8.64R (Ireneschild) v Lambeth LBC [2007] EWCA Civ 234, (2007) 10 CCLR 243
It was unnecessary in the particular circumstances to allow the applicant to comment on a medical adviser’s adverse report before completing the assessment; assessments are iterative and should not be too finely scrutinised
Facts: Ms Ireneschild was disabled and asserted that her current accommodation was grossly unsuitable on account of her inability to manage the stairs. An occupational therapist agreed with her but Lambeth’s medical advisor visited and awarded Ms Ireneschild a high amount of moving points, but not emergency transfer status.
Judgment: the Court of Appeal (Dyson and Hallett LJJ, Sir Peter Gibson) held that the assessment did take into account all relevant matters including an earlier assessment (albeit indirectly, as it was referred to in a more recent assessment) and it had not been unfair in this case not to invite Ms Ireneschild to comment on the medical adviser’s report because Ms Ireneschild had been able to discuss her needs with the medical adviser and because, under the statutory scheme, service users are entitled to comment on assessments and may then utilise the complaints procedure. Hallett LJ’s judgment includes the following:
44. Mr Drabble further conceded that the Respondent, having brought the proceedings to review the assessment judicially, bore the heavy burden of establishing that the assessment was unlawful. He did not attempt to persuade this court to ignore the strictures of Lord Brightman in Puhlhofer v Hillingdon LBC [1986] AC 484, 518B–E put before us by Mr Béar. Lord Brightman said this:
‘My Lords, I am troubled at the prolific use of judicial review for the purpose of challenging the performance by local authorities of their function under the Act of 1977. Parliament intended the local authority to be the judge of fact. The Act abounds with the formula when, or if, the housing authority are satisfied as to this, or that, or have reason to believe this, or that. Although the action or inaction of a local authority is clearly susceptible to judicial review where they have misconstrued the Act, or abused their powers or otherwise acted perversely, I think that great restraint should be exercised in giving leave to proceed by judicial review. The plight of the homeless is a desperate one, and the plight of the applicants in the present case commands the deepest sympathy. But it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case. The ground upon which the courts will review the exercise of an administrative discretion is abuse of power, eg bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense – unreasonableness verging on an absurdity: see the speech of Lord Scarman in R v Secretary of State for the Environment ex p Nottinghamshire County Council [1986] AC 240, 247–248. Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.’
Those remarks may have been directed at a different statutory function in a different era, but, to my mind, they are as pertinent today as they were in the 1980s.
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52. It should not be forgotten that this assessment, upon which this court and Lloyd Jones J have spent so much time, was essentially a work in progress and Ms Ireneschild in the normal course of events would have had a proper opportunity to challenge the assessment or parts thereof. Even when an assessment was finalised, nothing was writ in stone; if the Respondent’s circumstances changed she could seek another assessment.
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57. With great respect, I disagree. I see considerable force in Mr Béar’s argument that Mr Drabble’s challenge to the assessment on this ground took an overly critical approach to the assessment. Again, one must always bear in mind the context of an assessment of this kind. It is an assessment prepared by a social worker for his or her employers. It is not a final determination of a legal dispute by a lawyer which may be subjected to over zealous textual analysis. Courts must be wary, in my view, of expecting so much of hard pressed social workers that we risk taking them away, unnecessarily, from their front line duties.