QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of NM
|- and -
|The London Borough of Islington
|- and -
|Northamptonshire County Council
||First Interested Party
|- and -
|The Parole Board
||Second Interested Party
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Mr Bryan McGuire QC (instructed by Islington Legal Services) for the Defendant
Mr Ranjit Bhose (instructed by Northamptonshire Legal Services) for the First Interested Party
The Second Interested Party did not appear and was not represented.
Hearing dates: 15 16/02/2012
Crown Copyright ©
Mr Justice Sales :
Statutory and policy guidance framework
"47. Assessment of needs for community care services.
(1) Subject to subsections (5) and (6) below, where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority-
(a) shall carry out an assessment of his needs for those services; and:
(b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services.
(2) If at any time during the assessment of the needs of any person under subsection (1)(a) above it appears to a local authority that he is a disabled person, the authority-
(a) shall proceed to make such a decision as to the services he requires as is mentioned in section 4 of the Disabled Persons (Services, Consultation and Representation) Act 1986 without his requesting them to do so under that section; and
(b) shall inform him that they will be doing so and of his rights under that Act."
"21. Duty of local authorities to provide accommodation.
(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing-
(a) residential accommodation for persons 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; "
"24. Authority liable for provision of accommodation.
(1) The local authority [empowered] under this Part of this Act to provide residential accommodation for any person shall subject to the following provisions of this Part of this Act be the authority in whose area the person is ordinarily resident.
(3)Where a person in the area of a local authority-
(a) is a person with no settled residence, or
(b) not being ordinarily resident in the area of the local authority, is in urgent need of residential accommodation under this Part of this Act,
the authority shall have the like [power] to provide residential accommodation for him as if he were ordinarily resident in their area.
(4) Subject to and in accordance with the [arrangements] under section twenty-one of this Act, a local authority shall have power, as respects a person ordinarily resident in the area of another local authority, with the consent of that other authority to provide residential accommodation for him in any case where the authority would have duty to provide such accommodation if he were ordinarily resident in their area. "
"29. Welfare arrangements for blind, deaf, dumb and crippled persons, etc.
(1) A local authority may, with the approval of the Secretary of State, and to such extent as he may direct in relation to persons ordinarily resident in the area of the local authority shall make arrangements for promoting the welfare of persons to whom this section applies, that is to say persons who are blind, deaf or dumb, or who suffer from mental disorder of any description and other persons who are substantially and permanently handicapped by illness, injury, or congenital deformity or such other disabilities as may be prescribed by the Minister."
"Residential accommodation for persons in need of care and attention
2.-(1) The Secretary of State hereby
(a) approves the making by local authorities of arrangements under section 21(1)(a) of the Act in relation to persons with no settled residence and, to such extent as the authority may consider desirable, in relation to persons who are ordinarily resident in the area of another local authority, with the consent of that other authority; and
(b) directs local authorities to make arrangements under section 21(1)(a) of the Act in relation to persons who are ordinarily resident in their area and other persons who are in urgent need thereof,
to provide residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstance are in need of care and attention not otherwise available to them."
"Powers and duties to make welfare arrangements
2.-(1) The Secretary of State hereby approves the making by local authorities of arrangements under section 29(1) of the Act for all persons to whom that subsection applies and directs local authorities to make arrangements under section 29(1) of the Act in relation to persons who are ordinarily resident in their area for all or any of the following purposes
(a) to provide a social work service and such advice and support as may be needed for people in their own homes or elsewhere;
(b) to provide, whether at centres or elsewhere, facilities for social rehabilitation and adjustment to disability including assistance in overcoming limitations or mobility or communication;
(c) to provide, whether at centres or elsewhere, facilities for occupational, social, cultural and recreational activities and, where appropriate, the making of payments to persons for work undertaken by them (a)."
"7. Local authorities to exercise social services functions under guidance of Secretary of State.
(1) Local authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State."
"Social services functions" include those under sections 21 and 29 of the NAA and under section 47 of the NHSCCA: see section 1A of and Schedule 1 to the LASSA.
1. Under section 47 of the National Health Service and Community Care Act 1990 ("the 1990 Act"), local authorities have a duty to assess the needs of any person for whom the authority may provide or arrange the provision of community care services and who may be in need of such services. They have a further duty to decide, having regard to the results of the assessment, what, if any, services they should provide to meet the individual's needs.
2. The term "community care services" is defined in section 46(3) of the 1990 Act and includes services under Part 3 of the National Assistance Act 1948 ("the 1948 Act"). This guidance is mainly concerned with these services, which are also referred to in it as "social care services".
3. Once a decision has been made on the services that need to be provided, the duty to provide those services, whether these are residential or non-residential, primarily rests with the local authority in whose area the person is "ordinarily resident".
4. Part 3 of the 1948 Act provides the statutory framework for the provision of residential accommodation and other community care services to people assessed as being in need of such services. It also contains provisions which can affect the determination of a person's ordinary residence.
5. If there is a dispute between two or more local authorities about the ordinary residence of a person in need of services, it should be resolved after the assessment and any provision of services. The provision of services should never be delayed because of uncertainty about which authority is responsible. An agreement to provide and fund services until the issue of ordinary residence is resolved has no bearing on the ultimate outcome. Where there is a dispute as to a person's place of ordinary residence, one of the local authorities concerned is under a duty to provide any community care services required pending resolution of the issue. The local authority which is to provide services should be determined in accordance with directions issued by the Secretary of State as follows:
- if the person is already in receipt of services, the local authority providing them should continue to do so;
- if the person is not in receipt of services, the local authorities in dispute may agree which of them will provide services pending the resolution of the dispute;
- if the local authorities in dispute cannot agree, the local authority in which the person is living must provide the services; and
- if the person is not living anywhere, the local authority in whose area the person is physically present (the "local authority of the moment") must do so.
Community care services
Community care assessments
6. Under section 47 of the 1990 Act, local authorities have a duty to assess the needs of any person for whom the authority may provide or arrange the provision of community care services and who may be in need of such services. Because local authorities have a power to provide services to people who live outside of their area, the duty to assess is not limited to people who are ordinarily resident in the authority's area. This gives rise to the question of when it might appear that a person who is not ordinarily resident in an authority's area "may be in need" of services.
7. Local authorities are already required to assess people who are about to be discharged from hospital and may need community care services under the delayed discharges legislation. The Courts have recognised that a pragmatic approach needs to be taken in similar circumstances. For example, it was held in the case of R (on the application of B) v Camden LBC and Camden and Islington Mental Health and Social Care Trust  1366 (Admin) that the words "a person may be in need of such services" refer to a person who may be in need at the time, or who may be about to be in need. That case concerned a detained patient whose conditional discharge had been deferred until suitable hostel accommodation could be found. A prisoner who will not be given parole until suitable care arrangements are in place would be in a similar position.
8. This pragmatic approach should also be taken in relation to people with firm plans to move to another local authority's area, for example, a person with a job offer who intends to take it up, subject to suitable community care services being available. Such people could be described as "about to be in need" in the local authority's area, even though they may already be in receipt of services in the area which they are leaving. The person's move must be reasonably certain: local authorities would not be obliged to assess a person who was simply considering a move to the area.
People moving from one local authority area to another of their own volition
105. When a person who is not being provided with Part 3 accommodation by a local authority chooses to relocate permanently to another local authority area of their own volition, perhaps to be near their family or to move from a self-funded care home into independent living accommodation (see paragraphs 72-76 (People who are self-funding their residential care) and paragraphs 92-101 (People moving into independent living who have mental capacity)), they generally acquire an ordinary residence in their new area. If the person needs community care services, they would therefore need to approach their new local authority for an assessment (see paragraph 99 above and paragraphs 6-8 (Community care assessments)).
106 Each local authority is responsible for setting its own eligibility criteria in accordance with the Department's guidance on eligibility criteria for adult social care Prioritising need in the context of Putting People First: A whole system approach to eligibility for social care. This means that when a person moves from one area to another and acquires a new ordinary residence, they do not automatically receive the same package of care. However, the guidance on eligibility criteria makes clear that where a person moves (or intends to move) permanently from one local authority area to another, the new local authority, when carrying out their assessment and reaching longer-term decisions about what services should be provided, should take account of services that were provided by the person's previous local authority.
People leaving prison, resettlement units and other similar establishments
107. The deeming provisions in section 24(5) and (6) of the 1948 Act, which provide that a person's ordinary residence is retained where they are placed out of area in Part 3 accommodation or are receiving care or treatment in NHS accommodation, do not apply to people who are leaving prison, resettlement units and similar establishments. However, local authorities could reasonably follow the approach set out in these sections for people who are due for release from prison. Therefore, where a person requires Part 3 accommodation on release from prison, local authorities should start from a presumption that they remain ordinarily resident in the area in which they were ordinarily resident before the start of their sentence.
108. However, determining an offender's ordinary residence on release from prison will not always be straightforward and each case must be considered on an individual basis. It may not be possible for an offender to return to their prior local authority area due to the history of their case and any risks associated with a return to that area. Therefore, any presumption of ordinary residence may be rebutted by a number of factors, including the offender's wishes and intentions about where to live, the length of their sentence and remaining ties with their previous area.
109. In situations where an offender is likely to require community care services on release from prison and their place of ordinary residence is unclear and/or they express an intention to settle in a new local authority area, the local authority to which they plan to move should have regard to paragraphs 6-8 of this guidance (Community care assessments) and take responsibility for carrying out the community care assessment. The duty to assess is not limited to people who are ordinarily resident in a local authority area; it extends to those people who are about to be in need in a local authority's area.
110. Given the difficulties associated with determining some offenders' ordinary residence on release, it is good practice for prisons to initiate joint planning for release at least 3 months before it is due. Prisons should work with the National Offender Management Service, the relevant local authority and Primary Care Trust to support assessment and care planning for those offenders who will require community care services on their release from prison.
111. If a person due for release from prison was not ordinarily resident in any area prior to being sentenced and does not have a permanent place to live on release, they may fall within the provisions of section 24(3) of the 1948 Act and be found to be of "no settled residence" and/or in "urgent need" (see paragraphs 43-50). A prisoner who is transferred to hospital under a hospital direction may on release be entitled to after-care under section 117 of the Mental Health Act 1983 (see paragraphs 182-189 (After-care services under section 117 of the Mental Health Act 1983)). "
"Response to first contact and assessment
68. Given the necessity of prioritising needs for social care, fair and transparent allocation of available resources depends upon effective assessment. Decisions as to who gets local authority support should be made after an assessment, which should be centred on the person's aspirations and support needs, involving both the person seeking support and their carers. Similarly, decisions on whether to offer specific support for carers should be made following a carer's assessment. When responding to and assessing people in need of assistance, councils should pay particular attention to the values set out in the General Social Care Council's Code of Practice.
69. Councils should not operate eligibility criteria to determine the complexity of the assessment offered; rather the depth and breadth of the assessment should be proportionate to individuals' presenting needs and circumstances, including how much support carers are able to provide, where appropriate.
78. The purpose of a community care assessment is to identify and evaluate an individual's presenting needs and how these needs impose barriers to that person's independence and/or well-being. Information derived from an individual's assessment should be used to inform decisions on eligibility. Where eligible needs have been identified, an appropriate support plan can then be put together in collaboration with the individual, describing the support they will draw upon to overcome barriers to independence and well-being, both immediately and over the longer term.
87. When a service user permanently moves from one council area to another (or has a clear intention to move to another council See the "Determining eligibility in respect of individuals" section of this guidance), the council whose area they move into should take account of the support that was previously received and the effect of any substantial changes on the service user when carrying out the assessment and making decisions about what level of support will be provided. If the new council decides to provide a significantly different support package, they should produce clear and written explanations for the service user. As discussed above, the future reform of the care and support system may have implications for portability of social care, but the Green Paper also recognises the role of local authorities in shaping services according to the needs of their local area.
Equality and human rights
90. Councils have statutory duties to have due regard to the need to promote disability, gender and race equality, as described in paragraphs 29 to 32 of this guidance. Councils should be also proactive about putting in place arrangements to ensure that they do not unfairly discriminate against individuals on the grounds of their age, religion, personal relationships, or living and caring arrangements, or whether they live in an urban or rural area.
91. Equality should be integral to the way in which social care is prioritised and delivered, allowing people to enjoy quality of life and to be treated with dignity and respect. Such objectives will be supported by:
- Equality of access to care and support, meaning that councils should not preclude anyone from having an assessment for community care services, if their needs appear to be such that they may be eligible for support.
- Equality of outcomes from care and support, meaning that within the same council area people with similar levels of needs should expect to achieve similar quality of outcomes, although the type of support they choose to receive may differ depending on individual circumstances. The development of resource allocation systems (RAS) should support greater transparency in how resources are allocated to individual service users (see paragraphs 127 132 of this guidance.
- Equality of opportunity, meaning that councils should work together with individuals to identify and overcome any barriers to economic and social participation within society.
92. Assessment of eligibility for services and the application of the eligibility criteria should be undertaken before decisions are taken on the overall amount of resource which will be available to the individual to meet these needs, Councils may identify those resources through the use of a Resource Allocation System (RAS) or by some other transparent local mechanism (see paragraphs 127 132 of this guidance)."
"325. Arrangements for assessing etc risks posed by certain offenders
(1) In this section -
"relevant sexual or violent offender" has the meaning given by section 327;
"responsible authority", in relation to any area, means the chief officer of police, the local probation board for that area or (if there is no local probation board for that area) a relevant provider of probation services and the Minister of the Crown exercising functions in relation to prisons, acting jointly.
(2) The responsible authority for each area must establish arrangements for the purpose of assessing and managing the risks posed in that area by -
(a) relevant sexual and violent offenders, and
(b) other persons who, by reason of offences committed by them (wherever committed), are considered by the responsible authority to be persons who may cause serious harm to the public.
(3) In establishing those arrangements, the responsible authority must act in co-operation with the persons specified in subsection (6); and it is the duty of those persons to co-operate in the establishment by the responsible authority of those arrangements, to the extent that such co-operation is compatible with the exercise by those persons of their functions under any other enactment.
(4) Co-operation under subsection (3) may include the exchange of information.
(5) The responsible authority for each area ("the relevant area") and the persons specified in subsection (6) must together draw up a memorandum setting out the ways in which they are to co-operate.
(6) The persons referred to in subsections (3) and (5) are
(a) every youth offending team established for an area any part of which falls within the relevant area,
(b) the Ministers of the Crown exercising functions in relation to social security, child support, war pensions, employment and training,
(c) every local education authority any part of whose area falls within the relevant area,
(d) every local housing authority or social services authority any part of whose area falls within the relevant area,
(e) every registered social landlord which provides or manages residential accommodation in the relevant area in which persons falling within subsection (2)(a) or (b) reside or may reside,
(f) every Health Authority or Strategic Health Authority any part of whose area falls within the relevant area,
(g) every Primary Care Trust or Local Health Board any part of whose area falls within the relevant area,
(h) every NHS trust any part of whose area falls within the relevant area, and
(i) every person who is designated by the Secretary of State by order for the purposes of this paragraph as a provider of electronic monitoring services. "
"One of the benefits of closer working relationships with the other agencies in MAPPA, is that access to other forms of needs assessment are made available which can complement formal risk assessment. These assessments will be of particular importance in assessing offenders with, for example, mental health problems or learning difficulties. Needs assessments made by colleagues in other agencies, including those in Health, Education, Housing and Social Services, can critically inform the assessment of the risk of serious harm."
"This section explains how the mechanics of transferring MAPPA cases should operate between areas in England and Wales and in cross jurisdiction cases.
Experience and various investigations into serious further offending show that weaknesses can arise in risk management when a case is being transferred between areas. It is therefore critical to ensure that all transfers are properly planned and managed.
It is important to remember that there is no such thing as an "informal" transfer. The following principles should be followed in all transfer cases:
- The over-riding consideration in relation to case transfers should be the protection of the public;
- National standards for reporting and enforcement are maintained, regardless of the transfer;
- Seamless supervision of offenders is provided in the community;
- All necessary information is transferred on a case file to manage the offender effectively; and
- The MAPPA agencies do not have the authority to refuse a case transfer; this remains a Probation Service decision where the offender is under their supervision. However, they can have an important role to play in ensuring that transfers are managed in a way that ensures that the risk(s) posed by an offender are managed as effectively as possible."
Thus the probation service has primary responsibility for arranging for the transfer of a MAPPA case to a particular area, which will have its own "responsible authority" for the purposes of section 325.
"Northampton Probation will transfer his case to London Probation and he will probably be moved to a B & B whilst accommodation is sorted out for him. [The Claimant's] status as a sex offender will be taken into consideration when his accommodation is being sorted out. [The Claimant] understands that because he is on the sexual offenders' list securing accommodation for him will have to be through this route."
"Relevant applications for hostel placements have been sent to central referrals for the South East and East Midlands regions. I have discussed possible placements with his legal representative and they are aware of the issues which are presented by [the Claimant]. Any transfer outside of Northamptonshire would require multi agency liaison between areas including the police, probation and fire service. I envisage that extra funding would be required from the public protection unit to source any placement for [the Claimant]. The area of Greater London is currently over subscribed. I have identified the Thames Valley area as there are good links to London, however I am mindful that the relevant local authority will only house offenders who have a stake in that region. The same is broadly true across the east midland counties with the exception of Northamptonshire, where a positive partnership exists between the local authority and MAPPA."
"To update the report of 27th April 2011. The report should have regard to the psychological reports submitted and to the representations made on [the Claimant's] behalf and should be prepared following direct contact with [the Claimant] (by whatever medium the OM considers necessary) to make appropriate assessments. The OM's attention is drawn to the submissions that [the Claimant's] condition is such that he is entitled to look to his local authority to undertake a needs assessment and provide intensively supported accommodation in the community which can be achieved on the basis that he is a vulnerable adult and is entitled to both accommodation and support (s47 NHS and Community Care Act 1990 and s21 National Assistance Act 1921). It should also have regard to any entitlements he has to support as a former looked after child. There is no reference to liaison with MAPPA and the report should state whether there has been such liaison. The OM should undertake the requested risk assessment in relation to the suitability of Approved Premises to accommodating [the Claimant] safely and liaise with the relevant Social Services authority (see direction below) in considering [the Claimant's] entitlements and, if appropriate, in the preparation of proposals for supported release within the community for submission to the hearing. The addendum should conclude with a recommendation as to [the Claimant's] suitability for release or transfer to open conditions, including risk management arrangements."
This indicates the significance likely to be attached by the Parole Board to the outcome of relevant MAPPA liaison between different public authorities. Unfortunately, the Parole Board did not specify that, in light of the Claimant's desire to be released to live in Islington, it should have the benefit of MAPPA consideration in relation to Islington's area, rather than (or in addition to) Northamptonshire's area.
"To secure reports from the relevant local authority Director of Adult Services. The Secretary of State should, without delay, ascertain which Social Services Department (it appears likely to be either Northamptonshire or the London Borough of Islington but no statement is made in recent reports as to this responsibility) holds responsibility for [the Claimant] (a former looked-after child who is diagnosed with a significant learning disability) and secure the preparation of an assessment of his needs. Should the outcome show an entitlement to relevant services, SOS should ensure that the responsible authority liaises with the Offender Manager to prepare a care plan/risk management proposals appropriate for [the Claimant's] care and safe management in the community were his release to be directed by the Board and a report in relation thereto should be submitted to the Board.
[The Claimant's] representatives and the psychological reports and the SARN dated March 2011 will need to be made available to the relevant authority, any necessary consents being sought from [the Claimant's] representatives."
"In my opinion, [the Claimant's] risk can be effectively managed in the community with appropriate and consistent support from agencies involved in his risk management (including Social Services). If he were to be released, he should be considered for supported housing through the Local Authority, with access to a key worker. He needs considerable support with everyday living and should be provided with a clear structure to help increase the development of his skills towards more independent living. Without this support in place, [the Claimant] will find it more difficult to manage his areas of risk.
If appropriate supported accommodation cannot be secured, I would recommend that [the Claimant] transfer to a Category D establishment so that he can further practice his skills in managing his risk. I have some concerns over the level of support [the Claimant] would receive in relation to his learning difficulties: however, if [the Claimant] is not able to secure support through the appropriate agencies for release, a progressive move to a Category D establishment is more favourable. It will provide him with the opportunity to practice using his skills consistently in more testing situations.
[The Claimant] should continue to fill out his learning logs when his 'risky things' have triggered for him, so he can share his management strategies with those involved in his risk management. He should also continue to engage with alcohol support services whilst in the community or in a Category D establishment.
[The Claimant's] Offender Manager raised concerns in relation to [his] Arson offence. Whilst he has not specifically completed treatment to address this offence, he has worked to address the risk factors such as 'rushing into things' that were linked to this. [The Claimant's] Offender Manager recommended that he continue to address this offence through work carried out with an Offender Supervisor in a Category D establishment, or with those responsible for his risk management in the community. I agree with this recommendation.
In my opinion, a progressive move to a Category D establishment is not essential for [the Claimant's] risk management. He has reduced his risk and is employing strategies to manage his risk factors more consistently to the extent that his risk can be effectively managed in the community with strong solid support. However, if supported accommodation cannot be secured for [the Claimant's] release, given his learning difficulties and the ongoing support he requires for everyday living, I would recommend that he progresses to a Category D establishment."
"[The Claimant] has been the subject of two Multi Agency Public Protection meetings. I can report concerns arising from these meetings regarding releasing [the Claimant] at this time. It would appear that offending behaviour work concerning the arson offence has not been fully addressed. Representatives from Northamptonshire Arson Taskforce were present and they voiced concerns about the nature of [the Claimant's] offence and echoed the comments made by the sentencing judge. Northamptonshire Police also voiced concerns regarding any return to Northampton as this would bring him near to his victims and other persons deemed 'at risk' including his mother and [step-father]."
"[The Claimant] would be directed to reside at Approved Premises, subject to bed availability. It is likely that he would be sharing accommodation with other men who have been assessed as a high risk of serious harm. A risk assessment would be completed prior to such a placement to ensure that his level of sharing is appropriate given previous allegations of sexual assault. He would be allocated a named key worker who will assist him with his day to day needs as appropriate and would meet on a minimum weekly basis. He would also be given support finding suitable accommodation within the Borough of Northampton. Alternatively and after a suitable time lapse [the Claimant] can be allowed time away to spend with appropriate members of his family subject to an assessment. He would be expected to take part in a minimum of 20 hours' purposeful activities, this may include training or job seeking and structured leisure activities. He would also be assessed for relapse prevention work by a trained facilitator for the Community Sex Offender Group-work Programme. [The Claimant] would be expected to attend weekly appointments with his supervising officer. He would also be expected to receive visits from a supervising police officer and register with police as instructed. He can also be expected to be managed under Multi Agency Public Protection Arrangements until such time as there is an identified reduction in the risk he presents. I anticipate that there will be intervention by The Arson Taskforce to minimise the risk of serious harm. He can also expect to be tested for alcohol use should he present at the hostel as inebriated and presenting an unacceptable risk to himself or others."
Mr Thompson concluded that he did not feel that the Claimant was ready for release and referred to, amongst other matters, work being required to address his arson offence.
"18. [The Claimant] recognises and accepts that he has critical and substantial needs which will need to be provided with intensive support in the community. He seeks the intensive support as recommended by Ms Wilkinson from adult social care.
19. [The Claimant] would ask that the Parole Board agree a short adjournment of the hearing in order that he can prepare a detailed and intensive adult social care package for resettlement to the community. He recognises and accepts that an adjournment does not mean that he will be granted parole. "
" to update the risk management plan. To take account of your [i.e. the Claimant's] statement to the panel that you are not willing to return to Northamptonshire. To provide more information about the issues that might arise on release to Northamptonshire, in relation to victims, your mother and [step-father]. To clarify timescales regarding the availability of a hostel placement, and anticipated dates for transfer to move-on accommodation. To clarify the nature and extent of the 'work' that would be undertaken by the Arson Taskforce. To provide information about the specialist services that could be made available to respond to your learning disability. To indicate how the Probation Service would manage your own vulnerability, within the hostel environment, particularly to predatory behaviour by fellow hostel residents."
i) The public sector equality duty resting on Islington as a public authority under section 149(1) of the Equality Act 2010, which includes an obligation to have "due regard to the need to advance equality of opportunity" between persons who are disabled and those who are not, including (see section 149(3)) by having due regard to the need to remove or minimise disadvantages suffered by persons with a disability, taking steps to meet the distinct needs of persons who have a disability, and to encourage disabled persons to participate in public life. Ms Williams did not seek to maintain a distinct claim against Islington based on breach of that duty, but rather relied upon it as an aid to the interpretation of section 47(1) itself;
ii) Section 3(1) of the Human Rights Act 1998 ("the HRA") and the obligation under that provision to construe section 47(1) in a manner compatible with the Claimant's Convention rights set out in the HRA and the European Convention of Human Rights ("ECHR") under Article 5 (Security of the person), Article 8 (Right to respect for private and family life) and Article 14 (Right against discrimination). In this regard she also relied on the UN Convention on the Rights of Persons with Disabilities, 2006 ("the CRPD"). Ms Williams relied on Articles 19 and 26 of the CRPD as provisions which should be taken to inform the meaning and effect of Articles 5, 8 and 14 of the ECHR in this context. Article 19 of the CRPD provides:
"Living independently and being included in the community
States Parties to the present Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that;
(a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;
(b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;
(c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs."
Article 26 of the CRPD provides:
"Habilitation and rehabilitation
1. States Parties shall take effective and appropriate measures, including through peer support, to enable persons with disabilities to attain and maintain maximum independence, full physical, mental and social and vocational ability, and full inclusion and participation in all aspects of life. To that end, States Parties shall organize, strengthen and extend comprehensive habilitation and rehabilitation services and programmes, particularly in the areas of health, employment, education and social services, in such a way that these services and programmes:
(a) Begin at the earliest possible stage, and are based on the multidisciplinary assessment of individual needs and strengths;
(b) Support participation and inclusion in the community and all aspects of society, are voluntary, and are available to persons with disabilities as close as possible to their own communities, including in rural areas.
2. States Parties shall promote the development of initial and continuing training for professionals and staff working in habilitation and rehabilitation services.
3. States Parties shall promote the availability, knowledge and use of assistive devices and technologies, designed for persons with disabilities, as they relate to habilitation and rehabilitation."
"The question is whether in conducting the first stage of the exercise under Section 47(1), that is in deciding whether the Applicant may be in need, the Respondent is entitled to take into account resources. Mr McLaren points out that there are very serious cost implications. He said, although there was no evidence of this, that an assessment can take 15 hours. It is also, and this is clearly correct, expensive in manpower and consequently money. It would he argues be pointless for local authorities to spend vast sums of money on conducting assessments when there is no hope of meeting any established need. The man hours and consequent cost would be better spent elsewhere. Mr McLaren's argument is that once it is accepted that 'need' can be a resource related test, the matters the local authority, or team leader on its behalf, can take into account include their knowledge of current policy within that authority.
It seems to me that Parliament has expressed Section 47(1) in very clear terms. The opening words of the subsection, the first step in the three stage process, provide a very low threshold test. The reference is to community care services the authority may provide or arrange for. And the services are those of which the person may be in need. If that test is passed it is mandatory to carry out the assessment. The word shall emphasises that this is so. The discretionary element comes in at the third stage when the authority decides, in the light of the results of the assessment what, if any, services to provide.
Usually, but not inevitably, the section will be triggered by, or on behalf of, a person claiming to have a need. But the initiative could come from the local authority. In practice however only those who think they have a need will ask for a community care assessment. As a matter of logic it is difficult to see how the existence or otherwise of resources to meet a need can determine whether or not that need exists. The practical reality of success of the Applicant's argument is that the potentially deserving cases will be prioritised in terms of:
(i) assessed needs that are to be met;
(ii) assessed needs that must remain current but will be recorded in the local authority's records for planning purposes; and
(iii) aspirations that following assessment turn out not to be a need.
I do not, therefore, accept Mr McLaren's submission that Parliament cannot have intended expenditure to a pointless end when it was clear that any established need could not be met. Even if there is no hope from the resource point of view of meeting any needs identified in the assessment, the assessment may serve a useful purpose in identifying for the local authority unmet needs which will help it to plan for the future. Without assessment this could not be done.
If the Respondent's argument on construction is accepted, the consequence will be that not only can authorities set wholly disparate eligibility criteria for services they intend to provide but they may also utilise such criteria as a basis for whether they will undertake a community care assessment at all. This cannot be right. The mere fact of unavailability of resources to meet a need does not mean that there is no need to be met. Resource implications in my view play no part in the decision whether to carry out an assessment."
"65. Mr Lewis submitted that section 47(1) refers to immediate needs that may arise in the future. Mr Bowen submitted that section 47 is not so limited. In this connection, it must be borne in mind that section 47 is not restricted to services that may be provided under section 117. It applies also to services that may be provided under Part III of the National Assistance Act 1948, or section 45 of the Health Services and Public Health Act 1968 (arrangements for the benefit of old people) and section 21 of and Schedule 8 to the National Health Service Act 1977. Parliament could not have intended local authorities to have to devote their resources to making assessments of the possible future needs of persons for such services. Furthermore, subsection (2) requires a local authority, on completion of its assessment, to "then decide whether his needs as assessed call for the provision by them of such services". The words, "then" and "call for" show that Parliament envisaged a need at the date of assessment. The words "may be in need" were used in subsection (1) because, necessarily when the assessment is carried out, it has not yet been ascertained whether the person in question has a need for services. They denote possibility, not futurity. They do not refer forward in time.
66. In my judgment, the words "a person may be in need of such services" refer to a person who may be in need at the time, or who may be about to be in need. A detained patient who is the subject of a deferred conditional discharge decision of a tribunal, which envisages his conditional discharge once section 117 after-care services are in place, is a person who "may be in need of such services", since if such services are available to him he will be discharged and immediately need them. Whether a patient who may reasonably be considered to be liable to have such an order made in an impending tribunal hearing is an issue I do not have to decide in the instant case, but I incline to the view that he is."
"(5) Nothing in this section shall prevent a local authority from temporarily providing or arranging for the provision of community care services for any person without carrying out a prior assessment of his needs in accordance with the preceding provisions of this section if, in the opinion of the authority, the condition of that person is such that he requires those services as a matter of urgency."
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, property, birth or other status"
i) In Glor v Switzerland (13444/04), ECtHR, judgment of 30 April 2009, a violation of Article 14 taken with Article 8 was found where the applicant had been subjected to a fine or levy because he did not undertake military service, in circumstances where he had been refused permission to do so because he was a diabetic. At para. , in its consideration of the admissibility of the complaint, the ECtHR observed that there is a European and universal consensus on the necessity of addressing the treatment of persons suffering from a handicap within the scope of laws on the protection against discrimination, and in that regard particularly noted a recommendation of the Council of Europe parliamentary assembly and the CPRD (perhaps somewhat surprisingly, as the CPRD had not yet been adopted nor come into force at the time of the application and Switzerland was not even a signatory of the CPRD, let alone a state that had ratified it). In the operative part of its reasoning to explain the finding of a violation, however, the Court did not rely on the CPRD. At para. , without referring to the CPRD, the Court held that having a physical handicap constituted a "status" for the purposes of Article 14. At para. , again without reference to the CPRD, the Court observed that the disabled are a vulnerable group in relation to whom the state's margin of appreciation to permit differential treatment would be narrow;
ii) In Kiss v Hungary (38832/06), ECtHR, judgment of 20 May 2010;  MHLR 245, the applicant sought to rely on the CPRD in support of his case, but the ECtHR did not refer to it in its reasons for finding a violation of Article 14 in the case of a disabled person. At para.  the Court identified disabled people as a vulnerable group in relation to whom the state's margin of appreciation to treat them differently would be narrow. It did not refer to the CPRD in that regard. Similarly, in Seal v United Kingdom (2012) 54 EHRR 6 the applicant sought to rely on the CPRD in support of a complaint under Article 6 of the ECHR, but the ECtHR did not refer to it in its reasons for rejecting that complaint;
iii) In Jasinskis v Latvia (45744/08), ECtHR, judgment of 21 December 2010, the Court found a breach of the obligation under Article 2 of the ECHR to carry out a proper investigation of the death of a person in custody in relation to a deaf and mute man who died after being taken into police custody after an incident, because proper medical treatment was not provided to him in relation to an injury received when he fell and hit his head. In its reasons, at para. , the Court stated that if the state decides to place and maintain in detention a person with disabilities it should demonstrate special care in guaranteeing such conditions as would accommodate his special needs resulting from his disabilities, and in support of that proposition made compendious reference to its previous case-law and various international instruments, including the CPRD;
iv) In Kyutin v Russia (2011) 53 EHRR 26, a case in which a violation of Article 14 taken with Article 8 was found where the applicant had been denied a residence permit on the grounds that he was HIV positive, the ECtHR found that his health status constituted a relevant "status" for the purposes of Article 14 by referring to its own case-law (including Glor v Switzerland) and noting that this approach was "compatible" with that in certain international instruments, including the CPRD: paras. -. However, in its analysis whether the Russian rule to refuse a residence permit to persons with HIV fell within the state's margin of appreciation, the Court did not refer to the CPRD: see in particular paras. -.