A man in his early sixties with a complex medical history and disabilities who spent almost 20 months without being able to leave his bedroom in an eighth-floor council flat has failed in a judicial review claim against a council for compensation and declaratory relief.
In Idolo, R (on the application of) v London Borough of Bromley  EWHC 860 Rowena Collins-Rice, sitting as a deputy High Court Judge, said the council’s housing and social services departments had both been involved in Mr Idolo's circumstances.
The claimant had been living with his wife and young daughter in the flat when he suffered a medical emergency resulting in the sudden loss of the use of his legs.
He spent the entire period in question (January 2018 until October 2019), without being able to leave his bedroom.
“He could not use his bathroom, and had to rely on others for all his most basic hygiene needs. He could not have a wheelchair because the doorways and corridors of the flat were too narrow. He says the council should have done more about his predicament than it did,” the judge said.
Permission to bring the proceedings was given in September 2019 on the basis that it was arguable that Bromley had failed in its duties to Mr Idolo under the Care Act 2014, and had been acting unlawfully and in breach of his rights to protection of private and family life under Article 8 of the European Convention on Human Rights.
Judge Collins-Rice said the question at the heart of the case was whether there were failures in the discharge of its legal duties by the council during the course of these events, “or, to put the question another way, what should the council have done differently?”
That, in turn, was highly fact-specific, she said. The judge noted amongst other things that:
- During the period in question Mr Idolo's predicament was “indisputably grim” and the council did not demur from that. “As the days and weeks stretched into many months, and prospects of recovering his mobility and autonomy did not improve, his quality of life worsened. The monotony and isolation of his room was relieved only by his (inevitably compromised) family life and the daily transfers from bed to chair and back again. He could not get the wheelchair which he needed to improve his mobility and outlook. Although cared for, his well-being was in a thoroughly poor state. The council knows and knew that.”
- Subject to some minor issues which seemed to have been speedily resolved, Mr Idolo had no complaints about the services provided by his carers. “What they did, they did to his satisfaction. There is no evidence that he was dissatisfied with the domiciliary package as such, or asked for anything other than what he was provided with in this respect. On the contrary, as time passed, it became increasingly clear that the only change he wanted, the only solution to his predicament, was a move. He wanted a new home which could accommodate a wheelchair, and which could be adapted to reduce his dependency on carers and give him and his family something more like the quality of life they had previously enjoyed. The council came to agree that that was exactly what he needed. It has now provided, or at least is in the late stages of finalising adaptations to, the home Mr Idolo was looking for.”
- Mr Idolo sought no further substantive relief in these proceedings. He sought only declaratory relief and compensation. “This claim therefore resolves itself into a question about delay. Was there unlawful delay in rehousing Mr Idolo?”
When it came to answering the question about what Bromley could have done differently, Judge Collins-Rice found amongst other things:
- Such other housing solutions apart from waiting on the housing register did seem to have been canvassed. Possible short-term interim solutions were looked at, including a temporary care home placement in response to Mr Idolo's raising of that issue, but either they offered no great prospect of success or involved the separation of the family, which Mr Idolo declined, as he was entitled to do.
- Mr Idolo's need for a new home was accurately assessed, applying the Care Act general duties and specific processes. It was properly actioned through the council's priority housing scheme. “It was not put to me that the council's housing policy or its allocation scheme were themselves unlawful. There is no sign of a failure by the social services department to attend to and support Mr Idolo on a personal and day-to-day basis. Nor indeed is it said that there was any failure in Care Act duties, by what appears to have been a sympathetic, professional and engaged social services team – other than the fundamental failure to get him a new home quicker and thereby bring his endurance of such poor well-being to an end. He was at the front of the housing queue. I was shown no evidence that there were suitable properties available to the council which could have been allocated to Mr Idolo any sooner.”
- It was “impossible to disagree” with the Mr Idolo’s counsel that if a man with properly assessed adult social care needs for a new home ends up stuck in the conditions endured by him for as long as he did, something had gone wrong. “The length of time it took for Mr Idolo to have his needs met is utterly regrettable.”
- The proceedings were, however, about whether it was also unlawful, not just inefficient, slow, bureaucratic, frustrating or unsatisfactory. “The question is whether the council failed in its legal duties. That does not flow automatically from the length of time Mr Idolo was stuck in his room. What went wrong, in other words, might have been something other than legal failure by the council in handling his case.”
- She had not found breaches of the council's Care Act or Housing Act duties on the materials before her. “However, even if it were possible to regard the totality of the delay in this case as nevertheless prima facie indicating maladministration – and even if, taking the cumulative impact on Mr Idolo into account and taking a broad-brush approach, it could be argued that it raised a prima facie case of breach of statutory or more general public law duties – I do not find a basis in the authorities for simply inferring lack of respect for fundamental rights, or culpability, from the fact of delay. More is needed.”
- She did not have a basis for finding this additional element of lack of respect or culpability on the facts of this case. “On the contrary, the narrative before me is one in which the correspondence, the conduct of the council officers involved, and the co-operation between the departments have the appearance of demonstrating a degree of empathy, attentiveness to Mr Idolo's plight, respect for his needs and acknowledgment of the council's duty to help him. That does not take away from the delay in doing so. But nor does it colour the delay with culpability. If, behind the scenes in the council offices, there were culpable deficiencies – poor practice, opportunities missed or failures to expedite – they are not before me.”
- This was a piece of litigation falling squarely within the terms of the detailed observations and guidance provided by the Court of Appeal in paragraphs 79 to 81 of the judgment in Anufrijeva. The Court guides that a claimant should expect to have to explain at the permission stage why it would not be more appropriate to pursue internal complaint procedures, or proceed via the Parliamentary Commissioner for Administration or Local Government Ombudsman – systems designed to deal economically and expeditiously with compensation for maladministration. There is also a strong steer towards alternative dispute resolution, and towards other ways in which proportionate resolution of this type of claim for damages [£10,000 was sought] could be achieved. “This guidance is emphatic about all of this to the point of pungency. It is incumbent upon counsel to see that these matters are addressed at the permission stage.” Neither party had referenced the guidance in these proceedings.
Dismissing the claim, Judge Collins-Rice said: “That does not mean that what happened to Mr Idolo is anything other than deeply regrettable, or that nothing was wrong with the time it took to find him and his family a decent home.
“It means that the materials put before me do not establish that the council went wrong in law. That is as far as proceeding like these can go. Finding an explanation of what did go wrong would require either investigation of other materials, or seeking an answer elsewhere than in matters of legal compliance.”
The judge added: “Local authorities have hard choices to make. Sometimes they are simply choices about the least unfair distribution of relative disadvantage. Sometimes there are few practical or satisfactory choices at all.”