Lambeth London Borough Council v Ireneschild

The Respondent is the secure tenant of 78b Hubert Grove in Clapham. She has lived there since 1982. The Appellant local authority is the Respondent’s landlord and the public body with social services responsibility for her. A climbing accident in 1992 left the Respondent permanently disabled. She cannot stand or move unsupported, she is in more or less constant pain and uses a wheelchair out of doors. She is doubly incontinent. She lives with her two adult sons in a two bed-roomed flat on the first and second floors of a large Victorian house. The flat 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.

The Respondent is particularly concerned about the risk of her falling on the stairs and the impact upon her mobility if she injures her arms, upon which she relies very heavily. She is also concerned about the risk to her sons of lifting her. Her incontinence gives rise to further anxiety. She considers that her needs require the local authority to make available to her the ground floor flat in the same house, which has been unoccupied for several years and is currently not habitable. The Appellant authority disagrees.

She sought judicial review of a number of decisions taken by the Appellants in relation to her care and accommodation needs. Her application for permission and her substantive application came on before Lloyd Jones J in September 2006. On 8^th September 2006, he held that the Appellants’ community care assessment of the Respondent made in August 2006 (“the assessment”) was unlawful. At a subsequent hearing on 27^th September 2006 he quashed the assessment and ordered it to be carried out again within 28 days, subject to a stay pending any appeal.

Permission to appeal was granted following an oral hearing before Wall and Richards LJJ. Mr Béar QC, who represented the authority before us, informed us that the Appellants have pursued this appeal because they have real concerns about the implications of the judgment on the way in which they perform their statutory functions. It is said that there are important points of principle at stake.

It is necessary to rehearse the history in a little detail. In about 1996 the Respondent first applied for assistance from the Appellants via their housing waiting list. In October 1999 the Appellants completed an assessment pursuant to section 47 of the National Health Service and Community Care Act 1990. A care plan was produced. The author noted that there were concerns about the Respondent’s accommodation and that contact should be made with the housing department. In 2003 the Appellants’ officer, Mr David Rogerson, an occupational therapy expert, carried out an assessment. He made a recommendation for re-housing in accommodation without internal stairs, given the risk to Ms Ireneschild of falling on the stairs. Nothing happened. Solicitors acting on behalf of the Respondent asked for a community care assessment to be produced. This was produced in February of 2005. 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.”

Correspondence between the parties continued with renewed threats of litigation by the Respondent’s solicitors. In March 2006, they commissioned a Housing Needs report from Ms Sharmin Campbell. Ms Campbell recorded that the Respondent told her “she has fallen in the past”. She described the way in which Ms Ireneschild makes her way around the flat using her upper limb strength. She stated that, given the lay-out of the flat and the internal stairs, Ms Ireneschild has problems with mobility every day, several times a day. Her difficulties are compounded when she is ill or tired. She is then dependent upon her sons who have to carry her up or down stairs. Ms Campbell opined that the Respondent is at “high risk of falling and serious injury each and every time she has to negotiate the stairs…… She would become completely house bound if she were to suffer injury to even one of her upper limbs.” Mr Drabble QC who represented the Respondent before us invited us to note the last sentence.

In her report, Ms Campbell also drew attention to the implications of the Manual Handling Regulations 1992 and concluded that the Respondent’s sons were placing themselves at risk of injury every time they carried her. Ms Campbell took the view that this was a “serious breach” of the authority’s duty towards “informal carers”. In fact, as she and Mr Drabble recognised, the Regulations, on their face, impose a duty on employers to provide a safe system of work for their employees. They do not impose a duty to provide a safe system of handling for informal carers. In any event, Ms Campbell recommended that the Respondent be re-housed as a matter of urgency.

At about this time, April 2006, a letter from Ms Ireneschild's doctor, dated 26^th January 2006 was also sent to the Appellants. He 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.

….Her gait will continue to be unsteady and she will persist in having a high risk of falls which may increase as time progresses.”

The doctor strongly recommended that the Respondent be “… 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."

In the light of this material, the Appellant authority agreed to revise its assessment or to provide reasons by 18^th April 2006 why it declined to do so. There was no reassessment. Correspondence ensued between those representing the Respondent and the Appellant authority which referred, inter alia, to the question of whether or not there was any evidence that the Respondent had suffered any falls. Proceedings were commenced on 3^rd August 2006.

A further report from Mr Rogerson then came to light. It looms large in the consideration of this appeal and was described by the judge as short on text and analysis. To prepare the report, Mr Rogerson visited Ms Ireneschild at home on 31^st May 2006 with her case worker Ms Yvonne Williams. His report is dated the next day 1^st June 2006. Under the heading “Accommodation Type/ Risk to Independence” he described the property and the presence of “mopstick rails”. Under the heading “Personal Care and Domestic Routines” he listed a series of topics he had discussed with the Respondent and or assessed for himself. In the “Discussed” column he stated that he understood there was “a history of falls”. He assessed her mobility indoors as “unsteady” and stated “she is at risk of falls”. Under the heading “Climbing Stairs” he 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’”.

He cited Ms Campbell’s assertion that there was a serious breach of duty on the part of the authority and added:

“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.”

Under the heading “Safety Abuse Neglect (Risk of Falls)” he said “client is at risk on stairs”. He also stated that the Respondent’s carers “will be at risk if they carry client up/down stairs.” He wanted the question of “stair access” addressed as a matter of urgency. Finally, on a scale of “critical”, “substantial”, “moderate”, “low” to “not applicable” he assessed her eligibility against community care criteria. Health and Safety, Autonomy, Personal Care, Domestic routines, Leisure, education, employment, and training were all assessed as “substantial”. The “overall risk to independence” was also assessed as “substantial”. I shall return to the significance of his categorisation of the Respondent’s needs as “substantial” later in this judgment. In short: if the Appellants accepted his conclusions on the Respondent’s needs, the Appellants would provide funding to meet them. However, they did not accept his conclusions.

Also on 1^st June 2006, Ms Yvonne Williams began work on two assessments including a “Carer Assessment” (in accordance with the Carers and Disabled Children Act 2000). The stated purpose was to “explore the carer’s situation as carer; establish whether they want to begin or continue caring and identify what support would help them begin or continue caring”. She recorded Ms Ireneschild’s difficulties including negotiating the stairs in her flat and the fact that she needs the help of her sons when she is ill or tired. She also recorded the Respondent’s concerns about losing her balance easily and accessing the bathroom quickly. However, the focus of this assessment was the Respondent’s sons and their attitude to caring for their mother. The sons described their present arrangements and how they hoped that the Appellant authority would allow their mother to move into the ground floor property which would give them all greater independence and peace of mind. Further assessments and meetings between the Social Services and Housing departments were recommended by Ms Williams.

Another Community Occupational Therapist, Manuela Schutte, prepared an assessment to be sent to the Housing Department. It is dated 27^th July 2006. It similarly drew attention to worrying aspects of the Respondent’s present living and care arrangements, referred to the General Practitioner’s opinion 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”. She too recommended re-housing on ground floor level with ramped access.

At about the same time yet another report was being prepared by a council member of staff. Ms Tina Thorpe is a Principal Medical Housing Adviser. Technically she is part of the Housing Department but all agree the Appellant authority in exercising its social services function was entitled to rely upon her advice. Ms Thorpe interviewed the Respondent at her home on 19^th July 2006 over a period of about two and a half hours. In her witness statement she said that she was aware of the Respondent’s concerns and she wanted to give the Respondent an opportunity to explore all of the areas very thoroughly. She also had the opportunity to observe the Respondent's mobility as she moved around her flat.

In a six page report dated 27^th July 2006, Ms Thorpe provided her recommendations under the heading “Housing Medical Advice”. She set out at the beginning the material she had considered. All the documents to which I have referred were there plus a few others. Both of Mr Rogerson’s reports were expressly included. She dealt in detail with the layout of the Respondent’s present accommodation and the issues as she saw them under 8 headings: Mobility, Breathing, Personal Care, Incontinence, Personal Safety, Autonomy, Discussion and Recommendations. Two of the pages of the report are dedicated to the subject of Mobility and include a discussion with Ms Ireneschild about her legs “giving way” on occasions. Under the Personal Safety heading Ms Thorpe recorded her conversation with Ms Ireneschild about falls as follows:

“I asked Ms Ireneschild if she had any falls or accidents in recent years. She informed me that the last incident was approximately 8 years ago when she had a fall in the bathroom and an ambulance was called. She added that most of the time she is able to “rescue” herself and thereby prevent a fall. She said if she was unsure of herself she would call one of her sons to assist her.”

Under the heading “Autonomy” Ms Thorpe records Ms Ireneschild as having told her she sometimes went out “clubbing” with her sons returning at 6 a.m. On her return she is often tired and needs the help of her sons getting up stairs. It was said that they position themselves “either side of her and, supporting her around the waist, they would then walk up the stairs sideways on as the staircase is too narrow…”

Later in the report she noted that several of the documents she had considered referred to the risk of falls but she repeated what the Respondent had told her about not having a fall in the last 8 years. She explained this further in her witness statement saying that when she asked about falls she told the Respondent she did not want to know about “stumbles”. She only wanted to know about falls that required medical attention or resulted in injury. She concluded the paragraph by saying:

“I accept that Ms Ireneschild may require additional assistance with her mobility when she is tired but I also note that she is most likely to be tired when she has stayed up all night “clubbing”. I would suggest this is a life style choice that Ms Ireneschild makes for herself.

In her second witness statement, the Respondent takes exception to the way in which Ms Thorpe reported a number of things they discussed. In particular, she objected to Ms Thorpe’s analysis of what she had said about falls. She says that when she spoke of the fall 8 years ago she was answering Ms Thorpe’s question about serious falls. She insists there have been others. She says that on a number of occasions her legs have “buckled uncontrollably” beneath her and she has fallen towards the ground, but she has been able to “catch” herself. She was also upset at the way in which Ms Thorpe referred to her going out “clubbing” as if it was only after a night out that she needed the help of her sons to go upstairs. She says she needs their help several times a week and it is not a “lifestyle choice”.

In her recommendations, Ms Thorpe said this:

"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."

No criticism was made of Ms Thorpe’s decision to put the Respondent in the urgent rather than the emergency category for re-housing. Mr Drabble, however, suggested that even with the maximum number of points, the prospect of the Respondent’s being re-housed in the foreseeable future is remote. The demand for local authority properties of any kind, let alone of the kind the Respondent requires, far outstrips supply.

Prompted by the application for judicial review, the authority then produced a care assessment from Ms Williams which is at the heart of this appeal. Ms Williams did not list the documents she took into account in coming to her recommendations. However, she set out at the very beginning of her assessment that Ms Ireneschild had instructed solicitors who were “assisting her with her housing issues. Ms Ireneschild is unhappy with Lambeth Housing and has an ongoing issue re housing. She hopes the FACS assessment will help clarify her needs”. Thus, the “issue of housing” appears to have been at the forefront of her mind in completing the assessment.

She summarised Ms Ireneschild’s medical problems, medication, incontinence, and problems with mobility in some detail. She referred in terms to the Thorpe report. She recorded inter alia that “Ms Ireneschild receives assistance from her sons when she has to negotiate stairs….. Ms Ireneschild states that she manages coming down the stairs by sliding down the banister rails on her hands with her arms fully extended…..She stated she could only perform the above on a good day: otherwise on a bad day she requires assistance”. Ms Williams did not link the need for help from the Respondent’s sons to any “life style choice” as Ms Thorpe had done.

Under the heading “Housing situation”, she recorded the number of internal stairs and repeated the threat of legal action about the suitability of the present accommodation. She recorded the recommendations of the “council’s Principal Medical Adviser (Thorpe) and Occupational Therapist (Schutte) that “any offered property should be situated on the ground floor or first floor if serviced by a lift, with no internal stairs and level access outside the property….” She also noted that Ms Thorpe had awarded her the maximum number of points for a non-emergency transfer to a more suitable property. She felt that Ms Ireneschild’s housing needs could be “dealt with by the Housing Department in accordance with its allocation policy.”

There followed a summary of the Respondent’s attitude to her sons and theirs to her. Under the heading “Summary of Risks Arising”, Ms Williams assessed the risk of falling at 1. This means: “no history indicative of risk but current factors/warning signs indicate the possibility of risk”. Mr Drabble contends that this risk should have been a 2 which means: “some apparent risk with previous history. History indicative of risk and current factors/warning signs suggest the presence of risk”. The “Risk re physical condition” was assessed at 2. “Domestic risk” and “moving/manual handling risk” were each assessed at 1. It is now agreed that the “moving/handling risk” related to the risk to her sons in lifting her. “Risk of loss of autonomy” was assessed at 0. This stands for: “no apparent risk. No history/ warning signs indicative of risk”.

Under the heading of “Summary of key problems/ needs” Ms Williams stated:

“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.”

She referred to the Respondent’s concern about falling down stairs but placed reliance on Ms Thorpe’s statement that the Respondent “has not actually fallen for about 8 years.” She suggested the concern could be addressed by paying about £4 per month for an alarm service. This, Mr Drabble argued, was to miss the point. Ms Ireneschild is concerned with what would happen to her in the long term and the effect upon her mobility, if she fell and hurt herself, not whether she could get help.

Finally, under the heading “Fairer Access to Care”, the risks in relation to physical well-being, psychological well-being, weekly activities and social support were each assessed as medium risks. The risks in relation to activities of daily living, family and carers were assessed as substantial. The overall “risk summary” was assessed as substantial. The assessment concluded that Ms Ireneschild is eligible for services under Lambeth's Social Services Fair Access to Care Services (“FACS”) eligibility criteria.

The care plan recorded:

"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."

Her overall eligibility band was assessed as substantial meaning that the authority would meet the needs as assessed, but these were support service needs not her housing needs. It is common ground the assessor did not find any “eligible need” arising out of the present accommodation.

As is usual, the documents were then sent to the “service user” (the unfortunate but accepted term for those who require the services of their local authority) Ms Ireneschild. Although she objected to its conclusions she did not then invoke the statutory complaints procedure for anyone aggrieved by their assessment or care plan. The judge found this was for good reason and no point is now taken on that finding, but the procedure remains relevant to the fourth ground of appeal. By virtue of the Local Authority Social Services Complaints (England) Regulations SI 2006/1681 once a complaint is made the local authority will try to resolve it within 20 working days. Provision is made for a formal investigation the results of which must be reported back to the complainant. If still aggrieved, he or she can demand a review of the process by a panel of three. Two of the members of that panel must be independent.

Four of the Respondent’s complaints about the assessment found favour with the judge and form the basis for this appeal. The main complaint made by the Respondent was that although reference is made within the assessment to Ms Thorpe’s report no mention was made of Mr Rogerson’s 2006 report. It was argued on the Respondent’s behalf that the contents of the assessment suggest that the assessor paid no regard to the “substantial” risks or needs identified by Mr Rogerson arising from the current arrangements for negotiating the stairs. Although some risk was identified in “moving/handling” no attempt was made to identify the nature or level of the risk in the text of the assessment. Thus, it was said, no attempt or no proper attempt was made to grapple with the central feature of the Respondent’s care and accommodation needs namely the risk to her and those who lift her if she continues to live in a flat with internal stairs.

The second complaint relevant to this appeal was that the authority was obliged by the statutory guidance to consider the risk to her autonomy and therefore the risk if she fell and hurt herself and the risk to her sons in lifting her. This, the Respondent claimed, the authority failed to do.

The third complaint was that the author of the assessment did not take account of the fact that Ms Thorpe gave the Respondent 25 points which meant that she should be re-housed as a matter of urgency. Given that award, it was said that the Respondent’s community care needs arising from her accommodation were bound to be substantial and it was irrational to find otherwise.

Fourthly, the Respondent suggested the authority had been guilty of procedural unfairness. The author of the assessment relied heavily upon Ms Thorpe’s report and she had made findings which contradicted what the Respondent’s doctor and the Appellants’ own occupational therapy expert had said. Mr Drabble submitted, therefore, that fairness demanded that Ms Thorpe’s assessment of “highly significant primary facts” should have been put to the Respondent for her comment before any conclusions were reached.

The underlying statutory duty is derived from section 21 of the National Assistance Act 1948 and is helpfully summarised in 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, Hale LJ stated 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 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. She emphasised 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.

The next relevant statutory duty is contained in section 47 of the National Health Service and Community Care Act 1990. It provides:

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 to act under the general guidance of the Secretary of State. The relevant guidance under the 1990 Act includes FACS. The overall aim of the guidance is to provide a framework for authorities to use in determining which “presenting needs” are to be assessed as “eligible” and therefore to be met by public provision. The guidance does not purport to determine which services should be available to users who have similar needs, that being a matter for local decision depending on overall demands and resources. The aim is to ensure equitable treatment within each council’s area. In this case, the Appellant authority has decided that the eligible needs for which it will provide funding are those which fall into the “critical” or “substantial” categories.

The requirement to “act under” the guidance was described by Sedley J (as he then was) in R v LB Islington ex p Rixon (1997) 1 CCLR 119, at 123, as having the following effect:

“In my judgment Parliament in enacting section 7(1) did not intend local authorities to whom ministerial guidance was given to be free, having considered it, to take it or leave it. Such a construction would put this kind of statutory guidance on a par with the many forms of non-statutory guidance issued by departments of state. …Parliament by section 7(1) has required local authorities to follow the path charted by the secretary of state’s guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course.”

Both sides rely upon parts of that guidance. It provides, where relevant, as follows;

“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….

General Principles of Assessment:

37.

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.

38.

Assessment should be co-ordinated and integrated across local agencies relevant to the service user group….

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:

Autonomy and freedom to make choices.

Health and safety including freedom from harm, abuse and neglect, and taking wider issues of housing and community safety into account.

The ability to manage personal and other daily routines.

Involvement in family and wider community life, including leisure, hobbies, unpaid and paid work, learning and volunteering.

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.

42.

Eligibility for an individual is determined following assessment. As part of the assessment, information about an individual’s presenting needs and related circumstances is established and should be recorded. This information is then evaluated against the risks to his/her autonomy, health and safety, ability to manage daily routines, and involvement in wider community life. ……These identified risks to independence will then be compared to the council’s eligibility criteria. Through identifying the risks that fall within the eligibility criteria, professionals should identify eligible needs.

43.

Once eligible needs are identified, councils should meet them…..”

Failure to consider the Rogerson report

The first ground of appeal relates to the judge’s finding that the appellant failed to take into account relevant considerations. At paragraphs 38 to 41 he found as follows:

“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. ….

41.

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…..

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.”

This is the main point of principle that was said to arise on this appeal: namely whether or not the judge erred in ruling, as Mr Béar suggested he did, that the Appellants were obliged first to obtain, and then consider, in terms, an occupational therapist’s report, even though a subsequent report (the Thorpe report) expressly took such a report into account.

By the close of oral submissions, however, it had become apparent that there was little or no difference between the parties on the principles to be applied. Mr Béar reminded the court that it is well established that public bodies exercising statutory discretions can decide for themselves what factors and evidence they should consider, before reaching their decision. Subject to the question of perversity, he said, the Court is only entitled to intervene if a matter is not considered where it is one which, on the true construction of the relevant statute, Parliament must have expressly or impliedly identified as being required to be considered: see CREEDNZ v Governor-General [1981] 1 NZLR 172, at page 183 per Cooke J, a passage cited with approval by Lord Scarman in In re Findlay [1985] AC 318 at pages 333-334. There are, therefore, matters which may lawfully, but not must lawfully, be taken into account. It is not enough for the latter category to show that many people or the Court itself would have taken the matter into account. Lord Scarman also approved as a correct statement of principle Cooke J’s recognition at page 183 line 33 of CREEDNZ that “there will be some matters so obviously material to a decision on a particular project that anything short of direct consideration of them by the ministers ….. would not be in accordance with the intention of the Act.”

Save for balking at the use of the word “perversity” in this context, Mr Drabble did not disagree with this analysis. He did not disagree with Mr Béar’s assertions that the Appellant authority was entitled first, to decide for itself what reports to commission to assist in making an assessment and second, to take into account one internal report through a subsequent internal report. However, he maintained that on the facts of this case the “lawful chain of analysis and reports”, as it was described by Mr Béar, had broken down. He challenged the assessment process on the basis that once an occupational therapist’s report had been obtained “it was blindingly obvious” (as he put it in rather homely language) that the authority should have taken Mr Rogerson’s conclusions into account. In other words, these were matters so obviously material to the assessment, no reasonable authority could have failed to take them into account and the judge so found. If forced to describe the alleged failure to consider Mr Rogerson’s report as “perverse” he was prepared to do so.

Thus, no argument was advanced before us that, in the exercise of its statutory duty to assess the community care needs of a disabled person, an authority is bound to obtain a report from an occupational therapist and/or that it would be an error of law for an authority to consider such an internal report via a lawful chain of analysis and reports. Had that been the true effect of the judgment, I agree with the parties it would have been wrong. But, with respect to Mr Béar, I do not read the judgment in that way. The judge did not attempt to lay down any new point of principle. He decided the case on its own facts. He found that, in the circumstances of this case, having obtained a report from one of its own experts who concluded that the Respondent’s care needs were “substantial”, the authority should have taken that report into account and addressed its conclusions, before coming to a contrary conclusion. The judge found that there was nothing in the assessment to indicate the author had paid any regard to what Mr Rogerson had said and she should have done. The question for this court is whether the judge was right to reach those conclusions on the facts of this case. As I see it, therefore, there are no issues of principle which here require resolution.

Mr Drabble further conceded that the Respondent, having brought the proceedings to review the assessment judicially, bore the heavy burden of establishing that the assessment was unlawful. He did not attempt to persuade this court to ignore the strictures of Lord Brightman inPuhlhofer v Hillingdon LBC [1986] AC 484, 518B-E put before us by Mr Béar. Lord Brightman said this:

“My Lords, I am troubled at the prolific use of judicial review for the purpose of challenging the performance by local authorities of their function under the Act of 1977. Parliament intended the local authority to be the judge of fact. The Act abounds with the formula when, or if, the housing authority are satisfied as to this, or that, or have reason to believe this, or that. Although the action or inaction of a local authority is clearly susceptible to judicial review where they have misconstrued the Act, or abused their powers or otherwise acted perversely, I think that great restraint should be exercised in giving leave to proceed by judicial review. The plight of the homeless is a desperate one, and the plight of the applicants in the present case commands the deepest sympathy. But it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case. The ground upon which the courts will review the exercise of an administrative discretion is abuse of power- e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense – unreasonableness verging on an absurdity: see the speech of Lord Scarman in Reg. v. Secretary of State for the Environment, Ex Parte Nottinghamshire County Council [1986] A.C. 240, 247-248. Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.”

Those remarks may have been directed at a different statutory function in a different era, but, to my mind, they are as pertinent today as they were in the 1980s.

With respect to the judge below, to whom I am indebted for his characteristically clear and careful analysis of the facts and issues arising, I was not persuaded that the Respondent has discharged the burden upon her of establishing that there was here a failure to take into account obviously relevant material. Accepting for present purposes that, on the facts of this case, the author of the assessment was bound to consider the conclusions in the Rogerson report, the evidence, as presented to us, has driven me to the conclusion that the report must have been taken into account.

The author, Ms Yvonne Williams, it will be remembered, is the Respondent’s case worker and she accompanied Mr Rogerson on his visit to the Respondent on 31^st May 2006. The very next day she began her assessments, the same day that he reported. I note that the two of them worked at the time in the same building and I assume, therefore, the same department. It is not clear to me whether these facts were drawn to the judge’s attention at the hearing below.

It seems highly unlikely, therefore, that she would have been unaware of why Mr Rogerson was reporting, what Ms Ireneschild had told him, or what he had concluded. Also, Ms Williams must have had access to the contents of the file upon Ms Ireneschild for much of the information reproduced in the assessment. It is accepted that many passages in the assessment could not have come from the Thorpe report. To my mind this all tends to support the evidence of Ms Janice Walkley, the Appellants’ Service Manager, who stated in her witness statement of 6^th September 2006, referring to Mr Rogerson’s and Ms Schutte’s report:

“18.

...These reports were prepared by officers within my department and the opinions stated in them were carefully considered by the council before it made its assessment.”

As Mr Béar observed, the judge did not deal with this evidence or give any reasons why not. It may be that this evidence was not given the same emphasis before him as it was before us. It may be, as I have indicated, that the judge was not alerted to the identity of the author of the assessment. Had he been, he may have been more ready to accept that Ms Walkley’s evidence was likely to be correct, as opposed to a broad assertion.

The content of the assessment has also led me to a similar conclusion. The Rogerson report may not have been mentioned in terms but it was expressly referred to by Ms Thorpe and each of them has, in turn, addressed substantially the same issues. Virtually the whole of Ms Williams’ assessment is focussed on the extent of Ms Ireneschild’s disability and the difficulties her disability creates for her and her sons within her present home. The risk of falling was at the heart of the assessment and was addressed repeatedly. When she came to summarise the “key problems and needs”, they related for the most part, to Ms Ireneschild’s needing accommodation without stairs, the problems with the stairs in her present flat and her fear of falling.

To my mind, the Respondent’s challenge, in truth, is based on the fact that Ms Williams preferred Ms Thorpe’s analysis of the risk of falling to that of Mr Rogerson and the Respondent’s experts. It is common ground that Ms Williams was entitled to rely upon the Thorpe report and in fact relied heavily upon it. Given the detailed and careful analysis within the Thorpe report I find that hardly surprising. Ms Thorpe went into far greater detail than Mr Rogerson had done. She appears to have been the first person to have explored with the Respondent what exactly the “history of falls” entailed. Ms Thorpe set out the documents she had considered and all that she had observed and heard when she interviewed Ms Ireneschild. She referred to what Mr Rogerson and others had said. She explained why she had come to a different conclusion from others on the risk of falls. Ms Thorpe relied upon what Ms Ireneschild told her. Ms Williams in turn relied upon Ms Thorpe. Ms Williams does not seem to have heard anything on her visit to Ms Ireneschild with Mr Rogerson to contradict Ms Thorpe’s recollection of events, whatever Ms Ireneschild now recalls. It should be remembered that Mr Rogerson provided no detail of the “history of falls” discussed. To my mind it was not unreasonable, therefore, for Ms Williams to act on the assumption that despite references in the documents to a “history of falls” Ms Thorpe appears to have been the only person to have pressed Ms Ireneschild on what that meant and the only significant fall recorded was over 8 years ago. If that is so then, in my view, Ms Williams’ assessment of the risk to the Respondent of falling was not unreasonable.

In any event, it appears that Ms Williams did not adopt Ms Thorpe’s assertions slavishly; for example Ms Williams reported the difficulties Ms Ireneschild faces negotiating the stairs when tired or ill, without reference to “clubbing” or “life style choices” as Ms Thorpe had done. Thus, she appears to have come to her own considered conclusion and not merely followed the conclusions of another.

It should not be forgotten that this assessment, upon which this court and Lloyd Jones J have spent so much time, was essentially a work in progress and Ms Ireneschild in the normal course of events would have had a proper opportunity to challenge the assessment or parts thereof. Even when an assessment was finalised, nothing was writ in stone; if the Respondent’s circumstances changed she could seek another assessment

I turn to the other part of Mr Rogerson’s report upon which Mr Drabble placed very considerable reliance, which is the risk to the sons of lifting the Respondent. Indeed at times during the course of argument, it appeared that virtually the whole of the Respondent’s case turned on the alleged failure to consider the risk to the Respondent’s sons. If so, it was, to my mind, on shaky ground. First, it does not surprise me that in the circumstances Ms Williams’ focus was on the Respondent. The risk to the carers had to be considered but it was secondary to the risk to the Respondent herself. Second, there was in any event an assessment dedicated to the carers themselves. Third, there was, in fact, no failure to consider the risk to the sons in the main assessment. It is now conceded that the risk to the sons was assessed; it was assessed at 1, namely “some risk”. Again, it is not clear to me whether this concession was made to the judge below. Fourth, a significant proportion of the assessment refers to the sons, the Respondent’s dependency upon them when tired or ill, their assessment of how they help their mother and their willingness to continue to do so. Their concerns were for their mother, not for themselves. The Respondent may take issue with the assessment of the risk to the sons at 1 and may have preferred to see an analysis of the risk to them in the text, but that is a far cry from saying there has been a failure to take into account a material consideration such as to render the assessment unlawful.

This leads me on to the second finding to which Mr Béar took exception and the second ground of appeal.

Failure to follow statutory guidance

Having analysed the guidance to which I have already referred, at paragraph 45 the judge summarised it in this way:

“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.”

He found that in failing properly to assess the risks to the Respondent of falling and the risk to her sons of carrying her, the authority failed to follow the statutory guidance. He concluded that the assessment failed to address the impact of the accommodation on her independence. He described this as particularly surprising given the conclusions drawn by Mr Rogerson in his assessment.

With great respect, I disagree. I see considerable force in Mr Béar’s argument that Mr Drabble’s challenge to the assessment on this ground took an overly critical approach to the assessment. Again, one must always bear in mind the context of an assessment of this kind. It is an assessment prepared by a social worker for his or her employers. It is not a final determination of a legal dispute by a lawyer which may be subjected to over zealous textual analysis. Courts must be wary, in my view, of expecting so much of hard pressed social workers that we risk taking them away, unnecessarily, from their front line duties.

For the reasons already given, I am satisfied that the assessment did adequately address the issue of independence and the risk to the carers. There was no failure to address essential questions which are required to be addressed under the guidance. At the risk of repeating myself: the assessment sets out over four paragraphs the detail of the Respondent’s mobility inside and outside her home, including specifically going up and down the stairs, which on her own account she could manage independently except on a bad day. On those occasions, she would obtain the assistance of her sons who are happy to continue helping her. The effect upon them was considered. The assessment did, therefore, address the degree to which the Respondent’s premises currently affect her autonomy and independence. The assessment recognised that “ideally” the Respondent would be housed in accommodation without external steps or internal stairs. At the same time it recognised that this might take some time. The assessment also discounted (for practical reasons) the possibility of installing a stair-lift. As Mr Béar argued, all these matters implied a recognition that the stairs posed some element of risk of falling. Thus, although the author may not have stated in terms the possible consequence to Ms Ireneschild of falling and hurting her arms, the risk of falls was undoubtedly uppermost in Ms Williams’ mind. It would have been something of a statement of the obvious for her also to state that if Ms Ireneschild fell she could hurt herself and, if she hurt herself, it could significantly impair her independence and mobility.

Ms Walkley has accepted on behalf of the authority that for so long as Ms Ireneschild is housed in accommodation with stairs she is at risk of falling. But, the risk to Ms Ireneschild and her sons cannot be considered in isolation. Everything is relative. Ms Walkley said this:

“Essentially, the council has found that the Respondent is able to negotiate her way around the property and get into and out of it. The council accepts that there is a risk to the Respondent when using her staircases however it considers this risk to be a small and acceptable risk. There are numerous council service users who manage similar or greater risks in their homes and it is neither possible nor desirable for the council to avoid all risks of this nature.”

In the words of the FACS guidance, the risks in Ms Ireneschild’s case were assessed as “acceptable”. I understand why Ms Ireneschild may object to such an assessment. I have considerable sympathy for her and for her sons. They cope remarkably well with a very difficult situation. However, the fact that some may disagree with the result does not make the process unlawful.

I turn to the next ground of challenge.

Irrationality

The judge accepted that Ms Thorpe’s purpose in preparing her report and the purpose of the assessment of the need for community care services were different. However he expressed his concern that the assessment failed to take account of what he considered a relevant consideration, namely Ms Thorpe’s award of 25 points.

At paragraphs 63 and 64 he observed:

“63.

It indicates, at the very least, that there are unsatisfactory features of the present accommodation which have an important impact on the Respondent'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 Respondent'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 re-housing as part of community care, i.e. whether there is a need for care and attention which requires new accommodation, should have been considered.”

I can deal with this ground shortly. It is common ground that the assessment refers to the housing award of 25 points in terms. Ms Thorpe explained what she meant by this: ideally, a disabled person like Ms Ireneschild should be housed in accommodation without stairs. The author of the assessment recognised this. In housing terms, this is an urgent case, but it does not necessarily follow, as the judge recognised, that because the Respondent has 25 housing points, her community care needs must be assessed as substantial. The assessment of housing needs and the assessment of community care needs are not necessarily the same. Despite awarding the Respondent maximum housing points under this head, Ms Thorpe did not suggest that the risk of the Respondent’s falling in her present accommodation is substantial. This was the issue at the heart of the care needs assessment.

In any event, whatever Ms Thorpe’s views, it was for the assessor to form her own view from a community care perspective. She was not bound to follow any previous assessment. It was a matter for her to decide what weight she attached to the housing award. I cannot accept, therefore, as the judge accepted, that the award of 25 points was a relevant consideration that the assessor failed to take into account. The fact that she accorded it less weight than the Respondent would have liked does not lay the authority open to a public law challenge.

Finally, I turn to the allegation of procedural unfairness.

Procedural unfairness

Under this head both sides have placed reliance on a decision of Stanley Burnton J in R (Begum) v LB TowerHamlets [2002] HLR 70. At paragraph 34 of his judgment he 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.”

The complaint of procedural unfairness here was based on the fact that the Respondent was not given an opportunity to address the provisional views of the author of the assessment on five matters, four of which are relevant to this appeal, namely:

At paragraph 74 the judge found:

“In the present case it appears that the author of the report relied heavily on the 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 Respondent. Although the information would have been obtained by Ms Thorpe largely from the Respondent herself, I consider that in the context of the present case Ms Thorpe's conclusions should in fairness have been disclosed to the Respondent before they were relied upon in the preparation of the community care assessment.”

Again, I can state my conclusions shortly: for the reasons given by Mr Béar, I consider that this finding imposed too onerous a duty upon the authority and went far beyond that envisaged by Stanley Burnton J in Begum. First, this was not significant information inconsistent with that provided by the Respondent obtained from a third party as Mr Drabble suggested. It was material essentially derived from the Respondent herself. The fact that Ms Thorpe was employed by a different department within the same authority is to my mind beside the point. To all intents and purposes, it was an internal report by one of the authority’s own officers, based on an interview with the Respondent. At the time of that interview, Ms Ireneschild and her solicitors knew its purpose was to assess her needs; for example, they had been alerted to the issue of falling some three weeks before in correspondence with the Appellants. All parties had not, therefore, proceeded on the assumption, as Mr Drabble contended, that all were agreed that there was a “significant risk of falling”. There was an ongoing assessment process. Ms Ireneschild had her opportunity to make representations during that process. She was expressly asked about all relevant matters by Ms Thorpe. Ms Thorpe then drew her own conclusions and explained why.

I return to the nature and purpose of a community care assessment. It is operational and inevitably judgmental. It must be carried out quickly. I accept the Appellants’ argument that a social worker preparing such an assessment cannot be expected to engage in a detailed analysis of the material obtained (often from many sources), decide what particular points have and have not been specifically addressed by the “service user” thus far, and then take steps to ensure that any points which have been missed or not sufficiently addressed are drawn to the attention of the “service user” for his or her response.

Further, I consider it significant that the process specifically allows for representations to be made about the assessment after it is completed. If the assessor had got things wrong, or Ms Thorpe had got things wrong, Ms Ireneschild would have been given the opportunity to point this out. I repeat that this was not a final determination of an entitlement. It was an assessment prepared as part of an ongoing process which by its very nature was capable of further review. In the normal course of events, when litigation does not intervene, an assessment is sent to the “service user” and he or she can then comment. If the “service user” feels their comments have not been adequately addressed they can invoke the statutory complaints procedure by virtue of the Local Authority Social Services Complaints Regulations to which I have already adverted. Given that background and statutory framework, in my view, fairness did not demand, on the facts of this case, any supplementing of the statutory procedures. The authority was not bound to consult Ms Ireneschild on Ms Thorpe’s conclusions before they placed any reliance upon them in the assessment process.

I should like to add that, on a personal level, I hope that at some stage in the not too distant future a satisfactory solution to the Respondent’s problems may be found. I am all too conscious of the demands on local authority resources given the very limited housing stock available, but it must be particularly galling for Ms Ireneschild and her sons each day to pass the answer to their prayers, namely the empty ground floor flat in the same house.

Having said that, for all the reasons I have given, I am driven to the conclusion that this appeal must be allowed on each of the four grounds.

I agree.

I agree that this appeal should be allowed. Since we are differing from a careful judgment by a judge who is experienced in public law, I add a few words of my own to explain in summary why I agree with Hallett LJ.

In my judgment, the appellant authority was obliged to take account of the Rogerson report. This is because it was obviously relevant and it would have been perverse (and therefore unlawful) not to take it into account. Mr Rogerson had written a recent report which was highly material to an assessment of Ms Ireneschild’s needs.

The question raised by the first ground of appeal is whether the judge was right to conclude that the appellant failed to take the Rogerson report into account. It is clear for the reasons given by Hallett LJ that the report by Tina Thorpe report took the Rogerson report into account and that the assessment by Ms Williams took into account the Thorpe report. In my judgment, it was reasonable for Ms Williams to take account of the Rogerson report in that way. Whether it is reasonable to take account of relevant material indirectly through the medium of an intervening decision-maker must depend on all the circumstances. Ms Thorpe’s states in her report that she has considered the Rogerson report. In other words, she took it into account in reaching her conclusions. In my judgment, it was reasonable for Ms Williams to decide to take account of the Rogerson report through the agency of the Thorpe report. In any event, there is no reason not to accept the evidence of Ms Walkely that the Rogerson report was carefully considered before the assessment was made.

As for the second ground of appeal, I agree with Hallett LJ that the assessment did in substance comply with the paras 40-42 of FACS. It was obvious from the facts stated in the assessment that Ms Ireneschild’s independence would be undermined to the extent that on a bad day she would need the assistance of her sons.

Although the third ground of appeal was given the label “irrationality”, the judge (rightly) rejected Ms Ireneschild’s submissions that the assessment was irrational. Nevertheless, he held that the assessment had not taken into account the fact that Ms Thorpe had awarded her the maximum of 25 points for medical reasons for transfer. I agree with what Hallett LJ says about this at paras 64 and 65 above.

Finally, there is procedural unfairness. The complaints are summarised at para 69 above. It is common ground that the relevant principle is neatly encapsulated in the passage cited at para 68 above from the judgment of Stanley Burnton J in R (Begum) v LB TowerHamlets [2002] HLR 70, para 34. Mr Drabble submits that the report by Ms Thorpe is akin to a report by a third party, since she was not part of the social services department and her report was not written for the purpose of the assessment of which complaint is made. She was part of the housing department, which is quite distinct from the social services department.

In my judgment, it is artificial to treat Ms Thorpe as a third party in this case. Her report was part of the chain of advice from within the appellant authority which led to the making of the assessment. The housing and care functions of a local authority are closely related to each other and overlap to a considerable extent. I do not accept that Ms Thorpe or Ms Williams were obliged to invite Ms Ireneschild to comment on the draft findings of their respective reports, whether in relation to their findings of fact or otherwise. It should not be overlooked that there is a statutory complaints procedure which can be used by anyone who is aggrieved by his or her care or assessment plan. The findings of which complaint is made in this case were all based on what Ms Thorpe elicited from Ms Ireneschild and not from a third party.

In the course of oral argument, the emphasis of this ground of appeal shifted. Mr Drabble submitted that (i) there was an assumption shared by Ms Ireneschild and the authority that she had had a history of falls and that she was therefore at a significant risk of falling in the future and (ii) fairness demanded that, if the assessment were to be made on a different assumption, she should have the opportunity of commenting on it before that was done. It is to be noted that this is not how the issue was argued before the judge.

It was conceded by Mr Béar that, if during the process leading up to the making of the assessment, it had been common ground that Ms Ireneschild had had a history of falls and that there was a significant risk of her falling in the future, it would have been unfair for the authority to depart from that common ground without giving Ms Ireneschild notice of its change of position and giving her an opportunity to make representations about it.

But I am satisfied that there was no such common ground in this case. On 29 June 2006, the solicitors acting for the authority wrote to Ms Ireneschild’s solicitors saying:

“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 28^th May 2002, 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 4 years ago we do not have medical evidence that Ms Ireneschild’s ability to manage stairs has decreased.”

Ms Ireneschild’s solicitors replied on 19 July stating that there had been a decline in her ability to manage stairs. This was written on the very day on which Ms Thorpe visited Ms Ireneschild for the purpose of making her report. In my judgment, there was no shared assumption as to the history of falls or Ms Ireneschild’s ability to manage the stairs. There was, therefore, no procedural unfairness.

For these reasons in addition to those given by Hallett LJ, I would allow this appeal.