Ali Gulrez, R (on the application of) v The London Borough of Redbridge

This judicial review challenged the defendant council's refusal to progress a Disabled Facilities Grant application for a stairlift as a contingency to the claimant's through-floor lift. The court applied the statutory scheme in the Housing Grants, Construction and Regeneration Act 1996, in particular sections 23 and 24, and related authorities establishing that section 23 provides the gateway and section 24(3) imposes the separate "reasonable and practicable" test. The council accepted the stairlift was necessary and appropriate, so the dispute concerned whether it was reasonable and practicable under section 24(3)(b).

The court found the council had applied an unlawful and unpublished policy of refusing to fund a backup adaptation where funding for a primary adaptation was available, and that this policy was not directed to the statutory criterion in section 24(3)(b) (age and condition of the building). The council also failed properly to compare the safety and risk reduction offered by a stairlift as a contingency with the proposed warranty/repair contingency for the through-floor lift and misdirected itself by treating the question as choosing the single "most reasonable and practicable option" rather than testing each adaptation against the statutory requirements. For these reasons the decision was quashed. The court refused to grant a mandatory order and awarded costs to the claimant.

Background and parties:

• The claimant, a 33 year old with profound and multiple disabilities and a full-time wheelchair user, applied (through his litigation friend) for judicial review of the London Borough of Redbridge's decision not to progress a Disabled Facilities Grant to fund a stairlift as a contingency to the claimant's through-floor lift.
• The defendant council had previously funded through-floor lifts for many years; the occupational therapist commissioned by the Clinical Commissioning Group recommended a stairlift as an emergency backup because lift failures had previously required manual transfers that were dangerous and distressing.

Nature of the claim and relief sought:

• The claimant sought to quash the council's refusal to approve a DFG for the stairlift and sought consequential relief (the claim included a request for a mandatory order but the court declined to make one).

Procedural posture:

• This was a first-instance judicial review in the Administrative Court. Permission to amend grounds was granted and the matter was heard by a Deputy High Court Judge.

Issues framed by the court:

1. Whether the council lawfully applied the statutory tests in the Housing Grants, Construction and Regeneration Act 1996 (sections 23 and 24) when refusing to fund the stairlift;
2. Whether the council had unlawfully fettered its discretion or adopted an unlawful policy or practice in refusing to fund a contingency stairlift (including an alleged practice of not funding two adaptations with the same function);
3. Whether the council took into account irrelevant considerations such as cost to the public purse, and whether there was indirect discrimination under the Equality Act 2010.

Court's reasoning and conclusions:

• The court accepted there was no dispute that the stairlift was "necessary and appropriate" and that section 23(1) applied, so the determinative issue was whether the stairlift was "reasonable and practicable" under section 24(3)(b).
• The council relied heavily on an unpublished practice/policy refusing to fund a backup where the primary adaptation could be funded and on the availability of a 24/7 warranty/repair service for a replaced through-floor lift. The judge found that policy unlawful because it was not directed to the statutory criterion in section 24(3)(b) (which concerns the age and condition of the property alone) and because a blanket refusal to fund backups could frustrate the statutory aim in section 23(1)(b) of making premises as safe as reasonably practicable.
• The council also misdirected itself by comparing the stairlift to the through-floor lift rather than comparing the stairlift as a contingency with the proposed warranty/repair contingency, and by treating the decision as selecting the single "most reasonable and practicable option" rather than testing each proposed work against the statutory tests. The council failed to assess adequately the risks that arise when the through-floor lift is unavailable and therefore failed to assess properly whether a stairlift would reduce material risk.
• The court rejected the claim of indirect discrimination under the Equality Act 2010 because there was insufficient basis to conclude the policy placed a defined protected group at a particular disadvantage compared with other disabled persons entitled to DFGs.

Disposition:

• The decision refusing to progress the stairlift was quashed. The court refused to make a mandatory order, on the basis that the defendant could be expected to take a fresh lawful decision, and awarded costs to the claimant.

The claim succeeded. The court quashed the defendant's decision refusing to progress a Disabled Facilities Grant for a stairlift because the council applied an unlawful unpublished policy and misdirected itself in law when assessing the section 24(3)(b) "reasonable and practicable" test (focusing on a single "most reasonable" option and matters not limited to the age and condition of the dwelling), and failed adequately to assess the safety and risk reduction provided by the proposed contingency. The court refused to make a mandatory order and awarded costs to the claimant.