Neutral Citation no. [2001] NIQB 14
Ref:     
COGE3387

 
Judgment: approved by the Court for handing down
Delivered:
06.04.2001
(subject to editorial corrections)

 

 
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
 
QUEEN’S BENCH DIVISION
 
(CROWN SIDE)
 
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IN THE MATTER OF AN APPLICATION BY AGNES TERESA JUDGE
FOR JUDICIAL REVIEW
 
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COGHLIN J
 
            The applicant in these proceedings is Mrs Agnes Teresa Judge who lives at 141 Craigmore Road, Ringsend, Coleraine which premises are the property of the Northern Ireland Housing Executive.  Unfortunately, both the applicant and her husband suffer from a significant degree of physical disability, in the case of the applicant, paralysis of the right arm, Carpal Tunnel Syndrome and back pain and, in the case of her husband, Osteo-arthritis.  The applicant brings this application for certiorari to quash the alleged failure of the Causeway Health & Social Services Trust (“the respondent Trust”) to discharge its duty under the Chronically Sick and Disabled Persons (Northern Ireland) Act 1978 expressed in a letter dated 25 September 2000.  
 
The Statutory Framework
            The relevant sections of the Chronically Sick and Disabled Persons (Northern Ireland) Act 1978 (hereinafter “the 1978 Act”) provide as follows:
“1-(1)  The Department of Health & Social Services for Northern Ireland shall inform itself of the number of and, so far as reasonably practicable, the identity of persons who are blind, deaf or dumb and other persons who are substantially handicapped by illness, injury or congenital deformity and whose handicap is of a permanent or lasting nature … and of the need for the making by the Department of arrangements for promoting the social welfare of such persons under Article 4(b) and 15 of the Health & Personal Social Services (Northern Ireland) Order 1972 …
 
2          Where the Department of Health & Social Services for Northern Ireland is satisfied in the case of any person to whom Section 1 above applies that it is necessary in order to meet the needs of that person for that department to make arrangements under Articles 4(b) and 15 of the Health & Personal Social Services (Northern Ireland) Order 1972 for all or any of the following matters namely:
 
(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; … then, that department shall make those arrangements.”
 
            The respondent Trust is established under the provisions of the Health & Personal Social Services (Northern Ireland) Order 1991 and part of its responsibilities include acting as agent on behalf of the Department of Health & Social Services, within the Trust’s area, for the purpose of ensuring the performance of the Department’s obligations under the 1978 Act.  The applicant lives within the geographic region in respect of which the Trust has responsibility for so acting as agent of the Department.
 
Background Facts
            For the purpose of discharging its duties, as agent of the Department, under the 1978 Act the respondent Trust carries out home assessments as a result of applications from people seeking support on the grounds that they are chronically sick or disabled or as a result of referrals from various agencies including general practitioners, hospital social workers, etc.  For this purpose the respondent Trust employs a number of qualified Occupational Therapists to visit, interview and discuss the needs and requirements of applicants on the basis of their functional ability and their known state of health.
            The applicant and her husband have been known to the Department since 27 April 1993 and, over the years, as a result of assessments carried out by the Trust, a number of adaptations have been made to the applicant’s home.  
            In November 1999, at the request of the applicant’s social worker, an occupational therapy assessment was carried out by Mrs Roisin McColgan with particular regard to the applicant’s heating system.  Mrs McColgan was aware of the physical disabilities suffered by the applicant and her husband and recorded their difficulties in lighting the fire, cleaning the back boiler plates, setting the fire and maintaining the fire throughout the day.  As a result of her assessment of the needs of the applicant and her husband Mrs McColgan recommended to the  Northern Ireland Housing Executive that a non-manual system of heating should be installed in the applicant’s premises.  In her letter of January 2000 Mrs McColgan also recorded that the applicant and her husband had two grown-up sons residing with them but that both of them were absent for the major part of the day either at work or attending college.  On 2 February 2000 Elizabeth Curry, the area welfare officer for the North East area of the Northern Ireland Housing Executive wrote to Mrs McColgan referring to her recommendation and stating that:
“At this date I am not processing the request as there is another adult living in the home.  The expectation is that this person would assist in the fire management for the applicants (leaving adequate supplies available for fuelling the system), an idea similar to the home-help service.
 
However there is also an MEI (Multi Element Improvement) scheme planned in the financial year 2001/2002 for this dwelling where tenants who do have full central heating may be given other choices if their heating systems are defective.”
 
            On 17 April 2000 the respondent Trust wrote to Miss Noreen Brolly, solicitor for the applicant, confirming the assessment made by the occupational therapist and informing her of the content of the letter from the Northern Ireland Housing Executive of 2 February 2000.  The final paragraph of this letter from the respondent Trust read as follows:
 
“I would stress that we have fulfilled our statutory obligations in this case which are to assess the need and to make recommendations to the NIHE.  The NIHE are solely accountable for any decisions which they make about actions relating to those recommendations.”
 
            Miss Brolly continued to pursue the matter on behalf of the applicant and on 25 September 2000 she received the following letter from the solicitors acting on behalf of the respondent Trust:
“Dear Miss Brolly
 
Mr and Mrs Judge, 141 Craigmore Road, Garvagh.  As you know I act on behalf of Causeway Health & Social Services Trust and I have now had the opportunity of consulting with my Clients and perusing Documentation which has passed between my clients and various parties in relation to this matter.  In particular, I would refer you to the Trust’s letter written by Mr Loughrey to you on 17 April 2000 in which he indicated to you the Trust’s role and responsibility in relation to this issue and in particular, I would re-emphasise that the Trust in these matters provides a service to NIHE in relation to Provision of the Clinical Assessment in respect of the adaptation or equipment to be provided.
 
You will note in this instance, that the Trust carried out an assessment, it made a recommendation to the NIHE, and, thereafter, any decisions in respect of the provisions and the installation lie entirely with the NIHE.  
 
You will no doubt have had correspondence from NIHE in relation to the provision of the installation and in this instance, the reason for the refusal of same.  I regret that the Trust can be of no further  assistance  in  relation  to  this  matter  and 
as Mr Loughrey indicated to you the Trust is entirely  satisfied  that  it  has  fulfilled its statutory 

obligations and that your suggestion that the Trust has in some manner failed to do so is incorrect.
 
Yours faithfully
George D H Brangham.”
 
            On 16 November 2000 the applicant applied for leave to judicially review the decision of the Trust as set out in this letter. 
            The applicant’s heating system had been upgraded in 1993 and, at the date of application for judicial review, their house was equipped with an open coal fire in the living room which provided direct space heating for that room and also powered a number of other radiators throughout the house.  Once the fire has been loaded with fuel it will burn for a number of hours but the ashes from the fire require to be cleaned out upon a daily basis.  At the direction of Mr Valleley, Ms Siobhan McNicholl, a social worker, carried out a further assessment of the needs of Agnes Teresa Judge on 13 December 2000 and, as a result of that assessment, the respondent Trust offered to assist the applicant with the maintenance of her existing open fire with an interim arrangement pending refurbishment of the heating system by the Northern Ireland Housing Executive.  The respondent Trust offered to make a home-help available on the basis that the applicant’s sons would clean out and light the fire in the morning before leaving for work and the home-help would call to re-fuel the fire each morning and afternoon during the week until the applicant’s sons returned home in the evening.  The respondent Trust expected the applicant’s sons to take responsibility for the fire during the evenings and weekends.  During the course of the hearing a  potential ambiguity arose as to the meaning and application of the letter from the Northern Ireland Housing Executive of 2 February 2000, namely, whether inclusion of the applicant’s premises in the Multi Element Improvement scheme was dependent upon whether their heating system was defective.  Accordingly, I directed a further affidavit to be provided by the respondent Trust and gave leave to the applicant to lodge any additional affidavit that they might consider necessary.  In an affidavit sworn on 8 February 2001 Mr Valleley confirmed that the installation of a non-manual heating system formed part of the Multi Element Improvement scheme and was not dependent upon the applicant’s existing heating facility being defective.  He also confirmed that the Multi Element Improvement scheme was planned for implementation in the financial year 2001/2002 and that the Housing Executive would negotiate with the consultant and the contractor ultimately appointed with a view to securing priority for the heating installation at the applicant’s premises.  Mr Valleley again referred to the offer of home-help assistance and emphasised that the respondent Trust would keep the applicant’s circumstances under review.  For her part, the applicant also lodged a further affidavit in which she drew the attention of the court to the fact that the Northern Ireland Housing Executive had simply included the work in the projections without providing any approximate commencement date and that, as a result, the respondent Trust had failed to provide a guarantee that the non-manual heating system would be installed.  
 
Submissions 
            On behalf of the applicant, Mr Torrens attacked the decision of the respondent Trust upon three main grounds.  He submitted that, once it had assessed the needs of the applicant and recommended the installation of a non-manual heating system, the effect of Section 2(e) of the 1978 Act was to place the respondent Trust under a statutory duty to ensure that such a system was actually installed and the failure of the respondent Trust to achieve this end amounted to illegality.  Secondly, Mr Torrens condemned the decision of the respondent Trust as irrational within the meaning of the principles set out in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.  This argument was based upon the respondent Trust failing to take into account the apparent fact that the Multi Element Improvement scheme was dependent upon the central heating system being defective rather than upon the applicant’s disability assessment.  Thirdly, Mr Torrens submitted that the decision of the respondent Trust amounted to a wrongful interference with the applicant’s right to a family and private life in accordance with Article 8 of the European Convention on Human Rights which was rendered unlawful by virtue of the Human Rights Act 1998. 
My conclusions in relation to these submissions are as follows:
 
Illegality
            The respondent Trust, as the agent of the Department of Health & Social Services, identified the applicant as a person falling within the provisions of Section 1 of the 1978 Act and assessed her needs as, inter alia, including a non-manual heating system.  By virtue of Section 2(e) of the 1978 Act the respondent Trust then came under a statutory obligation to make arrangements under Articles 4(b) and 15 of the Health & Personal Social Services (Northern Ireland) Order 1972 for the provision of assistance in arranging for the carrying out of works of adaptation or the provision of any additional facilities designed to secure the applicant’s greater safety, comfort or convenience.  Article 4(b) of the 1972 Order placed the Department under a duty to provide or secure the provision of personal social services in Northern Ireland designed to promote the social welfare of the people of Northern Ireland and Article 15 of the same order related to “general social welfare”.  I shall here set out in full the provisions of Article 15:
“15-(1)            In the exercise of its functions under Article 4(b) the Ministry shall make available advice, guidance and assistance, to such extent as it considers necessary, and for that purpose shall make such arrangements and provide or secure the provision of such facilities (including the provision or arranging for the provision of residential or other accommodation, home-help and laundry facilities) as it considers suitable and adequate.  
 
(2)        Assistance under paragraph (1) may be given to, or in respect of, a person in need requiring assistance in kind or, in exceptional circumstances constituting an emergency, in cash; so however that before giving assistance to, or in respect of, a person in cash the Ministry shall have regard to his eligibility for receiving assistance from any other statutory body, and, if he is so eligible, to the availability to him of that assistance in his time of need.  
 
(3)        Where under paragraph (1) the Ministry makes arrangements or provides or secures the provision of facilities for the engagement of persons in need (whether under a contract of service or otherwise) in suitable work, the Ministry shall assist such persons in disposing of the produce of their work.  
 
(4)        Subject to Article 99, the Ministry may recover in respect of any assistance, help or facilities under this Article such charges (if any) as the Ministry considers appropriate.”
 
            In such circumstances it appears that, while certain specific arrangements are referred to in the section, the arrangements detailed in Section 2 of the 1978 Act nevertheless remain arrangements of the type described by Article 15 of the 1972 Order and, accordingly, they are to be such arrangements as the Department “… considers suitable and adequate”.
            In this case the applicant and her husband are the tenants of property belonging to the Northern Ireland Housing Executive.  The respondent Trust, in company with all other Health and Social Services Trusts, is party to a service agreement with the Northern Ireland Housing Executive which establishes a basis upon which works of adaptation are carried out upon the recommendations of the relevant Trust.  A copy of this service agreement was exhibited to Mr Valleley’s affidavit.  Paragraph 3.6 of the agreement deals specifically with the upgrading or changing of heating systems in the case of disabled persons.  Subsequent to the assessment of the applicant’s need by the Trust’s occupational therapist in November 1999, the manager of Occupational Therapy Services issued a recommendation to the relevant area/district manager of the NIHE on 11 January 2000 that the applicant should be provided with a non-manual system of heating.  Mrs Elizabeth Curry, the NIHE area welfare officer responded on 2 February 2000 noting that the Executive did not propose to process the request as the expectation was that the other adults living in the home would provide assistance in fire management similar to a home-help service.  However, the same letter also recorded the MEI scheme planned for the financial year 2001/2 and the Housing Executive has subsequently given an undertaking that it will negotiate with the consultant and the contractor for an early start upon the property occupied by the applicant during the scheme.  In the meantime, as a result of the further assessment of the applicant’s needs carried out by Miss McNicholl, social worker, the respondent Trust has offered to assist the applicant with the maintenance of her existing open fire as an interim arrangement until the refurbishment of the premises in accordance with the NIHE scheme.  During the course of the hearing Mr Brangham, on behalf of the Trust, confirmed that the applicant’s situation would continue to be monitored by the Trust and reviewed in the context of any persistent delay in the carrying out of the scheme.  Mr Brangham referred to additional home-help and/or the provision of portable heaters as examples of further arrangements that the Trust might wish to consider.  
            Once the provisions of Section 2 of the 1978 Act are read in the context of Articles 4(b) and 15 of the Health & Personal Social Services (Northern Ireland) Order 1972 it is clear that the duty of the Department is to make such “arrangements and provide or secure the provision of such facilities … as it considers suitable and adequate”.  Despite the letter from Mr Loughrey of 17 April 2000 and the letter from Messrs Brangham, Bagnall & Company of 25 September 2000, I am satisfied that these provisions afford the Trust a discretion which must be exercised in accordance with the usual Wednesbury principals.  I reject the suggestion by the applicant that the statutory provisions place the Trust under an obligation to “guarantee” that a non-manual system will be installed.  The Trust have clearly taken reasonable steps to arrange for the installing of such a system taking account of the fact that the applicant’s premises remain the property of a third party, namely, the Housing Executive.  Mr Torrens on behalf of the applicant asserted that the steps taken to date by the Trust “do not go far enough” but he was unable to articulate any additional steps which the Trust was under a duty to take other than a general reference to the provision of financial assistance.  Any non-manual system installed by the Housing Executive will be paid for by the Executive and Article 15(2) of the 1972 Order specifically requires the Department to have regard to the eligibility of a person for receiving assistance from any other statutory body, reserving assistance in cash to “exceptional circumstances constituting an emergency”.  In the circumstances I reject the submission of the applicant based on an alleged breach of the statutory provisions.
 
Irrationality
            In the sense that it focused upon an allegation that the respondent Trust had failed to take into account a relevant factor and failed to give adequate weight to another factor, it seems to me that this argument is based upon Wednesbury unreasonableness rather than Wednesbury irrationality.  However, whatever the basis may be, this submission loses its force once it is appreciated that the installation of a non‑manual heating system in the applicant’s premises is not dependent upon the present system being defective.  This is confirmed in the letter from the Housing Executive of 7 February 2001 and paragraph 3 of Mr Valleley’s affidavit of 8 February 2001.
            In the letter of 18 December 2000 from the Housing Executive to Mr Valleley the Executive confirmed that the property had been included for improvement during the 2001/2002 financial year, but pointed out that this would be subject to “finance being available” and “satisfactory tender approvals”.  It is clear from reading Mr Valleley’s affidavit of 8 February 2001 that, at all material times, the Trust were aware of the constraints to which the Housing Executive was subject with regard to implementing the refurbishment scheme and, having regard to the relationship between the two public bodies, it would have been extremely surprising had such not been common knowledge.  Indeed, it is for the purpose of relieving any hardship which the applicant may encounter as a result of the delay due to these constraints that the Trust have offered the home help service to the applicant.  In the circumstances I reject the applicant’s submission that the Trust failed to take into account these factors or that they failed to give them anything but the appropriate weight in the circumstances.
            Accordingly,  I reject this submission.
 
Article 8 of the Convention
            The Human Rights Act 1998 incorporated into domestic law a number of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms.  Article 8 of which provides as follows:
“Article 8   Right to respect for private and  family life
 
1.         Everyone has the right to respect for his private and family life, his home and his correspondence.  
 
2.         There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
 
The applicant argued that, by failing to comply with its statutory obligations, to upgrade the applicant’s heating in her home, the respondent Trust had interfered with the applicant’s family and private life in breach of Article 8.  For the reasons set out earlier I do not consider that the applicant has established that the respondent Trust has acted in breach of any statutory obligation.
            Mr Torrens also argued, somewhat tentatively, that, quite apart from the respondent Trust’s statutory obligations, the Strasbourg jurisprudence itself recognised a positive obligation on the part of Member States to protect the right to respect for private life which had been breached in the circumstances of this case, citing, by way of authority decisions such as Powell & Rayner v UK [1990] 12 EHRR 355, Kroon v Netherlands [1994] 19 EHRR 263, Ostra v Spain [1994] 20 EHRR 277 and Guerrera v Italy [1998] 26 EHRR 357.
            There is no doubt that the Strasbourg Court has recognised that, in certain circumstances, Article 8 may extend to placing the State under a positive obligation to ensure that the integrity of an individual’s home is protected.  The “noise pollution” resulting from aircraft cases, such as Arrondelle v UK   [1982] 26 DR5, established that the peaceful enjoyment of residents in the home will be protected.  In Lopez Ostra the Court held that the severe environmental pollution produced by a waste treatment plant built near to the applicant’s home could effect the individuals’ well-being and prevent them from enjoying their home in such a way as to effect their private and family life.  The State had failed in its duty of respect by failing to exercise the powers that it had to prevent the nuisance and by failing to take the measures necessary to protect the applicant’s home.  
However, the circumstances of this case do not involve any interference by the State in the applicant’s enjoyment of his home nor is there any suggestion that the State has failed in its duty to protect the applicant from interference by others by means of policies, licences, regulations etc.  In my view, the applicant has not established any breach of her rights under the Convention.  Accordingly, the application will be dismissed.
            In the course of an affidavit sworn on 13 February 2001 the applicant rejected the Trust’s offer of home help assistance stating that she could not accept until she was “aware of a date for the installation of the non-manual heating system, as there is no date for the installation or even a guarantee that the heating will be installed at all.”  
            During the hearing Mr Torrens confirmed that the applicant had adopted this attitude upon legal advice.  I am afraid that I am unable to appreciate the legal benefit to the applicant of adopting such a tactical stance and I would be concerned about the practical implications for her of refusing such assistance, assessed as necessary by a social worker, particularly during winter months.

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
 
QUEEN’S BENCH DIVISION
 
(CROWN SIDE)

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IN THE MATTER OF AN APPLICATION BY AGNES TERESA JUDGE
FOR JUDICIAL REVIEW

 
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JUDGMENT

OF

COGHLIN J

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