Ireneschild, R (on the application of) v London Borough of Lambeth [2006] EWHC 2354 (Admin)

Case No CO/6469/2006[2006] EWHC 2354 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 8th September 2006
Strand
London WC2
B E F O R E:
MR JUSTICE LLOYD JONES
Between
THE QUEEN ON THE APPLICATION OF IRENESCHILDClaimant-v-
Between
LONDON BOROUGH OF LAMBETHDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MS K MARKUS [MR J BURTON for JUDGMENT ONLY](instructed by Bindmans) appeared on behalf of the CLAIMANTMR JON HOLBROOK (instructed by Sternberg Reed) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE LLOYD JONES: This is an application for permission to apply for judicial review by Ms Linda Ireneschild who seeks to challenge the legality of a number of decisions of the defendant authority, the London Borough of Lambeth. The claim form was filed on 3rd August 2006, an acknowledgment service was filed on 21st August and on 25th August Collins J gave leave to amend the claim form to take account of certain developments which had occurred since the commencement of the proceedings, in particular the production by the defendant authority of a community care assessment which was served with the acknowledgment of service. Collins J directed a hearing within 14 days at which the application for permission, and, if permission were granted, the substantive application could be heard together. The decisions challenged, as set out in the amended claim form, are, first, the ongoing failure of the defendant to provide services to meet the claimant's needs in accordance with her present assessment; secondly, the ongoing failure of the defendant to complete a lawful assessment as to the claimant's accommodation and care needs; and, thirdly, the ongoing failure of the defendant to make arrangement for the provision of suitable accommodation for the claimant pending the completion of an assessment of her accommodation needs pursuant to section 47(5) of the National Health Service and Community Care Act 1990.[2]The claimant, Ms Ireneschild, had in 1992 the great misfortune to suffer an accident, as a result of which she suffered serious back and neck injuries. As a result she lost the ability to stand and to move about unsupported. I am told that she is more or less in constant pain. She uses a wheelchair when out of doors. It is common ground that since September 2005 she has in an addition been suffering from urinary and faecal incontinence.[3]Since the accident she has continued to occupy a flat at 78B Hubert Grove where she lived before the accident. She lives there with her sons, who are now aged 24 and 19, who are her primary carers. The defendant is the landlord of the flat as well as being the public body with responsibility under section 47 of the National Health Service and Community Care Act 1990 ("the 1990 Act") for arranging the provision of community care services. The flat is a two bedroomed flat on split levels. It was created through conversion of a large Victorian house. It is accessed by steps leading from the street. Within the flat there are two further internal staircases, one of four steps and one of nine steps.[4]It is the claimant's case that she is unable to manage to move safely around the flat because of its arrangement on different levels. She says that she has good days and bad. On good days she is able to use her arms to help her move around by holding onto furniture. She says that she has suffered falls. She says that more often her legs buckle but she is able to catch herself with her arms and prevent a fall. She is clearly adept. She is a lady of considerable spirit and she has managed since the accident in this accommodation.[5]The claimant says that a particular concern is that if she does fall there would be very serious consequences. Further injury might render her wholly immobile. She is at the moment dependent on the strength of her upper body to remain independent. It is said on behalf of the claimant that on bad days, and when she is weak or in more acute pain, she is dependent on her sons to help her and to move her: sometimes this involves lifting and dragging, sometimes semi-lifting. The problem of incontinence has given rise, it is said, to further anxiety. The need to move quickly to the lavatory in the flat has created the anxiety of the risk of further falls as a result.[6]In October 1999 an assessment was completed by the defendant authority pursuant to section 47 of the 1990 Act and a care plan was produced. That noted that there were concerns about the accommodation and that contact should be made with the housing department.[7]In 2003 the defendant's officer, Mr David Rogerson, an occupational therapy expert, carried out an assessment. He made a recommendation for rehousing.[8]Later, solicitors acting on behalf of the claimant asked for a community care assessment to be produced. That assessment was produced in February of 2005. There is a dispute between the parties as to the effect of that assessment. Under the heading "home environment, choice, control and finance" there appears a subheading "risk" and the following passage appears:
"The risk to Linda's independence is substantial. She stated that the lack of appropriate accommodation is putting a big strain on her relationship with her sons. Linda has also stated that this property was a family home that was divided into two maisonettes. Might it be suggested that a way forward would be to take the relevant steps to have the partition removed and the property to be returned into a family home. By undertaking this, it would meet Linda's housing need as the downstairs property has all amenities on one level and enable her sons to have the upper part of the property which will enable them to continue in their caring roles. In the event that the above does not occur, Linda's current care arrangement is likely to break down and she will require extensive package due to high care need. However, it is recognised that this is Housing's decision."
[9]The assessment of her individual needs concluded that the aggregate risk to her independence fell between the moderate and low categories of the eligibility criteria employed by the defendant authority for fair access to care services. However, it noted that these criteria could change to substantial in the future should her informal care arrangements break down.[10]The report also stated (page 291) that the claimant had stated that the lack of appropriate accommodation was putting a big strain on the relationship with her sons, and the statement was made by the author of that assessment that her needs could be substantial if her sons are no longer supportive to her. It is said on behalf of the defendant authority that the concerns which were addressed in that assessment were concerns as to the situation which would arise if the sons were no longer caring for the claimant. No care plan was produced following that assessment and that is said by the claimant to be a breach of duty.[11]In March 2006 a housing needs report was commissioned on behalf of the claimant. The report was produced by Ms Sharmin Campbell. Ms Campbell concluded that Ms Ireneschild is not able to stand, let alone walk, unsupported and that she has difficulty with her mobility. She also concluded that these needs are compounded when the claimant is ill or tired, that her needs then increase and she requires assistance with her mobility to get around in her flat. It records that Ms Ireneschild had told the author that her sons have had to carry her up the stairs if she had been out for the night and was subsequently too tired to manage the stairs herself. Furthermore, her sons had to help her to get to the bathroom when she was ill. Ms Campbell concluded that access to the flat presented Ms Ireneschild with great difficulty because of her mobility problem and this was more of an issue if she was tired and then she had to rely on her sons to carry her.[12]Ms Campbell also drew attention to the implications of the Manual Handling Regulations 1992 and concluded that the claimant's sons were placing themselves at risk from injury every time they carried her. It was the view of Ms Campbell that this was not permissible under the Manual Handling Regulations.[13]There was also submitted to the defendant authority at about this time, April 2006, a letter from Ms Ireneschild's doctor, dated 26th January 2006. Referring to the nature of her disabilities, the doctor said that her gait was extremely unsteady and she was at high risk of suffering from falls. Referring to her medical condition, and in particular her incontinence problem, the doctor said:
"... it would be envisaged that for the foreseeable future Ms Ireneschild needs to be in a situation in her accommodation which allows her to access the bathroom at short notice, taking into consideration her relatively poor mobility and unsteady gait."
[14]As far as the prognosis was concerned, the doctor considered that:
"Her gait will continue to be unsteady and she will persist in having a high risk of falls which may increase as time progresses."
[15]The doctor strongly recommended that she:
"... is placed in a ground floor flat with no stairs, that enables her to mobilise safely and minimise her risk of severe injury as a result of her previous and ongoing medical problems."
[16]On 4th April 2006, having received this letter and the report of Ms Campbell, the defendant authority agreed to revise its assessment in the light of those matters or to provide reasons by 18th April why it declined to do so. There was in fact no reassessment produced thereafter, and, accordingly, the claimant commenced these proceedings on 3rd August 2006.[17]The defendant authority then produced a further community care assessment. The precise date of that assessment is not clear, however it does appear that it was produced at some point during August 2006. I shall refer to it as the August 2006 assessment. Mr Holbrook, on behalf of the defendant authority, in the acknowledgment of service has very fairly and candidly accepted that that assessment was produced in an attempt to head off this judicial review. I shall have to refer to some parts of that assessment in detail later. At this point I simply refer to the fact that it records that:
"Ideally Ms Ireneschild would be housed in accommodation on either the ground or first floor which could be accessed without steps or stairs and with no internal stairs. However, there is considerable demand within Lambeth for social housing of this description and it may be some time before an offer of such housing could be made by the Council."
[18]The risk in relation to physical well-being, psychological well-being, and weekly activities and social support was assessed as medium. The risk in relation to activities of daily living, family and carers and risk summary was assessed as substantial. It concluded that Ms Ireneschild is eligible for services under Lambeth's Social Services Fair Access to to Care Services eligibility criteria.[19]A care plan was produced. It bears the date 9th June 2006. That care plan records:
"Ms Ireneschild has a need for modest support in her home in order to maintain her independence and ability to function well in her current accommodation. If her circumstances changed, such as could happen if her sons ceased providing so much support, then Ms Ireneschild’s care package would be reviewed and her support could be increased."
[20]The assessor who produced the community care assessment did not find any eligible need arising out of the present accommodation. The community care assessment does not refer to the matter in terms, but it is implicit that there was no finding of an eligible need arising out of the accommodation. Both parties before me accept that that is the case.[21]Thereafter the defendant, at the request of the claimant, made further disclosure of a number of documents, including an assessment which had been prepared by Mr Rogerson, the defendant's occupational therapy expert, to which I shall return in a moment, and the drafts of both the community care assessment and the care plan.[22]On 25th August 2006 Collins J made the order to which I have already referred. The claimant's counsel, Ms Markus, in her skeleton has helpfully summarised her submissions as to the issues which now arise in these proceedings under the following headings.(1) Whether the latest care community assessment, completed around July 2006, is lawful.(2) If not, whether the defendant owes a duty under section 21 of the National Assistance Act 1948 to the claimant because either (i) the occupational therapist assessed the claimant as having eligible needs for accommodation in June 2006, or (ii) the previous assessment of February 2005 assessed a need for suitable accommodation, or (iii) it is not open to the defendant lawfully to conclude otherwise.(3) Whether, if there is no lawful assessment, the defendant must complete one.(4) If a duty is owed under section 21 of the National Assistance Act, what order the court should make as to the accommodation to be provided to satisfy that duty, and, in particular, whether it should order the defendant to make available to the claimant and her sons the whole of 78 Hubert Grove.(5) Whether, if there is a continuing duty to assess, the defendant is in the interim in breach of its duty to consider providing emergency services.(6) Whether the defendant's decision not to make direct payments in respect of the care provided by the claimant's sons is lawful. That summary of issues is set out at paragraph 1 of Ms Markus's skeleton.[23]Against this background the matter has come before me. I considered that the most appropriate use of the available time was to hear the parties on the question of the legality of the new assessment and to decide the question of permission, and, if permission were granted, the substantive application in relation to this matter. The claimant accepts that if she fails in establishing the illegality of the new assessment that would be an end to these proceedings. If, on the other hand, the claimant succeeds on this first part of the claim as amended it will be necessary for me to give further directions as to how the matter should then proceed.[24]The statutory duty to assess the needs of those who appear to be in need of community care services and to provide services in accordance with those needs in set out in section 47 of the National Health Service and Community Care Act 1990:
"(1) Subject to subsections (5) and (6) below, where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority -- (a) shall carry out an assessment of his needs for those services; and. (b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services. (2) If at any time during the assessment of the needs of any person under subsection (1)(a) above it appears to a local authority that he is a disabled person, the authority -- (a) shall proceed to make such a decision as to the services he requires as is mentioned in section 4 of the Disabled Persons (Services, Consultation and representation) Act 1986 without his requesting them to do so under that section; and (b) shall inform him that they will be doing so and of his rights under that Act. ... (5) Nothing in this section shall prevent a local authority from temporarily providing or arranging for the provision of community care services for any person without carrying out a prior assessment of his needs in accordance with the preceding provisions of this section if, in the opinion of the authority, the condition of that person is such that he requires those services as a matter of urgency."
[25]By virtue of section 7 of the Local Authority and Social Services Act 1970 a local authority also has a duty in the exercise of its social services functions under those provisions to act under the general guidance of the Secretary of State. The relevant guidance under the 1990 Act includes fair access to care services, guidance on eligibility criteria for adult social care, ("FACS"), to which I shall refer in more detail presently.[26]The FACS guidance requires social service authorities to adopt criteria for the eligibility for social services provision in accordance with the framework provided in the guidance and the criteria adopted by the defendant authority provides that needs assessed as being critical or substantial ones are eligible for funding.[27]I should also refer to section 21 of the National Assistance Act 1948. Community care services include duties under section 21 which provides for the defendant's statutory responsibility for housing disabled persons. "(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing --(a) residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them; and(b) ... (2) In making any such arrangements a local authority shall have regard to the welfare of all persons for whom accommodation is provided, and in particular to the need for providing accommodation of different descriptions suited to different descriptions of such persons as are mentioned in the last foregoing subsection."[28]The decision which is challenged in this case is that contained in the community care assessment. It is accepted by both parties that it is implicit that the assessor has not found any eligible need arising out of the current accommodation. The question which arises for consideration at this stage of the proceedings is whether the assessment was itself lawful.[29]In considering this question I remind myself of the judgment of Hale LJ, as she then was, in R (Wahid) v LB TowerHamlets [2002] EWCA Civ 287, [2003] HLR 13. At paragraph 30 of that judgment Hale LJ referred to the fact that under section 21(1)(a) of the National Assistance Act 1948 local social services authorities have a duty to make arrangements for providing residential accommodation where three inter-related conditions are fulfilled:(1) the person is in need of care and attention;(2) that need arises by reason of age, illness, disability, or any other circumstances; and(3) that care and attention is not available to him otherwise than by the provision of residential accommodation under this particular power. The point is emphasised by Hale LJ that it is for the local social services authority to assess whether or not these conditions are fulfilled, and, if so, how the need is to be met. That function is, however, subject to the scrutiny of the court on the ordinary principles of judicial review. That is the basis of the challenge which is made in this application.[30]The preliminary point raised by Mr Holbrook on behalf of the defendant authority is that there exists a complaints procedure in relation to the content of the community care assessment and the care plan. In those circumstances he says that it was inappropriate that the application for judicial review should proceed, it being well established that applications for judicial review are to be a last resort.[31]I am satisfied that it would not be appropriate to stay this application in order to permit a reference to the complaints procedure for two reasons. First, the application is made essentially on the basis of points of public law which could not satisfactorily be addressed in the context of such a complaints procedure and which may be more satisfactorily addressed in a judicial review application. Secondly, the question of the legality of this assessment has arisen in the context of a judicial review, which had already been commenced, relating to a course of conduct on the part the defendant authority over a substantial period, and an assessment was produced only after the claim had been brought. In those circumstances I consider it would be inappropriate to require the claimant to have resort to the complaints procedure with the further delays that that would entail.[32]I turn, therefore, to consider the public law grounds on which the claimant seeks to challenge the community care assessment of August 2006. I consider these in a different order from that in which they were addressed in the course of submissions. 1. The defendant failed to take into account relevant considerations.[33]Following the service of the acknowledgment of service and the enclosed community care assessment of August 2006, the claimant's solicitor sought disclosure of further documents. One of the documents which was then disclosed was the occupational therapy specialist assessment which had been prepared by the defendant's officer, Mr David Rogerson, on 1st June 2006. In order to prepare that assessment Mr Rogerson had visited the claimant, had interviewed her at her flat and had observed her mobility. Mr Rogerson refers in his assessment to the report which had been prepared by the claimant's occupational therapy expert, Ms Campbell, dated 7th March 2006, which, as I have indicated, had already been supplied to the defendant.[34]In his assessment Mr Rogerson under the heading "personal care and domestic routines: climbing stairs", said this:
"In my original report dated 27th January 2003 I was given to understand that stairs were managed using bilateral mopstick rails, a lot of the strain was taken via upper limbs and that the client was at risk climbing stairs. I note from the independent report by Ms Sharmin Campbell dated 7th March 2006 that: 'Ms Ireneschild is unable to negotiate stairs when she is ill or tired. She is then carried by her sons to the flat when tired after a night out: and to the bathroom/bedroom when she is ill'. Ms Campbell further noted that: 'Her sons are therefore placing themselves at risk from injury every time they carry her. This is not permissible under the 1992 Manual Handling Regulations where the local authority has a duty of care to both formal carers, although of course, informal carers can choose to ignore the advice of council officers. This issue does not appear to have been addressed either in the carer's assessment or indeed in Ms Ireneschild's own assessment. In my view this is a very serious breach of duty.' Please note that when I carried out my original assessment in 2003 I was not made aware of client being carried up the stairs by her sons on occasion. I now add this to my updated assessment and will act accordingly."
[35]His assessment concludes with the statement that he understands that the client has a history of falls and states that the client mobilises indoors using walls and furniture for support, that her mobility is unsteady and she is at risk of falls. He also concludes under the heading "safety, abuse and neglect (risk of falls)" that "the client is at risk on stairs".[36]His conclusions as to eligibility against community care criteria are set out at the end of the report. They are assessed as substantial under the headings "health and safety, autonomy, personal care, domestic routines, leisure, education, employment, training and overall risk to independence".[37]Mr Rogerson also concluded that the issue of the manual handling safety for the client and the informal carers was a matter that should be discussed as a matter of urgency and action should be taken accordingly.[38]There is nothing in the new assessment of August 2006 to indicate that the author has had any regard to these matters in Mr Rogerson's assessment. There is no reference in the new assessment to this report, although the assessment does refer to a report of Tina Thorpe, which, in turn, refers to it without addressing it further.[39]The community care assessment does not address Mr Rogerson's conclusions in relation to the risk of falls. By contrast, the conclusions in the care assessment itself in relation to falls indicate that there is no history of falls. The care assessment does not deal at all with risks or needs arising from the current arrangements for manual handling. It does not address the respondent's conclusion that arrangements for manual handling need to be reviewed urgently. It does not deal with the respondent's assessment of all relevant risks to the claimant as substantial.[40]In this regard Mr Holbrook, on behalf of the defendant authority, makes a number of submissions. First, he says that the reference to the history of falls is likely to be derived from the claimant herself. That may well be correct, but it does not, in my judgment, relieve the author of the assessment of a duty to take account of it. Moreover, Mr Rogerson reaches an independent conclusion having regard to Ms Ireneschild's methods of mobility and her condition that she is at risk of falls.[41]Secondly, Mr Holbrook accepts that the author of the August 2006 assessment does not engage expressly with Mr Rogerson's report, but submits that Mr Rogerson does not conclude there is a need to re-accommodate the claimant. It is correct that Mr Rogerson does not draw that conclusion, but that was not what he was addressing in his report. He was assessing the risks arising from the present arrangements. His findings as to risk should have been taken into account by the author of the new assessment. It is clear, to my mind, that they were not.[42]Thirdly, Mr Holbrook says that there is nothing in the Rogerson report which required the author of the care assessment to conclude that there was a need to rehouse under section 21 of the 1948 Act. Again, that may well be correct, but Mr Rogerson's views as to the risk and the present arrangements should have been addressed and taken into account. They were highly material considerations.[43]It could also fairly be said on behalf of the defendant that Mr Rogerson's report is rather short on text and analysis. However, the conclusions are clear and they should have been taken into account.[44]In these circumstances I accept the claimant's submission that the defendant in taking the decision contained in the August 2006 assessments, that there was no eligible need arising out of the accommodation, has failed to take account of matters of importance to be found in the report of its own occupational therapy expert. 2. Failure to follow guidance.[45]Here the claimant makes a number of linked points. I have already referred to the guidance issued by the Secretary of State in respect of the 1990 Act. This includes FACS. The defendant is under a duty in the exercise of its social services functions under the 1990 Act to act under that guidance. The FACS guidance requires the defendant to prioritise an individual's needs, taking into account the short and longer terms risks to their independence if help is not provided and to take a preventative view. "(3) Councils should assess an individual's presenting needs, and prioritise their eligible needs, according to the risks to their independence in both the short and longer term were help not to be provided. Councils should make changes in their practice to take a longer term preventative view of individuals' needs and circumstances. With regard to their resources and other local factors, councils should focus help on those in greatest immediate or longer term need. ... (40) As presenting needs are fully described and explored, the individual and professional should consider and evaluate the risks to independence that result from the needs both in the immediate and longer term. This evaluation should take full account of how needs and risks might change over time and the likely outcome if help were not to be provided. The evaluation of risks should focus on the following aspects that are central to an individual's independence:(a) Autonomy and freedom to make choices.(b) Health and safety including freedom from harm, abuse and neglect, and taking wider issues of housing and community safety into account.(c) The ability to manage personal and other daily routines.(d) Involvement in family and wider community life, including leisure, hobbies, unpaid and paid work, learning and volunteering."[46]Here the claimant makes a number of submissions. First, the claimant submits that the assessment contains no reference to the impact of the accommodation on her independence. It is the case that at no point is this question expressly addressed in the assessment. The assessment states that ideally the claimant would be housed in accommodation on either ground or first floor which could be assessed without steps or stairs and with no internal stairs, but it says it may be some time before an offer of such housing could be made by the council. The assessment does not address the impact of the present accommodation on Ms Ireneschild's independence and that is particularly surprising given the conclusions drawn by Mr Rogerson in his assessment.[47]Secondly, the claimant submits that the assessment is entirely silent as to any eligible risks arising out of the housing. There is an assessment of risk of falling in the assessment. That applies a scale of three categories: 0, no apparent risk; 1, some apparent risk (no previous history), no history indicative of risk but current factors/warning signs indicate the possibility of risk; and 2, some apparent risk (with previous history), history indicative of risk and current factors/warning signs suggest the presence of risk. On that scale the risk of falling, including dizziness and blackouts is assessed at 1, the risk in relation to physical condition is assessed at 2, and domestic risk is assessed at 1. The report does not quantify the risk beyond this scale. The point is made -- I think with some force -- on behalf of the claimant that it is difficult to see what is the risk to physical condition other than the risk of falling. Moreover, it is said by the claimant that, in any event, this report is inaccurate as to the history of falls. There is a dispute between the parties in relation to that, as to which I shall return. The fact is that there is no analysis in the report of the extent to which risks arise out of the accommodation.[48]Thirdly, the claimant submits that the assessment fails to address the risk to her if she were to fall. As we have just seen the report does address, to some extent, the risk of falling. However, it fails to take account of the impact of the fall on the claimant and her future independence. The point is made that for a person with the claimant's difficulties the consequences of a fall could be very grave and the resulting injury could significantly impact her independence.[49]In this regard I should refer to the fact that this morning my attention was drawn by Mr Holbrook on behalf of the defendant to the recent judgment of Jackson J in R(Mooney) v London Borough of Southwark, 6th July 2006, [2006]EWHC 1912 Admin. Mr Holbrook submits that Mooney casts some light on what it is necessary for an assessment to state. He submits that it establishes that a failure expressly to address matters does not amount to an error, providing that it is clear that the conclusion is based on sound findings of fact. I am satisfied, however, that Mooney does not assist the defendant in the particular circumstances of this case. I consider that the failure here is more fundamental than a failure to make express findings. The failure here, in my judgement, is a failure to address essential questions which are required to be addressed under the guidance.[50]A further submission made by the claimant under this second ground relates to the guidance concerning the assessment of risks to carers. "(41) Individuals and professionals should consider risks faced not only by individuals but also those close to them, such as carers. They should consider which risks cause serious concern, and which risks may be acceptable or viewed as a natural and healthy part of independent living."[51]The claimant submits that the assessment fails to identify the risks to her sons of having to carry her on the stairs. The assessment states that the claimant receives assistance from her sons when she has to negotiate stairs and it is important that they should continue to be available to provide this assistance. It also makes it clear that sometimes she can negotiate the stairs by herself. However, it does not consider the frequency with which this help is needed, nor does it consider the risks to her or the carers caused by the current arrangements.[52]I consider that it should have done so, in particular when one has regard to the contents of Mr Rogerson's assessment and his justifiable concerns on this score.[53]Accordingly, I consider that these criticisms are well-founded and I consider that there has been a failure here to address essential questions which the guidance require to be addressed. 3. Irrationality.[54]The claimant complains that the assessment is irrational. This argument is concerned essentially with the report and conclusions of Ms Thorpe, a housing medical adviser employed in the housing medical services team for the defendant. Ms Thorpe interviewed the claimant at her home on 19th July 2006 over a period of about two and a half hours. She says in a witness statement that she was aware of the claimant's concerns about this case and that she wanted to give the claimant an opportunity to explore all of the areas very thoroughly. She also had the opportunity on that occasion to observe the claimant's mobility as she moved around her flat. This report is referred to by the author of the new assessment of August 2006. Indeed, the claimant contends that the author of that assessment has relied heavily upon Ms Thorpe's report.[55]There has been a debate between counsel as to the purpose for which Ms Thorpe's report was prepared. The report itself identifies the matter under consideration as "medical assessment of housing need". That is clearly a different purpose from an assessment of need for community care services under section 47 of the 1990 Act. Moreover, Ms Thorpe says in her witness statement that her post requires her to assess and award priority for housing and to make property recommendations for all clients approaching the housing department who claim a medical condition. It seems clear from the conclusion to her report that she was carrying out an assessment for the purposes of housing and that she was not concerned with producing an assessment for the purposes of community care services. Nevertheless, it is clear, and it was accepted by both parties, that the author of the assessment was entitled to have regard to this report in making the assessment of August 2006.[56]The recommendation of Ms Thorpe in her report was as follows:
"In recognition that a property with stairs is far from ideal for a person with limited mobility, I have awarded the maximum number of medical points for transfer to a more suitable property, i.e. 25 points. This case does not fit the criteria for an emergency transfer on medical grounds namely: 'Cases will only be placed in Group B [emergencies] if the household has one or more members with a currently life-threatening illness or disability, whose housing circumstances are, in the opinion of the Medical Adviser, affecting their health very severely.' (Lambeth Housing Allocation Scheme -- second edition) In addition to the maximum number of points, I make the following property recommendations in line with the OT report by Manuela Schutte: general or mobility standard property situated on the ground or first floor serviced by a lift, with no internal stairs and level access outside the property, with central heating and a level access shower, or the capability to install one."
[57]The defendant's points scheme for housing needs indicates that this award of 25 points is made where there is an urgent need of rehousing on medical grounds as assessed by the medical adviser, but where the case is not an emergency, in the terms to which I have already referred, justifying categorisation of Group B.[58]In this regard Ms Markus submitted that the author of the assessment relied in significant respects on the report and conclusions of Ms Thorpe and repeated Ms Thorpe's conclusion that the claimant's housing needs could be dealt with by the housing department in accordance with its allocation policy. She contends that the defendant appears to justify its assessment, at least in part, on the basis that the medical adviser recommended that the case does not fit the criteria for emergency transfer on medical grounds. It is the case that that conclusion is repeated in the assessment. Ms Markus submits that in doing so the defendant has failed to appreciate that the focus of the housing assessment is entirely different from that required in determining an individual's community care needs, and, in particular, needs under section 21 of the National Assistance Act.[59]I accept that the focus of a housing assessment is entirely different from that of an assessment of community care needs. The test for an emergency transfer under the scheme devised by the defendant focuses wholly on the effect on an individual's health. On the other hand, the test under section 21 of the 1948 Act is whether the person is in need of care and attention which is not otherwise available. I also accept that the fact that a person does not qualify for emergency transfer provides little assistance in determining whether her needs for accommodation under section 21 are eligible. The assessment itself sets out the recommendation of Ms Thorpe stating that Ms Ireneschild's housing needs can be dealt with by the housing department in accordance with its allocation policy.[60]Ms Markus points to the award of 25 points which indicates an acceptance of urgent need of rehousing on medical grounds. She submits that in the light of that assessment, which the author of the community care assessment of August 2006 appears to have accepted, it is impossible to see how she could, nonetheless, rationally conclude that the accommodation needs under the 1990 Act are not substantial.[61]To my mind it does not necessarily follow from the fact of a finding of an urgent need of rehousing on medical grounds that there must be a finding of substantial risk for the purpose of the 1990 Act and the FACS guidance under that Act. These are different regimes. There may well be cases in which the requirements of the housing scheme may be met and those of the 1990 Act are not. In this regard it may well be that need is a relative concept which means different things in different contexts. I am fortified in coming to this conclusion by the observations of Jackson J in his judgment in R (Mooney) v LB Southwark 6th July 2006, [2006] EWHC 1912 Admin, at paragraph 51. I am grateful to Mr Holbrook for having drawn that judgment to my attention this morning.[62]In the course of their submissions counsel for both parties touched on the question of the extent to which questions of resources may be relevant to the determination of need in different contexts. I was referred in that regard to the decision of the House of Lords in R v GloucestershireCounty Council ex parte Barry [1997] AC 584. However, the matter was not fully argued and as it is not necessary to my decision I will say no more about it.[63]However, it does seem to me that there is force in the further point made by Ms Markus that the award of 25 points on the basis of urgent rehousing on medical grounds is a relevant consideration which should have been taken into account by the author of the assessment in coming to her conclusions. It indicates, at the very least, that there are unsatisfactory features of the present accommodation which have an important impact on the claimant's health. It may well be a compelling consideration in support of the view that the relevant criteria in relation to the assessment of community cares needs are met. In the present case this does not appear to have happened. On the contrary, the author merely repeats the conclusions of Ms Thorpe.[64]In my judgment, it is not sufficient for the purposes of an assessment under the 1948 Act merely to say that the claimant's housing needs can be dealt with by the housing department in accordance with its allocation policy. That is all the more so given that the assessor herself noted that there is unlikely to be suitable accommodation available for a considerable time. Rather the impact of the conclusion on housing need, on the question of the need for rehousing as part of community care, i.e. whether there is a need for care and attention which requires new accommodation, should have been considered.[65]A further argument advanced by Ms Markus in this regard was that the author of the assessment concluded that because there was no urgent emergency need for rehousing there could be no need for care and attention requiring the accommodation under the 1948 Act. That would, of course, be a non-sequitur. In this regard Ms Markus contends that Ms Thorpe was taken by the author of the community care assessment to consider that there was no urgent need for rehousing on medical grounds, whereas, in fact, the grant of 25 points indicates that the opposite was the case. Here Ms Markus relies on a statement in the witness statement of Janice Walkley at paragraph 4 where she states:
"The council's community care assessment and the Housing Needs Report completed by Tina Thorpe explain why the council has concluded that alternative accommodation is not necessary even though it would be desirable."
[66]Ms Markus says that this demonstrates that Ms Thorpe's conclusion in relation to the absence of an emergency need in the housing context was transferred into the other context of community care. I do not read paragraph 4 as necessarily bearing that meaning. To my mind, it is likely that Ms Walkley is here referring to the matters set out in Ms Thorpe's report, as opposed to the conclusion. Moreover, the community care assessment itself does not demonstrate that it is based on such a non-sequitur. Accordingly I do not consider that this further criticism is justified. 4. Procedural unfairness.[67]The claimant complains that she was not given an opportunity to address the author's provisional views. The claimant says that a service user must be able to participate actively in the assessment process, that that is required by the guidelines and that it is also required by general principles of public law. She complains that in this case there was a failure to allow the required participation. The claimant points to five areas where it is said that the assessment was prepared under a mistake of fact and says that, had the correct procedures been followed, this would not have occurred and as a result the conclusions might have been different. Each relates to conclusions drawn by Ms Thorpe, and in all, save the last, matters which were set out by Ms Thorpe in her report.[68]The five matters identified are as follows.(1) Ms Thorpe states in her report that there had not been a fall in eight years. That is contested by the claimant. She says that at the interview she was only asked about serious falls and that there is misunderstanding. She says she has fallen on many occasions not requiring medical intervention. Ms Thorpe's witness statement at paragraph 7 supports the view that Ms Thorpe did in fact only ask about falls resulting in physical injury.(2) Ms Thorpe concluded that the claimant is most likely to need help on the stairs from her sons when she has been to a club but that this was a lifestyle choice. It is said on behalf of the claimant that Ms Thorpe took the view that generally the claimant would not require help from her sons and that she could avoid requiring their help by not going to clubs. It is said that this premise is incorrect and that the claimant's evidence is that she needs help from her sons for many reasons which are nothing to do with lifestyle choice.(3) Ms Thorpe concluded that the claimant's incontinence problems were effectively addressed. That is denied by the claimant.(4) Ms Thorpe stated that the claimant had not had any referral to a neurological or orthopaedic specialist, nor had there been any bio-mechanical assessment of her gait. It is said on behalf of the claimant that, in fact, she have had a number of referrals and specialist interventions.(5) The matter not addressed by Ms Thorpe nevertheless appears from paragraph 16 of Ms Thorpe's witness statement, where she sets out the view she formed of the claimant's sons' lifting techniques. Having been shown that witness statement, the claimant maintains that here, again, there is an important mistake of fact and that Ms Thorpe has misunderstood the position. On behalf of the claimant it is said that these matters, had they been drawn to the attention of the claimant before the assessment was completed, could have been addressed and independent verification obtained. It is said that these are matters which could have made a significant difference to the outcome of the assessment.[69]I should make clear that it is not my function to resolve those disputes of fact.[70]The relevant guidance is as follows. Paragraph 3.34 of the practitioner's guide states: "The practitioner must, therefore, aim for a degree of consensus but, so long as they are competent, the users' views should carry the most weight. Where it is impossible to reconcile different perceptions, these differences should be acknowledged and recorded, as they may contribute to the evolving understanding of an individual's needs over time. Where there is significant disagreement between users and carers, it may be appropriate to offer the carers opportunity of a separate assessment of their needs. I note that this is a practitioner's guide, so it is not strictly statutory guidance.[71]The FACS guidance in this regard is more limited. It merely states:
"In responding to the individual's account of his/her presenting needs, professionals should explore the intensity of particular needs including the physical pain, distress or disruption they cause, and the instability and predictability of problems, both on a day to day basis and over longer periods of time. They should consider with the individual any external and environmental factors that have caused, or exacerbate, the difficulties the individual is experiencing. The number of different needs faced by individuals, how needs interact, and how individuals react to the difficulties facing them are also important. Together, the individual and professional should look at the strengths and abilities that the individual can bring to bear on the presenting needs."
[72]However, Ms Markus also relies on the decision of Stanley Burnton J in R (Begum) v LB Tower Hamlets [2002] HLR 70. She contends that this establishes that to provide the assessor's provisional view and to give an opportunity to respond was a basic feature of fairness and good administration. On this basis she says that this should have happened here.[73]At paragraph 34 of his judgment Stanley Burnton J observed:
"The point is rather whether, when enquiries of third persons yield significant information inconsistent with that provided by the applicant, which will substantially affect the decision of the local authority, the local authority must put that information to the applicant and give him an opportunity to comment on it. In my judgment, a local authority is under such a duty. It is supported by principles of fairness and principles of good administration."
It should be noted that Stanley Burnton J was there concerned with information obtained from third parties.[74]In the present case it appears that the author of the report relied heavily on conclusions of Ms Thorpe in her report. On a number of issues Ms Thorpe made findings, and came to conclusions, contrary to the position of the claimant. Although the information would have been obtained by Ms Thorpe largely from the claimant herself, I consider that in the context of the present case Ms Thorpe's conclusions should in fairness have been disclosed to the claimant before they were relied upon in the preparation of the community care assessment.[75]With regard to the first of these matters, the defendant contends that some three weeks before Ms Thorpe interviewed the claimant the defendant had in fact drawn the claimant's solicitor's attention to the fact that it had no evidence of any fall, serious or otherwise, from the claimant. The defendant says that that fact, coupled with the way in which Ms Thorpe conducted the interview, so as to allow the claimant the opportunity to give a full account of her needs and wishes, meets the claimant's objection in relation to the first of these matters and discharges any duty of fairness in that regard.[76]The letter in question was dated 29th June 2006. It stated in the relevant part:
"However, it is our client's opinion that there are no services that are urgently required having particular regard to the following: A) Our client has no evidence of any falls (serious or otherwise) from your client, save that she has reported occasional falls. There is, of course, a difference between an actual fall and a risk of falling. We note that in your letter to Devonshires of 28th May you stated: 'Our client is able to manage the stairs at her property, although she has to take her time over this task and she often requires the assistance of her sons.' Although this was over four years ago, we do not have medical evidence that Ms Ireneschild's ability to manage stairs has decreased."
[77]I do not consider that this meets the objection. The letter raises the issue of how many falls there had been and the question of evidence for them. It accepts that the claimant has reported occasional falls. It does not conclude or suggest that there had not been any falls. By contrast, Ms Thorpe in her report concluded that there had not been a fall in eight years. She says that the last incident had been eight years ago and she said that the claimant had told her that. It is clear that the author of the assessment relied on that in arriving at the conclusion that there was no history of falls. If the author of the assessment wished to rely on that conclusion of Ms Thorpe, the claimant should have been made aware of it so that she could respond to it.[78]The fifth of these matters does seem to me to fall into a different category. As indicated above, it is not a matter referred to in Ms Thorpe's report. It came to light only in the witness statement of Ms Thorpe, lodged shortly before the hearing. There is no evidence that Ms Thorpe's understanding on this matter was drawn to the attention of the author of the assessment.[79]However, so far as the first four matters are concerned, they were included in Ms Thorpe's report and relied on by the author of the assessment, I consider that fairness required that these matters be drawn to the attention of the claimant. Had this happened, the alleged inaccuracies are likely to have been ventilated and it is possible that different findings would have been made. Accordingly, to this extent, this ground is also made out.[80]For these reasons I conclude that the community care assessment of August 2006 was unlawful and accordingly I grant leave to apply for judicial review in respect of that issue and allow the application. I will hear counsel in due course as to consequential matters and the future course of these proceedings. In particular I will hear counsel as to whether I should order the defendant to produce a lawful assessment within a limited time. To that end I direct that the matter be listed before me on a convenient day next week.[81]Finally, I should refer to the issue of direct payment which is raised in the amended claim form. The defendant has indicated, so far as this issue is concerned, that it wishes to reconsider its position. Accordingly, I adjourn this part of the proceedings on the defendant's undertaking to reconsider and to take a further decision within 28 days from today. I do not give leave on this issue at this stage, but I would observe that the claimant's case on this issue is, in my judgement, clearly arguable.

MR JUSTICE LLOYD JONES: Mr Holbrook, I don't think we can take the matter any further this morning.

[83]MR HOLBROOK: Well, my Lord, it is the local authority's attention to seek permission to appeal. If you would hear that application from me today, then I will make it. The reason why I submit it might be helpful for the issue of permission to appeal today is that, well, if your Lordship gave permission then clearly there would be no need, I assume, for the hearing to take place next week. So there would be a saving not only of costs, but also, perhaps more importantly, the reason for dealing with the issue of permission to appeal today is that it would speed things up. The defendant, of course, has never accepted that there is any need for urgency in this case because of its stance on the claimant's case. However, the claimant has always maintained that there is an urgency in this case and indeed Collins J clearly considered there was urgency in this case.

MR JUSTICE LLOYD JONES: That is why it has been listed as fit for vacation business.

[85]MR HOLBROOK: Indeed, my Lord, if your Lordship is minded to give permission, then, of course, his Lordship could also direct that the matter be dealt with expeditiously. I submit that that would assist the claimant in getting an early hearing date from the Court of Appeal. Perhaps I can say, my Lord, that the substance of the appeal would be that the findings of the court as to the unlawfulness of this assessment are such that the burdens that would thereafter be placed on social workers, not just in this borough but around the country, will be so onerous as to make it very difficult for them to discharge their duties properly.[86]MR JUSTICE LLOYD JONES: Before you open that application, I am concerned that Ms Markus is not here. I hope it will be possible to list this matter early next week, or at least during the course of next week. I think in the circumstances it would be better if you were to make the application when Ms Markus is here.[87]MR HOLBROOK: I accept that.

MR JUSTICE LLOYD JONES: I don't think very much would be lost as a result.

[89]MR HOLBROOK: No, indeed.[90]MR JUSTICE LLOYD JONES: I was going to say, it will have to be listed before the following week, because, although I am sitting the following week, I am not sitting in the Administrative Court, although it may be that I could be made available. I very much hope it will be possible to list this next week.[91]MR HOLBROOK: My Lord, I am grateful. There is perhaps just one matter. Would your Lordship be prepared to direct that a transcript of your judgment is prepared as soon as possible.[92]MR JUSTICE LLOYD JONES: Yes, I will do that. Mr Holbrook, how long do you think we will need next week?[93]MR HOLBROOK: As I understand it, my Lord, next week then we could deal with the issue of permission to appeal, we could also deal with whether or not your Lordship is minded to make an order that the assessment be carried out in a certain period of time. No doubt there will be argument on costs. Those seem to be the three issues.[94]MR JUSTICE LLOYD JONES: I suppose, one -- Ms Markus may try and persuade me that I should proceed on the basis as indicated in her skeleton, that in the absence of an assessment I should now proceed on some of the earlier assessment.[95]MR HOLBROOK: Yes.[96]MR JUSTICE LLOYD JONES: I don't know what her position will be. It is unfair to Mr Burton today to ask him --[97]MR HOLBROOK: No. My Lord, can you give me one moment? (Pause). My Lord, I think it is fair to say that if Ms Markus is minded to proceed with the outstanding elements of her claim, then realistically we are looking at another day.[98]MR JUSTICE LLOYD JONES: I am not suggesting that time can be made available for her to do that next week. What needs to be considered next week is the future progress of these proceedings so that directions can be made. It is no more than that. I agree, if we go down that road, then there is an awful lot to be considered.[99]MR HOLBROOK: My Lord, I would have thought at least an hour and possibly two hours.

MR JUSTICE LLOYD JONES: Thank you.

[101]MR BURTON: I have no objection to that. If it is only an application and directions I would have thought an hour is enough, but if my learned friend wants two hours.[102]MR JUSTICE LLOYD JONES: We will list it for two hours. I am very grateful to you both for your assistance, and Ms Markus, and indeed Mr Halford.[103]MR HOLBROOK: Can any indication be given as to when a transcript will be available?[104]MR JUSTICE LLOYD JONES: You had better make enquiries of others as to that. When the transcript is produced I will do my best to turn it round quickly, but we cannot be confident we will have one by next week. Thank you.

Cited in 1 later judgment