Foundations Special Webinar, 05 July 2022
Mrs McKeown is 63 and a tenant of Islington Council. She lives in a three storey maisonette with her husband and adult son. Another son lives across the road. She has previously had other adaptations to her home including stairlifts and a ramp into the back garden.
Due to long standing health difficulties Mrs McKeown had her right leg amputated in April 2019 and now uses a wheelchair – which means that she cannot gain access to/from her house unless her sons carry her up/down the steps to her lower ground front door. Mrs McKeown applied for a DFG for a platform lift which was refused by Islington in November 2019. Mrs McKeown applied for a Judicial Review.
Local Authority View
Islington refused the application because they didn’t consider the provision of a platform lift to be “reasonable and practicable”, primarily because the rest of the house is no longer suitable. Instead they offered as an alternative, a purpose built new build home just under 2 miles away. Mrs McKeown is emotionally attached to her home and has her son and other friends close by. She accepts that the kitchen and bathroom facilities are difficult for her to use, but she does not want to move.
Gaining access to a home is a relevant purpose for a DFG, and that can only be done by providing a platform lift. To decide whether that can be funded by DFG a local authority has to determine whether it is “necessary and appropriate” and then “reasonable and practicable”
Islington took the view that the lift is not “necessary and appropriate” because she will have increased difficulty in using the stairlifts, toilet, kitchen and bathroom making the house unsuitable. They also decided it was not “reasonable and practicable” due to the suitability of the rest of the house, the likelihood of planning permission being refused and the potential for additional costs to take the total above the maximum grant limit of £30,000.
The judge, Hugh Mercer QC, granted the Judicial Review and quashed Islington’s refusal, making the following points:
- The assessment of “necessary and appropriate” can only be made against the specific purpose for which grant application is made. So any consideration of the suitability of the rest of the house is irrelevant if the application is only for access to and from the house.
- Similarly the suitability of the rest of the house isn’t applicable to the “reasonable and practicable” test, unless it’s because the home is too old or dilapidated to merit improvement.
- The likelihood of securing planning permission cannot be a reason for refusing a DFG, as the costs of applying can be included within an application (although presumably a later refusal would require a change to the grant).
- Any costs over and above the amount in the grant application are the applicant’s responsibility and not having assurance that the applicant can meet those costs is not a reason to refuse an application.
The judge also commented that Islington had confused their separate roles as landlord of council housing and decision maker for DFGs – and that availability of suitable alternative accommodation was not a valid reason for refusing a DFG. It was recognised that the offer to facilitate a move is good practice, but as the legislation covers all tenures you can’t force a tenant to move any more than you could an owner occupier. Whether there is a valid reason to refuse permission to carry out the adaptations as the landlord was not considered.
Limiting the application of “reasonable and practicable” to the age and condition of the dwelling appears to contradict para 41 of the current guidance which also references:
“the architectural and structural characteristics … (which) … may render certain types of adaptation inappropriate”; and
“the impact on other occupants of proposed works which will reduce or limit the existing facilities or amenities in the dwelling”.
One of the key judgements is that each “purpose” of a DFG needs to be considered in isolation without any reference to other purposes. So, for example, if someone wants their first floor bathroom adapting but struggles to safely use the stairs – then their ability to use the stairs should not be considered when deciding on adaptations to the bathroom.
Consequently a disabled person could also make separate applications against each purpose – each up to a maximum of £30,000. This could be a significant issue where large scale adaptations are required, such as a ground floor extension with a bedroom and a bathroom with specialist equipment. Potentially an applicant could make separate applications for things like a specialist bath or washbasin, meaning they can secure funding well in excess of the usual £30k limit.
In summing up the judge says, “the existence of mandatory grants is extremely rare and that rarity illustrates that the mindset of the decision-making authority must not be to search for grounds to refuse the grant but in good faith to limit its examination to the relevant matters”. In other words, try to say yes.