Wanjugu, R (On the Application Of) v Secretary of State for the Home Department [2003] EWHC 3116 (Admin)

Case No CO/3077/2003[2003] EWHC 3116 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 2nd December 2003
Strand
London WC2
B E F O R E:
MR JUSTICE ELIAS
Between
THE QUEEN ON THE APPLICATION OF FAITH WANJUGUClaimant-v-
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR S COX (instructed by Hammersmith Law Centre) appeared for CLAIMANTMISS S RAHMAN (instructed by The Treasury Solicitor) appeared for DEFENDANT
J U D G M E N T(As Approved by the Court)
Crown copyright©
[1]MR JUSTICE ELIAS: The claimant in this case is a 24 year old single woman asylum seeker from Kenya. She is currently seeking to remain in the United Kingdom on human rights grounds. She has in the past sought asylum, but her application was turned down by the Secretary of State and her appeal to the Special Adjudicator was dismissed. There was no further appeal, because the Secretary of State had issued a certificate, and that was upheld by the adjudicator.[2]Although the Adjudicator rejected her account of having been persecuted in Kenya, he did accept her evidence that some of her family including her mother were killed in an incident in January 1998, and it appears that she witnessed this traumatic event.[3]For a time after her application for asylum had failed, she lived with friends as a live-in child-carer in London, and she began being counselled at the Traumatic Stress Clinic under the care of a consultant clinical psychologist, Dr Mary Robertson. She secured a place at some point in 2002 at a university to read Pharmacy. Subsequently, on 5th November 2002, she applied for accommodation from NASS, the National Asylum Support Service. Her solicitors requested that she should be accommodated in London in order that she could continue being treated by Dr Robertson.[4]On 19th May 2003, she was notified that accommodation would be made available for her in Swansea. Shortly thereafter, she travelled to Swansea to take up that accommodation. She now challenges the decision by NASS to disperse her to Swansea, and also the failure to reverse that decision.[5]It is necessary to say a little bit about some of the material that was before NASS when it made its decision to disperse this claimant to Swansea. At that stage, it had before it a number of letters written by Dr Robertson which set out the psychiatric state of the applicant.[6]When the decision to disperse was given, her solicitors made further representations to the defendants and sought a response. No immediate response was forthcoming. On 3rd June, Dr Robertson wrote a further letter to the authorities via the applicant's solicitors. She explained in that letter that she was concerned to hear of the applicant's dispersal to Swansea, and gave certain reasons for that. In particular, she said that the applicant was suffering from Complex Post Traumatic Stress Disorder, which required specialised treatment not generally available in generic mental health services. She said that she had been in contact with mental health service providers in Wales, and was informed that there were no specialised trauma services in Swansea. She was therefore concerned that the applicant would not have access to the relevant medical help to enable her to recover from her experiences.[7]The application for judicial review was made on 1st July 2003. The basis for the dispersal decision was then set out in the acknowledgment of service. In paragraph 4, it was stated that Dr Keen, NASS's own medical advisor, had:
" ... assessed the medical report submitted on behalf of the Claimant and on 10 March 2003 indicated that 'the Post Traumatic Stress Disorder is noted but suitable services exist throughout the UK and proximity to London for treatment and/or support is not necessary. Dispersal to any location is reasonable'."
[8]There was then some further correspondence between the applicant's solicitors and NASS. Included in that was a letter from Dr Robertson dated 5th August 2003, where Dr Robertson had written again to the applicant's solicitors. In a section headed, "Opinion regarding suitable services", Dr Robertson said this:
"Ms Wanjugu presents with complex Post Traumatic Stress Disorder (PTSD), which is now chronic. She also suffers from panic attacks and low mood. In my opinion, she requires further psychological treatment by a clinician who is specialised in the psychological treatment of PTSD and who has experience in working with asylum seekers."
[9]She added that the applicant might also benefit from group psychotherapy at a later stage. She again reiterated in this letter that there were no appropriate services available in Swansea.[10]The applicant's solicitor also made a statement on 13th August, which was made available to NASS, which identified steps she had taken to discover whether or not there would be appropriate psychiatric services available in Swansea, and the response she had was that there was not.[11]One of those responding to her enquiries was Gary Edwards, who managed the local authority contract with NASS for the provision of council accommodation for families dispersed to Swansea.[12]At some date in September 2003, there was a response to these various materials from NASS. It appears that this letter was not received by the applicant's solicitors until very late in October. There has been no explanation as to why the letter was dated September and not received for such a long time.[13]In the course of that letter, the writer, Sajida Akhtar, sets out in detail some of the background to this issue. She commented that some of the symptoms associated with PTSD would be shared by very many asylum seekers. She said that the applicant's case had been referred to their own medical advisor (who I assume would still be Dr Keen although we are not told that) who had considered the various reports submitted on the applicant's behalf. She said that his conclusion was that given the long-term nature of the treatment the applicant was receiving, it was not unreasonable to expect her to transfer her PTSD treatment to another area of the United Kingdom. It was said that her case was not as serious as those of other asylum seekers that NASS had to deal with, for example, she did not have to be admitted to a psychiatric hospital or require medication, but in the course of this letter, she said this:
"However, having considered Miss Robertson's letter of 5 August 2003, where she says, 'In my opinion, she (Ms Wanjugu) requires further psychological treatment by a clinician who is specialised in the psychological treatment of complex PTSD and who has experience in working with asylum seekers', NASS has reconsidered its initial decision and is prepared to move Ms Wanjugu to an area where there are psychological services available that are geared specifically to the needs of asylum seekers with PTSD. The areas we have in mind are Newcastle-Upon-Tyne or Stockton-on-Tees. If Ms Wanjugu is to accept NASS accommodation in one of these areas the arrangements to get her there will be made quickly."
[14]That offer was not accepted, and there are now before the court two further reports, one from Dr Robertson and one from Dr Cathy King, who is an Associate Specialist in Psychiatry. They are dated respectively 13th and 12th November of this year. They both refer to the deterioration in the applicant's condition, and they express concern about her mental state. Dr Robertson says that she would recommend that the applicant: " ... should be offered psychiatric care as a matter of urgency before there is any further deterioration in her mental state ... ",[15]and that she should receive psychological support in her local area.[16]The legal background.[17]Part VI of the Immigration and Asylum Act 1999 deals with the support for asylum seekers and their dependants. The power to provide support is given by section 95 of that Act. The Asylum Support Regulations were made pursuant to the Act, and they make further provision for the operation of the support scheme. It is expressly provided that the location for available accommodation is irrelevant to the determination of its adequacy in assessing whether a person is destitute.[18]Section 97 specifies certain matters to which the SSHD, the Secretary of State for the Home Department, is required to have regard in providing accommodation. These include:
"(a) the fact that the accommodation is to be temporary pending determination of the asylum seeker's claim; "(b) the desirability, in general, of providing accommodation in areas in which there is a ready supply of accommodation; and "(c) such other matters (if any) as may be prescribed."
[19]Under section 97 (2), it is specifically provided that the Secretary of State may not have regard to: "(a) any preference that the supported person has as to the locality in which accommodation is to be provided ...[20]This does not, however, prevent a person's individual circumstances, as they relate to his accommodation needs, from being taken into account. That much is plain from Regulation 13 (2) of the 2000 Regulations.[21]I have been referred to two policy documents which relate to NASS's policy in this field. Policy Bulletin 31 concerns dispersal guidelines. It provides under 2.2 that:
" ... as a general rule, caseworkers should allocate accommodation in areas outside London and the south east."
[22]It also provides, in a section dealing with medical treatment and special needs, that:
"If medical treatment is available in the dispersal area, then in the absence of other exceptional circumstances, dispersal is likely to be appropriate."
[23]The other policy document is headed:
"The Medical Foundation For The Care Of Victims Of Torture."
That organisation is a registered charity which provides medical treatment, social care and practical assistance to survivors of torture and those who have suffered from organised violence. In paragraph 2.1 of this policy document, it is provided that:
"It is NASS policy that asylum seekers who have been accepted for treatment by the Medical Foundation should be provided with accommodation in London."
[24]It is also provided that if applicants have been referred to the Medical Foundation for an assessment, then they should not in general be dispersed prior to the assessment having taken place.[25]Mr Cox for the applicant has made a number of submissions as to why the decision in this case taken by the Secretary of State through NASS is unlawful. First, he submits that there is no rational basis for treating the applicant's case here differently from the way in which NASS treats those who have been accepted for treatment by the Medical Foundation. He says that in this case, it is fortuitous that his client happened to be treated in the Traumatic Stress Clinic, which is part of the Camden and Islington NHS Trust, rather than being treated by the Medical Foundation.[26]I am not sure, with respect to him, that that is right, because it is not clear to me that the applicant would fall within the terms of those treated by the Medical Foundation. The adjudicator found in terms that she had not been persecuted or subjected to any torture when she was in Kenya.[27]In any event, he submits that whether she could have been treated by the Medical Foundation or not, her case was not materially different from many of those who are treated by the Medical Foundation. She suffered from a serious form of Post Traumatic Stress Disorder, and it was important that she should have the continuity of treatment from Dr Robertson provided at a specialist unit, the Traumatic Stress Clinic. To the extent that it may be that there were other areas in the country where the necessary medical services could be provided, that could equally be true of many of those who are treated by the Medical Foundation. There was, he submitted, no rational or logical basis for carving out the exception that had been made without at least a willingness to extend it to other individuals who were in a like situation and possibly, indeed, to all the asylum seekers who are treated by the Traumatic Stress Clinic.[28]I reject this ground. For policy reasons, NASS has decided to recognise the work done by the Medical Foundation, and to seek to try to accommodate the interests of those who have been the victims of torture. There are obviously strong humanitarian reasons for the exception. Accordingly, NASS seeks to accommodate patients within striking distance of the Medical Foundation if it possibly can, once they are being treated by the Foundation. No doubt some of the patients could be treated elsewhere, but it has adopted a general policy in respect of all of the patients that must have the advantage of precluding the need for extensive consideration of each case to see if the medical needs could be provided elsewhere.[29]This is plainly a proper exception linked to the particular nature of the institution concerned and the kind of treatment that it provides. The applicant does not in terms fall into this exceptional category. Whether she may or may not have done is, in my judgment, not relevant. Wherever a policy exception is made, there will in any event always be hard cases that do not meet the specific criteria. That does not in my judgment make the criteria themselves illogical or unjustified.[30]It would be highly detrimental if NASS or any other institution were to be reluctant to make desirable exceptions from a general policy for fear that the courts would say that there were other exceptional cases not within the scope of the policy exception where the claim for special treatment was just as strong and where it would be unjust to deny that special exception. In my judgment, torture victims do provide a special case, and in providing an exception for such victims, NASS is not thereby tying its hands as to how it will treat others.[31]Whether there is a case for adopting an exceptional policy in relation to those who are treated by the Traumatic Stress Clinic, I know not. But that, it seems to me, would no doubt be the subject of consultation and discussion prior to any such exception being created. I do not accept that the fact that the applicant may be subject to serious illness of the kind that some of those who are treated by the Medical Foundation are also suffering is a basis for saying that she must be treated alike.[32]The next ground advanced by Mr Cox is that NASS failed properly to appreciate the need for specialist treatment and made its decision to transfer to Swansea on a false factual basis. It seems to me that when the decision was originally taken in May, it was a justified decision in the light of the material that was before NASS. As I have said, at that stage, NASS's own medical advisor had indicated that there were suitable services throughout the United Kingdom. In the light of the general policy which I have already set out, where such treatment is generally available, then dispersal is likely to be appropriate.[33]Mr Cox suggested that the acknowledgment of service indicated that the defendants may not have exercised an independent discretion on this matter but may simply have slavishly followed their doctor's report, but I see nothing in the acknowledgment of service to support that particular ground which, it has to be said, was not made with a great deal of conviction.[34]In my view, Mr Cox is on stronger ground when he expresses concerns about the decision to maintain the decision to disperse the applicant to Swansea. By that time, whatever understanding NASS may have had as to the availability of appropriate medical resources in Swansea in May, they had received quite detailed evidence both from Dr Robertson and other sources to suggest that the appropriate medical treatment was simply not available.[35]Miss Rahman, for the defendant, submits that if one looks at the September communication, it is plain that NASS's doctor had again considered all the various reports - that much is stated in terms - and that it was not in the circumstances unreasonable for her to receive PTSD treatment in some other part of the United Kingdom.[36]It is not altogether clear whether in this letter it is being asserted that Swansea remains an appropriate place to provide the treatment. Miss Rahman suggests that that is still being said, although NASS, as I have indicated, is making available relevant services where the applicant could receive psychological help with her PTSD in Newcastle.[37]Miss Rahman suggests that the doctor has come to the conclusion that the nature of the applicant's illness is such that it would be capable of being treated adequately by a general psychiatrist, and it is not disputed that general psychiatry services are available throughout the country. It is possible that that was the view of NASS's doctor, but I have no evidence one way or the other about that, and I have to say it is not clear to me from the letter precisely what his view was. It may be that he had initially misunderstood the particular nature of the applicant's illness and had thought that it could be dealt with by general psychiatric services, and was now agreeing with Dr Robertson's letter of 5th August, having appreciated that it was a more specialist illness than he had realised. It may be that he took the view that the general psychiatric services were still appropriate. However, in the absence of any statement from him or indication of what the basis of the medical advice was, I am not in a position to know.[38]It seems to me that if the decision is being made to keep the applicant in Swansea, then there does need to be a careful statement of the basis on which that decision has been reached. I do not think the letter of September adequately deals with that matter. However, what it does do is in effect say that whatever the merits of Swansea, NASS is now willing to make available psychiatric services in the North East.[39]Mr Cox submits that in the light of the most recent material which is before the court -- the two medical reports of 12th and 13th November to which I have made reference -- even that is no longer an acceptable recommendation. He criticises NASS first for giving the applicant the option of transferring to Newcastle. That, it seems to me, is an unfair criticism, because had they directed that she should go, I am sure he would have complained of the fact that it was a direction.[40]I am not prepared to say that the recommendation to go to Newcastle is an improper one, and nor would it be appropriate for this court to say that the only proper conclusion in the circumstances and in the light of the reports of 12th and 13th November would be for the applicant to be sent back to London. It may well be that the proposal to go to Newcastle is acceptable. It is certainly in line with the general policy laid out in the Policy Bulletin to which I have made reference.[41]It is true that the court has been given little detail of precisely the nature of the psychological services, but I have no reason to doubt that they are intended to meet the concerns which Dr Robertson expressed in her letter of 5th August.[42]Having said that, in view of the fact that there is now further information provided on 12th and 13th November, NASS may well think that it is appropriate for all this new material to be considered further by its medical representative in order to assess, at this stage, what is the most appropriate decision to be made. As I have said, if it is to remain in Swansea, then it seems to me it must be with a more detailed explanation as to why it is thought that the medical services there are appropriate notwithstanding the evidence to the contrary.[43]It follows that I do not think it is appropriate at this stage to give any formal relief. The decision taken in May to disperse to Swansea, it seems to me, was an appropriate one. That is something which NASS has indicated it is willing to depart from. The applicant submits that if NASS now properly considers all the material again, it could not properly support even the recommendation to go to Newcastle, but that it seems to me is a decision for NASS to take.[44]Accordingly, although I think that the applicant does to some extent succeed in demonstrating that in so far as there is a decision to uphold the decision to transfer to Swansea, that was not an appropriate one, I do not think that any other relief would be appropriate in the circumstances of this case.[45]MR COX: My Lord, one matter mentioned in your judgment: you mentioned that the applicant had had a university course transferred to Swansea. I think that was in my learned friend's skeleton argument. Her witness statement says that it is still in London but that she cannot get to it.

MR JUSTICE ELIAS: I am sorry.

[47]MR COX: What I was going to ask your Lordship to do is to reconsider the view that your Lordship takes in terms of relief, and in particular on whether or not there should be an order quashing the refusal of NASS to reconsider whether or not to return the applicant to London in the light of the medical evidence of 12th and 13th November.[48]It seems to me, while not clear beyond doubt, tolerably clear from the letter at 17th November 2003 from the Treasury Solicitor that such a decision was taken. In that letter, I accept it does not say so in terms, what it says is:
" ... my Client will not agree to accommodate and support your Client in London pending the full hearing of the case."
[49]Which does rather suggest that the even more fundamental view that they are not going to support the client in London without the case being heard at all has been taken.[50]In my submission, that is latent there. It is clear from that letter that NASS was refusing, despite the most recent evidence, to reconsider, and it is my submission that the decision evidenced by that letter is, and I say on the basis of your Lordship's judgment, the fixed subject of a quashing order with a mandatory order to NASS to reconsider, and I would ask for a certain timeframe. In my submission it ought, given the nature of that medical evidence, be a very short timeframe; the mandatory order for NASS to reconsider the appropriate location of the claimant's accommodation and to notify her of that decision within that timeframe with reasons for the decision. That is the relief that I say can and should flow from your Lordship's judgment. I do not ask for any other relief.[51]MR JUSTICE ELIAS: You are quite right. You referred to the letter of 17th November. I had not read that as necessarily involving any further consideration of those medical reports, in fact I had rather assumed there had not been any further consideration, that they were saying: well, we are sticking where we are.[52]MR COX: I would say the sticking where we are characterises that --

MR JUSTICE ELIAS: Well, I think that was in the light of what might happen in this court.

[54]MR COX: I say that that is a quashable decision.

MR JUSTICE ELIAS: I am not sure that I would call that a decision as such.

[56]MR COX: I am in some difficulties, my Lord, when the defendant says: well, we are not going to make a decision, because we will see what happens in court, and then the judge says: well, there is nothing for me to quash, because the defendant waited to see what I said.

MR JUSTICE ELIAS: It has been before the end of the case, that is the point.

[58]MR COX: My Lord, I understand.

MR JUSTICE ELIAS: Perhaps I should ask Miss Rahman.

[60]MISS RAHMAN: My Lord, what has been requested is that the claimant be accommodated in London pending determination in the light of the letters, and that is certainly what the letter was confirming. It was not a positive decision by NASS, it was not a decision from NASS saying: these letters make no difference. We have already indicated, and it is clear from the September 2003 letter, a willingness to consider evidence if and when it becomes available. What my learned friend's submissions ignore is the fact that there has not, despite entreating, been any response to Newcastle, and at the claimant's behest this has been dealt with on the basis of London alone. My Lord, in that context, there is not any basis for any sort of mandatory order against my client, in my submission, and I would invite your Lordship to make the order in the terms indicated in your judgment.

MR JUSTICE ELIAS: What were those?

[62]MISS RAHMAN: That if there was not any decision in court outstanding --[63]MR JUSTICE ELIAS: Well, I agree with that, but I did indicate that in the circumstances, NASS ought now to reconsider this matter in the light of, in particular, 12th and 13th November.[64]MISS RAHMAN: Yes.[65]MR JUSTICE ELIAS: It does change the position to some extent. At the end of the day, they may still say that Newcastle is appropriate. I did not want to make any formal order to quash anything, but if NASS will agree to undertake that they will reconsider on all of these matters within the next --[66]MR COX: I would ask for seven days, my Lord.

MR JUSTICE ELIAS: Can we do it in seven days?

[68]MISS RAHMAN: I will ask. My Lord, I do ask for 14 days, in the light that we do have two new decision letters. There has also been an indication relating to Newcastle.

MR JUSTICE ELIAS: I can see you have behind you people from NASS.

[70]MISS RAHMAN: I do.[71]MR JUSTICE ELIAS: Can I say this? I will give you 14 days, but I would ask you to do it as quickly as you properly can. I am afraid once you get into litigation, sadly hostilities tend to emerge. Bear in mind that at the end of all this, whatever the rights or wrongs of it, there is a woman who is suffering from chronic Post Traumatic Stress Disorder. It is clearly a terribly difficult thing for her to go through. I am not blaming anyone for that fact, but it is a fact, and it is something that really needs to be dealt with sooner rather than later.[72]If your decision at the end of the day is you think that it should be Newcastle, so be it. I hope London is not excluded for reasons other than that is the policy. I am sure it will not be if now, bearing in mind all the reports, you think that that is, in all the circumstances, the right thing to do. I hope no one will prevent you from doing that, simply because the parties have been involved in litigation, and I would not feel in the least bit critical of your taking this position in the litigation, even if you came to that conclusion.[73]MISS RAHMAN: My Lord, thank you for your comments.[74]MR COX: My Lord, I do not know whether the undertaking is that, my solicitors will have a copy of the decision letter within 14 days. I would be very grateful.[75]My Lord, I am legally aided and therefore I would ask for a detailed assessment of my costs for public funding purposes, and also, my Lord, I would ask for my costs. I have succeeded on what I would say is the main issue, which is the correctness or the correct approach that was taken in the letter of September 3rd, and succeeded on the issue that the material which was presented before the claim was issued demanded a fresh reconsideration which has still not yet been properly given, I say, in your Lordship's judgment. I say that while I recognise obviously that your Lordship has rejected the challenge to the original decision, and I accept rejected the Medical Foundation point, I nevertheless say that taking a broadbrush approach, the right order is that I should have my costs.[76]MISS RAHMAN: My Lord, my learned friend has not succeeded on this case. Clearly the original decision has been upheld by your Lordship. We are simply responding to additional medical evidence that has come to light in the course of these proceedings, in particular the reconsideration has to take into consideration the two letters served on 12th and 13th November. More importantly, the issue of the Newcastle care was not addressed by the claimant's solicitors at all, and the view that was taken by them was that they would persist on the basis that only accommodation in London is appropriate. They have clearly lost on that, and in my submission, although I do not seek my costs, there should be no order as to costs.[77]MR JUSTICE ELIAS: Yes. I will not make any orders for costs, and I hope that may assist in trying to encourage a constructive way forward in the next couple of weeks from everybody's point of view.[78]Thank you both very much.