Fight continues as High Court orders Council's decision on wardens to be reviewed

Article

20 January, 2010

On 15 December 2009, the High Court made a ruling on the validity of the decision of two local authorities in England to remove on-site wardens from its sheltered accommodation schemes. The case of R (on the application of Boyejo and others v Barnet London Borough Council [2009] EWHC 3621 is the first of a string of complaints made to the courts about the removal of wardens. The decisions have been the subject of opposition from campaign groups and ultimately led to a challenge being brought about how the conclusion came to be reached.

Background

Disputes about local authority decisions to remove on-site wardens date back to February 2009 when an injunction was obtained against Circle 33 Housing Trust, preventing them from removing wardens from a scheme in Eastbourne. Although the injunction was lifted at a later hearing, it was agreed that a judicial review into the matter should take place.

This was followed in September 2009 when papers were served against Barnet LBC ('Barnet'), who planned to remove the 'live-in' wardens. The argument forwarded on the part of the residents was that they expected a 'live-in' service when they moved into the scheme and that there was a lack of proper consultation about the change to the service. In October 2009, a similar case concerning Portsmouth City Council ('Portsmouth') was directed to be heard at the same time as the Barnet dispute, as the issues were of such a similar nature.

With the Supreme Court ruling that housing associations were susceptible to judicial scrutiny in London & Quadrant Housing Trust v R (on the application of Weaver) & Equality & Human Rights Commission [2009] EWCA Civ 587, cases relating to procedure can expect to arise in greater numbers in the coming months.

The Problem

With increasing budget constraints, local housing authorities have attempted to tackle overstretched resources by making changes to services, such as providing resident wardens. It appears that such decisions are part of an increasing trend: the publication Inside Housing surveyed around 51 local authorities, with 75% stating that warden services had either been reduced or were under review at the time.

The Case

The main grounds of dispute in the case were that Barnet had failed to fulfil its statutory duty under the Disability Discrimination Act 1995 by not having regard to eliminating unlawful discrimination or the harassment of disabled persons, or promoting equality of opportunity between disabled people and other persons. It was also argued that Barnet had failed to follow its own Equality Scheme because it did not sufficiently involve disabled persons or groups representing their interests in the decision making process and that Barnet failed to follow the Statutory Code of Practice issued by the now Equality and Human Rights Commission.

Although it was not for the court to enter into the debate over whether such decisions were merited, it had to decide whether the conclusion reached by Barnet and Portsmouth were done so in accordance with the law.

The High Court's Decision

His Honour Judge Milwyn Jarman QC ruled in favour of the residents and reached the conclusion that in each case, the failings of the relevant Councils were serious enough for the decision to be quashed and reconsidered.

It was held that in each case, there was not sufficient appreciation of the duties under the 1995 Act. In the context of the 'live-in' warden scheme, regard should have been had to the perception and fear amongst residents that the loss of warden staff would lead to a less responsive support service in an emergency situation. In the view of the court, neither Council had any or sufficient regard to the impact upon disabled residents as a separate group, or to the need to recognise that considering these disabilities may involve treating them more favourably.

On the point of whether residents had been involved in the decision making process, it was held that Barnet had fulfilled its obligations, whereas Portsmouth had not. In the former, Barnet had sent questionnaires to residents, service providers and support groups about the plans. It had also involved independent consultants and had a six week consultation period for parties to respond to the plans. The Portsmouth procedure was less comprehensive and included a single letter being sent to residents and was followed up by one meeting per scheme, which took place six to eleven days later. This was said not to have been compliant with the statutory duty.

Summary

The decision of the High Court in this case shows the importance for local housing authorities and housing associations to not only follow their own procedures and statutory obligations, but also be able to show that they have done so. A failure to do this can lead to similar applications being made to the courts by residents and tenants for a judicial review of the decision. This can have obvious time and monetary consequences and could ultimately mean that the decision that was hoped to be implemented may not be permitted at all.

For more information and assistance on these issues, please contact the Housing Litigation Department at Forbes Solicitors on 01772 220200 or email Stuart Penswick.

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