England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		18th September 2006

Andrew Nicol QC :

1. The principal issue in this case is whether the London Borough of Southwark has erred in law in its decision to cease providing support under Children Act 1989 s.23C or s.24A to Gordon Binomugisha, the Claimant. There are also issues as to whether Southwark is obliged to continue to provide the Claimant with a personal adviser and a 'pathway plan' also pursuant to the Children Act.

The facts

2. The Claimant is from Uganda. He was born on 6^th December 1986. At one time this was disputed by the Home Office, but an Immigration Adjudicator has found this date to be correct. It means that he is now 19. The Adjudicator also accepted the essential facts of the Claimant's account of his life in Uganda. His mother died many years ago. His father owned a construction firm and dealt in medical drugs. The Claimant was at a boarding school in Uganda, but in April 2002 he and his father were together. They were pounced on by soldiers. The Claimant was shot in the leg while attempting to run away and his father was also shot. The Claimant met a friend of his father's who helped both him and his father (who was badly bleeding from gunshot wounds) to get to a hospital. The Claimant recovered, but his father died a few days later.
3. The friend of the Claimant's father then realised the father's estate. He told the Claimant that he would not be safe in Uganda (he suspected that the Claimant's father had been selling medical supplies to the rebel group, the Lord's Resistance Army) and the two of them travelled to England. The Claimant and his father's friend arrived here on 1^st October 2002. The Claimant apparently entered on a false passport and so is an illegal entrant for the purposes of the Immigration Act 1971. He would then have been 15. The Claimant had expected to go to school in the UK, but nothing happened. In March 2003, his father's friend gave him £200 and then disappeared. He spent a few months with some Ugandans whom he had met at a Christmas party. He did odd jobs to support himself, but otherwise was dependent on the support of his friends. In October 2003 he was stopped by the police at Peckham Station. He then claimed asylum.
4. In November 2003, the Claimant was referred to Southwark by the Refugee Council as a child in need. He was assessed and from about 25^th November 2003, he was treated by Southwark as a child who was to be accommodated under s.20 of Children Act 1989.
5. On 9^th December 2003, his asylum claim was refused by the Home Office. His appeals based on the Refugee Convention and Articles 3 and 8 of the European Convention on Human Rights were dismissed by the Adjudicator on 2^nd March 2004. The Refugee Convention and Article 3 claims failed because there was no real risk that the Claimant would be subjected to persecution or other ill-treatment by the Lord's Resistance Army or from the authorities.
6. The Article 8 claim was based on the disruption which the Claimant's private and family life would suffer if he was removed from the UK. The Adjudicator said that this claim was 'more problematical' and continued,

'Such family life as [the Claimant] may have in the UK is sparse and only recently discovered. It has not featured in his life to any significant extent. He seems to have no relatives in Uganda (but may have a brother who would receive him in Canada). His family and private life in the UK would clearly be interfered with by removal and would not be replaced by any private life in Uganda. I find on balance that he has family and private life in the UK and that article 8 is engaged. The question is whether the Respondent has satisfied the burden imposed on him by article 8.2.'

7. The Adjudicator then directed himself in accordance with the Court of Appeal's decision in R (Razgar) v Secretary of State for the Home Department [2003] EWCA Civ 840 (the House of Lords had not at this stage given its judgment) and Mahmood v Secretary of State for the Home Department [2001] INLR 1 CA. He concluded

'The stark reality is that by his own account the Appellant has not much private and family life anywhere. He is going to have to begin again wherever he is. He has made a start while in the UK but it is at such an early stage that if he had to discard that small beginning and start again in his own country it would not be such an upheaval as to be disproportionate to the fact that he has no business to be here at all. The Respondent would be perfectly entitled to conclude that the wider interests of the UK outweighed the narrower interests of the Appellant. On the facts as a whole, while I have a good deal of sympathy for the Appellant, I am satisfied on balance of probabilities that the Respondent's decision to remove him is well within the range of reasonable responses to his unlawful presence in the UK and is justified under article 8.2'

8. The Adjudicator had no jurisdiction to hear an appeal against the further decision of the Home Office to refuse limited leave to enter (presumably until the Claimant was 18), but he anticipated that in line with its general policy, no removal would be attempted until he was 18 or satisfactory arrangements could be made for his removal to Uganda or Canada (where, as the Adjudicator had said, the Claimant had a brother). On 12^th June 2004 the Immigration Appeal Tribunal refused permission to appeal.
9. Southwark continued to provide the Claimant with accommodation and support. Prior to the Claimant's 18^th birthday, it asked the Home Office what its plans were. On the 8^th November 2004 it was told that at present no action against the Claimant's application would be taken.
10. The Claimant was aware that his support would be in jeopardy after he became 18 (in December 2004). The Defendant had concerns about his mental state in October 2004 and referred him for counselling by a social worker in November 2004. On 21^st November 2004, his general practitioner, Dr. Lyell, referred him to the Consultant psychiatrist at Lewisham Children and Young People Services because of low mood, lack of appetite, significant weight loss, poor sleep, lack of motivation and enjoyment and withdrawal from all family and friends. All of this was associated with the threat of withdrawal of the Defendant's support.
11. The Claimant applied for support from the National Asylum Support Service (NASS) but was refused on 8^th December 2004 because he was no longer an asylum seeker.
12. Southwark continued to provide support for the Claimant through the first half of 2005. In the meantime, another application for leave to remain which was made on 20^th November 2004 was refused by the Home Office on 11^th February 2005. There is no information as to the basis for this application (except that it was on human rights grounds) or its refusal.
13. On 17^th March 2005, the GP, Dr Lyell wrote to Harriet Harman (who is the Claimant's local MP). He said 'I feel [the Claimant's] mental health will be seriously affected if the deportation order is not revoked and I cannot account for his physical health if he is returned home.' Dr Lyell enclosed the letter of referral that I have mentioned above and said that the Claimant had not in fact been seen by the consultant because he had in the meantime become 18 and adult social services set a higher threshold for taking patients on and, as a result, the Claimant had been left without psychiatric support apart from what Dr Lyell could provide. It seems that Ms Harman forwarded this letter to the Home Office and, on 29^th March 2005, the Claimant's then immigration solicitors, Makanda and Co, made a further application for leave to remain, arguing that his removal would be contrary to Article 8 of the ECHR. No decision had been taken on this application at the time of the hearing of the present proceedings for judicial review and it remains outstanding.
14. On 5^th May 2005 the Claimant was told by the duty social worker that he would not be receiving any further support until his immigration situation had been resolved. There is a dispute on the evidence as to what then happened between May and August 2005. According to Southwark, there was contact on 6^th May, and further efforts to contact him by telephone messages and home visits (none of which were successful). Further, Southwark says the accommodation continued to be available to him. According to the Claimant, no further support was provided by Southwark from the beginning of May until mid-August 2005 and he was unaware of any efforts by Southwark to contact him. It is not necessary for the purpose of these proceedings to resolve this dispute. It does appear to be the case that during this time, the Claimant received some help from a girl-friend, but this relationship has since ended. He also received some food, clothes and very modest sums of money from an NGO now known as the African Social and Health Integration Ltd.
15. On 10^th August 2005 the Claimant was admitted to Guy's and St. Thomas' Hospital. According to a friend he had started throwing things out of the house and was screaming and shouting. The police were called and he was taken to the hospital. According to the Claimant he says that he thought he was being followed by army men who had killed his father. He did not remember where he was. He had been smoking cannabis once or twice a day up to a week before his admission to hospital but by the time he was admitted he says that he had stopped smoking it.
16. The Claimant was in hospital for a week. He came under the care of Dr R Jones, consultant physician, who provided a report to the Claimant's solicitors on 16^th January 2005. Both on admission and when Dr Jones saw him on the following day, the Claimant was found not to be responsive, with intermittent speech to himself in his native tongue and disorientated in time and place. Following discussion with the liaison psychiatric adviser it was agreed that he had a psychosis, but it was unclear whether this had an organic basis or was from a primary psychiatric disorder. Dr. Jones concluded:

'In brief and in summary, this man was an inpatient in an acute medical bed under my care from 10 August 2005 for a period of one week. His condition was dominated by an altered mental state, which included elements of paranoia and confusion. Although there were some features on investigation of a recent minor infection, no such specific problem was identified. A variety of organic causes were also considered and my inspection of the notes suggests that the only one which was not positively excluded is that we were told that he had fairly massive use of cannabis during the few weeks leading up to his admission. I have no way of knowing whether this is true or not but, clearly, it could be relevant.'

17. The Claimant was discharged on 17^th August 2005 and prescribed Olanzapine tablets 5 mg twice daily. He was invited to attend the Northover Mental Health Resource and Advice Centre in Bromley, Kent. He did so, but was told that he could not continue because he was not in their catchment area. The Claimant had the same response from the Jenner Health Centre (which was where Dr Lyell was practising). He was also without a GP for the following 2-3 months. However, Dr. Lyell did provide a further report to the Claimant's solicitors on 6^th October 2005. Referring to the hospital discharge summary, Dr. Lyell noted that the Claimant's family and friends had reported a 'one month history of paranoid elements prior to his admission and in increase of smoking cannabis since the onset of this paranoia. In my experience people with mental health problems often use cannabis to try to alleviate their mental health symptoms but it can make paranoid elements worse.' Dr. Lyell concluded:

'In my opinion, Mr Binomugisha is a vulnerable young man. Following his arrival in this country I understand he was taken under the care and guardianship of the social services and that his transition to adult level care with his turning 18 years old has led to considerable increase in his anxiety and his symptoms of depression because of the uncertainties surrounding this change such as a lower level of financial support, uncertainties about his accommodation and fears about deportation. I do not believe he is in a fit mental state to manage without financial support from Social Services and I would expect deterioration in his mental state were withdrawal of support to occur. Given a recent deterioration in his mental state led to an acute admission to hospital with paranoid delusions I expect he will need the close support of a community mental health team.' [emphasis added]

18. Southwark agreed to restart the Claimant's support on his discharge from hospital. On 7^th September 2005, the Claimant's support was stopped again, although it appears to have been reinstated about 2 weeks later (on 19^th September 2005) after the intervention of the Claimant's present solicitors.
19. In October / November 2005 the last review of the Claimant's Pathway Plan took place.
20. The Claimant's solicitors had been in correspondence with Southwark as to whether the authority would continue to provide support. On 16^th January 2006 Southwark wrote to say that the 'leaving care' services would be withdrawn in 30 days. The Claimant was to be sent for assessment by the Community Mental Health Team who would decide whether he was eligible for community care services.
21. The Claimant's solicitors commissioned their own report from Dr. Philip Steadman, a consultant psychiatrist. In his report dated 6^th February 2006, he had no doubt that the Claimant currently presented with a significant degree of anxiety and depression. He wholly agreed with the views of Dr Lyell which I have emphasised in the quotation in paragraph 17 above. Dr. Steadman added,

'I think that in the event that this gentleman became homeless, there would be a significant risk that his mental state would deteriorate. He is already presenting with some paranoid symptomatology and I would be concerned that this would deteriorate. It is not possible to predict in what way this could occur but could result in the need for further hospitalisation.'

The Claimant had reported suffering from pains in his back and stomach. Dr. Steadman said that he would be worried about both worsening if he had to sleep rough. He said 'Overall, I feel that it would be utterly inappropriate for someone with this combination of physical and psychological problems to be facing the possibility of homelessness and destitution.' Dr Steadman was concerned that the Claimant had been given only a two week course of Olanzapine (which is a substantial anti-psychotic) and thought that ideally he should continue to be on this as well as the anti-depressant that he was taking. There was a limited amount that Dr Steadman could say in relation to his immigration position. When asked by Dr Steadman, the Claimant had said that he would fall sick again if told that he had to return to Uganda. In general Dr Steadman thought that it would be helpful from a medical point of view for the investigations into his physical health to be completed before he returned to Uganda and for his mental state to be stabilised.

22. In February 2006 Southwark became concerned that its continuing support for the Claimant was unlawful in view of his immigration status. The Council indicated that support would be withdrawn, although it would continue with a mental health assessment and the provision of support would be reviewed in the light of the assessment.
23. The Claimant had registered with a new Primary Care Centre in October 2005. On 24^th February 2006 Dr Lay Maung, who is a GP with that practice, wrote to the Claimant's solicitors to say that in January 2006 he had been observed to have a raised blood pressure of 152/95mmg and that he had been referred to a consultant at King's College Hospital for further management of hypertension, it being important to find out the cause of hypertension in one so young. In Dr Maung's view, he would not be fit to leave the UK until his blood pressure was under control. He thought that he was suffering from Post Traumatic Stress Disorder and depression and would need psychiatric assessment in the near future.
24. The Claimant had applied for 'hard cases' support under s.4 of the Immigration and Asylum Act 1999, but this had been refused. On 27^th February 2006 an Asylum Support Adjudicator dismissed his appeal. His reasons (dated 2^nd March 2006) explained that he considered that the Claimant had a need for care and attention by reason of his mental health problems. That would bring him within s.21 of the National Assistance Act 1948 and, for that reason he was not 'destitute' and so did not satisfy the criterion for s.4 support.
25. The Claim Form in these proceedings was lodged on 28^th February 2006. It was accompanied by a statement from the Claimant. In addition to matters which I have already set out, the Claimant said

'I hardly sleep at present. I keep hearing voices from my father telling me to run….I sometimes feel that people in the streets are after me or are being offensive to me. Sometimes I watch TV and I feel that people on TV are being offensive to me.'

26. The Claim was overtaken almost immediately by the mental health assessment made on Southwark's behalf by a Community Psychiatric Nurse, Jay Simmons. The consequent decision by Southwark on 3^rd March 2006 not to provide any further support is now the central decision under challenge in these proceedings.
27. Mr Simmons saw the Claimant on 15^th February 2006, filled in a Community Care Assessment Form on 22^nd February and wrote his report on 3^rd March. It is not entirely clear what documents Mr Simmons had available. He refers to reports from Dr Lyell, Dr Jones and Dr Steadman but not Dr Meung. Although the Social Service files were, of course, available to Southwark, it is not entirely clear to what extent Mr Simmons took these into account.
28. Mr Simmons' report is lengthy, but the following points from it are among those which are significant:

1) Mr Simmons disagreed with Dr Steadman's assessment that the Claimant would need close support from the Community Mental Health Team. Mr Simmons said that the Claimant's presentation to psychiatric services had been due to the threat of withdrawal of support and his admission to hospital appeared to be the result of increased cannabis consumption in the previous month. He noted that the Claimant had managed without antipsychotic medication for 8 months despite further social stressors and had not suffered further psychotic episodes. Mr Simmons also noted that the Claimant had given up the use of cannabis.

2) Again contrary to the views of Dr Steadman, Mr Simmons thought that the Claimant's depression could be adequately managed by his GP.

3) Mr Simmons recorded that he had spoken to Dr Boardman, Consultant Psychiatrist 'who appears to know Uganda quite well' and had been told that anti-depressants were available there and the Claimant would be able to access psychiatric services there.

4) In an important passage, Mr Simmons said:

'I am aware that Mr Binomugisha has claimed to the Home Office that if he was removed from the UK his health would deteriorate to such an extent that the removal would amount to a breach of his Article 8 of the European Convention on Human Rights. I appreciate that the decision about removal is ultimately one to be made by the Home Office. In terms of access to social services support from this local authority however, I am satisfied on the information available to me that the local authority's decision to withdraw support would not amount to a breach of Mr. Binomugisha's rights under the ECHR and in particular Articles 3 and 8.

I have considered Articles 3 and 8 of the Human Rights Act and do not considered them breached for the following reasons: Mr Binomugisha can access support in this country through NASS, until he makes his travel arrangements to return to Uganda, and therefore there is no breach of his Human Rights under Articles 3 and 8.

While there is every possibility that withdrawal of support may affect Mr Binomugisha's level of depression, again this can be monitored and treated by his GP. Physically his stomach and back problems may well be affected, again, this can be monitored and treated by his GP while in the UK. On his return to Uganda I do not think his health would deteriorate to such an extent that it would amount to a breach of Article 8 of Human Rights.'

5) The Claimant had reported having a close circle of friends in London and an aunt who had at one time provided support but whom he did not visit any more.

6) The Claimant's presentation to psychiatric services had been due to uncertainty regarding his social situation, lack of accommodation and money and threat of destitution and his problems stemmed from being in the UK unlawfully.

7) The Claimant had reported an occasion when he had had recourse to prostituting himself with a man in return for £50. Mr Simmons said of this episode,

'The possibility of Mr Binomugisha being sexually exploited has been considered, however, as Mr Binomugisha stated, he went to the West End with the intent of sleeping with men to make money, and their appears to have been no coercion / threats / pressure placed on Mr Binomugisha regarding this. Mr Binomugisha has stated 'I do not want to do this again.'

8) Mr Simmons conclusion was 'I am of the opinion that Mr Binomugisha should not be linked in with our service.' The Claimant's problems could be resolved if he would agree to leave the UK. He would then be eligible for NASS support and would be relieved of the threat of destitution which was the cause of his depression.

29. Southwark indicated in its letter of 3^rd March 2006 that support would terminate on 8^th March 2006. In the event it did not, because on that day, McCombe J. granted interim relief. On 16^th March 2006 Newman J. granted permission to apply for judicial review after an oral hearing and also ordered that interim relief should continue.
30. Subsequent to the decision of 3^rd March, Dr Steadman was asked to comment on Mr Simmons report. Obviously neither this comment nor the report of Dr Anilkumar (to which I refer below) were before the Defendant when it took its central decision. However, both parties are agreed that these subsequent commentaries may be relevant to any question of disposal if there was an error of law in that central decision. It is convenient, therefore, to deal with them at this stage.
31. Dr Steadman wrote to the Claimant's solicitors on 6^th March 2006. In general he stood by his report. When asked to comment on the passage in the Claimant's statement to which I have referred above, he said 'hearing people on television being offensive to him is psychotic in nature. Hearing people on the streets that he does not know being rude to him may be psychotic but it is more likely to be the result of anxiety…If [the Claimant] feels that the television is being offensive to him then this is psychotic symptomatology.'
32. Dr Anilkumar is a Consultant Psychiatrist who was commissioned by Southwark to provide a report on the Claimant subsequent to their decision to cease providing support. His report is not dated but appears to have been prepared in April or May 2006. As with Dr Steadman, the report is lengthy and thorough, but the following parts are noteworthy:

1) Dr Anilkumar considered that there had been no recurrence of psychotic episodes since the Claimant's discharge from hospital. He noted Dr Steadman mentioning that the Claimant had expressed thoughts that people were making comments about him on television or talking about him in a bad way. Dr Anilkumar said 'We need to interview Mr Binomugisha to understand what exactly he meant.' He noted that television included programmes about asylum seekers which had included people expressing strong views about them and it might have been this to which the Claimant had been referring. Dr Anilkumar said that in his own interview with the Claimant he had probed at length as to whether the Claimant thought he got messages from the television or radio and there had been no evidence of him having any ideas of reference or delusions of reference.

2) Dr Anilkumar thought that the Claimant fulfilled the criteria for mild to moderate depression only which was not a condition that needed input from a secondary care i.e. community mental health team.

3) He did not think that the Claimant suffered from Post Traumatic Stress Disorder.

4) The paranoia from which the Claimant was suffering when admitted to hospital had improved dramatically within a week. This was inconsistent with him having a chronic, enduring and psychotic illness like schizophrenia. For this and other reasons, Dr Anilkumar did not think that he fulfilled the criteria for a long-term psychotic illness, but the psychotic episode would fulfil the criteria for mental and behavioural disorder due to psychoactive substance misuse, cannabis use.

5) The Claimant's problems had started when he knew that he might not have further accommodation funded by the Defendant and this was also linked with anxieties about his immigration problems. These had precipitated a degree of distress and mental illness.

6) There had been minimal response to the anti-depressants which were not likely to change his mental state significantly.

7) The Claimant did not fulfil the criteria for a severe depressive disorder or a psychotic disorder or any chronic enduring psychotic illness or mood disorder which needed attention from the Community Mental Health Team. The Claimant's GP had referred him for treatment even before trying him on anti-depressants, which was unusual.

8) The Claimant had not attempted to harm himself or express any ideas of self-harm

9) Dr Anilkumar was sure that anti-depressants would be available in Uganda. His conclusion on the impact on the Claimant's mental state if he was to go back to Uganda were as follows:

'most of Mr Binomugisha's problems are due to his social situation, i.e. him not having permission to stay in this country, and the uncertainties about his immigration status. He would initially feel very upset and dejected if he has to go back to Uganda after a period of stay in the UK. He might even do things to harm himself if faced with such a problem. But if he goes back to Uganda and doesn't have any adverse experiences, there is a chance that he might do well.

My reasons for this are as follows; Mr Binomugisha had been doing well while he was in this country when he was in education. There isn't anything to suggest a major predisposition for him to have a severe and enduring mental illness as such, except the traumatic experiences he had. The evidence indicated that he was doing well up until the problems with his accommodation arose.

If he is not faced with untoward incidents in his home country; if he gets back into education, is not persecuted, and is allowed to continue in education without any harassment, and if he doesn't have further negative experiences in this country, he might not have a deterioration in his mental state. I am saying this from the evidence I have about Mr Binomugisha since he came to this country and while he was in full time education. It is not part of my role or in my capacity to comment about whether he would have untoward or negative experiences in Uganda, or whether he would be persecuted further. If he is persecuted and if he has negative experiences, it would definitely lead to a deterioration of his mental state. If, however, he is allowed to settle down or allowed to study and move forward in life, he might not have a significant decline in his mental state.'

The duties under the Children Act 1989, setting aside the Claimant's immigration status

33. Before he was 18, Southwark provided support to the Claimant as a child in need as defined by Children Act 1989 s.17(10). The support included accommodation under s.20. Once he reached 18 the Claimant was no longer a 'child', but the local authority's duties towards him did not come to an abrupt end. It is not disputed that he was then within the statutory concept of a 'former relevant child' (see s.23C(1)). In such a case, the local authority must continue the appointment of a personal adviser and keep his pathway plan under regular review (see s.23C(3)).
34. The Act provides for the Secretary of State to make regulations regarding personal advisers and their functions (s.23D) and pathway plans and their review (s.23E). The Regulations are the Children (Leaving Care) (England) Regulations 2001 SI 2001 No. 2874. Regulation 6 requires reviews of pathway plans if requested by the young person, if the personal adviser considers a review necessary and in any other case every 6 months. The functions of personal advisers are spelt out in regulation 12. They include providing advice and support, participating in reviews of the pathway plans, co-ordinating the provision of services and keeping informed about his progress and well-being. In R (on the application of J (by his litigation friend MW)) –v- Caerphilly County Borough Council [2005] EWHC 586 (Admin) at para [30] Munby J. emphasised the separate functions of the personal adviser and the decision-maker within the local authority.

'part of the personal adviser's role is, in a sense, to be the advocate or representative of the child in the course of the child's dealing with the local authority. As the Children Leaving Care Act Guidance puts it, the personal adviser plays a 'negotiating role on behalf of the child'. He is, in a sense, a go-between between the child and the local authority.'

35. It is also the duty of a local authority to give a former relevant child assistance 'to the extent that his welfare requires it' (s.23C(4)). This is one of the routes by which the Claimant says that Southwark had a duty to accommodate and support him.
36. The second route begins with s.24 of the Act. The Claimant was under 21 and had, after reaching 16 years old, but while still a child, been looked after by the local authority. He was, therefore, a person who qualified for advice and assistance (s.24(1) and (1B)). The local authority then needed to consider if the Claimant was in need of the kind of help which they could provide under s.24A, namely advising and befriending the Claimant and giving him assistance. In exceptional circumstances, the assistance could take the form of providing accommodation and cash.

Nationality, Immigration and Asylum Act 2002: limitations on access to benefits

37. Section 54 of the Nationality, Immigration and Asylum Act 2002 gives effect to Schedule 3. Paragraph 1 of that Schedule applies to a number of different classes of people. It is not disputed by the Claimant that he comes within the fourth class, defined in paragraph 7 of the Schedule as someone who is in the UK in breach of the immigration laws and is not an asylum-seeker.
38. A person to whom paragraph 1 of Schedule 3 applies 'shall not be eligible for support or assistance under …(g) section …23C, 24A or 24B of the Children Act (welfare and other powers which can be exercised in relation to adults).'
39. The Claimant was probably in the UK in breach of the immigration laws and not an asylum-seeker from the time that the IAT refused him permission to appeal. At that time, though, he was still a child and paragraph 2 of Schedule 3 says that paragraph 1 does not prevent the provision of support or assistance to a child. That exception could not help the Claimant once he became 18.
40. The Claimant instead relies on paragraph 3 of Schedule 3. This says

'Paragraph 1 does not prevent the exercise of a power or the performance of a duty if, and to the extent that, its exercise or performance is necessary for the purposes of avoiding a breach of (a) a person's Convention rights…'

The phrase 'Convention rights' is given the same meaning as in the Human Rights Act 1998 and so means those provisions of the European Convention on Human Rights which are set out in Schedule 1 of the 1998 Act. Relevant to the present proceedings, they include Article 3 which says 'No-one shall be subjected to inhuman or degrading treatment or punishment', and Article 8 which provides:

'(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.'

National Assistance Act 1948

41. As an alternative to his claim under the Children Act, the Claimant relies on the 1948 Act. Section 21 allows local authorities to make arrangements for residential accommodation for those 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. Directions by the Secretary of State at Appendix 1 of LAC (93) have effectively made this a duty. The Immigration and Asylum Act 1999 added a further subsection (s.21(1A)). This says, 'A person to whom s.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 because of the physical effects or anticipated physical effects of his being destitute.' The Claimant, as a person subject to immigration control, is someone to whom s.115 of the 1999 Act applies, but, he argues, his need for care and attention would not arise solely from destitution but would be aggravated by his mental ill health, his stomach and back pains and his high blood pressure. In the current idiom, he says that he is 'destitute plus'. This alone would not be sufficient because the 2002 Act debars a person to whom paragraph 1 of Schedule 3 applies from support or assistance under s.21 of the 1948 Act. However, the Claimant submits, this bar is lifted because of paragraph 3 of the Schedule and the need on Southwark's behalf to perform its duty under s.21 (if not the Children Act) in order to avoid him slipping into a condition which would infringe Article 3.

Asylum and Immigration Act 1999: Hard Cases Support

42. It is the Defendant's case that the Claimant could avoid an Article 3 predicament in the UK by returning to Uganda. This, it says, would mean that it was not obliged (indeed, it was not empowered) to provide support under the Children Act ss23C or 24 or the National Assistance Act 1948 s.21. Through Mr Simmons, it has assessed that he could return there without infringing his rights under Article 8. He is not therefore a person who requires support from Southwark under either the Children Act or the National Assistance Act in order to prevent a violation of his Convention Rights. If the Claimant was willing to return to Uganda, then for the temporary period that he remained in the UK and until travel could be arranged for him to return home, he would eligible for support from NASS under s.4 of the Asylum and Immigration Act 1999 and the Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005 SI 2005 No. 930.

The role of a local authority in relation to immigration matters when making decisions under the Children Act and National Assistance Act

43. In one sense this whole litigation has been brought about by the delay on the part of the Home Office in dealing with the Claimant's application for leave to remain in the UK on the basis of Article 8 of the ECHR. The application was made on 29^th March 2005 and had not apparently been determined some 15 months later at the time of the hearing of the present proceedings (although a decision was made before judgment was handed down – see below). It is fair to say that matters have developed in the interval: there have been the further medical reports which I have mentioned and, although I am not sure that I have all of the correspondence passing between the Claimant's immigration solicitors (a different firm than those whom he has instructed for the present proceedings), the analysis of the Article 8 claim by Mr Westgate has been considerably more sophisticated than that which appears in the letters to the Home Office which I do have. Nonetheless, the situation confronting Southwark is that the Claimant has an outstanding application to the immigration authorities that it would be a breach of his rights under Article 8 for him to be forced to return to Uganda. It is the submission of Mr Harrop-Griffiths on Southwark's behalf, that it has no option but to decide for itself whether there would be a violation of Article 8 if the Claimant was forced to return to Uganda. Southwark is obliged to investigate this matter since the effect of Schedule 3 of the 2002 Act is that it can only provide support to the Claimant if his Convention rights would otherwise be violated. The Claimant, on the other hand, argues that immigration decisions are properly the responsibility of the Home Office and social services authorities should only act on the basis that an outstanding application will fail if it is manifestly unfounded. If the Article 8 application is not manifestly unfounded, the Claimant argues, Southwark should disregard the possibility of his return to Uganda and decide his application for support on the basis that he has no alternative sources of support and would quickly become destitute and suffer degradation of a level that came within Article 3.
44. The starting point for a consideration of these contentions is R v Wandsworth LBC ex parte O [2000] 1 WLR 2539. As can be seen from the date of the report, this arose after the 1999 Act had come into effect but before the 2002 Act was passed. The two applicants had sought assistance from their local authorities under s.21 of the National Assistance Act 1948. They suffered from mental and/or physical ill-health. Assistance was refused on the grounds that they were unlawfully in the UK. The Court of Appeal held that they were both 'destitute plus' (and so not excluded from benefits under s.21 on the grounds that their need for care and attention arose solely from destitution). It also held that their illegal presence in the UK did not disentitle them from benefits. Hale LJ (with whom Kay LJ agreed) said at p. 2557

'I conclude, therefore, that there is no general principle of legality excluding certain people from access to social services, as opposed to specific statutory provisions which may do so. This is scarcely surprising. Local social services authorities are skilled at assessing need and arranging the appropriate services. That is their statutory duty under s.47 of the Community Care Act 1990. It is also the professional skill of social workers. They are not and never have been professionals in making moral judgments as between people with identical needs. They have no particular skills or facilities for assessing whether a person is subject to immigration control or has a real choice about whether or not to return to his home country. It is the Secretary of State, through the Immigration and Nationality Directorate, who knows the individual's immigration status, has routine access to the local country information which might make such judgments possible, and has the power to determine whether or not a person should be allowed to remain here, and to remove him if he should not.

Further, as Simon Brown LJ has demonstrated, immigration status is a complex matter. To arrive at a definition of those whose presence here was so questionable as to give rise to an assumption of ineligibility for services would be a difficult task. Should it depend upon whether or not a criminal offence is committed (bearing in mind that the offence in question is not a particularly serious one); or upon whether or not the person concerned can currently be removed from the country immediately (which is more complicated still); or upon whether or not the person currently has permission to be here which does not preclude his resort to such services? Where does the question of choice between staying and returning come into the question?

It makes much more sense both in practice and in principle to leave the task of deciding upon need to the provider of health, education or social services, and the task of deciding whether or not a person should be allowed to remain here to take advantage of those services to the immigration authorities. This is subject, of course, to the power of Parliament expressly to limit eligibility to those services where eligibility has previously depended solely upon need. That is what Parliament has done in the Act of 1999. Significantly, Parliament might have gone even further in denying such services completely, but chose to limit that denial to those whose need arose 'solely' from destitution. This must leave it open to those whose need arises also from other causes to seek such assistance. Section 116 of the Act of 1999 must mean just what it says. It makes no sense for the old, the sick or the disabled to be eligible for hospital and other health services but not for the community care services they need.'

45. Parliament did make changes to the eligibility rules in the 2002 Act. The effect of these changes were first considered by the Court of Appeal in R (Kimani) v Lambeth LBC [2003] EWCA Civ 1150 [2004] 1 WLR 272. The Claimant in that case was a Kenyan woman who first married and then divorced an Irish national. She had an outstanding appeal against removal directions (which had been made on the basis that her marriage had been one of convenience) and the right to remain in the UK on temporary admission in the meantime. She argued (relevant to the present case) that withdrawal of support would lead to an infringement of her rights under Article 3 (because she had no other means of support and would fall into a state of degradation) and Article 8 (return to Kenya would separate her from her ex-husband). It was unchallenged that it was open to the Claimant and her son to return to Kenya (see para [33]). The Claimant had argued that it was simply not open to the Defendants to act on the basis that she should go home. The Court ruled otherwise. It thought that the Claimant's argument based on family life with her recently divorced husband was 'manifestly unsustainable' (see para [39]) and 'clearly specious' (see para [49]). Lord Phillips added

'Even if it were not [clearly specious], no infringement of article 8 would result from requiring her to return to her own country pending the determination of her appeal. There is no impediment to her returning to her own country. A state owes no duty under the Convention to provide support to foreign nationals who are permitted to enter their territory but who are in a position freely to return home.'

46. Earlier in his judgment, Lord Phillips had said at para [24]

'The objective of Schedule 3 [of the 2002 Act] can readily be inferred from its content. It is to discourage from coming to, remaining in and consuming the resources of the UK certain classes of person who can reasonably be expected to look to other countries for their livelihood.'

47. In R (AW) v Croydon; R (A,D & Y) v Hackney [2005] EWHC 2950 (Admin) this Court gave judgment in relation to certain preliminary issues that had been raised by four applications for judicial review. Relevant to the present case was AW's application. She was an asylum-seeker from Somalia. Her first claim had been rejected and her appeal dismissed. However, she made further representations to the Home Secretary as to why her removal would be contrary to the Refugee Convention and asserted that this was a 'fresh claim'. That application was outstanding at the material time. The third question which the court addressed was 'If the Article 3 threshold would otherwise be met, does the making of a purported fresh claim on UN Convention on Refugees / Article 3 ECHR grounds by a failed asylum-seeker always make it necessary for support to be provided in order to avoid a breach of Convention rights, pending a decision by the Secretary of State on the representations?' Lloyd-Jones J. was concerned (in part at least) with support which might otherwise be provided by NASS, but, in my view, his comments are equally apposite to decisions by local authorities.
48. At para [69] the judge said

'It seems to me that pending a decision by the Secretary of State on whether the further representations constitute a fresh claim, the Secretary of State will not be bound in every case to provide support under s.4 where the other requirements of the section are met. In my view it will be open to him, or to NASS, to decline to do so, for example on the grounds that the further representations are manifestly unfounded, or merely repeat the previous grounds or do not disclose any asylum claim at all.'

49. Ex parte O had been cited to the judge. He observed (at para [73]) that the 2002 Act had altered the picture and that

'The guidance issued by the Home Office to local authorities and housing authorities in relation to Schedule 3 to the 2002 Act makes clear that the position has changed dramatically since the decision in O and the local authorities now are required to take decisions relating to the immigration status of individuals as a matter of course.

[74] It seems to me that in considering whether the provision of support to failed asylum-seekers is necessary in order to prevent a breach of Convention rights it will be necessary for the public body concerned to have regard to all relevant circumstances including, where appropriate, the matters alleged to constitute a fresh claim for asylum. In many cases - possibly the great majority – it may well be inappropriate for a public body to embark on any consideration of the purported fresh grounds. However, there may well be cases in which the purported fresh grounds are manifestly nothing of the sort and where it would be appropriate for the public body to take account of that fact in arriving at its decisions in relation to asylum support.

[75] I accept the submission of the Defendants and the Secretary of State that it is necessary to proceed on a case-by-case basis. Each case will turn on its own facts and it will be necessary to examine the facts of each case with care…

[76] I should add that, contrary to the submissions of the Claimants, I do not consider that this conclusion is inconsistent with principles expounded by the Court of Appeal in Onibiyo or that it in any way diminishes the protection afforded to failed asylum-seekers who wish to make a further claim for asylum. It is only in the clearest cases that it will be appropriate for the public body concerned to refuse relief on the basis of the manifest inadequacy of the purported fresh grounds. In addition, where appropriate the individual will have recourse to judicial review in order to challenge such a decision. Moreover, the alternative contended for by the Claimants would lead to a situation in which failed asylum-seekers could secure assistance for prolonged periods on the basis of purported fresh claims which were manifestly nothing of the sort.

[77] In these circumstances I conclude that if the Article 3 threshold would otherwise be met, the making of a purported fresh claim on Refugee Convention / Article 3 ECHR grounds by a failed asylum-seeker does not always make it necessary for support to be provided in order to avoid a breach of Convention rights, pending a decision by the Secretary of State on the representations.'

50. Mr Harrop-Griffiths, on behalf of Southwark, argues that the AW case must be seen in its context. There may be complexities in deciding whether further representations amount to a fresh claim which a local authority would not be able to determine. He says that it is otherwise in the case of an Article 8 claim where (at least as presented to Southwark) the argument was that removal would so interfere with the Claimant's mental health that his right to private life would be violated.
51. I disagree.
52. Parliament has, as Lloyd-Jones J. said, dramatically changed the position by the 2002 Act. Local authorities are inevitably drawn into an assessment of whether a person is in the UK in breach of immigration laws (see Schedule 3 paragraph 7) or in deciding if a person was but is no longer an asylum seeker who has failed to co-operate with removal directions (ibid paragraph 6). Parliament also recognised that this would pitch local authorities into unfamiliar territory: it obliged them to notify the Home Secretary if it appeared to them that a case came within either of these paragraphs (or within paragraph 7A) and obliged them to act in accordance with guidance issued by the Home Secretary. After the hearing in this matter, the parties sent me a copy of the Guidance, but both agreed it added nothing to the case. Having read the Guidance, I understand this position, but it is perhaps significant that Parliament did not require the Secretary of State to issue guidance as to the application of paragraph 3 of Schedule 3. Certainly there is nothing in his guidance to assist local authorities in determining the validity of an outstanding claim to remain in the UK.
53. I accept that the Court of Appeal in Kimani and this Court in AW has envisaged that there may be some claims to remain in the UK which local authorities could properly categorise as 'manifestly unfounded' or 'clearly specious'. To this extent as well, things have moved on from the strict division between the immigration authorities on the one hand and the social services departments, on the other which was envisaged by Hale LJ in ex parte O. But there is still some force to her point that the two sets of authorities enjoy different expertise. That is particularly important when judging the validity of an outstanding application for permission to remain in the UK, as opposed to an assessment of a person's existing immigration status. The former is much more likely to involve the exercise of judgment, assessment and (in some cases) discretion which Parliament has entrusted to the immigration authorities rather than local authorities. This is not just the case, as Mr Harrop-Griffiths argued, where the issue is whether there is a 'fresh claim.' In the context of a claim under Article 8, for instance, if Article 8(1) is engaged (as in fact the Adjudicator had found that it was in the Claimant's case), Article 8(2) will require an assessment of the proportionality of the interference. Even without the expertise or legislative mandate of the Home Office, there will be some applications that a local authority can identify as utterly hopeless, but in my view they should proceed on the assumption that the application will fail only if it is 'manifestly unfounded', to use the expression that echoes through Kimani and AW. It is not enough that they consider the application will fail or is not made out.
54. Mr Harrop-Griffiths drew attention to what Lord Phillips had said in Kimani in the passage which I have quoted in paragraph [45] above. But it was a notable feature of that case that there was 'no impediment' to the Claimant returning to Kenya and pursuing her appeal from there. Mr Harrop-Griffiths also referred to R (Grant) v Lambeth LBC [2004] EWCA Civ 1711 [2005] 1 WLR 1781. That case was concerned with whether a local authority had power to make travel arrangements for the Claimant's return to Jamaica and to provide her with temporary accommodation until those arrangements could be effected. She had an outstanding application with the Home Office for leave to remain in the UK as a long term resident here. Ms. Grant did not appear to argue that forcing her to return to Jamaica would be a violation of her right to private life under Article 8. At least, there is no reference to such an argument in the report the judgment of the Court of Appeal or in that of Mitting J. in this Court [2006] EWHC 1524 (Admin). There was an argument that the family life of the Claimant would be violated if Lambeth did not continue their support until the application to the Home Office had been determined, but the Courts at both levels held that there would be no interference with family life since the family unit could travel to Jamaica and enjoy family life there. Consequently, the Court of Appeal treated the case as very similar to Kimani where, as I have noted, it was integral to the judgment that there was no impediment to the Claimant (at least not in human rights terms) returning to her own country.
55. In the present case, it is the essence of the Claimant's application to the Home Office that there is an impediment to him returning to Uganda (namely the effect that such a move would have on his mental health). For the reasons which I have just given, I consider that the local authority could only dismiss this objection to returning to Uganda if it decided that the Article 8 claim was manifestly unfounded.

The approach of Southwark

56. Mr Harrop-Griffiths submitted that Mr Simmons was asking himself whether it would be a breach of Article 8 to compel the Claimant to return to Uganda and that he was effectively asking himself the same question as the Secretary of State would ask when deciding whether the Claimant should be allowed to remain in the UK so as to avoid a breach of his rights under Article 8. I agree. In particular, the passage from Mr Simmons' report which I have quoted at paragraph 28(4) above, makes that clear.
57. In my judgment it is quite clear that Mr Simmons was not asking the very different question of whether the Claimant's Article 8 application was manifestly unfounded. In the different, but analogous context of challenges to certificates by the Secretary of State that applications to remain in the UK on asylum or human rights grounds are manifestly (or clearly) unfounded (see now Nationality, Immigration and Asylum Act 2002 s.94), the courts have repeatedly stressed that tests of this kind pose a far more stringent threshold than the simple merits question of whether on the facts the application should be allowed or refused. For instance, in R (Yogathas) v Secretary of State for the Home Department [2002] UKHL 36, [2003] 1 AC 920 at 934 [34] Lord Hope had said that the manifestly unfounded test would be satisfied only if the claim was 'so clearly without substance that the appeal [to an adjudicator] would be bound to fail.'
58. On this basis alone, in my judgment, the Claimant makes good his assertion that Southwark erred in law in its rejection of his application for support.

Would the application inevitably be refused on reconsideration if Southwark posed the correct question?

59. It does not follow automatically that a decision must be quashed because the person who took it asked the wrong question. There is no point in the Court doing so if the answer would inevitably be adverse to the Claimant on a reconsideration. In those circumstances, the Court would in its discretion refuse relief. I have to consider whether that is the position in the present case.
60. Rightly, Mr Harrop-Griffiths observes that it is only in exceptional cases that Article 8 will prevent the removal of a person from the UK on the grounds that it will have adverse consequences for his mental health. The leading authority is the decision of the House of Lords in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27 [2004] 2 AC 368. Lord Bingham referred to the judgment of the European Court of Human Rights in Bensaid v UK (2001) 33 EHRR 205 and said at paragraph [9] of his speech

'This judgment establishes in my opinion quite clearly, that reliance may in principle be placed on article 8 to resist an expulsion decision, even when the main emphasis is not on the severance of family and social ties which the applicant has enjoyed in the expelling country but on the consequences for his mental health of removal to the receiving country. The threshold of successful reliance is high, but if the facts are strong enough article 8 may in principle be invoked. It is plain that 'private life' is a broad term, and the court has wisely eschewed any attempt to define it comprehensively. It is relevant for present purposes that the court saw mental stability as an indispensable precondition to effective enjoyment of the right to respect for private life. In Pretty v UK (2002) 35 EHRR 1, 35-36, para 61, the court held the expression to cover 'the physical and psychological integrity of a person' and went on to observe that 'Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world.' Elusive though the concept is, I think one must understand 'private life' in article 8 as extending to those features which are integral to a person's identity or ability to function socially as a person.'

61. Lord Bingham analysed the right approach in paragraph [17]. He said

'In a case where removal is resisted in reliance on article 8, these questions are likely to be: (1) will the proposed removal be an interference by a public authority with the existence of the applicant's right to respect for his private or ( as the case may be) family life? (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8? (3) If so, is such interference in accordance with the law? (4) If so, is such interference 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? (5) If so, is such interference proportionate to the legitimate public end sought to be achieved?'

62. Lord Bingham emphasised that Strasbourg had said that conduct must attain a minimum level of severity to engage the operation of the Convention and this would be relevant to his second question. Questions (3) and (4), if reached, would almost always attract an affirmative answer. As to the last question, Lord Bingham said at paragraph [20]

'The answering of question (5), where that question is reached, must always involve striking a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage. The Secretary of State must exercise his judgment in the first instance. On appeal the adjudicator must exercise his or her own judgment, taking account of any material which may not have been before the Secretary of State. A reviewing court must assess the judgment which would or might be made by an adjudicator on appeal. In Secretary of State for the Home Department v Kacaj [2002] Imm AR 213,228 para 25, the Immigration Appeal Tribunal (Collins J., Mr CMG Ockleton and Mr J Freeman) observed that 'although the [Convention] rights may be engaged, legitimate immigration control will almost certainly mean that derogation from the rights will be proper and will not be disproportionate.' In the present case, the Court of Appeal had no doubt [2003] Imm AR, 529, 539 para 26 that this overstated the position. I respectfully consider the element of overstatement to be small. Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis.'

63. Mr. Harrop-Griffiths observes that on the facts, the claim in Bensaid, was held not to be a violation of Article 8: the problems about access to the medicine (as it happens, Olanzapine) which he would have needed to prevent a relapse into hallucinations and psychotic delusions, was dismissed as hypothetical and the separation from the support network which he had built up over the previous 11 years' residence in the UK was an interference which was justified under Article 8(2). The high threshold which has to be crossed before Article 8 would be breached was again emphasised by the Court of Appeal in R (Rodriguez-Torres) v Secretary of State for the Home Department [2005] EWCA Civ 1328. There was very little evidence that the Claimant would be a suicide risk or that he would try to harm himself if he returned to Uganda, but even in cases where there was a higher degree of risk of such events, the courts have been slow to find that removal would be contrary to Article 3 or Article 8 and have examined carefully what mental health services would be available in the countries of destination (see J v Secretary of State for the Home Department [2005] EWCA Civ 629 and R (Tozlukaya) v Secretary of State for the Home Department [2006] EWCA Civ 379).
64. Mr Harrop-Griffiths submits that, even if Mr Simmons did not ask himself the correct question and did not follow through the careful sequence which Lord Bingham had prescribed in Razgar, there could only be one answer to the question of whether the Claimant's Article 8 application was manifestly unfounded: it was and it is. On the report of Dr Anilkumar, the Claimant was suffering mild depression. He did not fulfil the criteria for schizophrenia or other long term psychotic illness and his psychotic episode possibly fulfilled the criteria for mental disturbance due to cannabis misuse. The Claimant had not reported any suicide or self-harm ideation to Dr Anilkumar. Mr Simmons had information that anti-depressants were likely to be available in Uganda and it would be surprising if this were not so.
65. Mr Harrop-Griffiths also argued that it was for the Claimant to make good his case that denial of support would lead to a violation of his human rights (see R (Q) v Secretary of State for the Home Department [2003] EWCA Civ 364 [2004] QB 36). The case presented to them had been that return to Uganda would damage the Claimant's mental health and so infringe Article 8. The wider claim based on a disruption to the Claimant's private life in the UK had not really been deployed prior to the judicial review application, but even taking this into account, the Article 8 claim was still manifestly unfounded.
66. These are all strong arguments, but they have not in the end persuaded me that in my discretion I should refuse a quashing order.

1) The test which I have to consider is whether, if this matter went back to Southwark, it would inevitably (and lawfully) conclude that the Article 8 claim was manifestly unfounded.

2) The authorities emphasise that each case has to be considered on its own facts. There is therefore only very limited assistance to be taken from the outcome of previous cases on their facts (by contrast, of course, to the statements of principle in those authorities).

3) There are unresolved questions as to the nature of the episode which led to the Claimant's hospitalisation in August 2005. There seems to be agreement that this was a psychotic episode, but the role of the Claimant's cannabis consumption is unclear. Dr Steadman thought that it was possible that this may have exacerbated pre-existing symptoms.

4) Dr Steadman considered that the Claimant's belief that the television was being offensive to him was psychotic symptomatology. He says that the Claimant 'currently presents with paranoid symptomatology.' Dr Anilkumar found no evidence of delusions and the Claimant made no reference to this when seen by him. However, Dr Analkumar considered that this was a matter which needed further investigation. He said, 'We need to interview Mr Binomugisha to understand exactly what he meant.' Dr Steadman was concerned that the Claimant had only received a two week supply of Olanzapine. There has not, so far as I can see, been any investigation of what mental health services would be available to the Claimant in Uganda if the opinions of Dr Steadman were borne out.

5) Dr Anilkumar said '[The Claimant] might even do things to harm himself if faced with such a problem [a feeling of dejection on return to Uganda]' and such a risk can never be entirely discounted. On the material before me, however, I would not have thought that the risk of self-harm on its own could arguably constitute a reason why return to Uganda would be a breach of the Claimant's Article 8 rights. There is simply no history of suicide attempts, acts of self-harm or even any thoughts of self-harm even during the Claimant's psychotic episode in August 2005. He has not referred to any such thoughts to any of the medical professionals who have interviewed him.

6) Mr Simmons is a Community Psychiatric Nurse and his report concentrated on the Claimant's mental health problems, but they were not the only health obstacles to his return to Uganda. In paragraph 23 above, I referred to the letter from Dr Maung who reported that the Claimant had raised blood pressure, was being treated for hyper-tension, was waiting to see a consultant at King's College Hospital for this and 'He wouldn't be fit to leave UK until his blood pressure is under control. If his blood pressure is not control properly, he may end up with a stroke.' In his letter of 15^th June 2006, Dr Anilkumar said that he had conducted a psychiatric report which did not extend to physical problems such as hyper-tension. I have not seen any other response to Dr Maung's report. There is no evidence as to what treatment may be available in Uganda for hyper-tension (and the diagnosis is anyway incomplete in the UK pending the Claimant's visit to a consultant at King's College).

7) By reference to Razgar, Mr Harrop-Griffiths argued that it would be exceptional for Article 8 even to be engaged by a risk of deterioration in mental health in consequence of a removal from the UK. However, in this case, the Adjudicator had accepted in 2004 that the Claimant did have a 'private life' in the UK with which there would be interference if he was removed and that Article 8 was engaged. I appreciate, that the adjudicator had in mind a different aspect of 'private life', but these are not hermetically sealed compartments. The adjudicator's finding in this respect, was an important factor in the Claimant's favour which (so far as I can see from Mr Simmons' report) was overlooked. If Southwark was to reconsider the matter it would have to be taken into account.

8) In paragraph 7 above I have quoted what the adjudicator had to say. He was influenced by the fact that the start which the Claimant had made in the UK was at such an early stage. In March 2004 when the adjudicator made his decision the Claimant had been in the UK for about 15 months. He has now been in the UK for almost 4 years. Mr Harrop-Griffiths argued that an additional 2 years or so could not make a significant difference. I am not sure that the matter is so clear cut when the Adjudicator was so influenced by the Claimant's (then) recent arrival and when it is borne in mind that the Claimant is now only 19, so that four years is a substantial proportion of his whole life. This period of relative calm is likely to have been even more important since it followed the violent and traumatic episode when the Claimant witnessed the fatal attack on his father and in which he was himself shot and wounded. Mr Westgate, for the Claimant, took me through the Social Services records to show that the Claimant had made various steps to integrate into the community here: he had built up contacts with a local church; he had undertaken various educational courses; he had made many friends. These are steps which showed a strengthening of the private life which Article 8 is in part designed to protect.

9) Mr Harrop-Griffiths submitted that Southwark was entitled to consider the Article 8 claim as it was presented to them, namely in relation to the effect on the Claimant's mental health if he returned to Uganda. Mr Westgate argued that Southwark was obliged to behave more proactively. He submitted that the duties of a local authority to prepare a pathway plan and provide a personal adviser were not displaced by Schedule 3 paragraph 1 of the 2002 Act. Thus, he said, that the authority had an active duty to investigate all aspects of the Article 8 claim which might be relevant even if not actively put forward by the Claimant. I have some sympathy with the submissions of Mr Westgate (which I examine further below in the context of his argument about the continuing obligations of Southwark relating to the Claimant's pathway plan and personal adviser), but in the present context, it is unnecessary to resolve this debate. I have decided that for other reasons, the decision was legally deficient. If that decision has to be taken again, the authority will have to take into account all relevant matters of which it is now aware (including the points raised in the course of these proceedings).

10) Mr Westgate argued that the Claimant's position under Article 8 was the stronger because (quite properly) he had been looked after by Southwark while a child. The continuing duties towards a former relevant child showed that these functions did not cease when a child became 18. The functions of the local authority were, in effect, to act as surrogate parents and his relationship with them should therefore be thought of as a surrogate 'family life' from the point of view of Article 8 with which there would be interference if he was returned to Uganda. I was not convinced by this. With some glitches (particularly, on the Claimant's account, in the period of May – August 2005) Southwark appear to have discharged their duties conscientiously. This has allowed the Claimant to strengthen and develop his community ties which I agree are themselves part of his 'private life'. His age and the traumatic experiences which the Adjudicator accepted he had endured in Uganda are material. But, I think that it is going too far, to suggest that his relationship with the authority itself is comparable to that towards a family (even an adopted or foster family) for the purposes of Article 8. There is not the evidence that the Claimant has become, for instance, particularly dependent on, or attached to, any of his personal advisers, such that this factor which will loom large, if at all, in the calculus of whether return to Uganda would be a breach of Article 8.

11) I am not persuaded either by Mr Westgate's references to the Claimant's 'aunt' as demonstrating that he has a family life in the UK. In his statement, the Claimant says that he is not sure that this woman is related to him. She is a family friend, but his contact with her appears to have been spasmodic. The possibility that she might adopt the Claimant seems to have been mooted by the Claimant's previous solicitors rather than the aunt. In any case the idea was not pursued and she provided very little support when, on the Claimant's account, Southwark stopped supporting him in May – August 2005.

12) In assessing the proportionality of interference in private life, it is relevant to consider whether the person concerned was in the UK lawfully during the period that he acquired his contacts and network of friends and social life that amounts to the 'private life' in question. The Claimant seems never to have been granted leave to enter or remain, but one of the consequences of this being a challenge to a decision of Southwark, rather than of the immigration authorities is that the reasons for some of the immigration decisions is somewhat obscure. In the case of an Unaccompanied Minor it would be usual for the Home Office to grant a period of discretionary leave to enter or remain in the UK either for a fixed period or until the person reached 18. This would only be necessary if any application for asylum was refused (since if that was granted, leave would be given as a matter of entitlement as a refugee). In this case, the Adjudicator alludes to the fact that discretionary leave had been refused and that this was a decision which he had no jurisdiction to investigate. The refusal may have been because the Home Office did not accept that he was a minor (again the adjudicator mentioned this in his determination). However, that decision ought to have been revisited in light of the Adjudicator's decision that the Claimant's birth certificate accurately recorded the date of his birth as 6^th December 1986. There does appear to have been another application for leave to remain which was made on 20^th November 2004, but that has been described in a letter to Southwark from the Home Office as being an application under the Human Rights Act. By November 2004, the Claimant would only have been some 3 weeks away from his 18^th birthday. In these circumstances, it is at least open to argument as to whether it would be right or fair to treat the Claimant's position as being on all fours with a person who never had leave to enter or remain, or whether the Adjudicator's acceptance of the validity of the birth certificate should cast the period that he spent in the UK before his 18^th birthday in a somewhat different light.

13) Southwark's task would be to decide whether the application to the Home Office was manifestly unfounded. If the Home Office decided, as the Adjudicator had done in 2004, that removal would engage the Article 8(1) right, it would have to consider the proportionality of a decision to remove and interfere with the Claimant's private life. What is set against the harmful effects of removal for the individual is, in the words of Lord Bingham in Razgar, 'the implementation of a firm and orderly immigration policy.' When I asked Mr Harrop-Griffiths how Southwark viewed the other side of the balance, he answered in terms of the local authority's resources. There is no doubt that part of the immigration policy which the Home Office operates is concerned with the burden which would be placed on local authorities if people without resources of their own were granted leave to enter or remain. But this is only part of a wider picture. Taking a view about these matters is quintessentially a task for the immigration authorities rather than local authorities. This is further support for the proposition which I take from the judgments cited above that a local authority such as Southwark should only makes its decisions on the basis that a person such as the Claimant is free to go back to his own country if an outstanding human rights claim to remain in the UK is manifestly unfounded.

67. Taking all these matters into account and even bearing in mind the high threshold for success for an application under Article 8, I cannot say that the outcome of a reconsideration by Southwark would inevitably be a decision that the application was manifestly unfounded. I do not, therefore, consider it right to refuse a quashing order in my discretion.

Pathway plan and personal adviser

68. The Claimant has raised a discrete issue in these proceedings as to whether Southwark is obliged to continue to review his pathway plan and to provide a personal adviser even if it is prevented from providing support and assistance by Schedule 3 paragraph 1 of the 2002 Act.
69. As I have said, it is s.23C of the Children Act 1989 which imposes duties on local authorities in relation to these matters for a former relevant child. That section is one of those listed in paragraph 1(1)(g) of Schedule 3 of the 2002 Act. However, paragraph 1(1) begins 'A person to whom this paragraph applies shall not be eligible for support or assistance under …' the listed sub-paragraphs. Mr Westgate argues that the provision of a personal adviser and pathway plan are not within the expression 'support or assistance'.
70. Mr Harrop-Griffiths submits that 'support' means 'material help' and assistance is something less than this. Assistance would include the provision of a personal adviser and the review of a pathway plan. He notes that sub-paragraph (g) lists the sections of the Children Act and then has in parenthesis '(welfare and other powers which can be exercised in relation to adults)'. He suggests that 'other powers' must mean something apart from 'welfare' and would be apt to refer to the provision of a personal adviser and pathway plan. It is difficult, he submits, to see the purpose of a personal adviser or pathway plan if the local authority is prevented from providing material support of assistance under any of the enactments listed in paragraph 1.
71. In my judgment there is a continuing duty to provide a personal adviser and review a pathway plan even if the local authority is precluded from giving support or assistance, although the functions in each case will be very much truncated because of that restriction on the authority's powers.

1) The opening words of sub-paragraph 1(1) must have the purpose of limiting the application of each of the lettered sub-paragraphs. This is most obvious in connection with subparagraph (l) 'a provision of the Immigration Act 1999' and subparagraph (m) 'a provision of this Act'.

2) The words in parenthesis at the end of each subparagraph, however, seem to have the different purpose of merely identifying (in shorthand terms) the provisions in that paragraph – they are descriptive rather than prescriptive.

3) The Children Act in general and s.23C in particular uses the term 'assistance' to mean the provision of material help - see for instance s.23C(5).

4) The Children Act sees 'advice' as something distinct from 'assistance'. This is clear, for instance, from s.24.

5) I agree with Mr Harrop-Griffiths that there could have been no purpose in requiring local authorities to review in a pathway plan how they might provide assistance or support to the person concerned if they have lawfully decided that they are prohibited from providing that assistance. Similarly, the functions of a personal adviser would seem to be redundant so far as they are concerned with drawing up or reviewing those parts of the pathway plan. Mr Westgate argued that a pathway plan may be a useful means of assessing whether termination of support under the provisions listed in paragraph 1 of Schedule 3 would lead to a violation of Convention Rights. However, I am examining this issue on the hypothesis that no breach of Convention rights would be involved.

6) However, pathway plans have some functions which are not dependent on the provision of 'support or assistance'. These functions are not therefore caught by paragraph 1 of Schedule 3 of the 2002 Act. By way of example only (and particularly material to the present Claimant) the review of a plan must deal with 'The health needs, including any mental health needs of the child or young person, and how they are to be met' (see Children (Leaving Care) (England) Regulations 2001 SI 2001 No.2874 Schedule paragraph 8). One of the functions of the personal adviser is to participate in the review of the pathway plan (ibid regulation 12(c)) and there is a still a value in the personal adviser continuing this role although the scope of the plan will be much reduced. More generally, a personal adviser is expected to provide advice (including practical advice) and support (ibid regulation 12(a)). This could extend beyond the support and assistance which is barred by Schedule 3.

7) Consequently I regard the continued provision of a personal adviser and reviews of pathway plans as a form of 'advice' rather than 'support or assistance' and a local authority's duties (modified as I have said) as continuing even though material support and assistance is prohibited by paragraph 1 of Schedule 3.

conclusion

72. In my judgment Southwark erred in law in its decision of 3^rd March 2006. It asked itself the question which the Secretary of State will have to answer when he considers the Claimant's outstanding application for leave to remain in the UK on the basis of Article 8 of the ECHR. Southwark is not precluded from investigating the issue of whether the Claimant could avoid the degradation of life without financial support in London by returning to Uganda. However, where, as here, there is an outstanding application with the Home Office on the basis that such a return would violate the Claimant's Article 8 rights, Southwark should have done no more than ask itself whether that application was manifestly unfounded. This would have properly recognised that the expertise and responsibility for making difficult judgments as to whether to grant leave to enter or remain lies with the Home Office (and the Asylum and Immigration Tribunal on appeal) and it is only in the clearest cases that local authorities should make their decisions on the predicate that the application in question would be dismissed by the immigration authorities. I would not quash the decision if I considered that, properly directing itself, Southwark could only arrive at a conclusion adverse to the Claimant. In my judgment that is not the case. If Southwark decides that the Article 8 application is not manifestly unfounded, it will have to consider whether there would be a breach of the Claimant's rights under Article 3 if he was not to be provided with support by them. I did not understand Mr Harrop-Griffiths to be arguing that in those circumstances, the Claimant could be expected to look to NASS for support under s.4 of the 1999 Act. In addition, past experience would seem to suggest that there would be no alternative forms of support for the Claimant, but these are matters on which Southwark will also have to reach a view.
73. Since the decision to terminate support is to be quashed, the obligations to continue reviews of the pathway plan and provide a personal adviser will continue in full. In the event that there were to be a further decision adverse to the Claimant, there would be no need for the plan or adviser to continue to plan for and advise on support or assistance which Southwark would (on this hypothesis) be barred from providing, but there would be a residual duty to advise the Claimant in any ways which did not involve the provision of material support or assistance.

Post-script

74. After the hearing had taken place and a draft of this judgment had been circulated to the parties, I was informed that the Claimant's outstanding application to the Home Office for leave to remain in the UK had been refused. This was by a letter dated 21^st August 2006. This decision appears not to have referred to further representations sent to the Home Office by the Claimant's immigration solicitors on 18^th August 2006. Those solicitors have taken this up with the Home Office in their letter of 23^rd August 2006. As matters currently stand, I do not consider that these events alter the conclusions to which I have come and I do not understand Southwark to suggest the contrary.