awake until past midnight and deliberately wakes (SB) up every night. He gets out of bed, stands next to (SB) and yells in his ear!, throws toys at him and on to his bed, pulls his quilt off, hangs down from his top bunk and grabs him, rock his bed as hard as he can whilst in it (he has already broken one set of bunk beds which were bought in June 1997). He frightens (SB) by talking about ghosts/monsters without heads etc! He also wakes (SB) (and the rest of us up) each morning, sometimes as early as 5:00am. (SB) in no longer allowed to play in the room at the same time as (DB) and we feel the need for an extra room to ensure his well being. Our 13 month old son has recently started climbing out of his cot and will also need to share the bedroom with (DB) and (SB), but we fear for his safety – we do not allow him to be left in the same room alone with (DB) even for a moment.”

[15]The letter of 3 January 2001 also contended that Mrs Greenhalgh had misdescribed the Bs’ reasons for requesting an additional bedroom. They said that the main reason for requesting it were:

“1) (DB’s) behavioural problems / violence and to ensure (SB’s) safety. 2) So that (DB) had a room of his own large enough for a single bed at ground level, a wardrobe, drawers and desks. The bed at ground level is necessary as he often falls from his top bunk and has difficulty using the bunk bed ladder because of his lack of spatial awareness. NB. It would also be dangerous for (SB) to use the top bunk as he suffers from night terrors (a sleep disorder).”

However, the letter again referred to the grant being required for the purpose of “providing the disabled occupant a room used or usable for sleeping”, and, despite the fact that the Bs’ had considered the provisions of section 23(1), did not refer to paragraph (b).

[16]Following further correspondence with DB’s parents, Kitty Ferris, the Council’s Head of Children’s Services, wrote to Mr and Mrs B on 19 March 2001 confirming the Council’s view that DB did not meet the criteria for a disabled facilities grant as he was independently mobile and able to access all areas of his home. This was unsurprising given the omission of any reference by the Bs’ to paragraph (b) of section 23(1).

[17]The Claimant and his wife made a formal complaint in response to this decision and subsequently referred the matter to the Local Government Ombudsman. This resulted in further exchanges with Calderdale and an offer by the Council to commission a report from an independent occupational therapist. Ms C M Johnson was selected by the parents from a choice of three occupational therapists, and she produced a report on 9 January 2002.

[18]Ms Johnson described the presenting problem as the management of DB’s problems, especially with regard to the other children. He did not need much sleep. He would wake early in the morning, and would disturb, initially, SB and then the rest of the house. She stated:

“(DB) will keep (SB) awake by prodding, hitting and shouting in his ears. At present, the family are attempting to manage this by allowing (SB) to fall asleep in his parents’ bed and then carrying him through to his own bed after (DB) has fallen asleep. In the early hours (SB) has been encouraged to go downstairs away from (DB). (SB) is now being seen by GP for night terrors and has developed Eczema. There may be some question about being these being stress related. … (DB) also likes to be on his own and prefers his own space. … If (DB’s) ‘collections’, routines or ability to be alone is disturbed he will self-harm. This is usually by hitting himself with his fist or banging his head on a wall. (DB) appears to have little awareness of action / consequence and does not seem to be able to understand the effect his actions have on others either physically or, more importantly, emotionally. He seems unsure how to react to situations and often this will be inappropriate.”

[19]Under the heading “Conclusion”, Ms Johnson stated:

“To enable the family to manage (DB’s) needs and those of their other children (DB) does need to have his own space where he can feel safe and be safe. (DB) having a bedroom of his own would achieve this. (DB) would be able to use this room when he needed and would alleviate some of the behaviour problems that are now encountered. (DB) needs to be able to have this space so that the characteristics of Aspergers Syndrome can be managed more effectively. This would be beneficial for the whole family unit and would help to prevent breakdown of care. … This request is not an overcrowding issue as there would be no problem with the family occupying this house if (DB) did not have Aspergers Syndrome. The family would put all three boys in one bedroom and their daughter in another if that were possible.”

[20]Ms Johnson finally concluded that the family’s request for a grant did not fall within Calderdale’s staff guidance note “Provision of adaptations for people with disability”. That document is not in evidence, and I do not know whether it referred to the purpose set out in paragraph (b) of section 23(1) of the Act. It would, of course, be surprising if it did not.

[21]Calderdale’s Chief Executive, Paul Sheehan, wrote to the Local Government Ombudsman on 6 March 2002, explaining the Council’s decision that there was no legal obligation to provide a mandatory disabled facilities grant to convert the family’s loft into an extra bedroom. His letter is the decision letter that is the object of this claim for judicial review. While agreeing with the independent occupational therapist’s conclusion that an additional bedroom would be desirable for the family, the letter set out the Council’s view that the case did not fall within the legislative criteria governing mandatory disabled facilities grants.

(b) , he stated that the issues to be considered were:

“a) Is (DB) or (are) other occupants of the house unsafe due to the lack of an additional bedroom? b) Would provision of an additional bedroom make them safe?”

Mr Sheehan accepted that an additional bedroom would be helpful to the family, but disputed whether this fell within the legislation. He stated:

“There are a number of factors to consider having regard to the independent Occupational Therapist’s assessment. (i) (DB) disturbs not only his brother (SB) who is in the same bedroom but indeed the rest of the household who already have other bedrooms. (ii) (DB) has symptoms associated with Aspergers Syndrome, a variety of autism. It is proposed that he has little understanding of his actions or their consequences. This would appear to suggest that his problems are much more profound than his sleeping environment per se. (iii) The family make reference to difficulties at school again suggesting wide ranging difficulties in a variety of environments. (iv) (DB) has recently reportedly attacked his brother outside the home causing injuries requiring hospital attention. All of this suggests that there are a complex series of issues connected with (DB) and his behaviour in a variety of environments. This has to be set alongside the requirements to consider what is necessary and appropriate. The current view of the Authority is that provision of extra sleeping room to allow (DB) to have his own room would probably be helpful in managing (DB’s) condition. However the Authority is no currently convinced that this falls into the mandatory category where the Authority is required to undertake grant work. This is because the evidence available primarily relates to (DB’s) general behaviour and condition rather than the physical layout of the accommodation or the number of bedrooms they are in. In addition the evidence for the nature, extent and seriousness of (DB’s) condition is not clear-cut. …”

Mr Sheehan continued: “The Local Authority would maintain that the issues raised by this case are difficult to distinguish from those raised by quite a number of similar cases which would reasonably be defined as overcrowding. Not wishing to appear insensitive it is fact to say that there are many families in the Borough where children share bedrooms a number of which are known to have behavioural issues facing them and where an additional bedroom would no doubt fit the families concerned. …” (i) (DB) disturbs not only his brother (SB) who is in the same bedroom but indeed the rest of the household who already have other bedrooms. (ii) (DB) has symptoms associated with Aspergers Syndrome, a variety of autism. It is proposed that he has little understanding of his actions or their consequences. This would appear to suggest that his problems are much more profound than his sleeping environment per se. (iii) The family make reference to difficulties at school again suggesting wide ranging difficulties in a variety of environments. (iv) (DB) has recently reportedly attacked his brother outside the home causing injuries requiring hospital attention.

[22]Mr Sheehan then discussed the options available, namely for the family to move to larger accommodation, a proposal which the family had rejected, to split the largest bedroom in the existing house into two, which also had been rejected by the family, and a loft conversion or extension to the existing home. Mr Sheehan stated:

“It is the Authority’s view that this is also not an appropriate option because there is no clear case for mandatory grant.”

[23]The letter emphasised that the Authority and its partners were nonetheless committed to working with the family to try and manage DB’s behaviour and that the alternative of moving the family to a larger house ought to be carefully considered by the Claimant and his wife.

[24]Finally, Mr Sheehan made it clear that Calderdale’s resources were such that only mandatory disabled facility grants could be made by it.

[25]The Local Government Ombudsman communicated his decision to the Claimant and his wife by a letter dated 10 April 2002, noting that the matter was one of interpretation of the law and that the Council’s decision was not so unreasonable as to allow the Ombudsman to intervene.

[26]The claim form was filed on 8 July 2002. The relief referred to in paragraph 1 above is sought on the grounds that in making its decision, Calderdale took into account a number of irrelevant considerations, namely: i) That the grant was required to facilitate access by the disabled occupant, namely DB to, or providing for the disabled occupant, a room used or usable for sleeping. ii) That DB’s problems are much more profound than his sleeping environment. iii) That DB has difficulties at school. iv) That DB has recently attacked his brother outside the home causing injuries requiring hospital attention. v) That in 1999, 2¼ years before the Respondents’ decision letter the Occupational Therapist had concluded there was no good case recommending a grant. vi) That in January 2000, 2 years before the Respondents’ decision, the Community Nurse noted an improvement in regard to DB’s attitude and behaviour at school and outside the family environment. In addition, it is alleged: vii) that Calderdale failed to take into account a relevant matter, namely the guidance given in Circular 17/96 in relation to paragraph (b) of section 23(1); and viii) “that in all the circumstances the decision was Wednesbury unreasonable”.

[27]In his witness statement in support of his claim, the Claimant commented on the letter of 6 March 2002. He said:

“(The letter relies) heavily on the fact that interpretation by other agencies has tended to indicate that (DB’s) behaviour is controllable. What this in practice means in my experience is that, because he has high functioning autistic spectrum disorder, (DB) is able to sustain socially acceptable behaviour in many aspects of his life for some period of time. The fact of the matter, however, is that (DB’s) difficulties have led to a great deal of self injury and injury to his siblings. As parents my wife and I have had many sleepless nights either trying to supervise (DB) or placate and calm our other children on account of (DB’s) difficulties.”

[28]There is also in evidence an undated psychological report of Dr Shripati Upadhyaya, a Consultant Clinical Psychologist. It refers to the major concerns relating to DB as follows:

“Self injurious – punches himself and bangs head on wall /doors when upset or angry, bites himself when he is reading (says it feels comfortable), scratches his arms and or his cheeks when he is excited ‘because it feels nice’! Violent towards his siblings.”

Dr Upadhyaya confirmed that DB was suffering from Autism / Aspergers Syndrome. His recommendations made no mention of his need for his own bedroom. Violent towards his siblings.”

[29]Mark Thompson, the Head of Calderdale’s Housing Service, enlarged on its reasons for refusing a grant in his witness statement. In general, his reasons echo those set out in the letter of 6 March 2002. Paragraphs 6 and 7 of his witness statement are as follows:

“6. … The view of the Authority is that provision of an extra sleeping room to allow (DB) to have his own room might be helpful in managing (DB’s) condition. However, the Authority is convinced that (DB’s) case does not fall into the mandatory category where the Authority is required to undertake grant work. This is because, on the facts, while there may be safety issues connected with (DB’s) behaviour, evidence is contradictory and there is no compelling evidence that resolving this issue is fundamentally linked to the provision of an additional bedroom. In fact all the evidence suggests that (DB) has a general behaviour problem which is not particularly related to the physical layout of his accommodation or the number of bedrooms therein. 7. In addition, the evidence for the nature, extent and seriousness of (DB’s) condition is not clear-cut. All of the initial reports at the end of 1999 and in the spring of 2000 indicated that (DB’s) condition was less serious than is now currently suggested by the B family. School reports and school visits at the time of the family’s initial application in the winter of 1999 / 2000 suggested that (DB) was making good progress at school and that his achievement was average for his age. The Occupational Therapist’s visit of December 1999 concluded that there was no good case for recommending a Disabled Facilities Grant and in the same month he was discharged by the Senior Paediatric Occupational Therapist on account of the good progress he was making across a range of skills. A report from a community nurse employed by the Intensive Support Team in January 2000 also noted very positive findings with regard to (DB’s) attitude and behaviour at school and outside the family environment. However, the same report raised issues connected with the need for increased positive interaction at home particularly with the then arrival of a new baby.”

He concluded:

“The Authority (Calderdale) is very clear that there is no case for a mandatory Disabled Facility Grant in this instance.”

[30]Mr Thompson also referred to the requirement of section 24(3) of the Act that Calderdale be satisfied that the relevant works are necessary and appropriate to meet the needs of the disabled occupant. However, he did not explain what if any different considerations had been taken into account on that question as opposed to the prior question of the application of section 23(1)(b): he would seem to have dealt with both questions together. The issue under section 24(3) was also referred to in the witness statement of Mrs Greenhalgh. She stated:

“4. Mr and Mrs (B) also told me that (DB) was aggressive towards his brother and was unable to share a bedroom. They said that his behaviour was such that he is prevented from playing in the same room as his siblings. Mr and Mrs (B) said (DB) had no safety awareness and was unable to understand the consequences of his actions. On a visit to school, staff did not report that (DB) displayed aggressive behaviour. Indeed they said that he was a good student who occasionally shouted out silly things to gain attention. He was observed in the classroom and play ground by me, interacting and playing appropriately with his peers. This indicates to me, that (DB) has the ability to control his behaviour and that he has the ability to learn to be safe, in the right environment, with the right guidance and he does understand the consequences of his actions. … 6. The Authority also needs to be satisfied that the work is necessary and appropriate. Whilst providing the family with an extra bedroom would undoubtedly ease the problem of lack of space, it would not resolve (DB’s) behavioural problems; Mrs (B) told me that (DB) is aggressive towards other family members, in areas other than the bedroom. 7. The evidence about the nature and severity of (DB’s) disability is contradictory. On initial assessment, advice was sought from the Paediatric Occupational Therapist who treated (DB) for Dyspraxia. She discharged him from their services as standardised tests showed he had made significant improvements and was functioning within an acceptable level. Advice was also sought from The Intensive Support Teams Nurse who felt that more positive interaction at home and advice from the Child And Family Mental Health Team would be a more appropriate route in dealing with him, rather than an adaptation, which would not address the route [sic] cause of (DB’s) problems. 8. Challenging behaviour is not necessarily always associated with Aspergers and Autism. It can often be a display of frustration or a method of communication.”

Discussion

[31]The essential questions in this case are whether Calderdale lawfully determined that the proposed works are outwith section 23(1)(b) of the Act, and, if it did not, whether it lawfully concluded, pursuant to section 24(3), that it was not satisfied that the works are not necessary or appropriate for the disabled occupant.

[32]The issues arising under section 24(3) will normally differ from those arising under section 23 of the Act. Section 23 is concerned with the purposes of the disabled facilities grant, and thus of the works to which it relates; section 24(3) with whether the proposed works are necessary and appropriate. In the case of a mandatory disabled facilities grant, the application of section 24(3) arises only if the grant would otherwise be for one of the section 23(1) purposes. To take a straightforward example, if a physically disabled person is unable to negotiate stairs, and therefore unable to get to or from his first floor bedroom without assistance, and he applies for a grant for the installation of a lift to enable him to get to and from his bedroom, paragraph (d) of section 23(1) applies. If, however, the relevant works involve the installation at great expense of a lift shaft and lift cage, and the required access can be provided at significantly less expense by installing a stair lift, the local authority may lawfully conclude that it is not satisfied that the more expensive works are necessary and appropriate to meet the needs of the disabled person. Similarly, if the local authority concludes that the proposed works will not be effective to provide the necessary access (for example, because one or more stairs have to be negotiated in order to reach the lift cage), it will not be satisfied that the works are appropriate. Again, safety measures that go beyond the necessary and appropriate will be liable to fail the test under section 24(3) although their purpose falls within section 23(1)(b) of the Act.

[33]In many cases it is important to distinguish the issues arising under section 23(1) from those falling for consideration under section 24(3). If that is not done, there is a risk that a mandatory disabled facilities grant for the purposes specified in section 23(1) will in effect be treated by the local authority as discretionary.

[34]There are, nonetheless, circumstances in which the same considerations will be relevant both to the question whether the proposed works are within section 23(1)(b) and the issues to be considered under section 24(3). Where the local authority determines that the premises are not unsafe for the disabled person and those residing with him, or that the proposed works will not make the premises safe, those matters are relevant to both the question whether the purpose of the works is within section 23(1)(b) and to the question whether the works are necessary or appropriate.

[35]Paragraph (b) of section 23(1) differs from the other paragraphs of that subsection (leaving paragraph (l) aside) in two important respects. First, paragraph (b) is the only paragraph that refers to the interests of persons other than the disabled occupant. Secondly, its terms are absolute rather than relative. All the other paragraphs refer to “facilitating” (i.e., making easier) or improving (making better). Paragraph (b), on the other hand, requires the purpose of the relevant works to make the premises not “safer” but “safe”. It would seem to follow that works the purpose of which is to remove one source of risk to a disabled occupant of a dwelling will not fall within paragraph (b) if, after execution of the works, it will still be unsafe for him or her. This approach cannot, however, be taken too far, since safety itself is to some extent a relative concept: nothing is entirely free of risk.

[36]I turn to the requirement that the purpose of the works must be to make the premises safe for “the disabled occupant and other persons residing with him”. Mr Facenna submitted that it is not sufficient that the purpose of the relevant works is to make the premises safe for both the disabled person and other persons living with him; he submitted that paragraph (b) is restricted to works the primary purpose of which is to make a dwelling safe for the disabled person. According to his skeleton argument:

“Although … adaptations may improve the safety of those residing with the disabled person because such people are protected from the possible effects of the disabled person’s aggressive behaviour, it cannot have been Parliament’s intention that s. 23(1)(b) should oblige a local authority to give a disabled facilities grant for works aimed primarily at protecting someone other than the disabled person.”

[37]However, I did not understand Mr Facenna to submit that section 23(1)(b) does not apply where the immediate and direct source of danger is the disabled person (who may injure himself as well as other persons) rather than the condition or lack of facilities of the dwelling. It would perhaps not be easy to draw a line between cases such as the present, if lack of safety and its remedy were established, and the example given in paragraph 17 of Circular 17/96 of adaptations designed for a person with behavioural problems, which is clearly within paragraph (b).

[38]I accept Mr Facenna’s submission to some extent. An over-technical interpretation of paragraph (b) leads to absurd conclusions. For example, if a dwelling is safe for those residing with the disabled person, but not for him, it cannot be a sensible interpretation to say that paragraph (b) does not apply because it is not the purpose of the works to make the dwelling safe for both the disabled person and those residing with him. In such a case, it is sufficient that the purpose of the works is to make the dwelling safe for the disabled person; if the works are carried out, the dwelling will be safe for both him and those residing with him.

[39]I am also prepared to accept that the relevant works must be intended to make the dwelling safe for the disabled person, and that if it is safe for him, and the purpose of the works is only to make the dwelling safe for those residing with him, paragraph (b) does not apply. That construction of section 23(1)(b) is consistent with the definitions in section 1 of the Act, which as has been seen defines a disabled facilities grant as a grant for the provision of facilities for the disabled person, not for those living with him, and with the requirement in section 24(3) that the local authority be satisfied that the relevant works are “necessary and appropriate to meet the needs of the disabled person”. On this basis, for example, where an adequate fire escape is available for the disabled person, a grant to provide an escape for those residing with him would not fall within paragraph (b). The paragraphs of Circular 17/96 set out above are consistent with this approach.

[40]However, I do not discern in the Act a requirement that the principal purpose of the works must be the safety of the disabled person and not that of persons living with him. An enhanced alarm system of the kind referred to in paragraph 18 of Circular 17/96 may minimise the risk of fire resulting from the disabled person’s cooking; the installation of the alarm would nonetheless be within paragraph (b) even if several non-disabled persons were at risk from such a fire (so that in a sense the purpose of the works might be said to be the safety of the non-disabled occupants). If a dwelling is unsafe by reason of the absence of a fire escape, and there are five persons living in it, of whom one is disabled, it seems to me that the provision of a fire escape is within paragraph (b), even though in such a case it may be said that the principal purpose of the work is to make the dwelling safe for the non-disabled residents. In both of these cases the relevant works would meet the needs of the disabled person, so potentially satisfying the requirement of section 24(3). The works envisaged in paragraph (i) of section 23(1) are obviously works of a kind that may benefit those residing with the disabled person as well as the disabled person himself.

[41]Nonetheless, in my judgment Mr Thompson considered the correct questions when he assessed the Claimant’s application, namely whether DB and the other occupants of the house were unsafe and whether the provision of an additional bedroom would make the house safe. It is regrettable that neither his witness statement nor the decision letter gives a simple and straightforward answer to either question. However, I think that the substance of the decision is clear. Mr Thompson accepted that the provision of a separate bedroom would be beneficial, and would alleviate DB’s admitted behavioural problems, but he did not accept that the lack of a separate bedroom for DB meant that the house was unsafe or that its provision would make the house safe, for the reasons he gave in paragraphs 5 and 6 of his witness statement, which echo the decision letter of 6 March 2002. The letter, like the witness statement, gave substantial reasons for Calderdale’s assessment, and, subject to the matters referred to below, the assessment is one that was open to the authority on the information before it. The decision is supported by Mrs Greenhalgh’s evidence that the provision of an additional bedroom would not resolve DB’s behavioural problems: he is aggressive to other family members in areas other than the bedroom. On this basis, even if one assumes that the provision of an additional bedroom would make the house safer for DB and his brother SB, it would not make the house safe.

[42]As mentioned above, the Claim Form contends that Calderdale failed to take into account a relevant matter, namely the guidance given in Circular 17/96. However, the Circular is referred to in Appendix 2 to the decision letter dated 6 March 2002, and Mr Thompson states in his witness statement that he had it before him when he assessed the Bs’ application. It is not obvious from the letter of 6 March 2002 that the decision was inconsistent with anything in the Circular. The Claimant has not established the facts required for relief under this head.

[43]With regard to the first of the considerations that the Claimant alleges were wrongfully taken into account, the first is in effect the possible application of Paragraph (d) of section 23(1). Paragraph (d) had been referred to by the Bs’ in their application for a grant. It had to be considered by Calderdale. Neither the decision letter nor Mr Thompson’s witness statement suggests that the application under paragraph (b) was rejected because there was or had been an application under paragraph (d), or because paragraph (d) might be said to apply. This ground for judicial review has not been made out.

[44]Turning to the matters referred to in sub-paragraphs (ii), (iii) and (iv) of paragraph 26 above, in my judgment each of those was relevant to the assessment of the questions whether the house was unsafe for DB or for SB by reason of the absence of the additional bedroom and, if so, whether the provision of that bedroom would make the house safe for them. For example, the fact that DB had attacked SB outside their home indicated that the danger to SB was not confined to their shared bedroom. If so, if an additional bedroom were provided, DB might attack SB in another part of the house. If so, the provision of the bedroom would not make the house safe for SB.

[45]With regard to the matters referred to in paragraph 26(v) and (vi), it was appropriate for Calderdale to review DB’s history and the previous findings of the occupational therapist, provided that matters were given a weight appropriate to their age. The evidence does not justify a finding that the weight given to past findings and events was so excessive as to be perverse. Furthermore, I do not find in the Bs’ application a suggestion that there had been such a recent significant deterioration in DB’s behaviour that past experience was irrelevant.

[46]Accordingly, I do not find that Calderdale’s decision is flawed by reason of their having taken into account matters that were, as a matter of law or logic, irrelevant.

[47]Lastly, as mentioned above, substantial reasons were given for the decision. It was not so unreasonable as to be perverse.

[48]It follows that the decision as to the inapplicability of paragraph (b) of section 23(1) is not liable to be set aside.

[49]If I had come to a different decision on that question, I should have had to consider Calderdale’s decision under section 24(3) that it was not satisfied that the relevant works are necessary and appropriate. The letter of 6 March 2002 states that Calderdale’s view is that the works are not appropriate “because there is no clear case for a mandatory grant”. This explanation is not entirely clear. The most benevolent interpretation (from Calderdale’s point of view) is that Calderdale was not satisfied that the relevant works were necessary or appropriate because it was not satisfied that the house was unsafe for DB and his siblings, or was not satisfied that the proposed works would make the house safe for them. Mr Thompson’s witness statement equally lacks clarity on this issue. If this is what was meant, it seems to me that their decision under section 24(3) could not be set aside.

[50]Mr Facenna submitted that the proposed works were not such that Calderdale could lawfully be satisfied were necessary and appropriate to meet DB’s needs, as required by section 24(3), if the person whose safety was in issue was SB. I do not accept this submission. Firstly, If Calderdale had been satisfied that by reason of the condition of their house DB was at significant risk of self harm, and that the works to the house would remove that risk, that would suffice as a matter of fact. Secondly, I should be prepared to include in the needs of the disabled person the need not to cause unintended injury to his siblings.

[51]I cannot but have the greatest sympathy with Mr and Mrs B and their family. However, the grounds for making a mandatory grant are defined and in the present connection narrow. In the result, the application for judicial review must be dismissed.52. MR STANLEY BURNTON: My judgment has been distributed in draft. Copies of the judgment as approved for handing down are available. For the reasons set out in it, I have decided that the claim ought to be dismissed.

53. MISS MISKIN: My Lord, I have an application for permission to appeal. I hope I can express it shortly. It really turns on your Lordship's interpretation of the phrase "making the house safe". Your Lordship has found that "safe" does not mean "safer". Your Lordship has also gone on to find that the local authority took into account the Code of Guidance because it was appended to their decision letter. My Lord, what I would say quite simply is this: if one looks at the Code of Guidance it is quite obvious that what it envisages is adaptations which assist in making safe those with behavioural disorders, and it would be a strange situation, in my submission, if these adaptations could only be made, or grants for them could only be granted, if it was completely going to resolve that particular person's problems which is the interpretation that your Lordship has put on it.

54. MR STANLEY BURNTON: I seem to remember I said "safe" is a relative concept.

55. MISS MISKIN: Yes, but your Lordship has expressed it as saying that there is always some element of risk, but safe does not mean safer. My Lord, if I can shortly point out --

56. MR STANLEY BURNTON: You do not have to. I remember roughly what I said. Those are the two points are they?

57. MISS MISKIN: There is just this point which I would like to make which is this: the Code of Guidance refers to minimising and, therefore, that would seem to be inconsistent with your Lordship's finding that the local authority had actually taken it into account because of course they are anxious to point out that the adaptation would not resolve the problems and of course that is not what the Code says. My Lord, that is all I have to say.

58. MR FACENNA: My Lord, it is entirely a matter for your Lordship. In our view, there is no really point of law here. Your Lordship has found that the criteria in the statue are narrow and defined, and that as a matter of fact this application does not fall within them. As to my learned friend's second point on the Code of Guidance, your Lordship has also found as a matter of fact that the Council did refer to the ministerial guidance and was not simply just appended, it was actually referred to in the letter. So in our submission, the application should be rejected. There is no application as to costs.

59. MR STANLEY BURNTON: It seems to me that this case does raise issues as to the construction of the Act and I shall give leave. Is the claimant legally assisted?

60. MISS MISKIN: Yes, I am, my Lord. I gather there is no application for costs so would your Lordship please order a detailed assessment?

61. MR STANLEY BURNTON: So be it. Thank you.