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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Mohammed, R (on the application of) v Birmingham City Council [1998] EWHC Admin 632 (12 June 1998) URL: http://www.bailii.org/ew/cases/EWHC/Admin/1998/632.html Cite as: [1998] EWHC Admin 632

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST

		Royal Courts of Justice Strand London WC2
		12th June 1998

MR JUSTICE DYSON:

Introduction

The Applicant made an application to the Respondent for a disabled facilities grant ("DFG"), which it is agreed that, for the purposes of this judgment, should be treated as having been made under Section 2 of the Housing Grants, Construction and Regeneration Act 1996 (" the 1996 Act"). It is also agreed that the applicant is "disabled" within the meaning of Section 100 of the 1996 Act.

The basis of his application was that he suffered from arthritis, anxiety and depression, and his case (which was supported by an occupational therapist's report) was that his health would benefit from the provision at his home of facilities such as central heating, insulation and draught-free windows. On 15th April 1997, the respondent's Housing Department refused his application on the grounds that he did not meet the criteria which the respondent had adopted for determining an application for a DFG. The criteria in the case of a grant for heating equipment were that the applicant must:

"(a) Receive home kidney dialysis and his/her treatment room is inadequately heated

or

(b) have a medical condition which makes it necessary for him/her to be in a constant temperature 24 hours per day and existing heating is unable to maintain this.....

or

(c) have been assessed by Social Services as requiring extended bedroom/bathroom facilities in his or her home, which also require heating."

Judicial review proceedings were instituted by the applicant. By its letter dated 9th April 1998 the respondent agreed to reconsider its previous determination. Moreover, on the 27th May 1998, it conceded that its existing policy in relation to DFGs was invalid, because its criteria were unlawfully rigid in the context of the statutory scheme. The respondent has not yet made a further decision. It has indicated that, when it makes this decision, it will do so on the basis that it is obliged, or alternatively entitled, to have regard to its financial resources in determining the application.

On behalf of the applicant, Mr Knafler submits that the respondent's financial resources are irrelevant to the question whether the applicant is entitled to a DFG. He urges me to rule on the resources issue, even though it is possible that the respondent will allow the applicant's claim for DFG in full in any event. The respondent does not object to my deciding the point. Since both Counsel have prepared submissions on the issue, and a decision on it may well be of utility to the parties to these proceedings, and it is a point of considerable general importance to the respondent and other local housing authorities, I propose to decide it.

As a matter of form, it will be necessary for the applicant to amend his Form 86A to claim a declaration that the respondent is not entitled to have regard to its resources in determining whether or not to approve an application for a DFG for purposes within section 23(1) of the 1996 Act. I grant him leave to amend.

Sections 23 and 24 of the 1996 Act

These are the central provisions of the 1996 Act. They provide as follows:

"23. (1) The purposes for which an application for a disabled facilities grant must be approved, subject to the provisions of this Chapter, are the following -

(a) facilitating access by the disabled occupant to and from the dwelling or the building in which the dwelling or, as the case may be, flat is situated;

(b) making the dwelling or building safe for the disabled occupant and other persons residing with him;

(c) facilitating access by the disabled occupant to a room used or usable as the principal family room;

(d) facilitating access by the disabled occupant to, or providing for the disabled occupant, a room used or usable for sleeping;

(e) facilitating access by the disabled occupant to, or providing for the disabled occupant, a room in which there is a lavatory, or facilitating the use by the disabled occupant of such a facility;

(f) facilitating access by the disabled occupant to, or providing for the disabled occupant, a room in which there is a bath or shower (or both), or facilitating the use by the disabled occupant of such a facility;

(g) facilitating access by the disabled occupant to, or providing for the disabled occupant, a room in which there is a washhand basin, or facilitating the use by the disabled occupant of such a facility;

(h) facilitating the preparation and cooking of food by the disabled occupant;

(i) improving any heating system in the dwelling to meet the needs of the disabled occupant or, if there is no existing heating system in the dwelling or any such system is unsuitable for use by the disabled occupant, providing a heating system suitable to meet his needs;

(j) facilitating the use by the disabled occupant of a source of power, light or heat by altering the position of one or more means of access to or control of that source or by providing additional means of control;

(k) facilitating access and movement by the disabled occupant around the dwelling in order to enable him to care for a person who is normally resident in the dwelling and is in need of such care;

(l) such other purposes as may be specified by order of the Secretary of State.

(2) An application for a disabled facilities grant may be approved, subject to the provisions of this Chapter, for the purpose of making the dwelling or building suitable for the accommodation, welfare or employment of the disabled occupant in any other respect.

(3) If in the opinion of the local housing authority the relevant works are more or less extensive than is necessary to achieve any of the purposes set out in subsection (1) or the purpose mentioned in subsection (2), they may, with the consent of the applicant, treat the application as varied so that the relevant works are limited to or, as the case may be, include such works as seem to the authority to be necessary for that purpose.

24 - (1) The local housing authority -

(a) shall approve an application for a disabled facilities grant for purposes within section 23(1), and

(b) may if they think fit approve an application for a disabled facilities grant not for a purpose within that provision but for the purpose specified in section 23(2),

subject to the following provisions.

(2) Where an authority entertain an owner's application for a disabled facilities grant made by a person who proposes to acquire a qualifying owner's interest, they shall not approve the application until they are satisfied that he has done so.

(3) A local housing authority shall not approve an application for a disabled facilities grant unless they are satisfied -

(a)that the relevant works are necessary and appropriate to meet the needs of the disabled occupant, and

(b) that it is reasonable and practicable to carry out the relevant works having regard to the age and condition of the dwelling or building.

In considering the matters mentioned in paragraph (a) a local housing authority which is not itself a social services authority shall consult the social services authority

(4) An authority proposing to approve an application for a disabled facilities grant shall consider-

(a) in the case of an application in respect of works to a dwelling, whether the dwelling is fit for human habitation;

(b) in the case of a common parts application, whether the building meets the requirements in section 604(2) of the Housing Act 1985,

and the authority shall take that into account in deciding whether it is reasonable practicable to carry out the relevant works."

Other relevant provisions

Mr Knafler relies on other provisions as showing that the draftsman of the 1996 Act was alive to the issue of available resources. Section 30 provides for means testing in the case of an application by an owner-occupier or tenant. Section 31 contains, in the case of a landlord's application, special provisions for the determination of the amount of the grant by the local housing authority, having regard to the extent to which the landlord is able to charge a higher rent for the premises because of the works, and such other matters as the Secretary of State may direct. Section 33 gives the Secretary of State power to specify the maximum amount of grant, including, in the case of a section 23(1) DFG, the power to authorise the local housing authority, if they think fit, to pay a further amount in excess of the maximum stipulated by the Secretary of State. Section 36 empowers a local housing authority to approve a section 23(1) DFG, on terms that payment of the grant, or part of it, will not be made before a certain date.

Interpretation of Sections 23 and 24

I

The background to the relevant provisions of the 1996 Act is important. Prior to 1996, the statutory codes for grants in respect of housing works ("renovation grants", "common parts grants", "DFGs" and "HMO grants") were to be found in Part VIII of the Local Government Housing Act 1989. Under the 1989 Act, in certain cases, approval of all four types of grant was mandatory. The 1996 Act made all grants discretionary, save for DFGs. DFGs retained their mandatory status if they related to purposes within section 23(1) of the 1996 Act: note section 23(1) "must be approved", and section 24(1)(a) "shall approve". If the grant was for the purpose of making the dwelling or building suitable for the disabled occupant in any respect other than that specified in section 23(1), then it became discretionary: note section 23(2) "may be approved", and section 24 (1)(b) "may if they think fit approve".

It is not in issue that, in deciding whether or not to approve a discretionary grant, a local housing authority is entitled to take its available financial resources into account. At first sight, therefore, the fact that, when enacting the 1996 Act, Parliament decided to retain mandatory status only for section 23(1) DFGs lends strong support to the argument that available resources are irrelevant to the determination of applications for such grants. Why else change the status of most of the grants, if it was not to permit local housing authorities to have regard to their resources in relation to them, and (by inference) not to do so in relation to grants which continued to be mandatory? Why else take the trouble to provide that DFGs for purposes within section 23(1) be mandatory, and those for other purposes be discretionary?

II

The statutory history, and the contrasting treatment accorded by Parliament to section 23(1) DFGs on the one hand, and the remaining grants on the other hand, whilst not conclusive, do suggest that Parliament intended that the availability of financial resources should be irrelevant to the decision whether or not to approve DFGs for purposes within section 23(1).

A further indication that this is what Parliament intended is the fact that the draftsman of the 1996 Act was alive to the issue of financial resources, and yet did not expressly provide that resources should be taken into consideration by an authority when deciding whether the relevant works were "necessary and appropriate to meet the needs of the disabled occupant". The various provisions to which I have earlier referred show that Parliament was aware of the financial constraints under which local housing authorities operate. Each of these provisions was designed to reduce the financial burden of making grants. I accept, however, that the significance of this should not be overstated, because, for the most part, they apply not only in the case of mandatory section 23(1) DFGs, but discretionary grants as well. As I have already said, it is common ground that local housing authorities are entitled to have regard to their financial resources when deciding whether or not to approve discretionary grants.

Another pointer as to what Parliament intended is to be found in Section 24(3)(b) and (4). These provisions were inserted to make it clear that, even if the relevant works were necessary and appropriate to meet the needs of the disabled occupant, the authority was neither obliged nor entitled to approve an application for a DFG, unless it was reasonable and practicable to carry out the work, having regard to the age and condition of the dwelling or building, and unless, in the case of a dwelling, the authority had taken into account whether the dwelling was fit for human habitation. No doubt, the reason for these conditions was an appreciation of the fact that it was not a sensible use of resources to make a DFG to improve an old, dilapidated building, or a dwelling which was not fit for human habitation.

The fact that Parliament saw fit to introduce section 24(3) and (4) suggests that, but for their introduction, an authority would have been obliged (regardless of resource considerations) to approve a DFG, if satisfied that the relevant works were necessary and appropriate to meet section 23(1) needs. The express reference to resource-related considerations in section 24(3)(b) strongly suggests that those considerations do not fall to be taken into account in determining whether the relevant works are "necessary and appropriate to meet the needs of the disabled occupant" within the meaning of section 24(3)(a). Further support for this view comes from the fact that section 24(3) enjoins a local housing authority which is not itself a social services authority to consult the social services authority in considering the matters mentioned in paragraph (a). The social services authority can advise as to the applicant's needs, whether he or she has a need for any of the facilities mentioned in section 23(1) and whether the works proposed by the applicant are necessary and appropriate, if that need is to be satisfied. One would not expect the social services authority to advise on the question whether the local housing authority should apply its financial resources to approve the Section 23(1) DFG at all.

III

In the interpretation of sections 23 and 24, it is important to give words their ordinary meaning, and read them in the context of the 1996 Act as a whole and against the background of the previous legislation. In my opinion, save to the extent that they are expressly authorised or required to do so by the 1996 Act, local housing authorities are not entitled to have regard to their resources in determining whether or not to approve an application for a DFG for purposes within section 23(1) of the Act.

Authorities are required to decide whether the purpose which the works described in the application is intended to achieve will be achieved by those works, and whether that purpose comes within section 23(1). If it does, then, subject to section 24(3) and (4) and any of the other resource-related provisions that are relevant, the authority must approve the DFG. The question whether the purpose will be achieved by the relevant works, and whether that purpose comes within section 23(1) falls to be determined objectively, having regard to the nature of the applicant's needs and the proposed works. The overriding purpose of the DFG is to make the dwelling or building suitable for the accommodation, welfare or employment of the disabled occupant: see section 23(2), and in particular the concluding words "in any other respect"(my emphasis).

In my view, there is no room in the statutory language (beyond what is expressly provided) for resources to play a part in determining whether the proposed works are necessary or appropriate to achieve the purpose or purposes, which the applicant asserts will be achieved by his or her application. Section 24(1) does not advance the respondent's argument. It reinforces the language of obligation found in the opening words of section 23(1). Mr Baker's argument centres (as it must) on section 24(3)(a). He submits that the requirement that the authority be satisfied that the relevant works are "necessary and appropriate to meet the needs of the disabled occupant" mean that the authority must, or at least may, have regard to its financial resources in deciding whether the works are necessary and appropriate.

I have already given a number of reasons why I consider that these words do not bear this meaning. In my view, section 24(3)(a) is directed to a consideration of a technical question, namely whether the relevant works are necessary and appropriate to meet the applicant's needs.

The Authorities

There is no previous decision on the issue which I have to determine. The question whether resources are relevant in determining the nature and scope of local authority statutory duties has been the subject of decision in other statutory contexts. Although I am conscious of the dangers of comparing decisions on different statutes, I must refer to two recent decisions of the House of Lords.

The first is R v Gloucestershire County Council ex-parte Barry [1997] AC 584. That case concerned Section 2(1) of the Chronically Sick Disabled Persons Act 1970 which, so far as relevant, provides as follows:

"2(1) Where a local authority having functions under Section 29 of the National Assistance Act 1948 are satisfied in the case of any person to whom that section applies who is ordinarily resident in their area that it is necessary in order to meet the needs of that person for that authority to make arrangements for all or any of the following matters, namely [(a)-(h)] then......it shall be the duty of that authority to make those arrangements in exercise of their functions under the said section 29".

The matters referred to paras. (a)-(h) of section 2(1) were as follows:

"(a) The provision of practical assistance for that person in his home;

(b) The provision for that person of, or assistance to, that person in obtaining, wireless, television, library or similar recreational facilities;

(c) The provision for that person of lectures, games, outings or other recreational facilities......

(d) The provision for that person of facilities for, or assistance in, travelling to and from his home for the purpose of ......

(e) The provision of assistance for that person in arranging for the carrying out of any works of adaptation in his home or the provision of any additional facilities designed to secure his greater safety, comfort or convenience;

(f) Facilitating the taking of holidays by that person;

(g) The provision of meals for that person whether in his home or elsewhere;

(h) The provision for that person of, or assistance for that person in obtaining, a telephone . . ."

The applicant in that case was disabled, and had been in receipt of home care for shopping, pension, laundry, cleaning and meals on wheels. He was then told that the provision of cleaning and laundry would be withdrawn because the local authority had insufficient resources. The House of Lords held by a majority that it was lawful for the local authority, in deciding what was necessary to meet the needs of the applicant, to take into account the scarcity of the resources available to it. The second House of Lords decision is R v East Sussex County Council ex-parte Tandy [1998] 2AER 769. Lord Browne-Wilkinson gave the leading speech. At page 776B, he explained ex-parte Barry in the following terms:

"The question in Barry related to the questions what were the "needs" of the disabled person and whether it was "necessary in order to meet" those needs to make arrangements for the indicated benefits. It was held by Lord Nicholls that, in assessing the needs of the disabled person, the local authority had to have regard to the cost of what was to be provided and once regard was had to cost they must also have regard to the resources available to meet such cost. Depending on the authority's financial position the authority could be more or less stringent in the criteria it set as constituting need. Lord Clyde adopted a different approach. He apparently accepted that the local authority's resources were not relevant to deciding what were the needs of the applicant but held that they were relevant to the decision whether it was "necessary" to make arrangements to meet those needs: he accepted that there might be in one sense "unmet needs" if the local authority decided, in the light of its financial circumstances, that there was no necessity to meet those needs: see p. 475B and H. Whichever approach was adopted, the statutory provision there under consideration was a strange one. The statutory duty was to arrange certain benefits to meet the "needs" of the disabled persons but the lack of certain of the benefits enumerated in the section could not possibly give rise to "need" in any stringent sense of the word. Thus it is difficult to talk about the lack of a radio or a holiday or a recreational activity as giving rise to a need: they may be desirable but they are not in any ordinary sense necessities. Yet, according to the section the disabled person's needs were to be capable of being met by the provision of such benefits. The statute provided no guidance as to what were the criteria by which a need of that unusual kind was to be assessed. There was no definition of need beyond the instances of the possible benefits. In those circumstances, it is perhaps not surprising that the majority of your Lordships looked for some other more stringent criteria enabling the local authority to determine what was to be treated as a need by reference to the resources available to it."

The case of ex-parte Tandy concerned Section 298 of the Education Act 1993 which provided as follows:

"(1) Each local education authority shall make arrangements for the provision of suitable full-time or part-time education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.

.....

(7) In this sub-section " suitable education", in relation to the child or young person, means efficient education suitable to his age, ability and aptitude and to any special educational needs he may have"

The issue was whether the local education authority was entitled to reduce the home tuition it was providing to a child with special educational needs, its decision to do so having been dictated purely by financial considerations. The House of Lords held that the statute defined what was meant by "suitable education" by reference to wholly objective educational criteria, and distinguished ex-parte Barry inter alia on the grounds that the statute in that case gave no guidance as to what were the criteria by which a need of the unusual kind mentioned in the 1970 Act was to be assessed. At page 776J, Lord Browne-Wilkinson said this:

"First, the county council has as a matter of strict legality the resources necessary to perform its statutory duty under section 298. Very understandably it does not wish to bleed its other functions of resources so as to enable it to perform the statutory duty under section 298. But it can, if it wishes, divert money from other educational, or other, applications which are merely discretionary so as to apply such diverted moneys to discharge the statutory laid down by section 298. The argument is not one of insufficient resources to discharge the duty but of a preference for using the money for other purposes. To permit a local authority to avoid performing a statutory duty on the grounds that it prefers to spend the money in other ways is to downgrade a statutory duty to a discretionary power. A similar argument was put forward in the Barry case but dismissed by Lord Nicholls (at p.470F-G) apparently on the ground that the complainant could control the failure of a local authority to carry out its statutory duty by showing that it was acting in a way which was Wednesbury unreasonable in failing to allocate the necessary resources. But with respect this is a very doubtful form of protection. Once the reasonableness of the actions of a local authority depends upon its decision how to apply scarce financial resources, the local authority's decision becomes extremely difficult to review. The court cannot second-guess the local authority in the way in which it spends its limited resources: see also Reg. v Cambridge Health Authority, Ex parte B [1995] 1 WLR 898, especially at p. 906D-F. Parliament has chosen to impose a statutory duty, as opposed to a power, requiring the local authority to do certain things. In my judgment the courts should be slow to downgrade such duties into what are, in effect, mere discretion's over which the court would have very little real control. If Parliament wishes to reduce public expenditure on meeting the needs of sick children then it is up to Parliament so to provide. It is not for the courts to adjust the order of priorities as between statutory duties and statutory discretion's."

Mr Baker relies on ex-parte Barry, and in particular the similarity between the language of section 2(1) of the 1970 Act , viz.: "necessary in order to meet the needs..." , and section 24(3)(a) of the 1996 Act viz.: " necessary and appropriate to meet the needs...". At first sight, there appears to be some force in this point, although Mr Baker realistically accepts that ex-parte Barry, being a decision on a different statute, can be no more than persuasive authority.

I do not consider that ex-parte Barry provides the answer to the question that I have to decide. The important differences between the two statutes include the following. First, the needs mentioned in section 23(1) of the 1996 Act are real needs for disabled occupants as defined. The observation by Lord Browne-Wilkinson that the lack of certain of the enumerated facilities could not possibly give rise to "need" in any stringent sense of the word is not applicable to the facilities enumerated in section 23 of the 1996 Act. Secondly, none of the clues as to the intention of Parliament which I have mentioned earlier was present in the 1970 Act. I refer in particular to the legislative background, the contrast between the discretionary and mandatory grants, the references showing that the draftsman was alive to the issue of financial resources, and the existence of Section 24(3)(b) and (4) of the 1996 Act.

Conclusion

I conclude, therefore, that, save to the extent that they are expressly authorised or required by the 1996 Act to have regard to resource considerations, local housing authorities are not entitled to take resources into account in deciding whether or not to approve a DFG for section 23(1) purposes. In enacting the 1996 Act, Parliament chose to downgrade statutory duties to discretions in relation to the approval of all four types of grant, save for DFGs for section 23(1) purposes. In making the decision to treat section 23(1) DFGs differently, it recognised the importance of obliging local housing authorities to approve grants to disabled occupants whose applications fulfilled the purposes enumerated in section 23(1). It also recognised (but only to a limited extent) the need to ensure that the resources of authorities were not unduly depleted in approving such grants. In this respect, the protection afforded by section 24(3) and (4) is of particular importance. But it did not permit authorities to curtail the amounts awarded or to decide not to approve such grants at all solely because they preferred to deploy their resources elsewhere.

The concluding words of Lord Browne-Wilkinson's speech in ex-parte Tandy are entirely apt to the statutory provisions with which this case is concerned. Parliament has chosen to impose a statutory duty in relation to DFGs within section 23(1) purposes. The court should be slow to downgrade such a duty into a mere discretion over which the court would have very little control. If Parliament wishes to redirect public expenditure on meeting the needs of disabled occupants of buildings, then it is for Parliament so to provide. In the 1996 Act, it seems to me that, for the reasons I have given, Parliament has made it even clearer than it did in the provisions of the Education Act 1993 that were considered in ex-parte Tandy that, subject to certain express limitations, local housing authorities are obliged to approve DFGs within section 23(1) purposes whatever the resource implications of doing so may be.

MR JUSTICE DYSON: I am grateful to both of you for your comments and observations.

MR BAKER: My Lord, it was with some trepidation that one makes

observations on it.

MR JUSTICE DYSON: You do not need to feel trepidation as I was grateful for them. I did not adopt all of them, but some of them I did. Is this an agreed form of order?

MR KNAFLER: It is not, my Lord, it is what I asked for. I have taken into account a number of criticisms and comments that Mr Baker has made, as your Lordship will see by virtue of the manuscript alteration. Even in that state, it is not finally agreed, that is the order I am seeking.

MR JUSTICE DYSON: Let me just read it first. Mr Baker, what are you unhappy about?

MR BAKER: My Lord, so far as the first part of the order is concerned, so far as I am aware, the only effective decision in this case is the last of the three that was incorporated into the original draft, that is 18th September 1997. So far as that is concerned, we would say strictly it is unnecessary to quash the decision because the Respondents themselves have said they will reconsider but, save as to that, we have no observations on that particular part of the order.

The declaration under paragraph 2, so far as that is concerned we want to make it clear, as I did in the observations on the draft judgment, that the basis upon which we do not oppose the making of that declaration is purely that which is conceded, that the criteria was unlawfully rigid and that no other concession was made in that regard and, accordingly, if the declaration is to be made, as it were on the back of that concession, then it should be understood in those terms.

MR JUSTICE DYSON: Can I just pause. I have not, in my judgment, addressed that aspect because it was not in issue before me. There is no objection, it seems to me, to that declaration being granted, it having been declared by you on what basis the concession has been made. Therefore, the basis upon which this declaration has been granted - it having been granted by consent, I have said nothing in my judgment about the criteria as it was not before me.

MR BAKER: My Lord, all we do is seek to make it clear so there is no misunderstanding----

MR JUSTICE DYSON: You have made it clear. That having been done, you do not have any objections to paragraph 2?

MR BAKER: No. Finally so far as paragraph 3 is concerned, our concern about that declaration is, notwithstanding the alteration of the wording from the making of a grant to an approval of one, that the words "expressly authorised or required" do rather beg the question as to when, in the context of the Act, that point may arise.

In your Lordship's judgment, your Lordship has specifically said, in relation to section 24(3)(a) in the assessment of needs, that there is no room for resources to come in and that in relation to section 24(3)(b) that resource related criteria----

MR JUSTICE DYSON: I think all I said was, that section 24(3)(b) reflects resource criteria, but I think this declaration does reflect my judgment and anyone who thinks there is a difficulty about it will have to read the judgment as the judgment makes it quite clear what I mean. All I am saying is that there are one or two provisions which are, if you like, resource driven provisions of which 24(3)(b) is one and, therefore, I am saying that 24(3)(b) clearly has to be given effect, that is an express requirement. What I am saying is, that unless you can find an express provision, of which that is an example, which has a resource element to it, then resource is irrelevant. I think if you read the judgment that is clear, you may disagree, but that is my view. Have you an alternative form of wording?

MR BAKER: My Lord, the form of wording we would have preferred, as it were, would have been specifically related to the question which we addressed which was 24(3)(a).

MR JUSTICE DYSON: I have considered that and I have decided to maintain my position.

MR BAKER: I will not press the point any further.

MR JUSTICE DYSON: I think what flows from that is, since I have made my position clear, you are not actually objecting to any part of this draft order?

MR BAKER: As I understand it, it has been amended since I originally saw it.

MR JUSTICE DYSON: The word "approved" now appears instead of "make".

MR BAKER: Yes. There is a slight change to paragraph 1 as well.

MR JUSTICE DYSON: "An order of Certiorari quashing the Respondent's decision of 18 September 1997." You are content with that, on that basis, very well.

MR KNAFLER: My Lord, there is an issue as to costs. It is in the order. I apply for my costs.

MR BAKER: My Lord, as far as the costs are concerned, can I say this: as your Lordship knows, before the proceedings came on for hearing, the Respondents had indicated what their position was on a number of respects. As long ago as 25th February, in the Caulder Bank (?) letter, the Respondents indicated their preparedness to reconsider the decision. There was then correspondence as to the basis on which that would take place. In the letter of 5th March, the Respondents said that the basis of the proposed reconsideration would be, first of all, that the statutory threshold, which is now incorporated in section 24(3), involved an assessment of the needs of the disabled applicant together with an assessment as to whether relevant works are necessary and appropriate to meet those needs.

Secondly, that it would be unlawful for the city council, as a matter of general principle, to operate a rigid policy precluding the individual assessments of each case, but that they were entitled to have a general policy to seek to identify non-exhaustively the circumstances in which this matter of general course would approve such grants.

That having been done, the proceedings were not then compromised because, as I understand it, the Applicant's solicitors thought there was still, as it were, something for them to gain in the proceedings which then led to a formal concession by the Respondents as to the invalidity of the policy itself which, by then, had been made clear was under reconsideration towards the end of May. We would say that, in those circumstances, certainly by 5th March, the Respondents had effectively conceded all the relief which was then, on the face of it, in issue between these parties.

MR JUSTICE DYSON: When did the question of resources come into play?

MR BAKER: The question of resources only came into play when my learned friend served his skeleton argument and referred to that issue. Until then it had not, on the face of it, been referred to in the Form 86A which is why he then proposed amending the Form 86A in order to raise it.

MR JUSTICE DYSON: When was that?

MR BAKER: The amendments he proposed by his supplementary skeleton argument which was prepared on 2nd June, the day before the hearing.

MR JUSTICE DYSON: Are you saying that the question of resources only came into play the day before the hearing?

MR BAKER: It first came into play when my learned friend served his original skeleton argument which was towards the end of May. I cannot now recall the specific date. At which point when we released that, we said we did not oppose the determination of the issue and your Lordship will recall the discussion at the beginning of the hearing, it only arose at a very late stage.

MR JUSTICE DYSON: I follow that. The fact is it did arise and it was the issue. Why should they not have their costs?

MR BAKER: We would invite your Lordship to make an order for costs in relation to the hearing itself, bearing in mind that prior to the hearing, effectively, all the other issues had become academic.

MR JUSTICE DYSON: You are agreeing they should have their costs up to, at any rate, the end of February when you offered to reconsider, and they should have their costs of the hearing but not the costs between the beginning of March and the end of May, is that what it comes to?

MR BAKER: As far as that makes any difference, that fairly reflects what happened during the course of the proceedings.

MR JUSTICE DYSON: I am reluctant to make a complicated order of that kind. Were a lot of costs incurred in those intervening three months?

MR BAKER: They would be the Applicant's costs. I know not how their costs would have been incurred. We have not yet seen the bill.

MR JUSTICE DYSON: Mr Knafler, what do you say?

MR KNAFLER: As far as the dates are concerned, I wonder if your Lordship has my learned friend's skeleton argument from the hearing available? He sets out at paragraph one:

"On 9th April, the city council agreed to reconsider its determination in relation to the Applicant personally. That did not satisfy the Applicant and his solicitors, because their concern was as to the basis upon which any reconsideration would proceed."

It is fair to say, that at some point prior to 27th May, the Respondents indicated that they would be reconsidering their policy. As your Lordship sees it was not until 27th May that the Respondents formally conceded the invalidity of the existing policy.

As far as resources are concerned, what my Form 86A simply contended initially was that the policy was, on the face of it, plainly ultra vires because of its rigidity and it was for the Respondent, in my submission, to explain and justify that invalidity by the filing of evidence. It was assumed on our side that part of the evidence would pray in aid lack of resources, but we did not receive the evidence until shortly before the hearing. My skeleton was served on 21st May, some time in advance of the hearing on 3rd June, because of holidays and things like that, by which time it had become apparent from telephone conversations and some correspondence, that resources were in issue, so the resources issue was raised on our side before 27th May, in which the policy was conceded to be unlawful, although it has continued to be maintained and resources could be taken into account.

MR JUSTICE DYSON: In any event, you do not accept that between the end of February and late May there was really nothing to argue because, as you say, although they have agreed to reconsider the policy -- for all you know they have not reconsidered the policy, but they are meant to reconsider the case and they were going to reconsider the case in the light of the unchanged policy?

MR KNAFLER: There was some suggestion that the policy would be looked at again, but on what basis and for what purposes was entirely unclear. There was no indication at all. That was not one of the points I made in my skeleton argument. Even up to and including the hearing, there was no indication from the Respondent as to why it accepted that this policy was unduly stringent. There was a decision which went on 9th April and the policy which went on 27th May. The resources issue had been based on 21st May and was pursued to this Court without the positive encouragement of Birmingham City Council but, your Lordship may recall that they were not singularly averse to having that issue determined. It is a case in which the applicant has quashed the decision made in relation to them personally. The policy underlying that decision then was, and the future policy that the local authority proposed to instigate, in my submission, if ever an Applicant merited costs of the proceedings overall, it is Mr Mohammed.

MR JUSTICE DYSON: Mr Baker, do you wish to say anything more?

MR BAKER: My Lord, just to reiterate the point that by their letter of 5th March this year, the city council did specifically set out the basis on which the reconsideration would take place. Although they did not specifically say, 'we accept the present policy as unlawfully rigid', it did specifically say that it would be unlawful to operate a rigid policy which, in my submission, amounts to very much the same thing which is, the conclusion that we have now reached.

MR JUSTICE DYSON: Yes, thank you. I think the Applicants are entitled to their costs from the Respondent, so I am going to make the order in the form of the draft with the amendments that have been written in.

MR BAKER: My Lord, I formally ask for leave to appeal in respect of the order at paragraph 3, the declaration on the resources issue. The basis of my application is simply, this is clearly a matter of general importance and it is not a point that had been the subject of previous authority. In all the circumstances, we would respectfully say it is deserving of a hearing by the Court of Appeal.

MR JUSTICE DYSON: Mr Knafler, do you want to say anything about that?

MR KNAFLER: I am sure your Lordship has already considered the matter.

MR JUSTICE DYSON: Yes, I think you are entitled to leave to appeal.