ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION) (ADMINISTRATIVE COURT)
HHJ ROBINSON (SITTING AS A DEPUTY HIGH COURT JUDGE)
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
LORD JUSTICE MOORE-BICK
| THE QUEEN ON THE APPLICATION OF NASSERY
|- and -
|LONDON BOROUGH OF BRENT
Miss Siân Davies (instructed by LB Brent, Legal Services) for the Respondent
Hearing date : 22 February 2011
Crown Copyright ©
Lady Justice Arden :
Section 21 of the NAA
"21 Duty of local authorities to provide accommodation
(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 eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them; [and …(b) . . .
(1A) A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely—(a) because he is destitute; or…
(2) In making any such arrangements a local authority shall have regard to the welfare of all persons for whom accommodation is provided, and in particular to the need for providing accommodation of different descriptions suited to different descriptions of such persons as are mentioned in the last foregoing subsection.
(2A) In determining for the purposes of paragraph (a) or (aa) of subsection (1) of this section whether care and attention are otherwise available to a person, a local authority shall disregard so much of the person's resources as may be specified in, or determined in accordance with, regulations made by the Secretary of State for the purposes of this subsection.
(2B) In subsection (2A) of this section the reference to a person's resources is a reference to his resources within the meaning of regulations made for the purposes of that subsection.
(3) . . .
(5) References in this Act to accommodation provided under this Part thereof shall be construed as references to accommodation provided in accordance with this and the five next following sections, and as including references to board and other services, amenities and requisites provided in connection with the accommodation except where in the opinion of the authority managing the premises their provision is unnecessary.
"approves the making by local authorities of arrangements under section 29 (1) of the Act for all persons to whom that subsection applies and directs local authorities to make arrangements under section 29 (1) of the Act in relation to persons who are ordinarily resident in the area for all or any of the following purposes –
(a) to provide a social work service and such advice and support as may be needed for people in their own homes or elsewhere;
"47 Assessment of needs for community care services
(1) Subject to subsections (5) and (6) below, where it appears to a local authority 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, the authority—
(a) shall carry out an assessment of his needs for those services; and
(b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services…."
"Given his level of independence, it is unlikely that he will gain benefits from a mental health social worker. Furthermore, his expectations are high and he has consistently expressed dissatisfaction at doctors and other health professionals involved in his care. Supportive counselling may be appropriate and can be accessed via his GP…. I am satisfied that he does not need looking after as there is no essential task which he is unable to do for himself without great difficulty. In the areas in which he experiences difficulty, it is minor, and he has been able to resolve such difficulty as he encounters adapting and problem-solving… The client repeatedly asserted his ability to look after himself and to seek help when needed, he has an appropriate level of insight and perception of when help is needed and the ability to act appropriately in seeking it. For example, he is compliant without supervision with his medical regime…"
"Physical health issues
Mr Nassery was assessed in relation to his abilities to perform activities of daily living by both Mr Coxall and Ms Blake, the Occupation Therapist ("OT"). Both concluded that he did not experience any great difficulty in any aspect of essential living activities.
Mental Health Issues
Dr Amin and Dr Kishore have expressed different opinions as to diagnosis. Dr Kishore's conclusion is [that] of an adjustment disorder with longer than usual reactions. Dr Amin is of the opinion that Mr Nassery suffers from a Personality Disorder.
Dr Amin has given the opinion that Mr Nassery "does not need and will not benefit from the involvement of mental health services such as a mental health social worker or psychiatric nurse or psychiatrist" [report of 18.8.2009].
It is noted that Mr Nassery was admitted to hospital under s 2 Mental Health Act 1983 and discharged in June 2009 and that the hospital admission was precipitated by attempts at self harm.
The council is satisfied that there have been no further attempts at self-harm in the last year and that Mr Nassery is compliant with his medication regime. This was confirmed by Mr Nassery himself and his GP. Mr Nassery confirmed that he does not need prompting to take medication. His GP has confirmed that Mr Nassery always collect his medication, and he reports compliance (apart from an occasional lapse as a result of forgetfulness) with taking it. The suggestion of counselling made when Mr Nursery was discharged from hospital last year remains available, either via his GP or hospital psychiatric services, although to date Mr Nassery has not taken up that opportunity
Mr Nassery also demonstrated clear ability to perceive the risks of ill-health associated with non-compliance with his medication. He demonstrated in the course of assessment clear understanding of the need for compliance and is able to achieve this independently. He has been consistently compliant both with medication and attending appointments as confirmed by his GP. He also understood that his use of illegal drugs might have affected his mental health. Mr Nassery has in the past been able to obtain medical assistance when needed. Three occasions when help was sought by Mr Nassery are set out in Dr White's letter to Dr Kishore dated 26.5.09. On a further occasion, on 20.5.09, while Mr Nassery was in hospital he telephoned Ms Harrison of the council's social services department saying that if she would not help him then he had a pair of scissors and he was cutting himself (when staff checked on the Claimant he was quite calm and denied having any scissors).
The issue of Mr Nassery's ability to perceive the need to seek help was explored in the course of assessment, and he confirmed that in a crisis or if considering self-harm he would call an ambulance and/or go to A & E as he has in the past. He is clearly able to do this. His insight into his mental health is demonstrated by the fact that by compliance with medication he has remained well for a year now, without any incidents of self-harm reported, to the extent that he has been able to establish a relationship with his girlfriend and to obtain employment.
It is relevant that during this period Mr Nassery has not been provided (and has not requested) any service from the Council other than accommodation and subsistence support.
Mr Nassery plainly has a need for accommodation and subsistence support and a need for medication and medical support (possibly counselling). Neither a need for accommodation or a need for medication amount to a relevant need for care and attention the purposes of s.21 of the National Assistance Act 1948.
It therefore remains the council's view, in light of the most recent assessments and updated information, that Mr Nassery is not entitled to support under section 21 National Assistance Act as he does not have any need for "looking after"."
Mr Nassery's judicial review proceedings
"8. While I have no medical qualifications, and can only comment on my dealings with Mr Nassery, it has been clear to me, that from early January 2009 onwards as it appears there has been a deterioration in Mr Nassery's mental health. Mr Nassery does not have friends or family and London or support other than me. Increasingly I began to receive frequent phone calls from various agencies, the Refugee Council, the Medical Foundation and the British Red Cross to whom Mr Nassery had provided my details. This was due, I believe, to the fact that Mr Nassery was becoming increasingly anxious and desperate. I also believe that it reflects his attempt to obtain help because his mental-health has significantly worsened since 2008.
9. On 4 March 2009, as a result of my concerns, I met with Mr Nassery in order to update him on his case. Mr Nassery… stated that "If I am arrested I can sort everything out." He then proceeded to open the back of his mobile phone and there was a razor blade I asked him why he kept it there, Mr Nassery did not reply, but gestured to me to show that he would cut his wrists and his throat.
10. Due to the fact that social services have made it clear that they have no intention of assisting the client, and in the absence of any involvement from other statutory or voluntary agencies, I have made a conscious effort to see Mr Nassery twice a week. Whilst I accept that it is not the role of a solicitor to play this role, I have felt it essential because I have been so concerned that he would kill himself. Since qualifying as a solicitor I have never felt the need to adopt such a role. I also add that as this role is outside my work as a solicitor, I am not billing in respect of these meetings…."
"It is essential that Mr Nassery be provided with assistance from social services. He requires supervision, care and attention or I fear that [Mr Nassery] will seriously injure himself or some other persons."
Judgment of the Judge
R (M) v Slough BC  1 WLR 1808
"…Our ideas of when people need to be in residential care have changed a good deal since then. Much of the care which used to be provided in a residential setting can now be provided at home. Furthermore, s 26(1A) requires that if arrangements are made under s 21(1)(a) for accommodation 'together with nursing or personal care' for people who are or have been ill, people who have or have had a mental disorder, people who are disabled or infirm, or people who are or have been dependent on alcohol or drugs, then in effect the home must be registered under the Care Standards Act 2000. Thus accommodation may be arranged under s 21(1)(a) without including either nursing or personal care. So the 'care and attention' which is needed under s 21(1)(a) is a wider concept than 'nursing or personal care'. Section 21 accommodation may be provided for the purpose of preventing illness as well as caring for those who are ill.
 But 'care and attention' must mean something more than 'accommodation'. Section 21(1)(a) is not a general power to provide housing. That is dealt with by other legislation entirely, with its own criteria for eligibility. "
"I remain of the view which I expressed in Wahid's case (at ) that the natural and ordinary meaning of the words 'care and attention' in this context is 'looking after'. Looking after means doing something for the person being cared for which he cannot or should not be expected to do for himself: it might be household tasks which an old person can no longer perform or can only perform with great difficulty; it might be protection from risks which a mentally disabled person cannot perceive; it might be personal care, such as feeding, washing or toileting. This is not an exhaustive list. The provision of medical care is expressly excluded. Viewed in this light, I think it likely that all three of Mrs Y-Ahmed, Mrs O and Mr Bhikha needed some care and attention (as did Mr Wahid but in his case it was available to him in his own home, overcrowded though it was). This definition draws a reasonable line between the 'able bodied' and the 'infirm'."
" The only passage which might cast any doubt upon this approach is Lord Woolf's statement in Ex p M, that the authorities could 'anticipate the deterioration which would otherwise take place' and intervene before a person's health had been damaged. He did not, however, say that they could intervene before there was a need for care. There has to be some sensible flexibility here. Section 21(1)(a) requires that the persons 'are in need of care and attention' so that the primary focus must be on present rather than future needs. But if there is a present need for some sort of care, then obviously the authorities must be empowered to intervene before it becomes a great deal worse. Section 21(1A) reflects this by referring to the anticipated physical effects of destitution. It was possible to meet the present needs that Mrs Y-Ahmed already had, for without that she would have needed a great deal more. It would be possible to meet the need for care of an HIV-positive person who is beginning to get sick before he becomes a great deal worse. But there must still be a need for some care and attention for s 21(1)(a) to apply at all."
"…It would seem wrong to extend a duty owed to a person who satisfies a statutory requirement to a person who currently does not satisfy the requirement simply because he will or may do so in the future. I should add that, as a matter of practicality, humanity and common sense, this cannot mean that a local authority is required to wait to act under s 21 until a person becomes seriously in need, however close and inevitable that serious need may be, and however much the authority reasonably wants to assist at once. The section must contemplate that a local authority can act, where it reasonably considers it right to do so, as soon as a person can be said to be in need of some care and attention, even to a relatively small degree."
Submissions and discussion
Lord Justice Moore-Bick:
Lord Justice Ward: