A disabled man has succeeded in his claim for judicial review against the London Borough of Redbridge after a deputy High Court judge ruled that the council acted unlawfully in its application of policy to determine whether the provision of a stairlift was reasonable and practicable.

The challenge was to an alleged unlawful refusal of an application for a Disabled Facilities Grant ('a DFG'). In this case the DFG was sought, in part, in order to fund the installation of a stairlift.

The claim in Gulrez, R (On the Application Of) v London Borough of Redbridge [2022] EWHC 2908 (Admin) succeeded on one of the three grounds submitted on behalf of the claimant.

The other grounds submitted by the claimant were not accepted by the judge:

The Claimant is 33 years old and has "profound and multiple disabilities". He is registered as blind and is a full-time wheelchair user. He is reliant on others for all his basic selfcare needs, requiring assistance with feeding, dressing, and bathing. He is unable to reliably communicate his needs either verbally or non-verbally.

The Claimant lives with his parents in a four-bedroom semi-detached house. His bedroom and bathroom are both on the first floor. A through floor lift operates between a corner of the kitchen diner and into the Claimant's room, so that he is able to move around between the rooms easily.

The first through floor lift was installed in 1997 and was replaced in 2015. The current through floor lift was installed in September 2022. The adaptations which have taken place have always been carried out and funded by Redbridge.

On 5 July 2021 an OT visited the property, following a request for a DFG. The application had been made due to difficulties that had been experienced with the through floor lift. The Claimant 's case was that a lift failure can leave him stuck on the ground floor and unable to access his bedroom and bathroom. One failure occurred between 21 and 22 December 2020. On this occasion a manual transfer was required, which was said to have been dangerous.

The OT made recommendations in a report dated 23 August 2021. The report stated that OT input had been sought to identify suitable replacement options for current adaptations "which are not working effectively to meet [the Claimant's] needs". The particular concern was said to have been that the through floor lift was breaking down. It was said that, among other things, that there was a need for "a suitable backup [to be] identified".

The report noted that a stairlift could be provided to enable the Claimant to have full access to services in the event that a lift breaks down. The report considered the suitability of a stairlift and concluded it was accepted as an "emergency solution".

On 27 August 2021 the OT report was sent to the Defendant's Home Improvement Team by the clinical commissioning group. On 24 September 2021, an email was received from a Senior Practitioner OT in the Defendant's Home Improvement Team, which stated:

“I have discussed with my manager regarding contingence (Stairlift) and the suggestion is that the TFL warranty/service agreement with 24/7 call out would be the contingence plan. Hence, stair lift recommendation as a contingence will not be progressed via DFG.”

On 27 September 2021, a case manager from NJ Case Management responded to the Senior Practitioner OT asking for, among other matters, clarification of the reasons why the stair lift could not be installed.

On 30 September 2021, the Senior Practitioner OT called the case manager and explained that the DFG 'only covers' one piece of equipment. Therefore, a new stairlift could not be funded in addition to a new through floor lift. Further, she stated that the service plan for the through floor lift would be sufficient as a contingency plan.

Following further correspondence, on 6 October 2021 the case manager emailed the CCG and the Defendant asking if the stairlift could be funded by a DFG instead of a new through floor lift. That proposal was contingent on the existing through floor lift being declared as being in working order. It was said that a callout plan for the through floor lift was not a sufficient contingency as there was no guarantee that the lift could be fixed immediately.

On 11 October 2021, a response was received from Redbridge's Group Manager for Environmental Health. This stated:

The client cannot have both a through floor lift and a stairlift as a contingency. The contingency is the warranty.

A meeting proposed by the Group Manager for Environmental Health was convened on 12 November 2021 and was attended by him, the Senior Practitioner OT and another Defendant OT, representatives from the CCG and representatives from NJ Case Management. Notes taken of the meeting by NJ Case Management record stated:

i) The Home Improvement Team confirmed that the DFG could cover only 1 major piece of equipment.

ii) The Home Improvement Team’s decision to refuse the stairlift was based on safety issues regarding manual moving and handling. It was pointed out that 10 years ago the installation of a stair lift was considered but was ruled out due to risk. A through floor lift was instead installed.

iii) The Home Improvement Team stated that if the through floor lift breaks down, the solution will be the emergency callout service. With a new lift in place, the possibility of circumstances in which it could not be fixed immediately would be reduced.

On 24 December 2021, the Claimant's solicitors sent a letter alleging that the decision by the Defendant's Home Improvement Team not to progress a DFG application in relation to the stairlift was unlawful.

After further correspondence, A formal pre-action protocol letter was sent by the Claimant's solicitors on 20 January 2022.

Redbridge responded to the pre-action letter on 8 February 2022 stating:

“This authority does not provide stair lifts as contingencies, should there be issues with the new through floor lift, the Warranty and 24/7 call out service is in place to ensure that the through floor lift will be repaired as soon as possible. If this is not possible CCG OT will ensure support and assistance to the service user until such time the through floor lift is fixed.”

In his analysis, Hugh Southey KC (sitting as a Deputy Judge of the High Court) said: “The issue is whether the Defendant lawfully concluded that the stairlift is not reasonable and practicable so that the test in section 24(3)(b) of the 1996 Act is not met.

“In oral submissions, the Defendant placed significant weight on a policy or practice that was said to have been applied when determining whether the installation of a stairlift was reasonable and practicable. That was said to have justified the decision in question. It is a matter of concern that the policy does not appear to have been published. That appears to have led to some uncertainty about its terms. For example, it has clearly been said at times that the Defendant will not fund 2 adaptations. However, there has been no challenge to the unpublished nature of the policy. Further, in written submissions filed after the hearing the Defendant stated that:

“The Defendant's position … is that it may fund more than one adaptation but not where the adaptation is to be used as a contingency for example in this instance two lifts which would be able to carry out the same function. In these circumstances another option would be found such as in this case 24/7 warranty, which it is submitted is a safe option and within ss23 and 24."

“I will proceed on the basis that this is the policy that was applied in this case. The evidence appears to be consistent with this policy having been applied.”

On Ground 1, Judge Southey concluded that the policy identified by the Defendant in its written submissions as a basis for concluding that that works were not reasonable and practicable was unlawful.

The conclusion was reached for the following reasons:

Judge Southey said the application of the policy appeared to have been at the heart of the Defendant's decision making and resulted in illegality. "However, it appears to me that there are other flaws in that decision making that amount to illegality (albeit those flaws may well have flowed from the policy)."

i) “The meeting conducted on 12 November 2021 relied on safety issues in relation to a stairlift as a reason for refusing to provide a DFG. In particular, it was pointed out that 10 years ago the installation of a stair lift was considered but was ruled out due to risk. A through floor lift was instead installed. It appears to me, however, that this reasoning misses the key point. Nobody was suggesting a stairlift as an alternative to a through floor lift. It was recommended by [the OT] as a backup. As already noted, an objective of a DFG is to make a dwelling as safe as reasonably practicable. As a consequence, the issue was whether the stairlift was safer than simply having a warranty as a back up. It was not whether the stairlift was safer than a through floor lift. That is either irrational or a failure to exercise powers in accordance with the relevant statutory objective.

ii) Linked to the point just made, there appears to have been a failure to assess the risks associated with periods when the through floor lift has failed. That is demonstrated by the lack of clarity as to what should happen if the through floor lift fails. As noted above, the summary grounds and detailed grounds appear to be inconsistent about the steps that should be taken where there is a failure. It appears to me that it is very difficult to assess whether a backup will reduce risk if there is no clear understanding of alternative steps that should be taken to assess risk. This is material as there appears to be no dispute that there is a risk of the through floor lift failing. Of course the policy considered above means that it is not surprising that there was a failure to properly consider the extent to which a backup will reduce risk. It made the reduction of risk irrelevant.”

On Ground 2, Judge Southey concluded that there was no “indirect discrimination contrary to the 2010 Act” and he did not accept that the Defendant had “fettered its discretion”.

He concluded: “This case is not really about discretion. There is a duty to provide a DFG if statutory criteria are met. A local authority has a judgment to make as to whether those criteria are met. In reaching that judgment the local authority has to apply the law correctly. That decision making process does not amount to a discretion. The real question is whether the application of the policy results in illegality. I have already concluded that it does.”

On Ground 3, Judge Southey said: “the Claimant argues that the Defendant unlawfully relied on the expense of the stairlift as a reason for refusing it. I am unclear to what extent this factor was relied on. It appears to me that, although the reasoning of the Defendant is not clear, the primary reason for refusing funding is the application of the policy.”

He added: “I don't see how the references to the public purse result in further illegality.”

Judge Southey concluded that the decision challenged was unlawful, and consequently should be quashed.

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