The facts
Sinclairslaw acted for the Claimant, Ali. Ali is 33 years old, and has a number of diagnoses including congenital spastic quadriplegia, cerebral palsy affecting all four limbs, severe global developmental delay, cortical visual and sensory impairments, epilepsy, oropharyngeal dysphagia, keratoconus, sleep disorder, and emotional and behavioural difficulties.
Ali is a full-time wheelchair user and relies on others to meet all his personal care needs. When his needs are unmet this can cause him distress, which he can exhibit through self-harming behaviour. He has a care package maintained by the NHS North East London Integrated Care Board (‘the ICB’) under continuing healthcare provisions.
Ali lives with his parents in the defendant local authority’s area. The house is two storeys and has had a number of previous adaptations over the years to account for the Ali’s needs, including the widening of doorways, the addition of ceiling tracks and hoists, and installation of a through floor lift.
In recent years, the through-floor lift started to stop between floors, or to break down completely. When the lift fails, Ali can’t transfer between the floors in his house. This is important for Ali, because his bedroom and bathroom are on the first floor, and he spends daytimes downstairs in the family room or attending a day centre.
In December 2020, the lift failed and could not be fixed the same day. Ali’s family had to manually move him upstairs to his bedroom, and downstairs again the next morning. Ali is a grown man so his parents could not carry him upstairs, and they had no other option but to drag him up the stairs wrapped in a quilt. This was very unsafe for everybody involved, and extremely distressing for Ali.
The arguments
As a result of the issues with the lift, Ali’s parents (on his behalf) requested a Disabled Facilities Grant from the defendant. As part of the process, an independent occupational therapist prepared a report. She made recommendations including:
- 1. Replacement of the through-floor lift, or purchase of a servicing agreement by the manufacturer of the current lift; and
- 2. A backup stairlift in the event of the through floor lift failing.
Ali’s parents explained to the defendant that a suitable backup option was required because a warranty or servicing agreement did not guarantee that the lift could be fixed immediately, for example if a part was unavailable. Ali needed to be able to transfer between floors in his home if the through floor lift was out of use, and the OT had determined an evac chair would not be safe for Ali.
The local authority refused the provision of the stairlift, saying that whilst it did not disagree with the recommendations made by the independent occupational therapist, it did not consider that the works would be ‘reasonable and practicable’. The local authority’s position was that Ali’s needs could be met by the provision of a new through-floor lift and new warranty.
The court’s findings
The local authority’s refusal of a disabled facilities grant for a stairlift was challenged on a number of grounds. These included that the local authority had misapplied the legal test for determining whether a disabled facilities grant should be paid and had adopted an unlawful policy in refusing to fund two items of equipment for the same purpose, where one item is a backup.
It was accepted by the defendant local authority that the recommendation of a stairlift as a contingency was ‘necessary and appropriate’. That satisfied one limb of the statutory test under s.24(3)(a) of the Housing Grants, Construction and Regeneration Act 1996 that must be met for a grant to be awarded. However, the defendant stated that the stairlift was not ‘reasonable and practicable’, which was the second limb under s.24(3)(b) that had to be met.
The judge held that the defendant’s decision that the stairlift was not ‘reasonable and practicable’ was unlawful. This was because when determining whether an adaptation is ‘reasonable and practicable’, the age and condition of the property are the only factors to be considered. The defendant had erroneously considered other factors.
Further, the judge held that the policy of only funding one item of equipment for the same purpose was unlawful. Disabled facilities grants are intended to make a dwelling as safe as reasonably practicable and there was no obvious reason why a backup could not provide additional safety. The court concluded at paragraph 69.i: “a policy of not funding backups potentially undermines the statutory objective of making a property as safe as reasonably practicable.
Accordingly, the defendant local authority should have applied the statutory test and determined whether it was met, rather than applying the unlawful policy of refusing to fund backup equipment. Because of the local authority’s reliance on the policy, they did not properly assess the risk to Ali of not having a backup option.
As a result of the case, the local authority was ordered to remake the decision and pay Ali’s legal costs.
The full judgment can be read here.
The claimant was represented by Alice Irving of Doughty Street Chambers and Louise Eardley of Sinclairslaw.