England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Sitting at Birmingham Civil Justice Centre Priory Courts 33 Bull Street Birmingham B4 6DS
		13 May 2009

Mr Justice Beatson:

1. This is an application for permission to apply for judicial review of the decisions of the defendant dated 19 February and 25 March 2009, refusing to provide the claimant with welfare assistance and care; failing to conduct an assessment of his needs; and issuing him with a notice to quit his occupation of the accommodation he presently occupies. The proceedings were lodged on 7 May and were filed that day, together with an application for urgent consideration.
2. The conditions for urgent consideration were not met because the claimant had not acted with the expedition required in such an application in view of the time lapse between the decisions challenged and the launching of proceedings. Mr De Mello, who appeared on behalf of the claimant, explained that the delay was due to difficulties in obtaining legal aid. These difficulties were not explained in the form M61 nor was the court given details of them. In a case such as this, in which one of the orders sought is a mandatory order, it is incumbent on the experienced solicitors and counsel to follow the procedures and to provide such explanations.
3. The case came before me as a result of an order I made on 8 May listing the application for permission on notice to the defendant. The defendant, through Mr McGuire has appeared before me. Both parties have agreed to treat the present hearing as in effect a rolled up application. Accordingly, while this is formally an application for permission, the remainder of this judgment will proceed to address the substance of the claim and not make distinctions between arguability and whether the claim is established.
4. The claimant is a national of the Republic of Chad. He arrived in the United Kingdom on 19 August 2002. He applied for asylum. On 3 October 2002 the Secretary of State rejected his application. An appeal was dismissed on 14 April 2003 and an application for permission to appeal to the appellate tribunal was refused on 27 June 2003. The claimant was returned to Chad on 11 October 2005. The authorities did not accept him and he was sent back to the United Kingdom, where he made a fresh claim for asylum. In 2006 the claimant was admitted to hospital and had an operation to remove a lump from his neck. The lump was analysed and he was diagnosed as having follicular non-Hodgkinson's lymphoma.
5. He was released from hospital on 4 August 2006. At that stage the defendant provided him with financial assistance, enabling him to get accommodation, and did so on a without prejudice basis while the claimant was undergoing medical treatment. On 23 February 2007 the defendant's social services department carried out a case management review and recommended that the claimant's welfare support should continue.
6. On 8 March that year the claimant was admitted to hospital because his face was swollen and there was a lump on his chest. Tests were taken. These showed that his cancer had not returned. While he was in hospital his welfare care apparently stopped. After his discharge from hospital the Coventry Law Centre, his solicitors, wrote asking for his care to be reinstated. The social services replied, saying that care had not been withdrawn, and on 14 April he was provided with a care plan. Money and accommodation funded by payments to a landlord was provided to him.
7. The claimant's fresh claim for asylum, made on his return to the UK in October 2005, was refused by the Home Secretary on 7 February 2008. On 2 April 2008 the claimant's GP at the Green Lane Medical Centre wrote to the defendant about the claimant's condition. The material parts of the letter for this purpose are the statement that the claimant was being treated for neck and upper back pain; that no treatment was planned at UHCW, which I take as a hospital; although he continues under regular review. After setting out other details, including that prognosis is difficult and that "he remains clear from his lymphoma", it states:

"In general, I think he is able to cope with the normal activities of daily living. This may be compromised if his pain was not controlled adequately."

8. In a letter dated 23 May 2008, Ms Turner, a senior physiotherapist at the primary care trust, wrote to the defendant's physical impairment team reporting on the claimant. After setting out the history, the material part of the letter states:

"…the duration of his ongoing requirement for physiotherapy treatment is at present unpredictable, as this will depend on his response to treatment. In any case, the duration and nature of his symptoms suggest that his condition will require ongoing self-management following discharge from physiotherapy."

I emphasise that in that physiotherapy context what was being referred to was self-management.

9. There is also a useful letter from the Harnall Lane Medical Practice, dated 20 August 2008. This summarises relevant consultations in the period from 2006 to the date of the letter. These record for 13 May 2008 that:

"Difficulties with Cov.  City Council: may have benefits suspended and no more accommodation because he is no longer seen to have a life threatening illness as in remission. Discussed. Plans to see Cov. Refugee Centre and a solicitor"

And for 17 June 2008:

"Under considerable pressure about accommodation. Council have withdrawn flat now that health has improved. Symptoms of dizziness have recurred."

And for 20 August 2008:

"…he does require specialist NHS treatment and follow-up and care needs are more than the average healthy person and need for supported social housing is important to maintain optimal health in light of his chronic health problems"

10. On 29 October 2008 Dr Barrett, a general practitioner at the Harnall Lane practice, wrote to the Coventry Law Centre about the claimant. Dr Barrett stated that he was aware that the solicitors intended to try and satisfy the "destitution plus" test. The letter, accordingly, was written in contemplation of the claim made against the council on behalf of this claimant. The material parts of the letter are at numbered paragraph 1. Dr Barrett states:

"…Mr S's current state of remission from Follicular Non-Hodgkins lymphoma ('NHL') was greatly assisted by his ability to benefit from stable accommodation and financial support whilst he underwent treatment. If that support is withdrawn, the consequences are extreme stress and physical neglect which will very likely precipitate a relapse of NHL."

11. The letter does not given any indication about the time span for such a relapse or of the severity of the symptoms. What is said about the claimant is that:

"His condition is quite unlike the circumstances of an average healthy person, in that he is always at risk of relapse of disease progression."

12. Returning to the chronology more generally: In April 2008 the defendant had determined that support should cease and in November 2008 the Home Secretary refused further representations made in support of a fresh asylum application. The request on behalf of the claimant that the defendant review the decision that support should cease was refused on 19 February, the first of the challenged decisions. The material parts of the letter from the litigation and projects team of the defendant state:

"The position is that this authority is always prepared to conduct a reassessment or review when the circumstances warrant it; or where there has been a change of circumstances or where the passage of time causes the authority to consider whether its original assessment remains sound.

However, whilst taking account of the medical report dated 29^th October 2008 which you copied to us, we can see nothing in the circumstances of your client's case which would warrant such a reassessment or review."

The letter attached a copy of a letter to the claimant and the Notice to Quit.

13. The claimants wrote a Letter Before Action, and the second decision under challenge, on 25 March 2009, is the response to that. The letter sets out the reliance by the defendant on the decision of the House of Lords and, in particular, the speeches of Baroness Hale and Lord Neuberger in R(M) v Slough BC [2008] UKHL 52. After setting out what the council drew from that case the letter states:

"The points you seek to make are contrary to [and they refer to numbered points]. A medical need is not a need for care and attention. A future need for medical treatment or otherwise is not a need for care and attention. Your client does not need to be looked after, he is not in need of care and attention, he is not entitled therefore to a service under Section 21. We see no qualification in the judgment of the House of Lords which would permit continued reliance on the case of Pajaziti contrary to the clear guidance given as to how the term care and attention is to be interpreted."

And so the issue between the parties was identified at that stage. I turn to the statutory regime.

14. Section 21(1)(a) of the National Assistance Act 1948 empowers a local authority with the approval of the Secretary of State to make arrangements for providing:

"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."

But Schedule 3 to the Nationality, Immigration and Asylum Act 2002 provides, in summary form, that those to whom paragraph 1 applies are not eligible for support under a raft of statutory provisions, including section 21 of the 1948 Act, and those persons include those whose applications for asylum have been refused and their appeal rights exhausted, unless they fall within paragraph 3 of the Schedule.

15. Paragraph 3 of the Schedule states that:

"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 purpose of avoiding a breach of --

(a) a person's Convention rights;"

16. Mr de Mello submits that the refusal of the defendant to reassess the claimant in the light of the most recent medical reports is unreasonable and unintelligible. Relying on a number of cases R v Wandsworth LBC ex parte O [2000] 1 WLR 2539 at 2548, R (Pajaziti) v LB Lewisham [2007] EWCA Civ 1351 at paragraphs 33 to 36 and, in particular, R (Limbuela) v SSHD [2006] 1 AC 396 at paragraphs 9 and 62, he submitted the defendant was not entitled to refuse to conduct this assessment.
17. Mr De Mello submitted that the decision in M was distinguishable. Before I consider his submissions and Mr McGuire's in response, I set out the material parts of the speeches in M. That case concerned whether a local social services authority was obliged under section 21(1)(a) of the 1948 Act to arrange and pay for accommodation for a person subject to immigration control who was HIV positive but whose only needs other than for a home and subsistence were for medication prescribed by his doctor and a refrigerator in which to keep it.
18. The principal speech was given by Baroness Hale. After referring at paragraph 30 to the appearance that the case was part of what her Ladyship described as the "inverted and unseemly turf war" between central and local government", she said:

"The main issue is the precise meaning of the words "in need of care and attention which is not otherwise available to them". It may well be that those who drafted section 21(1)(a) in 1948 assumed that it only applied to people who needed extra care and attention which could not be provided in their own homes. They undoubtedly drew a distinction between the ordinary homeless, who were catered for under what was then section 21(1)(b), and those with special needs, who fell within section 21(1)(a)."

I observe that in 1977 the Housing (Homeless Persons Act) replaced the provision for the homeless and section 21(1)(b) was repealed.

19. Her Ladyship continued:

"…we are required, by the NASS case, to accept that people who need care and attention which could be provided in their own homes, if they had them, can fall within section 21(1)(a). But that does not answer the question in this case."

She then referred to the conditions which she had suggested in R (Wahid) v Tower Hamlets LBC [2002] EWCA Civ 287 at paragraph 30, which Lord Hoffmann had found helpful in the NASS case. These were:

"First, the person must be in need of care and attention; secondly, the need must arise by reason of age, illness, disability or 'other circumstances' and, thirdly, the care and attention which is needed must not be available otherwise than by the provision of accommodation under section 21."

Mr Howell, who appeared on behalf of the appellant council, had argued that there must be some meaningful content in the need for care and attention. At first he had argued that it was care and attention to physical needs such as feeding, washing and toileting, and not simply shopping, cooking, laundry and home-help type services. He accepted, however, that the provision had to cater for people who did not need:

"personal care of this sort but did need to be watched over to make sure that they did not do harm to themselves or others by what they did or failed to do."

His argument was that the essence was that the person needed someone else to look after him because there were things that he could not do for himself.

20. Baroness Hale stated that the test proposed by Mr Howell would not include many people who had been accommodated in old people's homes over the years since 1948, because much of the care which used to be provided in residential settings can now be provided at home. She considered that care and attention under section 21(1)(a) is a wider concept than "nursing or personal care". Accommodation may be provided for the purpose of "preventing illness as well as caring for those who are ill". Crucially, however, in paragraph 33 her Ladyship said:

"'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. If a simple need for housing, with or without the means of subsistence, were within section 21(1)(a), there would have been no need for the original section 21(1)(b)."

She concluded that it was not intended by Parliament in enacting the 1977 Act that people who did not qualify under housing legislation should be able to turn to local social service departments.

21. Baroness Hale stated:

"…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."

She considered that that construction was consistent with the authorities and referred, as the only passage which might cast doubt on this approach, to Lord Woolf's statement in ex parte M that authorities could "anticipate the deterioration which would otherwise take place" and intervene before a person's health had been damaged.

22. Baroness Hale, however, said that Lord Woolf did not "say that they could intervene before there was a need for care". She added:

"There has to be some sensible flexibility here. Section 21(1)(a) requires that the person "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."

23. She said that it was possible to meet present needs in a case where, without that care, the person would have needed a great deal more. It would, Baroness Hale stated, 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 section 21(1)(a) to apply at all.
24. Lord Brown agreed with Baroness Hale but in view, in particular, of what he had said in ex parte O, delivered a short speech. In paragraph 40 he said:

"A person must need looking after beyond merely the provision of a home and the wherewithal to survive -- beyond, therefore, the needs able to be met by NASS for suitable accommodation and subsistence. The looking after required does not have to be for either nursing or personal care. It must, however, be of such a character as would be required even were the person wealthy."

In short, one is looking to the need, not the means to provide it. Lord Brown said:

"It is immaterial that this care and attention could be provided in the person's own home if he had one (as he would have if he were wealthy). All that is required is that the care and attention needed must not be available to him otherwise than by the provision of section 21 accommodation."

25. In the context of someone subject to immigration control who is destitute Lord Brown stated that, inevitably, only the provisions of section 21 accommodation will enable his need for care and attention to be met. But that does not exclude him under section 21(1)(a) because that only excludes those whose need for care and attention has arisen solely because of destitution.
26. In paragraph 42 Lord Brown stated:

"that the words "care and attention" in section 21 (1)(a) 'must be given their full weight. Their natural and ordinary meaning in this context is 'looking after': this can obviously include feeding the starving, as with the destitute asylum-seekers in [Ex parte M]'."

He continued that it would not be right to regard all destitute asylum seekers as in imminent need of care and attention. That was a view which he had expressed in ex parte O. But, in the light of Baroness Hale's analysis, he resiled from that view.

27. Lord Neuberger agreed, but took a stricter approach to the consequences of the use of the present tense in section 21(1). He stated, in paragraphs 56 to 60 of his speech, that it was unlikely that the legislature would have intended the section to apply to somebody simply because he had no home, solely because he had no money or solely because he was without accommodation. In relation to the latter, in paragraph 60 he stated that:

"M is not 'in need of care and attention' simply because he is without accommodation. However, in addition to being without accommodation, he is HIV-positive (and may have AIDS), he consequently must take medication which is provided to him by the NHS, he requires the use of a refrigerator in which to keep the medication; and he needs access to a medical practitioner four or five times a year. However, his illness does not otherwise affect him, and he can look after himself. The absence of somewhere to live, coupled with the requirement for medication, refrigerator use and access to a doctor, even taken together, cannot, in my view, be said to amount to a need for care and attention, as a matter of ordinary language. M simply does not need looking after."

28. Mr De Mello relied on what was said by the House of Lords in Limbuela v SSHD and the recognition in that case and by Baroness Hale and Lord Brown that it is not necessary for a person to have reached a condition in which they are so destitute that their life is threatened for section 21 to be engaged. He submitted that here, where the doctors have said that, if accommodation support was withdrawn, the consequence of extreme stress "will very likely precipitate a relapse of NHL" means that the claimant arguably engages section 21 and, in any event, sufficiently does so for a detailed assessment to be made. At the core of his case is the submission that the authority have not looked to the future. They are looking only at the present and they err in doing so. He submitted that they should first have considered the section 21 point to see whether the claimant arguably came within it. If he did, they would then have to conduct an assessment and they would then have to consider whether the 2002 Act barred assistance or whether he fell within the exemption in Schedule 3.
29. Mr McGuire submitted that the reality is that an authority is entitled, first, to undertake the Schedule 3 exercise and then, if it is clear that a person does not fall within Schedule 3, then there is no requirement to undertake an assessment in order to consider whether assistance under section 21 should be given. He pointed to the decision of Mr Garnham QC, sitting as a deputy High Court judge in R (N) v Coventry City Council  [2008] EWHC 2786 (Admin). At paragraph 29, the deputy judge referred to the decision of Walker J in R (N) v LB Lambeth [2006] EWHC 3427 (Admin) and to the acceptance of the submission that, in practice, local authorities can look first to paragraph 3 of Schedule 3 and do not need to go on to consider the potential application of section 21 if a person's Convention rights or, in an appropriate case, European Union rights would not be engaged by a refusal of support.
30. Walker J, in the earlier case, himself relied on the decision of Lloyd Jones J in R (AW) v LB Croydon [2005] EWHC 2950 (Admin). Walker J stated:

"It will be recalled that the effect of that Schedule [Schedule 3 of the 2002 Act], as was held by Lloyd Jones J in the AW case, is that support under section 21 of the 1948 can only be provided if such support is necessary for the purpose of avoiding a breach of the applicant's Convention rights. That, it seems to me, might properly be regarded as a logically prior eligibility question, before turning to other judgments to be made for the purposes of section 21. Mr Holbrook told me that in practice local authorities would go to the more general questions first. One reason was that it was often difficult for a local authority to obtain good evidence about a claimant's immigration status. However, he acknowledged that that was not the case here." [Paragraph 65]

31. I agree that, notwithstanding the way that the statutory provisions are laid out, to require an authority to consider the section 21 issue without regard to a person's immigration status and only then to look at the immigration status and then to determine whether, if the immigration status is such as to engage Schedule 3 to the 2002 Act, paragraph 3 of that Schedule applies, is not sensible. A local authority, the resources of which are scarce, might have to go through an exercise which is wholly academic. I cannot imagine that that was Parliament's intention in constructing these provisions. These provisions are provisions relieving local authorities of obligations under section 21 and prohibiting them from acting unless the specified categories of people fell within the exception to Schedule 3. Where the answer to that question is clear and enables an authority to reach a conclusion, regardless of the section 21 issue, which may be a much more nuanced one, I do not consider that an authority is required to conduct what I would describe as an academic exercise.
32. What is the position in this case in the case before me? The high water mark of the evidence, for section 21 purposes, is Dr Barrett's letter dated 29 October. It is clear from both the physiotherapy report and the letter from the GP in April and May that the claimant is able to cope with normal activities of daily living. Dr Barrett states that the stress of normal accommodation will very likely precipitate a relapse in the condition. There is no indication as to either severity or timescale or other matters which would put a reader of the letter on notice of particular urgency. It is to be recalled that, as I stated earlier in this judgment, this authority has conducted assessments of this claimant's needs before. Accordingly, this is not a case in which no assessment has been conducted.
33. The issue is whether that letter provides the foundation for a further assessment for section 21 purposes. Leaving aside the consideration of Schedule 3, and taking the speeches of Baroness Hale and Lord Brown in relation to future needs into account, I do not consider that, on this evidence, the claimant's refusal to conduct a further assessment was unlawful. I have approached the matter in this way because the issue that is raised in relation to Schedule 3 raises potentially difficult questions. Mr McGuire submitted, again relying on the decision in N v Coventry City Council, that because this case, unlike Limbuela and other cases, was one in which the claimant's asylum claim had been considered and determined and appeal rights exhausted, the claimant was free to return to Chad. He argued it was possible for the defendant to take that into account in deciding that a refusal to provide section 21 assistance did not risk a breach or an arguable breach of the claimant's Article 3 rights.
34. In N v Coventry City Council the Deputy Judge said that, in a case such as the present one, the court must look not at the position that would obtain if the claimant remained in the UK. Rather it should consider the position that which would apply if the claimant returns to, in that case, South Africa. He concluded that, in those circumstances, the claimant would not begin to satisfy the sort of stringent test described by Baroness Hale in N v SSHD.
35. In this case, given what is said in N v Coventry City Council, it is very unlikely that the claimant's Article 3 rights would be engaged. I have concluded, having considered all the medical evidence and the material put in front of the defendant, that the defendant did not err in concluding that the position had not been reached which required it to do another assessment. Mr De Mello's core point on present and future need has to be assessed in the light of Baroness Hale's statement that there has to be some sensible flexibility. She accepted that the primary focus was on present rather than future needs and she stated that, if there is a present need for some sort of care, the authorities must be empowered to intervene before it becomes a good deal worse. The evidence in all the medical and physiotherapy reports does not show that there is present need for some sort of care. For these reasons, having heard full argument and given the judgment that I have, I would have granted leave particularly on the Article 3 point but, as I have been able to determine the case in the way I did, all I need to do is to say that judgment is given for the defendant.
36. I am very grateful for the clear and helpful arguments that have been presented.

Order: Permission to appeal granted; application dismissed

MR DE MELLO: My Lord the claimant has the benefit of a publicly funded certificate. May I have the nominal…?

MR JUSTICE BEATSON: You are entitled to that, I think

MR DE MELLO: I am grateful.

MR JUSTICE BEATSON: Mr McGuire?

MR MCGUIRE: (inaudible) purely in terms of the order I …

MR JUSTICE BEATSON: I have got something to say about that. Let me say something before you say that.

MR MCGUIRE: Yes.

MR JUSTICE BEATSON: We are now not in London. We are now in Birmingham.

MR MCGUIRE: Yes

MR JUSTICE BEATSON: I am going to make a practice of asking counsel to help with the order. In London counsel very often help draw up the order. As we get started here with a less intense number of Administrative Court cases it is going to be very helpful for my learned clerk and for others if counsel can help draw up the order. Now with respect to the order…

MR MCGUIRE: Of course. With respect to the order there is a practical difference as to whether permission is granted but the case is dismissed or permission is refused. One practical difference is whether the case is capable of being reported for any purposes. It is a matter entirely for your Lordship whether he regards the arguments as having been arguable but that… I suppose there is a second issue and that is, if the matter went back to the Court of Appeal, the question is whether it would go back right to the start or whether one could …

MR JUSTICE BEATSON: Well I have, I think, given permission and made a decision. I smile a little bit when you talk about reportability. Very often, particularly defendants who have succeeded in persuading a court not to give permission say: "But can I please rely on this. You have given such a full judgment so that…". That is a forensic presentational difference. But I have given permission. What I have not done is decided the point on the Article 3 point, which I did not think was necessary.

MR MCGUIRE: My Lord, I am grateful for that. There is one other matter I need to take instructions on.

MR JUSTICE BEATSON: Yes.

MR MCGUIRE: My Lord, we don't seek costs in the particular circumstances.

MR JUSTICE BEATSON: You don't seek costs. Well we have been able to deal with this in a disappointing way to Mr De Mello's client, but we have been able to deal with this very quickly.

MR DE MELLO: Yes of course …

MR JUSTICE BEATSON: And although I would not have given you expedition, I think you have got expedition plus in London terms.

MR DE MELLO: Given that you have clarified that permission has been granted but you have dismissed the application, I will as a matter of course just ask for permission to appeal. I anticipate what your answer is, and maybe it is not the right case to …

MR JUSTICE BEATSON: I don't think this is the right case to test that point. I don't and so …

MR DE MELLO: Formally …

MR JUSTICE BEATSON: Have you got a form for me to fill in for appeal? Well, I need to do it now because counsel need to see it so I'll rise if everybody could wait …

MR DE MELLO: Yes, of course.

MR JUSTICE BEATSON: I will then deal with that.

(Judge rises)

MR JUSTICE BEATSON: It's the 13^th today isn't it?

MR DE MELLO: Yes.

MR JUSTICE BEATSON: Right. What I have put under the reasons is "No reasonable prospect of success on section 21 point. While Schedule 3 paragraph 3 of the National Immigration and Asylum Act 2002 may be of significance in another factual context it does not arise in this case." But it is really for the Court of  Appeal to decide (inaudible) on a case of this sort. They sometimes do. You may, Mr De Mello, dangle it in front of them. They may like it.

MR DE MELLO: Yes, I can see that perhaps the facts are not (inaudible) think about it.

MR JUSTICE BEATSON: But my own view, bluntly, is that even in a public law case the court should be deciding cases where it makes a difference so…

MR DE MELLO: Yes and that's (inaudible).

MR JUSTICE BEATSON: Right. Thank you very much.