Bg, R (on the application of) v Medway Council

A local authority with a duty to meet a disabled child’s needs retains discretion as to the lawful form of assistance. It may offer assistance by a secured loan and impose repayment conditions reasonably related to the purpose of enabling the child to remain at home. Conditions may include repayment on the child’s death or departure, interest on sums repayable, and a long term reflecting the adaptations’ purpose. The authority must consider the individual circumstances and avoid treating a policy as an inflexible rule. Regard must be had to the parents’ means, including when repayment later falls due. Lawful loan conditions do not, without more, breach Article 8 of the Convention. A statutory complaints procedure may be the appropriate first route where it can resolve a substantial part of the dispute.

BG, a three-year-old child with severe mental and physical disabilities, required adaptations to the family home costing approximately £65,000. Medway Council approved a disabled facilities grant of £25,000, offered a discretionary grant of £10,000, and offered to fund the balance by a secured loan of up to £30,000.

The parents challenged the proposed 20-year term, repayment triggers if BG died or ceased permanently to reside at the property, and the provision for interest. They also alleged unlawfulness arising from an inflexible policy, failure to consider their means, breach of Article 8, delay, and failure to use the statutory complaints procedure. The central issues were whether the loan conditions were lawful and whether the claim should have proceeded through the complaints process.

1. Substantive claim dismissed. The council had a duty to make arrangements to meet BG’s needs, but retained discretion as to how that duty should be performed. The parents’ objection to the proposed conditions did not itself determine whether the council had discharged its duty.
2. The conditions requiring repayment if BG died or ceased permanently to live at home were reasonably related to the purpose of the assistance: enabling him to live in the family home. Recovery when that purpose ceased was reasonable, particularly given the council’s limited resources and wider responsibilities. The all-or-nothing repayment model was not so extreme as to be unlawful, and remained within the range of options reasonably open to the council.
3. There was no objection in principle to charging interest on the principal sum when repayment became due. The council had stated that it would consider the family’s personal and financial circumstances and would not insist on immediate repayment or terms causing financial hardship. Those statements founded a legitimate expectation and reinforced the statutory protection in section 17(9) of the Children Act 1989.
4. The 20-year period, although long, reasonably reflected the long-term purpose of the adaptations. The shorter period applicable under the disabled facilities grant legislation was not a direct comparator.
5. The council had corrected earlier language suggesting that no exceptions were possible. The evidence showed that it understood the need to consider individual circumstances, had considered whether an exception was justified, and had reasonably concluded that it was not. It had also had proper regard to the parents’ means.
6. The loan offer did not breach Article 8. The parents were free to accept or refuse it. If accepted, it enabled BG’s needs to be met at home; if refused, the council would have to consider the consequences. The facts fell far short of establishing unlawful interference or a positive obligation breach. The damages claim therefore failed.
7. The claim was issued outside the three-month period, although permission implicitly included an extension of time. Ordinarily a defendant should have an opportunity to make representations before permission or an extension is granted. In an urgent case time should be abridged rather than the opportunity removed altogether. The statutory complaints procedure would have been an appropriate route for the challenge to the burdensome conditions, but the court proceeded to determine the substantive claim.