Joshua Swirsky represents successful local authority in judicial review challenging its interpretation of the limit of its Care Act 2014 powers

April 8, 2020

Joshua Swirsky acted for the successful local authority in R(Idolo) v LB Bromley [2020] EWHC 860 (Admin).  The case involved the Administrative Court considering the relationship between the Care Act 2014 and the Housing Act 1996 in the context of someone with serious health problems who had accommodation but it was no longer suitable because of his ongoing care needs. The Deputy Judge also considered a claim for damages under the Human Rights Act 1998.

The case should provide some reassurance to local authorities when faced with demands to provide accommodation to those in need who already have accommodation of their own, especially in cases where claimants seek to impose impossible timeframes combined with extensive preferences.

Background to the case

LI lived with his family in an 8th floor flat which had been provided to them by the London Borough of Bromley under Part VII of the Housing Act 1996 following a homelessness application.

In late 2017 LI went into hospital with complex interrelated health problems. He became paralysed and remained an in-patient until early 2018.

Initially the local authority assessed his accommodation as suitable if certain aids were provided and an extensive domicillary care package arranged.

Once home, it became apparent that the flat was badly designed for LI. Effectively he became trapped in a single room where he lived and received all personal care. The flat was too small for the wheelchair he needed and he was unable to leave either his bed or the chair into which he was hoisted.

The London Borough of Bromley, which like all local authorities runs a housing allocation scheme under Part VI, of the Housing Act 1996 gave LI a high banding to bid for more suitable properties. ‘Allocation’ is defined in s159 of the Housing Act 1996 and includes someone with accommodation transferring to alternative accommodation.

At LI’s request, a  further needs assessment was carried out in February 2019. As a result he and his family were given the highest banding under the local authority’s allocation scheme. However,  it was not easy to locate a property large enough for the family and wheelchair accessible because of the chronic shortage of social housing in London.

The claimant’s legal arguments

LI commenced proceedings arguing that the local authority was in breach of its duty under ss1 and 18 of the Care Act 2014 by limiting its search for alternative housing to social housing accessed through its allocation scheme.

LI argued that the local authority should have looked in the private sector and should even have rented a property specifically for him. Although a suitable property was found in August 2019 and LI’s family moved in during October 2019, LI continued to seek a declaration that the local authority had acted unlawfully.

There were a number of factual similarities between LI’s case and R(Bernard) v LB Enfield [2003] HRLR 4 in which damages had been awarded for a breach of Article 8. Consequently, LI sought damages at a similar level.

The local authority’s legal arguments

The local authority argued that it had not breached any duty on the facts of the case as it had assessed LI’s needs and acted accordingly. It accepted that LI’s circumstances were dire but argued that it had done all it could reasonably be expected to do to alleviate them. The problem was not caused by any failing on its part but was the inevitable result of the shortage of social housing, especially housing that was suitable for LI’s particular needs.

The local authority also argued that s23 of the Care Act 2014 expressly prevented it from providing alternative accommodation by carrying out its obligations under the Care Act 2014:

(1)     A local authority may not meet needs under sections 18 to 20 by doing anything which it or another local authority is required to do under—

(a)     the Housing Act 1996, or

S166A of the Housing Act 1996 requires local authorities to have a scheme which ensures that reasonable preference be given to certain classes of persons. Among these classes are: 166A (4)(d)     people who need to move on medical or welfare grounds (including any grounds relating to a disability).

This was not a case where LI was homeless and needed accommodation to receive care and support, as in decided cases under the National Assistance Act 1948, such a R(M) v Slough BC [2008] 1 WLR 1808. LI had accommodation and was receiving care and support there. That accommodation was unsuitable and he no longer wanted to live there. He would receive substantially the same care and support in any new accommodation he moved into. There would be no point in giving a reasonable preference under s166A(4)(d) if a person could also require the local authority to provide accommodation under the Care Act 2014.

The local authority argued that there was no question then of a breach of Article 8. The similarities to Bernard related to LI’s circumstances rather than the actions of the local authority which were quite different. The matters complained of, even if correct on LI’s case, did not meet the test for damages for a breach of Article 8 found in R(Anufrijeva) v LB Southwark [2004] QB 1124

The judgment

The Deputy Judge (Rowena Collins Rice) accepted the local authority’s arguments both on the facts, there being no unlawfulness or breach of duty, and on the effect of s23 of the Care Act 2014.

In the light of these findings she dismissed the claim for damages under the Human Rights Act 1998. However, she also reminded the parties of what Lord Woolf LCJ said in Anufrijeva to the effect that it was disproportionate to pursue Human Rights Act damages claims in the Administrative Court given the likely level of any award as opposed to taking the matter up with the Local Government ombudsman.