High Court judge quashes refusal by council of disabled facilities grant

Councils cannot treat disabled facilities grant (DFG) applications from council tenants differently to those from others, the High Court has ruled.

Hugh Mercer QC, sitting as a deputy High Court judge, heard the case brought by tenant Glynis McKeown against the London Borough of Islington.

She had asked for a mandatory order to compel Islington to approve her application for a DFG under the Housing Grants, Construction and Regeneration Act 1996 and another mandatory order compelling the council to commission the approved works expeditiously.

Ms McKeown has had a leg amputated. Apart from accessing her back garden via a ramp she can leave her lower ground floor home only if her sons carry her up and down steps.

She applied for a DFG for installation of a platform lift from garden to street level but Islington refused this on the grounds that the works were not reasonable or practicable because the flat was unsuitable for a disabled person. It offered to move the family to a property designed for disabled people.

The court heard that Ms McKeown was emotionally attached to her home where she has friends and family nearby and enjoys her garden.

Giving judgment in McKeown, R (On the Application Of) v London Borough of Islington [2020] EWHC 779 Judge Mercer rejected Islington’s case that it had to consider whether the flat was suitable for a disabled person.

He said: “One cannot import the notion of suitability of housing into the statutory test for disabled facilities grants.

“I see that this runs the risk of [Islington] (which has evidently made significant efforts over the years to assist the claimant with her disability and care needs) feeling as though it cannot win but Parliament designs and makes provision for different statutory schemes in different fields and in my judgment each statutory duty has to be applied according to the statutory purpose and general context of the relevant statute and the terms of the duty.”

He said a council tenant’s DFG application must therefore be treated on the same basis as would an application by an owner occupier, and “in my judgment it is not lawful to refuse a DFG on the ground that the claimant must move her home”.

The judge went on: “It follows that the relief will be an order to quash the decision.”

He said Ms McKeown had been “almost entirely prevented by her disability from leaving her home for at least one year” and so Islington’s reconsideration of her DFG application should be made within 10 weeks.

Islington had also argued that installation of the platform lift would first require a full structural survey of the house in which the flat is located.

But Judge Mercer said:”There is no evidence before me which would come close to justifying a structural survey of the building.”

He added that he had been troubled by Islington’s submission that a new six months period to determine the application should run from the time of his judgment, and said: “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.”

Mark Smulian