Courts back local authority decision to refuse larger flat for Kurdish family

The court of appeal decided that a local authority did not have
to offer accommodation under the National Assistance Act 1948 which
complied with the preferences of a person, as long as the offer was
based on an assessment of need.

Mrs Rahma Khana is a 91-year-old Iraqi Kurd who is a paranoid
schizophrenic, blind and deaf and suffers severe mobility problems.
She requires support with personal tasks and speaks only Kurdish.
Her 71-year-old husband is her primary carer, but a social worker’s
report concluded that he was putting both his own and his wife’s
safety at risk due to his age and frailty. There is no lift access
to the one-bedroom flat that the couple share with their

Southwark Council’s care plan recommended that Mrs Khana should
be placed in residential accommodation. She refused this and
instead commissioned an independent social worker’s report, which
concluded that placing her alone in residential accommodation would
be detrimental to her and contrary to the wishes of her husband and
the family. That report recommended a suitably adapted two-bedroom
ground floor flat and the provision of Kurdish-speaking carers. The
council repeated its position on residential care, but extended the
offer to include Mrs Khana’s husband. The council maintained its
position despite the opinion of the family doctor and a
psychiatrist that Mrs Khana needed to remain in close contact with
her husband and female members of the family.

The council had no Kurdish-speaking carers in the community or
in any residential homes and the couple argued that they would
suffer cultural and linguistic isolation in a residential home.
They sought judicial review of the council’s decision, and Mrs
Justice Hallett held that the council’s offer of joint residential
accommodation was the only reasonable option. Mrs Khana (by this
time represented by the official solicitor) appealed, and said that
the council should offer the couple a two-bedroom ground floor flat
that they could share with their daughter.

The three-man court of appeal dismissed the appeal on 28 June
2001, saying:

1. it could not be concluded that the couple’s refusal of
residential accommodation was final, so that they would refuse to
take up the residential places offered if these proceedings

2. Mrs Khana was seeking to insist on preferences and beliefs.
Whilst the council had to consider those beliefs and preferences,
it remained the council’s responsibility to assess any needs in
respect of the provision of accommodation. In this case the beliefs
and preferences, if adopted, would have involved the council
providing community care services that it had in fact concluded
would not satisfy important needs. It had not been assessed or
established that Mrs Khana needed a different type of accommodation
from the one offered to her and her husband;

3. While section 21 of the 1948 Act and section 47 of the
National Health Service and Community Care Act 1990 contemplated an
assessment of accommodation needs that took account of the aim of
preserving the independence of older people in the community for as
long as possible, where the local authority concluded that those
needs were best met in residential care it had satisfied its duties
under the legislation;

4. Mrs Khana’s refusal of the offer of accommodation was
unreasonable and the council was not obliged to offer a two-bedroom
flat in its place.

Bernadette Livesey

Human Rights Solicitor

Walker Morris

More from Community Care

Comments are closed.