England and Wales Court of Appeal (Civil Division) Decisions

Wahid v London Borough of Tower Hamlets [2002] EWCA Civ 287 (7th March, 2002)

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(MR JUSTICE STANLEY BURNTON)

		Royal Courts of Justice Strand, London, WC2A 2LL
		7 March 2002

Lord Justice Pill:

1. This is an appeal against the refusal of Stanley Burnton J upon an application for judicial review, to make orders in favour of Mr Abdul Wahid (“the appellant”) requiring the London Borough of Tower Hamlets (“the respondents”) to provide him and his family with suitable accommodation. The case is reported at (2001) 4 CCLR 455. The submission on appeal is that the respondents were required to provide better accommodation for the applicant as a person in need of care and attention under section 21(1) of the National Assistance Act 1948 (“the 1948 Act”).
2. Abdul Wahid is 53 years old and lives with his wife and 8 children in a two bedroomed flat on the ground floor of a large residential block owned by the respondents. The children are from 28 years old to 9 years old. The appellant has suffered from schizophrenia and has at times been an in-patient, including a period of admission under section 3 of the Mental Health Act 1983 in late 2000. Alternative accommodation, which he regards as unsuitable, has been offered to him under the provisions of Part VI of the Housing Act 1996. Two adult sons have been offered, and refused, separate accommodation under the provisions of the Housing Act.
3. Under the heading “Provision of accommodation” section 21 of the 1948 Act, as amended, which is in Part III of the Act provides, insofar as is material:

“(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing...

(a) residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care of attention which is not otherwise available to them;”

4. Section 21(8) provides:

“...nothing in this section shall authorise or require a local authority to make any provision, authorised or required to be made (whether by that or by any other authority) by or under any enactment not contained in this part of this Act...”

5. The current direction is in Appendix 1 to Department of Health Circular No LAC(93)10. Insofar as is material it provides:

“2(1) The Secretary of State hereby

(a)...

(b) directs local authorities to make arrangements under section 21(1)(a) of the Act in relation to persons who are ordinarily resident in their area and other persons who are in urgent need thereof,

to provide residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstance are in need of care and attention not otherwise available to them

(2) ...

(3) without prejudice to the generality of sub-paragraph (1), the Secretary of State hereby directs local authorities to make arrangements under section 21(1)(a) of the Act to provide accommodation...

(a) in relation to persons who are or have been suffering from mental disorder, or

(b) for the purposes of prevention of mental disorder,

for persons who are ordinarily resident in their area and for persons with no settled residence who are in the authority’s area.”

On behalf of the respondents it is accepted that the appellant is ordinarily resident in their area so that, contrary to the judge’s finding, the appellant does not need to rely on the provision as to urgency in paragraph 2(1)(b). On behalf of the appellant it is accepted that the statutory requirement for the “need of care and attention which is not otherwise available” to him must be established.

6. There is also a duty upon the local authority, where it appears to them “that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services”, to carry out “an assessment of his needs for those services” and having regard to the result of that assessment, to “decide whether his needs call for the provision by them of any such services” (section 47(1) of National Health Service and Community Care Act 1990 (“the 1990 Act”)). Section 46(3) of the 1990 Act includes within the definition “community care services”, services which a local authority may provide or arrange to be provided under Part III of the 1948 Act.
7. There is no doubt that the family accommodation is seriously over-crowded. The appellant is on the respondents’ housing waiting list. Particulars of offers made to him and the family are set out in the statements of Mr Alan Mountain who is Team Manager of the respondents’ Bethnal Green Community Mental Health Team.
8. On the appellant’s release from hospital, on 9 January 2000, a Care Programme Approach – Care Plan was prepared. The medical view was that he no longer required admission and “can be managed effectively at home with community support”. In February 2001, he was reported as being mentally stable, compliant with his medication and was being monitored weekly by his community mental health nurse Mr A Golightly. Under the heading “Mood”, it was noted that the appellant was “subjectively happy, feels better than he has for the past twenty-eight years”. There were stated to be no physical health problems. He could manage his personal care. He attended Friday prayers at the local Mosque and was able to get there on his own. He wanted to move into larger accommodation and believed that would greatly help him and his wife to cope. His wife stated that the major factor affecting her and her husband was their cramped housing situation. The need was to have larger accommodation. This would help to improve their lives and relieve a lot of stress and pressure.
9. The report was prepared by Ms Safia Sharif, a mental health social worker. Under the heading “Summary of needs”, she stated: “assistance with liasing with the housing department”. Particulars were given of the type and location of premises the family were seeking.
10. Particular reliance is placed on behalf of the appellant upon a “mental state assessment” which was obtained from Mr Golightly as part of the assessment. In his report dated 23 February 2001, Mr Golightly noted that the appellant was mentally stable. Mr Golightly stated:

“I have visited the family home on several occasions, but remain concerned to ensure that my community nursing support is not undermined by their very obviously acute housing problem. I do know at first hand how much Mr Wahid dearly wishes that this long standing problem could be finally solved. It would undoubtedly afford him a degree of happiness and stability which would significantly contribute to his mental welfare.

...

In summary, I posit that Mr Wahid’s present mental stability can only be safely maintained by his transfer into a more congenial and relaxed environment, in the context of a healthy and happy family life.”

11. The assessment, including Mr Golightly’s report, came before Mr Mountain. He is an approved social worker whose duties include undertaking assessments concerning compulsory admission to hospital. As team manager, he had line management responsibility for the staff within the team, including Mr Golightly.
12. Mr Mountain considered that Mr Golightly had rightly acknowledged concerns about the housing situation and the need for a housing transfer. He did not, however, consider that Mr Golightly was recommending that the appellant’s condition was such he required immediate care and attention through the provision of housing. In liaison with the housing department, it was agreed that the appellant would be given top medical priority by them and further agreed that the three older sons would be given separate priority for re-housing. That would considerably alleviate the overcrowding.
13. In his statement, Mr Mountain referred to his further discussion with Mr Golightly in June 2001. Mr Golightly expressed his opinion that there was an element of fragility in the appellant’s mental state. He was at significant risk if not re-housed though Mr Golightly was not able to quantify the risk. Mr Golightly “could not state with any degree of precision the extent to which the claimant’s housing situation impacts upon his mental health”.
14. Mr Mountain’s conclusion was:

“43. I have given due regard to Mr Golightly’s memorandum dated 23 February 2001 and the views he has subsequently expressed to me about the Claimant’s mental state. I agree with Mr Golightly that the Claimant needs better accommodation. It is however a matter for the social services authority whether he needs care and attention.

44. Having regard among other things to Mr Golightly’s views, I do not consider the Claimant currently needs care and attention, or that he is likely to need care and attention imminently. I remain of the view that the conclusion of Ms Sharif’s assessment (that the Claimant needs better housing and that social services should help him by liaison with the Housing Directorate) is correct.

45. I have taken into account the assessment of Ms Sharif as a whole, the fact that the Claimant was supported in the community and not admitted to hospital between 1996 and November 2000. Further, as Mr Golightly agrees, the Claimant is currently in good mental health, better than for many years.

46. In my opinion, the risk of adverse mental consequences resulting in a breakdown to the Claimant caused by overcrowding is relatively small.”

15. In further comments, Mr Mountain noted that the appellant “had declined any social services assistance, apart from help with the resolution of his housing situation”. Mr Mountain’s general conclusion was:

“53. In my opinion, the Claimant is not in need of care and attention which is not otherwise available to him.

54. Unfortunately, the Claimant’s housing situation is no different from a number of families within the borough. There are many families within the borough whose unsatisfactory housing impacts adversely on their physical and mental health. In the general run of such cases, the Housing Directorate are able to prioritise different cases, through its transfer and allocations systems and also to assess (with social work and medical assistance) whether or not a housing duty is owed under the homelessness provisions.

55. I accept that there can be cases where despite the availability of housing assistance, a person might need care and attention. For example, as the result of the way he is adversely affected by unsatisfactory housing, but these cases will be exceptional and I do not consider the Claimant’s cases is such a case, at the present time.”

16. Mr Mountain has, without objection, provided up-to-date evidence in a statement prepared for the hearing before this Court. Reference is made to the offer, under Housing Act powers, of a five bedroomed house in Bishops Way, E2 and to offers made to the adult sons. It is claimed that the appellant has failed to attend appointments with the Housing Directorate. Mr Mountain concluded:

“18. In my opinion, the Appellant and his family have neither conscientiously or assiduously pursued their options of re-housing under housing legislation. The Appellant and his family have rejected suitable offers of accommodation which would have reduced the overcrowded conditions in which they reside.”

17. A statement has also been submitted by Mr Abul Hossein, an adult son of the appellant. He stated why, by reason primarily of its location, the property at Bishops Way was unsuitable for the appellant and the family and why he and his brother had refused the two bedroomed flat offered to them. He states: “we are holding out for a property which will make a real difference in our lives, not create new problems”.
18. On behalf of the appellant, Mr Goudie QC refers to the broad construction given to section 21 of the 1948 Act in R v Westminster City Council and ors ex p M, P, A and X (1997) 1 CCLR 85. Destitute asylum seekers unable to provide for themselves or otherwise obtain the basic necessities of life, such as food, shelter and warmth were persons in need of “care and attention” for the purposes of section 21. They were ineligible for other State benefits. In R v Newham LBC ex p Medical Foundation for the Care of Victims of Torture & ors (1997) 1 CCLR 227, Moses J rejected the submission that bare accommodation rented from a landlord, as distinct from accommodation with an institutional quality, was outwith the scope of section 21. In R v Bristol City Council ex p Penfold [1998] 1 CCLR 315, Scott Baker J stated, at p 327:

“In my judgment while section 21(1)(a) is not a basic safety net for everybody, it can in appropriate circumstances extend to the provision of ‘normal’ accommodation. ‘Normal’ housing can be provided by this sub-section when it is the answer to a need which would otherwise have to be met by other community care services.”

19. In R on the application of Batantu v Islington LBC (2001) 4 CCLR 445, Henriques J also took a broad view of the duty under section 21. An assessment had been carried out under section 47(1)(a) of the 1990 Act. The assessment recorded the opinion of the applicant’s psychiatrist that his family’s unsatisfactory situation was likely to be one of the factors which maintained his illness. The family was in a very desperate situation in terms of poor housing, overcrowding, poverty, and living and caring for someone with severe mental health problems. The Council’s assessment of the applicant’s community care needs in that case concluded that the applicant needed a ground floor property with enough space to house the rest of his family. Henriques J stated:

“33. My attention is drawn to the dicta of Scott Baker in R v Bristol CC ex p Penfold, to the effect that normal housing can be provided under the 1948 Act when it is a function of need which would otherwise have to be met by other community care services. It is submitted that since the applicant seeks the provision of normal or ordinary housing, his first task is to identify how his need would otherwise have to be met by other community care services and to identify such services. I reject that contention. The local authority have themselves assessed the applicant and identified his needs, namely a safe, secure, accessible and larger ground-floor flat. It is not for the applicant to now identify how his needs would have to be met by other community care services. There is no such hurdle facing the applicant: see ex p Tammadge (1998) 1 CCLR 581 and ex p Kujtim.

34. The next submission by the respondent is that the respondent is entitled to find that the provision of such accommodation that meets this need is otherwise available to him through its Housing Department or will be at some future stage. This attitude fails to take account of the respondent’s duty under section 21 of the 1948 Act. The duty to provide community care services are obligations of the local authority’s social services committee, pursuant to section 2 and schedule 1 of the Local Authority Social Services Act 1970. The duty is to provide accommodation to a person with identified community care needs. The housing list is but one of the ways in which accommodation might be provided. As Scott Baker J said in ex p Penfold, the meaning of accommodation is wide and flexible and embraces residential care, nursing homes, ordinary and sheltered housing, and to this list might be added housing associations, other registered social landlords, and private sector housing which may have to be purchased by the respondents.”

20. Henriques J referred to the decision of this Court in R v Kensington & Chelsea RLBC ex p Kujtim (1999) 2 CCLR 230. That was, however, a case in which the local authority had assessed a person as needing care and attention within the criteria laid down in section 21. The extent of the duty thereupon arising was considered. The extent of the duty was also considered in this Court in Khana v The Mayor and Burgesses of Southward LBC (2001) 4 CCLR 267, when the need for care and attention was also established. For the authority, Mr Knafler concedes, for the purposes of the present appeal, that the expression residential accommodation in section 21 can mean ordinary accommodation in flats and houses as well as institutional or sheltered accommodation.
21. Mr Goudie accepts that, as Stanley Burnton J stated at paragraph 32 of his judgment, the need for care and attention remains a pre-condition to the arising of the duty. If Scott Baker J was holding otherwise in the passage I have cited from his judgment in Penfold, I respectfully disagree. Mr Goudie submits that a need for care and attention by way of better housing arises from the current overcrowding. There is a risk that the overcrowding will adversely affect the appellant’s mental stability. He submits that the judge misdirected himself in stating (at paragraph 34) that: “the principal question is: has the defendant assessed the claimant as having a need for care and attention that is not otherwise available?” The assessment to which the judge referred was an assessment under section 47(1) of the 1990 Act. The relevant assessment would be one under section 21(1)(a) of the 1948 Act.
22. I do not accept that submission. While the assessment was under section 47(1) Mr Mountain clearly addressed himself to the correct test. The material available on the section 47(1) assessment was relevant to an assessment under the 1948 Act. There was no need for the judge to make specific reference to the fact that two statutory provisions were engaged in the exercise.
23. Neither do I accept that it is for the Court, and not the local authority, to decide whether the applicant is in need of care and attention which is not otherwise available to him. It is for the authority to make that decision, subject to the possibility of challenge by way of judicial review on any of the usual grounds.
24. Mr Goudie submits that the present case is indistinguishable from Batantu. I do not agree. In Batantu, it appears to have been accepted that the family’s unsatisfactory housing situation was likely to have been one of the factors which maintained the applicant’s psychiatric illness. As a result, the care plan provided that the applicant needed a safe, secure, easily accessible and spacious environment in which to live. It was in that context that Henriques J stated, at paragraph 26, that:

“In the case of section 21 of the 1948 Act, once the authority has come to the conclusion that the person concerned is in need of care and attention which is not otherwise available to them, then the residential accommodation is to be provided.”

In the present case, the need for care and attention has not been accepted by the authority and the first issue is whether it should have been. Reliance is placed, first, on section 117 of the Mental Health Act 1983. I see no basis for the submission that the fact that after-care services were provided under section 117, by way of visits from Mr Golightly following the appellant’s discharge from hospital, for example, amounted to or necessarily required a finding that he was in need of care and attention under section 21.

25. The further submission is that Mr Mountain’s assessment, on behalf of the authority, that the appellant was not in need of care and attention was irrational. It is submitted that Mr Mountain was bound by the expert opinion of Mr Golightly. Mr Golightly’s opinion that the appellant was at significant risk if he was not re-housed should have concluded the matter. There was a need for protective care and attention to preserve the appellant’s mental stability. Once the need for care and attention was established, the duty arose and on the evidence it was a duty to provide better accommodation.
26. I agree with the judge that Mr Mountain’s conclusion that the appellant was not currently in need of care and attention was one he was entitled to reach, having borne in mind future risk, which he did. It was not irrational. He was entitled to conclude that the section 21 duty had not been triggered. An applicant may have housing needs without a duty to provide residential accommodation under section 21 arising. Moreover, the decision to be made on behalf of the authority was properly left to Mr Mountain with his expertise as a team leader. There was considerable material before him including information about the appellant’s background, the medical opinion provided on the appellant’s discharge from hospital in January 2000, Mr Golightly’s report and oral representations and the report of Ms Sharif. He was obliged to take into account all the material before him. Mr Mountain stated that his conclusion was based on “years of experience as an approved social worker (in effect a social worker specialised and qualified in mental health issues) and as a manager of other professional staff, including Mr Golightly”.
27. There is no doubt that the appellant’s present accommodation is overcrowded. More extensive accommodation was sought under the provisions of section 21 of the 1948 Act, as the means whereby care and attention can be made available. That involves establishing a need for care and attention which is required to be met by way of the provision of better accommodation. Mr Mountain was entitled to conclude that no current need for care and attention arose from the overcrowding. Mr Knafler goes as far as to submit that there was nothing in Mr Golightly’s report which would have entitled Mr Mountain to conclude that a section 21 duty had arisen. It is correct that the report does not in terms attribute any current need for care and attention to overcrowding. Mr Knafler may have put it too high but I accept his submission that, on a consideration of all the evidence, including Mr Golightly’s report, Mr Mountain was entitled to conclude that the overcrowding did not create a need for care and attention within the meaning of section 21. Better accommodation would be advantageous to the appellant, as no doubt it would be to many people on the housing list, but a decision that the overcrowding of the present accommodation did not create a need for care and attention was not irrational and was properly reached.
28. Upon that finding, the broader issues which have been raised on the hearing of the appeal do not require determination. Mr Knafler submits that the duty in section 21 is a residual duty and, where all that is sought is better accommodation, arises only exceptionally. The existence of a homelessness code in Part VII of the Housing Act 1996 is relevant to the expression “not otherwise available” in section 21 as are the provisions of section 21(8) of the 1948 Act. Provision under section 21 is a last resort; to treat it otherwise would be to distort the procedures and priorities under the Housing Act. I have referred to recent cases in which the nature and extent of the section 21 duty, if it arises, has been considered. Mr Knafler submits that insufficient consideration has been given to the words “unless otherwise available” in section 21 and to the existence of the procedures under Part VII of the Housing Act. Those issues may call for further consideration in this Court but their determination is neither necessary nor appropriate in the present case. Questions may also arise as to the approach to be taken to other family members when a section 21(1)(a) duty to an applicant arises. Equally, there is no need in this case to consider the reasonableness or otherwise of the refusal by the appellant and by members of his family of other accommodation offered by the respondents under the provisions of the Housing Act.
29. For the reasons I have given, I would dismiss this appeal.

Lady Justice Hale:

30. I agree that this appeal should be dismissed for the reasons given by Pill LJ. Some basic points may deserve emphasis given the recent expansion of litigation in this field. Under section 21(1)(a) of the National Assistance Act 1948, local social services authorities have a duty to make arrangements for providing residential accommodation for people over 18 (who are ordinarily resident in their area or in urgent need) where three inter-related conditions are fulfilled:

(1) the person is in need of care and attention;

(2) that need arises by reason of age, illness, disability or any other circumstances; and

(3) that care and attention is not available to him otherwise than by the provision of residential accommodation under this particular power.

Three further points are also relevant:

(1) it is for the local social services authority to assess whether or not these conditions are fulfilled, and if so, how the need is to be met, subject to the scrutiny of the court on the ordinary principles of judicial review;

(2) section 21 does not permit the local social services authority to make provision which may or must be made by them or any other authority under an enactment other than Part III of the 1948 Act (see s 21(8)); but

(3) having identified a need to be met by the provision of residential accommodation under section 21, the authority have a positive duty to meet it which can be enforced in judicial review proceedings (see R v Sefton Metropolitan Borough Council, ex parte Help the Aged [1997] 4 All ER 532, CA; R Kensington and Chelsea London Borough Council, ex parte Kujtim [1999] 4 All ER 161, CA).

31. Mr Goudie's argument, skilfully and attractively though it was put, was ultimately circular. It is common ground that the 'residential accommodation' which may be provided under section 21 includes ordinary housing (see, on this point, R v Newham London Borough Council, ex parte Medical Foundation for the Care of Victims of Torture (1997) 1 CCLR 227; R v Bristol City Council, ex parte Penfold (1998) 1 CCLR 315; R (Batantu) v Islington London Borough Council (2000) 4 CCLR 445). I agree with Stanley Burnton J, at first instance in this case (see (2001) 4 CCLR 455, at para 27), that there are several indications in the Act that the kind of accommodation originally envisaged was in a residential home or hostel. This is the power under which local authorities provided elderly and aged people's homes or arranged accommodation in such homes run by others. However, it can no longer be assumed that a need for care and attention can only be properly met in an institutional setting. There are people who are undoubtedly in need of care and attention for whom local social services authorities wish to provide residential accommodation in ordinary housing. The most obvious examples are small groups of people with learning disabilities who are able to live in ordinary houses with intensive social services support; or single people with severe mental illnesses who will not receive the regular medication and community psychiatric nursing they need unless they have somewhere to live. Whatever the words 'residential accommodation' may have meant in 1948, therefore, they are a good example of language which is 'always speaking' and can be change its meaning in the light of changing social conditions (see the observations of this Court in R v Westminster City Council, ex parte M, P, A and X [1997] 1 CCLR 85, at p 90). Hence Mr Knafler, in common with others who have appeared for local social services authorities, has conceded that 'residential accommodation' can mean ordinary housing without the provision of any ancillary services.
32. But it does not follow that because residential accommodation can mean ordinary housing and the claimant is in need of ordinary housing, a duty arises to provide him with that housing under section 21(1)(a). That duty is premised on an unmet need for 'care and attention' (a 'condition precedent', as this Court put it in the Westminster case, at p 93E). These words must be given their full weight. Their natural and ordinary meaning in this context is 'looking after': this can obviously include feeding the starving, as with the destitute asylum seekers in the Westminster case. Ordinary housing is not in itself 'care and attention'. It is simply the means whereby the necessary care and attention can be made available if otherwise it will not (I do not understand this Court to have rejected that part of the local authority's argument in the Westminster case, at p 93B-D). The destitute asylum seekers in the Westminster case had a claim because their destitution would reduce them to a situation in which they required such care and attention and it could not be made available to them in any other way because of the restrictions placed upon their ability to seek other forms of support by the Asylum and Immigration Act 1996. As the Court said at p 95A-C:

“Asylum seekers are not entitled merely because they lack money and accommodation to claim that they automatically qualify under section 21(1)(a). What they are entitled to claim (and this is the result of the 1996 Act) is that they can as a result of their predicament after they arrive in this country reach a state where they qualify under the subsection because of the effect upon them of the problems under which they are labouring.”

33. In this case, Mr Mountain decided that the claimant did not have an unmet need for care and attention. He was undoubtedly entitled to reach that conclusion. Need is a relative concept which trained and experienced social workers are much better equipped to assess than are lawyers and courts provided that they act rationally. Such care and attention as the claimant did need as a result of his illness was being met by his wife and other members of the family together with the community mental health team. He was free of hallucinations and happier than he had been for a long time. The family does have a housing problem, alleviation of which would have a beneficial effect upon the claimant's mental health. But the housing problem is the family's rather than the claimant's alone. The claimant's problem is his fragile mental health. While together they might sometimes give rise to a need for care and attention, Mr Mountain was entitled to conclude that this was not so in this case.
34. That is sufficient to decide this appeal. Had it been that the combination of the claimant's mental health and a severe housing problem gave rise to a need for care and attention, this claim would still have faced considerable difficulties. He would have had to show that the care and attention he required was not otherwise available to him. He would also have had to surmount the hurdle presented by section 21(8). Nothing in section 21 allows, let alone requires, a local social services authority to make any provision authorised or required to be made, whether by them or by any other authority, by or under any enactment other than Part III of the 1948 Act. The asylum seekers succeeded because there was no other power, let alone duty, to provide them with the care needed to sustain life and health. There is power to meet ordinary housing needs, either through the procedures for allocating social housing under Part VI of the Housing Act 1996, or through the provisions for assisting and accommodating the homeless under Part VII of that Act. Even if he were able to surmount all those hurdles, the local authority would then have to consider how to meet the need identified under section 21. Their duty is to him and not to the other members of his family, although obviously they must not meet it in such a way that he is deprived of the care and attention he needs.
35. One further comment is appropriate. Where a local social services authority is making an assessment of need, it is good practice to consider whether the claimant may have a need for services provided by other authorities, in particular health and housing. Where such services are provided by a different authority, section 47(3) of the National Health Service and Community Care Act 1990 requires a social services authority when making an assessment of the need for community care services, if it appears that there may be a need for health or housing services, to notify the relevant health authority or local housing authority and invite them to assist. It is obviously good practice similarly to involve the housing department where this is part of the same local authority. It would be sad indeed if social workers were, consciously or unconsciously, deterred from identifying needs which properly fall within the province of other services by the fear that they might thereby be taken to be identifying a need for accommodation provided by social services. Social workers have traditionally been their clients' strongest advocates with the other agencies of the welfare state. We would be doing those clients no favours if social workers were inhibited in continuing that honourable tradition by the fear that responsibilities which properly lay with others might thereby be laid at social services' door.

Mummery LJ:

36. I agree with both judgments.
ORDER: Appeal dismissed. The respondents to have a section 11 order with any question of contribution by the appellant being deferred. The appellant to have an order that his costs be the subject of detailed assessment under the Civil Legal Aid (General) Regulations. (Order not part of approved Judgment)