Mwanza, R (on the application of) v London Borough of Greenwich & Anor [2010] EWHC 1462 (Admin)

[2010] EWHC 1462 (Admin)Case No CO/2734/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15 June 2010
Before
THE HON MR JUSTICE HICKINBOTTOM
Between
THE QUEEN on the application ofClaimantMICHAEL MWANZAClaimantTHE LONDON BOROUGH OF GREENWICHFirst DefendantTHE LONDON BOROUGH OF BROMLEYSecond Defendant
Nick Armstrong (instructed by Fisher Meredith LLP) for ClaimantMs Jenni Richards (instructed by Katherine Watson, Principal Lawyer (Law and Governance), London Borough of Greenwich) for First DefendantAndrew Sharland (instructed by Jim Kilgallen, Senior Lawyer (Education), London Borough of Bromley) for Second DefendantHearing Hearing dates: 7 June 2010
Judgment

Introduction

[1]In this claim, the Claimant Michael Mwanza (“Michael”), a Zambian national, seeks to challenge decisions of the two Defendant local authorities not to provide him with accommodation and financial support following his discharge from section 3 of the Mental Health Act 1983 (“the 1983 Act”) and whilst his immigration status is clarified. On 30 March 2010, Collins J ordered this claim to be listed for a rolled-up hearing on an expedited basis, which came before me on 7 June 2010. In the meantime, on a without prejudice basis, the Second Defendant has been providing accommodation and limited financial support for Michael and his family.

Medical Background and the Section 117 Claim

[2]Michael, his wife Prudence and their two children are all Zambian nationals. Michael and Prudence arrived in the United Kingdom in August 2000, both being dependent for leave on Prudence’s student visa. It was their intention to stay in the United Kingdom whilst Prudence, who is an accountant, obtained academic qualifications, which they thought would hold her in good stead when they returned to Zambia so far as employment was concerned. Whilst Prudence studied, it was intended that Michael should work, as he would have been entitled to do as an accompanying spouse. Their two children joined them in January 2004.[3]Unfortunately, those plans were soon put into disarray: because, shortly after arrival, on 27 September 2000, Michael was admitted to hospital, as an informal in-patient under section 2 of the 1983 Act, suffering from symptoms of paranoia. Such symptoms were not new for Michael. He had first suffered from paranoid ideation in 1992 (apparently following a mugging), and his condition gradually deteriorated. He saw a psychiatrist in Zambia in 1999, although apparently received no specific treatment then.[4]Following admission in September 2000, his mental condition worsened, and, after a period of home leave from which he failed to return voluntarily, he was assessed, and then admitted and detained in Queen Elizabeth’s Hospital, Woolwich under section 3 of the 1983 Act, under the care of Dr Cozzolino, with a diagnosis of paranoid schizophrenia.[5]From his available clinical records, the treatment appears to have been quickly and dramatically successful. His wife is noted as considering his improvement “remarkable”. By about 1 January 2001, he is noted to have been in a “stable mental state”, and was granted extended home leave. When he returned on 8 January, he is noted as having satisfactory appetite and sleep, his persecutory thoughts had “faded out”, and he had no hallucinations. He had started looking for work, and was thinking of visiting his parents in Zambia. He was discharged from section 3 that day, but retained as a voluntary section 2 patient on the basis that he would return as an out-patient the following week for a “section 117 meeting”[6]That was a reference to section 117 of the 1983 Act (“section 117”), sub-section (2) of which provides that, in respect of a person who is detained under section 3 and then ceases to be detained:
“It shall be the duty of the Primary Care Trust… and the local social services authority to provide, in cooperation with relevant voluntary agencies, after-care services… until such time as the Primary Care Trust… and the local social services authority are satisfied that the person concerned is no longer in need of such services…”
[7]Of that duty, the following points are noteworthy.(i) The duty to provide after-care services is imposed upon both the relevant social services authority and the relevant health authority.(ii) Although triggered by discharge from section 3, the section 117 duty is a continuing one (R v Ealing District Health Authority ex parte Fox [1993] 3 All ER 170) - and it does not cease until both the relevant Primary Care Trust and social services department (or anyone through whom they might exercise their statutory functions) conclude that such services are no longer required.(iii) Section 117(3) defines the relevant “local social services authority” as “the local social services authority for the area in which the person concerned is resident or to which he is sent on discharge by the hospital in which he was detained”. Unless the responsibility is transferred, that duty remains upon that authority until it is discharged, even if the patient moves (R (M) v London Borough of Hammersmith & Fulham [2010] EWHC 562). There is no statutory mechanism for transfer - and so any transfer of responsibility is a matter for agreement between individual authorities on a case-by-case basis.(iv) The scope of the services to be provided under section 117 is in issue, and I consider that below (paragraphs 61 and following). However, they are not “excluded services” within Schedule 3 of the Nationality, Immigration and Asylum Act 2002 - and therefore immigration status is irrelevant to the consideration of whether such a duty to provide such services is owed.[8]Therefore, when he was discharged from section 3 in January 2001, Michael was entitled to the benefit of section 117 after-care services, the duty for providing them falling on the local authority for the area in which he was resident or discharged. By the time of the hearing before me, it was not in dispute that that was the London Borough of Greenwich (“Greenwich Council”) - and, on the evidence, that appears to be quite clear. On admission, an address was given for Michael in London SE18 (in Greenwich), and the application was made by a social worker from Greenwich. He was discharged to his wife, at the same SE18 address, and on discharge he was assigned a social worker from Greenwich and was assigned to the Community Mental Health Team in Greenwich; and indeed Greenwich purported to act in accordance with section 117, as I will shortly describe. It seems clear that Michael was both resident in, and discharged to an address in, the geographical area for which Greenwich Council was the responsible social services authority.[9]Greenwich Council was therefore the local social services authority responsible to Michael under section 117. The relevant Primary Care Trust exercised their responsibility through Oxleas Mental Health Foundation Trust (“Oxleas NHS Trust”).[10]As I have indicated, under section 117, the local social services authority and health authority each have a coterminous but distinct, parallel responsibility. However, they may enter into a formal arrangement under section 75 of the National Health Service Act 2006 (formerly section 31 of the Health Act 1999) to exercise their responsibilities in a partnership. Greenwich Council and Oxleas NHS Trust have worked in such a partnership since 2003. However, in 2001, they had no such formal arrangement - but, nevertheless, there was a joint team drawn from both Greenwich Council and Oxleas NHS Trust that worked together in relation to their respective section 117 duties. That is clear from paragraph 4 of the statement of John Nawrockyi (Director of Adults and Older People Services at Greenwich Council) dated 8 June 2010, but also from both form and substance of the contemporaneous documents, many of which (e.g.) sport both logos and refer to “our team”. Given the inevitable interrelationship between the social services and health aspects of care following discharge from section 3, such a joint venture was an eminently practical and sensible response to the respective duties imposed on the two authorities by section 117.[11]Michael was discharged from section 3 on 8 January 2001, but attended a meeting on 15 January which both discharged him as an in-patient from the hospital and considered the after-care services he would require under section 117. Such services are, of course, inevitably informed by need: and in any event, because services provided under section 117 are “community care” for the purposes of the National Health Service and Community Care Act 1990 (see section 46(3) of that Act), there is a duty on the relevant authority to assess the person’s need for those services under section 47(1)(a) of the 1990 Act, in accordance with the relevant statutory guidance, which requires the provision of a care plan.[12]Although, after this length of time, contemporaneous documents are generally sparse, there are several apparently contemporaneous notes of the 15 January 2001 meeting. Those show that it was attended by Michael and Prudence, and four medics, namely Dr Cozzolino, a Senior House Officer, a Staff Nurse and a Community Mental Health Nurse (Fidelis Murape) to whom Michael, as an out-patient, was assigned. In those documents, there is express acknowledgment that “Section 117 applies”: and that that meeting was a “Sec 117 Review”. All of the notes indicate that various areas of concern were discussed, such as mental state, medication, job seeking/employment and accommodation. Michael is noted as being “worried about accommodation”, as he had no access to accommodation as being homeless or to public funds for housing.[13]A plan, headed “Care Plan” and with the names of both Oxleas NHS Trust and Greenwich Council at its head, was agreed, which identified each perceived need, the support to be provided to meet that need, the practical arrangement for the provision of those services and the outcome/goal in respect of each. For example, under the need “Employment”, the support to be provided was that he should attend the day hospital and actively seek employment and see the Council’s Employment Officer. The goal was noted as, “Will find own employment”. Under the need “Housing”, the support required was noted as, “Unable to get council property. Seek own rented private accommodation”. The other columns for “Housing” are blank - although in one note it says, “Refer DH”, which might possibly be a reference to the Council’s Department of Housing. However, the formal discharge letter of 30 April 2001 from the Senior House Officer to Dr Divall, Michael’s General Practitioner (“GP”) sets out very briefly the main elements of the care plan, and does not refer to housing at all.[14]The purpose of the care plan was to ensure so far as reasonably possible that Michael was integrated back into living in the community following his Section 3 detention, and to reduce the former patient’s chance of being readmitted to hospital. The care plan identified “Warning signs of Breakdown”, as follows:
“Persecutory delusions, paranoid, with auditory hallucinations. Would harm others in self-defence. Morbid jealous to wife. Self neglect/harm”: the “Relapse Action Plan” being: “Urgent mental health assessment. Medicate in the community if possible. Arrange for admission as last resort.”
The “Monitoring Arrangements” were:
“Monthly visits (variable with his situation), to attend booked appointments with CMHN [i.e. the Community Mental Health Nurse, Fidelis Murape]/RMO [i.e. Dr Cozzolino]/other agencies.”
[15]A copy of that plan was sent to the “Care Manager”, who appears to have been Mr Alan Marsh, a social worker probably at that time employed by Greenwich Council, but who worked in the joint Council/Oxleas NHS Trust team, and was transferred to the partnership when it was set up in 2003, when his employment appears to have been technically transferred to the Trust.[16]In March 2001, Michael and his wife seem to have moved to Catford, within the area of responsibility of the London Borough of Bromley (“Bromley Council”), since when they have never lived in Greenwich. However, Prudence continued to visit Greenwich to pick up Michael’s prescriptions, and Greenwich Council and Oxleas NHS Trust continued to monitor Michael, who remained as an out-patient under Dr Cozzolino.[17]Both home visits and out-patients appointments were part of Michael’s care plan. Following the 15 January meeting and discharge as an in-patient, there was a home visit to Michael on 25 January, when he is noted as “looking very well at the moment and taking his medication”. He was looking for a job.[18]The next home visit was arranged for 12 March, but Mr Marsh (who undertook it) could not find the address, and it seems that, by this time, Michael may have moved out of the area. On 3 May, Michael did not attend his out-patients appointment, and on 9 May Mr Marsh tried to telephone him but without a reply.[19]There are however notes of several contacts later in May. Phone contact having been re-established, Mr Marsh and Ms Murape saw him on 21 May. The record notes that Michael’s mental health had “deteriorated considerably since his s117 in January”, in that he was no longer taking his medication and believed he was being followed by the Zambian police. However, he was described as appearing “neat and tidy in appearance” and “presented reasonably well”. He agreed to attend the specialist surgery or his own GP about his medication. On 25 May, Mr Marsh discussed Michael with a psychiatrist, and decided to bring him in for a ward round on 31 May. In the meantime, the duty social worker reported on 25 May (as did a further anonymous note dated 27 May) that Michael was living away from home with his brother-in-law, but his wife usually knew where he was. On 28 May, a social worker working with the team who had spoken with him, in a memo to Mr Marsh, described Michael as living with his brother, as his wife had forced him out, and that he was concerned about his accommodation. However, Michael is described as clear and coherent with no obvious signs of thought disorder or mood abnormality. The document described Michael as “keen to hear from [Mr Marsh], esp re housing!”. On 29 May, Michael is recorded as coming into the team office and asking for a letter to provide to the warden of a residential home where he and Prudence had been doing shifts in return for accommodation.[20]On 31 May, Michael and his wife attended the ward round, and it was decided to admit him as an informal patient: but there appears to have been some delay in finding him a bed, during which time Michael left. However, no particular concern is expressed in the available records about him doing so.[21]On 2 July, Michael failed to attend a Care Programme Approach meeting. Dr Cozzolino and Mr Marsh discussed his case in his absence, and Dr Cozzolino reported to Michael’s GP (Dr Divall) the following day to say:
“It is unlikely that he is taking his medication… There does not appear to be any major risk factors present and we therefore will ask Mrs Mwanza to contact us if she feels that the situation deteriorates, i.e. if he becomes more distraught by his delusional beliefs. There is little else we can do.”
The contemporaneous clinical note by Dr Cozzolino of that 2 July meeting records: “Alan Marsh to speak to wife and ask her to contact us if she becomes concerned again:” and that the out-patients appointment was to be re-fixed.[22]Michael attended an appointment with Dr Cozzolino and Mr Marsh on 19 July. Dr Cozzolino’s report to Dr Divall was positive:
“He actually looked and sounded quite well when I saw him. He was entirely rational and appropriate. He is euthymic and his affect is reactive. He denied being overtly troubled by persecutory delusions or auditory hallucinations. … He will be reviewed in clinic in two months’ time. He is living too far away now for Mr Marsh to visit him regularly but he and his wife have our phone number and will contact us if there is any problem in between his appointments.”
[23]A letter sent to Michael at the end of July was returned, there being no address corresponding to the one Michael had given Mr Marsh - but there are no problems evidenced before Michael next saw Dr Cozzolino on 4 October 2001. Mr Marsh is not recorded as being present. Again, Dr Cozzolino’s letter to Dr Divall reporting on that consultation is positive:
“I am pleased to report that he is doing well and does not appear to be preoccupied with persecutory delusions or experiencing any auditory hallucinations. He eats and sleeps well and he told me that he has been working in a factory over the last two weeks. He has moved to private accommodation in Peckham and he told me that he gets on well with his wife. His minor complaint is that at times he feels quite tired and “heavy” in his head which might well be a side effect of the Olanzapine. However I have asked him to persevere with the Olanzapine 20mg nocte for the time being as his mental state is stable and this is a priority. I will review him in two months’ time.”
That letter was copied to Mr Marsh.[24]Michael was discussed at a Greenwich Council/Oxleas NHS Trust team meeting on 14 November 2001. It is noted that Michael was continuing not to engage with the community mental health team, and that they were unable to make contact with Michael at his last known address. Under “Action”, Mr Marsh was to write to Dr Divall “informing them of Michael’s non-engagement and giving details of access routes to our services”, and : “Discharge from allocated cases - remain with OPA [i.e. out-patients appointments]”.[25]Mr Marsh duly wrote to Dr Divall on 26 November 2001, as follows: “This gentleman has failed to engage with our team effectively since his discharge from hospital in January of this year. He has attended this office once to meet with… Dr Cozzolino but has since given us a false address and we are therefore unable to contact him. In the past his wife has contacted us when she has become concerned about his mental health. In light of his non-attendance a decision has been made to discharge him from our allocated cases. If in the future he makes contact with you and it is felt that he needs CMHT [i.e. community mental health team] input you can refer him to us via the usual channels or via Oxleas House at Queen Elizabeth Hospital”.[26]Mr Marsh marked Michael’s notes, “Case closed” on the day that that letter was sent (26 November 2001); and the file is marked, “Agree close” by the Team Manager on 7 January 2002. Neither Michael nor his wife nor Dr Divall is recorded as having contacted Greenwich Council since then; not at least until after this claim was recently brought.[27]Michael continued to be an out-patient of Oxleas NHS Trust, under Dr Cozzolino, but he does not appear to have attended any appointments made after October 2001. In August 2002, a standard letter was sent to him asking him to get in touch. He did so by telephone, and said that he wished his file to be kept open but he had difficulties in getting transport to Woolwich. As a result, on 3 September 2002, Dr Reed (a Locum Consultant Psychiatrist) discharged Michael as an out-patient, back to Dr Divall. Neither Michael nor his wife nor Dr Divall is recorded as having contacted Oxleas NHS Trust since then.[28]From 2002 to mid-2009, the lives of Michael and his family were far from free of problems. They appear to have moved accommodation frequently: shortly after coming to the United Kingdom in 2004, his daughter was also diagnosed as having schizophrenia and was herself admitted under section 2 and section 3: and Prudence was admitted to hospital with an infection in November 2008. However, although Prudence describes Michael’s condition as being “variable… sometimes he is worse and sometimes better…” (25 February 2010 statement, paragraph 32), Michael’s mental health appears to have been relatively stable. He was not detained under section 3, nor indeed was he admitted as an in-patient, during that period. In August 2008, he completed a Master’s Degree course. In the meantime, Prudence completed no less than seven courses, including, again in August 2008, a doctorate from an American university. She also worked, first as an accountant, and later as a night-time carer.[29]However, since mid-2009, for reasons apparently linked to his immigration status which I cover below, Michael’s mental health began to deteriorate again. In this claim, he submits that the section 117 duty is still extant: and that includes a duty to accommodate him. That claim was originally made against Bromley Council, but it is now uncontentious that Greenwich Council is responsible for any section 117 duty owed to Michael. They deny that any such duty is owed.

Immigration Background and the Section 21 Claim

[30]I now turn to Michael’s immigration status, which forms the background to his continuing claim against Bromley Council.[31]Prudence was initially granted a visa as a student, subject to the usual condition that she would not seek recourse from public funds (Immigration Rules (HC 395), rule 56K(vii)). Until 28 February 2006, she was granted successive periods of leave to remain a student, and Michael and their children had dependent leave. On 28 February 2006, just in time, Prudence made an application to extend leave, but in Michael’s name. She was not advised in relation to that application, and as an effective in-country application by Michael it was of course misguided, but she thought that it would enable Michael to study whilst she worked. It was duly refused by the Secretary of State on 9 November 2006 - but the refusal letter suggested she could re-apply in her own name, which she did on 8 December 2006. That application was refused on 27 May 2008.[32]There was a right to appeal that decision, the deadline being 16 June 2008. Prudence says (25 February 2010 statement, paragraphs 39 and following) that she posted an appeal to the Asylum and Immigration Tribunal on 14 June 2008 by recorded delivery (the reference to “14 July 2008” in her letter of 23 November 2009 to the Secretary of State being erroneous): but that appeal has never been acknowledged. Indeed, she was sent a notice dated 18 June 2008 saying that an appeal had not been received (to which Prudence says she responded): and then a letter from the Tribunal Service dated 27 June 2008 saying that no response to that notice had been received. The tribunal therefore made clear from the outset that they had no record of an appeal being made by Prudence.[33]However, by section 104 of the Nationality, Immigration and Asylum Act 2002, an appeal is “pending” during the period from “when it is instituted” until it is determined, withdrawn or abandoned. At the relevant time, the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005 No 230) applied to any appeal. Under those Rules, an appeal was “instituted” by giving notice of appeal, which was done by filing it with the tribunal, which might have been by post (rules 6(1), 6(2) and 55(1)). Therefore, submitted Mr Armstrong for the Claimant, Prudence, having filed her notice of appeal in time, had and still has an appeal pending, even if the tribunal never received it: and that pending appeal has automatically extended her leave to remain, and, with it, Michael’s leave.[34]The appropriate course where an appellant posts a notice of appeal to the tribunal which is lost is for the appellant to file a further copy with an explanation: and, if the tribunal gives notification that the appeal is late, then the appellant can file evidence that it is not (Rule 10(2) and (3)), the Secretary of State has an opportunity to file documents in response (Rule 13(2)), and the tribunal will decide the issue. Unless and until the appellant takes some action, of course the tribunal will remain unaware of any appeal.[35]The evidence submitted by Prudence is unclear as to whether she has made any application to the tribunal or not. Her statement refers to none, and paragraph 46 suggests that she has taken no formal steps to regularise the position with the tribunal. A letter from her immigration representatives (Refugee and Migrant Justice) to the UK Border Agency of 10 May 2010 suggests that no application has been made: they consider whether an appeal was issued in time remains in dispute, and that they need Prudence’s Home Office file to enable them “to assess the potential for a further application”. Prudence says in paragraph 59 of her 25 February 2010 statement that her immigration representatives have made an application to the Home Office to retrieve her file, because “they want to work out exactly what happened before putting in an application”. She has apparently been told it could be months before any application is made if, presumably, she is ultimately advised that some form of application could and should be made.[36]On the other hand, Prudence indicates that her Member of Parliament has said to her that he had been told by the Home Office that her appeal was “still outstanding” (25 February 2010 statement, paragraph 43): and Mr Armstrong said on instructions that further enquiries of the tribunal by those instructing him have apparently suggested that an application has been made and the tribunal have refused to accept the appeal out of time. That appears to be reflected in a letter from the Treasury Solicitor (on behalf of the Secretary of State) to the court dated 10 March 2010, which says:
“To assist the court on the immigration status; I am instructed that there is no outstanding appeal before the tribunal and no application before the Secretary of State for the Home Department and as such [Michael] and his spouse have no leave to remain. Prudence Mwanza’s appeal was submitted late and six months out of time in 2008. It was not accepted as a valid appeal.”
[37]As to what happened with the appeal, and consequently the immigration status of Michael, that letter appears clear and unequivocal - Mr Sharland for Bromley Council, submits it is conclusive - but Michael does not concede that the tribunal have indeed refused to accept Prudence’s appeal as late. Given that the appeal was allegedly lodged two years ago, and Prudence’s immigration representatives have been instructed since January 2010, it is difficult to understand why steps have not been taken by Prudence and Michael to clarify the position with regard to the appeal - which could be done through the tribunal, without the need for the Home Office file - and why there is no clear evidence before me from Michael or Prudence with regard to this appeal and its status. However, on the evidence and submissions I do have, even on Michael’s own case, the position appears to be that either(i) Prudence has made no application following her realisation nearly two years ago that the tribunal had not received her appeal, or(ii) she has made such an application, but the tribunal have refused to accept her appeal as being out of time.[38]The significance of all this lies in the fact that a person is in the United Kingdom in breach of immigration laws if that person does not have leave to remain (section 50A(4) of the British Nationality Act 1981): but leave, once it expires, is extended “during any period when the application is neither decided nor withdrawn, or… an appeal against a decision brought whilst the applicant is in the United Kingdom is pending” (section 3C(2) of the Immigration Act 1971). Prudence’s leave to remain ended on 28 February 2006: but it was automatically extended by virtue of this provision during the currency of her application for an extension and any appeal against a refusal of that extension.[39]The rights of those who are in breach of immigration laws (including those who require leave to remain, but do not have it) and those who are not (including those with leave) are significantly different. One difference lies in the ability to work. Since mid-2008, since their leave expired and further application was rejected, Prudence and Michael have been regarded by the authorities as unlawfully in the United Kingdom and have been unable to work. That has resulted in financial distress, including an inability to pay rent. They were evicted from their hostel on 4 January 2010 for rent arrears. It was after that eviction that they approached immigration representatives to resolve their immigration issues, which had resulted in their being unable to work and hence pay rent. Their destitution clearly arises from the perception of the authorities in relation to their immigration status.[40]The effects of that financial situation on Michael’s mental condition have been perhaps predictable. He has deteriorated. When it was clear that neither he nor his wife could work - which appears to have struck them on her discharge from hospital after her infection, in January 2009 - Michael presented to the Orpington Community Mental Health Care team with “crisis”. In May 2009, he was admitted to hospital under section 2, following an incident involving damage to an official car at the Zambian Embassy. In the referral, self-discontinuation of olanzapine and Prudence’s increasing difficulties to obtain agency work were noted as possible triggers for the episode: and “immigration status” is noted as a significant stressor. He was noted then to be in short-term temporary accommodation of a church friend, having been unable to pay the rent elsewhere. In July 2009, Orpington Community Mental Health Care team wrote to Bromley Council seeking accommodation for Michael and his family.[41]The family’s financial and hence accommodation problems worsened over time. On 29 January 2010, solicitors on behalf of Michael wrote to Bromley Council seeking accommodation and financial support, followed by a pre-action protocol letter dated 8 February. That letter sought an assessment of the Michael’s community care needs under section 47 of the 1990 Act (see paragraph 11 above), and then to provide services to cater for those needs under section 117 or, if there was no duty to provide accommodation under that provision, section 21 of the National Assistance Act 1948 (“section 21”).[42]I have already referred to the responsibilities of a local authority under section 117 (see paragraph 6 and 7 above).[43]The 1948 Act is relevant because, whilst by section 115 of the Immigration Act 1999 those who are “subject to immigration control” (which includes not only those who require leave to enter or remain in the United Kingdom and do not have it, but also those with leave subject to a condition that that person does not have recourse to public funds: section 115(9)(a) and (b)) fall outside much of the welfare system, section 21(1)(a) of the 1948 Act provides:
“Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing - (a) residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstance are in need of care and attention which is not otherwise available to them…”
[44]A number of points can usefully be made in relation to that duty.(i) The meaning of “care and attention” is a focus of the section 21 claim in this case, and I return to it below (paragraphs 94-95).(ii) The words “not otherwise available to them” show that this is a provision of last resort. Section 21 has no application in circumstances in which the applicant has accommodation available by virtue of (e.g.) a right under some other statutory provision, such as section 117.(iii) By Circular LAC 93(1), the Secretary of State has directed local authorities to make arrangements under Section 21 for those who are ordinarily resident in the local authority area or in urgent need, hence making a duty of the power in sub-section (1)(a).(iv) Section 21 is relevant for those in the position of Michael, because the provisions of sections 95 and 98 of the Immigration and Asylum Act 1999 under which the Secretary of State may provide for those who are “destitute or likely to become destitute” are restricted to those who claim asylum. Neither Michael nor Prudence is, of course, an asylum seeker. Hence, the “last resort” provision of section 21 comes into play.(v) Section 21(1A) of the 1948 Act (enacted by section 116 of the 1999 Act) complements section 115. It provides that a local authority is prohibited from providing accommodation under section 21 to anyone to whom section 115 applies (including those, such as Prudence, with leave subject to a condition that they will not seek recourse to public funds), if his or her need for care and attention has arisen solely “(a) because he is destitute; or (b) because of the physical effects, or anticipated physical effects, of his being destitute.”(vi) Furthermore, by section 54 of and schedule 3 to the Nationality, Immigration and Asylum Act 2002, a person who is in the United Kingdom in breach of immigration laws (including those without leave but, unlike section 21(1A), not those with conditional leave) is not eligible for section 21 assistance.(vii) However, those provisions of the 2002 Act are themselves displaced where the exercise of the section 21 duty is necessary for the purpose of avoiding a breach of rights under the European Convention on Human Rights. That would perhaps in any event be so, given the overriding nature of those rights; but they are expressly displaced by paragraph 2(3) of schedule 3 to the 2002 Act.[45]Of course, the effect of the European Convention may be overriding: but, subject to that, for the purposes of section 21 assistance, whether the applicant has a proper basis for remaining in the United Kingdom is therefore important, and often crucial. For so long as Prudence (upon whose immigration status Michael has at all times depended) had leave, conditional upon her having no recourse to public funds, she was entitled to section 21 support albeit subject to the section 21(1A) restriction. However, during any period when she had no such leave, she would not be entitled to any section 21 assistance unless support were necessary to avoid a breach of human rights.[46]As Mr Armstrong said in his Skeleton Argument (at paragraph 34), the effect of these provisions:
“… is to draw local authorities into areas in which they are unfamiliar, namely the assessment of existing immigration status and in some cases the merits of outstanding applications to remain in the UK. The latter tends to arise where authorities assert that a refusal to provide accommodation to persons who would not otherwise fall within section 21 does not breach Convention rights because they can simply return to their country of origin…”
[47]However, where there is an outstanding immigration application, local authorities do not have to make fine judgments in relation to such a claim. The law is well-settled that claims for section 21 support should only be dismissed if such an immigration claim is manifestly unfounded or not “obviously hopeless or abusive” (R (AW) v London Borough of Croydon [2005] EWHC 2950 at [74]-[76]; Binomugisha v London Borough of Southwark [2006] EWHC 2254 at [53]; and Birmingham City Council v Clue [2010] EWCA Civ 460 at [66]). That remains the case whilst there is an appeal from the refusal of such an application, especially given that such an appeal would be treated as abandoned if the applicant/appellant left the country (section 104(4) of the Nationality, Immigration and Asylum Act 2002).[48]Returning to the facts, on receipt of the letter before action of 8 February 2010, Bromley Council responded by conducting an assessment of his health and social care needs under section 47 of the 1990 Act, as requested. That assessed that his need was “Accommodation/Housing”, as an “on-going issue”; and it concluded:
“The overwhelming problem for this family is their inability to access housing due to their financial circumstances…”
[49]A substantial part of the report concerns Michael’s care requirements, which, it states, are serviced by Prudence and his son. Prudence, the assessment says, “feels totally exhausted”: and she was the subject of a separate carer’s assessment. That confirmed that she feels exhausted by the level of care she gives to Michael: but in relation to the current levels of care, the assessment set out the following: Willing and able to provide/continue to provide current levels of care? Yes. Are there any caring tasks the carer does not want to undertake? Prudence stated “to the very end I will support him, til death do us part.”[50]However, Prudence was said to be at risk, if the level of poverty and stress continued - the report considered that Michael and she would eventually be overwhelmed. It said that:
“Michael’s mental illness is contributing to Prudence and Michael cycle of poverty, homelessness, stigma and social exclusion with associated disempowerment and reduction of hope. Practical help is needed to reverse this cycle.”
[51]There is then a reference to the application that had been made to Bromley under section 117: and, under “Assessment - Decision Outcome”, “Services offered”. It therefore seems that some services may have been assessed as appropriate for Prudence in view of the risk to her if she continued to care for Michael at the level she was doing. The level of risk is said to be “high”, and it is identified by the assessment thus:
“It is difficult to see how Prudence and Michael can practically continue to sustain this level of stress and poverty without one or other eventually being overwhelmed”
(emphasis added). That risk, as I understand it (particularly from the word emphasised) is not for the short term: but the assessment concludes that, if they continue to sustain the same levels of stress and poverty, then either Prudence or Michael is at high risk of eventually buckling. However, the services offered are not specified, nor is timing. There is no suggestion that they include accommodation.[52]On the basis of the section 47 assessment of needs, Bromley Council declined to provide Michael with accommodation or any other financial support.[53]That prompted these proceedings in which, as I have described, both section 117 and section 21 claims were originally targeted at Bromley Council, but the former is now made Greenwich Council. Bromley Council deny that they owe any duty to Michael under section 21.[54]I will deal with the claims in turn: but, before I do so, it may be helpful to say something briefly about the relief Michael seeks.

The Relief Sought

[55]The relief sought by Michael in this claim is specific.

(c) ):

“… an order quashing the Defendant’s refusal to accommodate; a mandatory order requiring accommodation, declaratory relief as to the Claimant’s s117 and s21 rights; such other declaratory relief as is necessary to give effect to the court’s judgment.”
[56]In short, Michael now claims against both Greenwich and Bromley Councils effectively seeking to require them to accommodate himself and his family. That is also reflected in the correspondence, to which I shall return (paragraph 100 below)[57]I do now turn to the two claims.

The Section 117 Claim

[58]As now conceded, given his residence and address to which he was discharged, when Michael was discharged from section 3 on 8 January 2001, Greenwich Council owed him a duty of after-care under section 117. That duty, as I have described, would continue unless and until both the relevant local authority (in Michael’s case, Greenwich Council) and the relevant health authority (in Michael’s case, Oxleas NHS Trust on behalf of the Primary Care Trust) conclude that Michael is no longer in need of such services.[59]Mr Armstrong for Michael submitted that Greenwich Council owed Michael a duty to provide after-care services under section 117 upon his discharge from section 3, and they have not terminated that responsibility. It is still current. The duty includes an obligation to house him.[60]Greenwich Council defend the claim on three grounds:(i) Ordinary accommodation and financial support, as sought by Michael, fall outside the scope of section 117 (dealt with in paragraphs 61-82 below).(ii) Greenwich Council’s section 117 obligation to Michael was properly terminated in 2001 (paragraphs 83-88 below).(iii) If and insofar as Greenwich Council’s decision to terminate their section 117 obligation in 2001 was unlawful, no claim is expressly made to quash that decision in this claim and any such claim would be well out of time - and the court should not extend time (paragraphs 89-91 below). I will deal with those in turn.

Scope of Section 117

[61]Section 117 requires the relevant authorities to provide a patient on discharge from section 3 with “after-care services”. “After-care services” are not defined in the statute. Mr Armstrong submitted that the term was wide in scope: the authorities were bound to provide any service that prevented possible deterioration in the former patient’s mental condition, and reduced the chance of relapse and readmission. Ms Richards for Greenwich Council submitted that the services required to be provided under section 117 were restricted to those that addressed a need deriving from or related to the patient’s mental disorder and, consequently, the provision of “ordinary accommodation” (i.e. housing without any care element) and the provision of financial support to cover basic living costs (e.g. food) was incapable of falling within its scope.[62]I do not accept Mr Armstrong’s submission that section 117 requires the relevant authorities to provide a former section 3 patient with any and all services simply because those services do or may prevent deterioration or relapse of a mental condition, or require readmission, for the following reasons.[63]In relation to the scope of section 117 services, the respected commentary on the 1983 Act by Richard Jones says (Mental Health Act Manual, 12th Edition, at paragraph 1-1053) “It is suggested that an after-care service is a service which is(1) provided in order to meet an assessed need that arises from a person’s mental disorder; and(2) aimed at reducing that person’s chance of being re-admitted to hospital for treatment for that disorder.”[64]Mr Armstrong sought to persuade me that the relevant service was defined in terms of Mr Jones’ second limb only - but I do not agree. The duty derives from a provision in mental health legislation; and it is described as a duty to provide “after-care services”. As Ms Richards submitted, section 117 is not concerned with the provision of support and accommodation at large, but rather with the provision, to the specified category of patients who have been detained on account of their mental disorder, of services tailored to meet needs arising from that disorder. An after-care service must, in my judgment, be a service that is necessary to meet a need arising from a person’s mental disorder.[65]It may be that, if a former patient were unemployed or homeless, that would increase the chance of deterioration in his mental condition - but, in my judgment, that would not require an authority under section 171 to provide employment or housing, as Mr Armstrong’s submission suggested. The need for work or the need for a roof over one’s head simpliciter are common needs, and do not arise from mental disorder. Section 171 does not impose a general responsibility on the relevant authorities to house or provide an income to a former patient. Of course, a patient’s mental disorder may make it more difficult for him to look for housing or employment on discharge from section 3 - and it may therefore give rise to a need for assistance in doing so. But that is a different need and a different issue.[66]That, it seems to me, is the principle. In practice, the assessment of needs that do arise from a mental disorder may of course give rise to difficult issues. It is for the relevant authorities - the local authority and the health authority - to reach their own view as to what need the person has, and, in making an assessment under section 47 of the 1990 Act, they enjoy a discretion as to what if any services are required to meet such needs. As Lord Phillips MR said in R (K) v Camden and Islington Health Authority [2001] EWCA Civ 240 at [29]:
“The nature and extent of those [after-care] facilities must, to a degree, fall within the discretion of the [authorities] which must have regard to other demands in [their] budget.”
The reference to “nature”, as well as “extent”, of the services in my view emphasises both the potential broad scope of section 117 and the wide discretion of the authorities within that scope. They are The recognition of this discretion, given to the authorities by Parliament, appears to me to be vital.[67]Therefore, I agree with Mr Jones’ suggested criteria for after-care services quoted above. However, I do not agree when later in the same paragraph he says: “The provision of accommodation meets a basic human need that relates to all individuals, irrespective of their mental health. Ordinary accommodation cannot therefore be said to constitute a service that is provided to meet a need that arises from a person’s mental disorder” insofar as that suggests that, as a matter of law, ordinary accommodation can never fall within the scope of section 117, a submission also made by Ms Richards before me. As a proposition, that goes too far - although I accept that it is difficult readily to envisage in practice circumstances in which a mere roof over the head would, on the facts of a particular case, be necessary to meet a need arising from a person’s mental disorder. That difficulty, it seems to me, explains why, in the legal authorities to which I was referred, where there is discussion of the scope section 117 services, bare accommodation is not mentioned. In my view, that reflects a dearth of practical examples, rather than a principle of law.[68]I consider that my construction of the section 117 - restricting its scope to services necessary to meet a need arising from a person’s mental disorder - is generally supported by those authorities. In Clunis v Camden and Islington Health Authority [1998] 3 All ER 180, Beldam LJ, after noting that the term is not defined in the 1983 Act, said of “after-care services” (at page 191E-F):
“They would normally include social work, support in helping the ex-patient with problems of employment, accommodation or family relationships, the provision of domiciliary services and the use of day centre and residential facilities. No doubt some assessment of the patient’s needs would in the first instance be made by the hospital that discharged him.”
[69]In Richmond Borough Council v Watson [2000] EWCA Civ 239, Otton LJ (quoting Beldam LJ from that earlier case) said:
“[T]he words ‘after-care services’ in [the 1983 Act] can include residential accommodation which is specifically designed to care for the needs of persons who have been detained under section 3 and who have left hospital.”
He later stressed that:
“…section 21(1) would permit the local authorities to provide section 3 persons with residential accommodation because they are in need of it ‘by reason of age, illness, disability or any other circumstance’.”
It seems to me that that reference to section 21 would not have been necessary or appropriate if, as Mr Armstrong submits, even a need of a former patient not deriving from his mental disorder could fall within the scope of section 117.[70]When that case proceeded to the House of Lords (as R (Stennett) v Manchester City Council [2002] UKHL 34), Lord Steyn, again having quoted Beldam LJ in Clunis, commented that “caring residential accommodation… (ensuring, for example, that prescribed medication is taken)” fell within the scope of after-care services, and indeed that appears to have been common ground by then (see [9] and [15]). He too referred to residential accommodation being available under section 21 (at [7]).[71]These authorities do not directly deal with bare accommodation - but they are at least consistent with the construction I consider correct. Indeed, although on their facts they all concern “accommodation plus”, they appear particularly careful not to include mere accommodation in their comments; and there are several references to the residual power to accommodate in section 21.[72]The only case to which I was referred directly on point was R (B) v London Borough of Lambeth [2006] EWHC 2362 (Admin), a judgment of His Honour Judge Gilbart QC sitting as a Deputy High Court Judge. That case concerned Miss B (a schizophrenic) and her need for (bare) accommodation. In that case, without argument and apparently by way of concession by the local authority, it appears to have been accepted that there was a duty to provide accommodation. At [3], Judge Gilbart said:
“It is also plain from the decision of [Stennett]… that the duty to provide aftercare services includes a freestanding duty to provide accommodation: see Lord Steyn’s speech at [10] and [11]”
[73]Mr Armstrong of course relied upon this case. However, although, as Mr Sharland pointed out, contrary to the indication in Mr Jones’ book, the judgment appears to have followed a rolled-up hearing rather than an application for permission, in my judgment Mr Armstrong can gain little strength from it. First, in B, the point appears to have been conceded by the authority without argument. Second, from his short judgment, the judge does not appear to have been referred to all of the relevant authorities: and the authority he does cite (Stennett), as I have indicated, did not concern bare accommodation. The citation from Lord Steyn was dealt with caring accommodation. Third, the passage I have quoted from Judge Gilbart, upon which Mr Armstrong relies, appears to emphasis the freestanding nature of the section 117 duty, rather than the scope of that duty.[74]For those reasons, I am unconvinced that Judge Gilbart made any finding that, on the facts of that case, ordinary accommodation was a service properly required by section 117. Insofar as he did, whilst, as I have stressed, each case must depend upon its own facts, having heard full argument on the point, I would very much doubt that finding on the basis of a proper construction of section 117, as I consider it to be.[75]In addition to authority, I consider that the construction of section 117 I favour is supported by the following.[76]First, relevant government guidance indicates that, in the view of the respective departments, services under section 117 are designed to meet needs that are related to the former patient’s mental disorder. In relation to England, the Department of Health’s guidance, The National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care (July 2009) states, at paragraph 116, that:
“…[A] person in receipt of after-care services under section 117 may also have needs for continuing care that are not related to their mental disorder and that may, therefore, not fall within the scope of section 117.”
So far as Wales is concerned, there is in substance the adoption of Mr Jones’ suggested construction of section 117. The Welsh Assembly Government’s Code of Practice for Wales, at paragraph 3.12, provides:
“After-care services are provided to meet an assessed need arising from the patient’s mental disorder and are aimed at reducing the likelihood of the patient being readmitted to hospital for treatment for that disorder.”
[77]Second, local authorities cannot charge for services provided under section 117 (Stennett). That is a reflection of the nature of the services that are required to be provided under that provision, i.e. services provided to particularly vulnerable people particularly to cover the aspired transition from section 3 detention to living in the community by providing services to satisfy needs deriving from the mental disorder in respect of which they had been detained. Of course, in some cases, that might be a long-term requirement. However, it simply cannot have been the intention of Parliament to have required local authorities (let alone health authorities), free of charge, to provide a roof over the head of former section 3 patients so long as they simply required housing.[78]Third, as the legal authorities remark, even if mere housing is not available under section 117, there is provision for former patients to obtain ordinary housing, under section 21. Although a residual duty, section 21 seems to me a far more appropriate vehicle for requiring authorities to provide mere housing, than the provisions relating to mental health.[79]For all of those reasons, I consider that an authority’s responsibility to provide services under section 117 is restricted to those services necessary to meet a need arising from a person’s mental disorder.[80]Turning to the facts of this case, Greenwich Council consider that “nothing in the information suggests that there is a present need for accommodation and support as an after-care service, as compared to the basic need of Mr Mwanza and his family for accommodation and financial resource” (John Nawrockyi undated statement, paragraph 5). In my judgment, that is a professional judgment that cannot be impeached: and one which, if I might say so, seems to me clearly correct. As appears from my chronological review above, Michael’s need for accommodation stems from the destitution that itself derives from the inability of his wife and him to work because of their (particularly, Prudence’s) immigration status. The need - which is a need of the whole family - does not result from Michael’s mental disorder at all, but from the need, common to all individuals, for a roof over their heads and for food. It cannot be said in any sensible way to be due to his mental condition, or any change in that mental condition.[81]In any event, as I indicate above, it is essentially for the authority to decide what needs are required to be met, and the nature and extent of the services required to meet any needs. The authority has a wide discretion is such matters. The professional judgment of Greenwich Council in this case - that no need for accommodation arises from Michael’s mental disorder - cannot, in my judgment, arguably be impugned.[82]For those reasons, I do not consider that Greenwich Council, even if they still had a responsibility towards Michael under section 117, would have a duty to accommodate him as he seeks to impose upon them.

Termination of the Section 117 Responsibility

[83]But, in my judgment, Michael’s section 117 claim faces more fundamental difficulties.[84]Ms Richards submitted that, in November 2001, Greenwich Council decided to terminate their section 117 responsibility towards him. She submitted that, on the evidence, I should be satisfied that that termination was properly done, and lawful.[85]From the disclosed documents, it is in my view unambiguously clear that, on 14 November 2001, the joint Greenwich Council/Oxleas NHS Trust team, with collective section 117 responsibility, met and decided to terminate that responsibility. The note of that meeting, referred to in paragraph 24 above, reads:
“Discharge from allocated cases - remain with OPA [i.e. out-patients appointments]”
. That “discharge” was clearly not from the hospital as an out-patient - Michael continued to be on the hospital’s books until October 2002 (see paragraph 27 above): and the follow-up letter to Michael’s GP on 26 November 2001 (see paragraph 25 above) was written by Mr Marsh, a social worker employed by the Council. This was clearly a decision to discharge or terminate the section 117 responsibilities by both the Council and NHS Trust.[86]Mr Armstrong contended that, if it were a discharge, then it was not a proper or lawful one - because a formal section 47 assessment was required before such a discharge could be made (R v London Borough of Richmond ex parte Watson (1999) 2 CCLR 402), and there is no evidence that such an assessment was done, or that a lawful conclusion drawn that Michael had no after-care needs to be fulfilled. However, I cannot agree. This submission asks too much of the evidence.[87]As I have said, after this length of time, documents are understandably somewhat sparse. Furthermore, the documents that are available (team meeting notes, and the follow up latter to Michael’s GP) were produced in a busy environment, and cannot be subject to the same scrutiny as statutory provisions or a commercial contract. However, by November 2001, whilst there had been a blip in May, Michael’s condition was relatively stable, and he (or rather, Prudence) had contacted the appropriate services as and when appropriate. He had accommodation, and had been looking for a job. Whilst, of course, non-engagement with after-care authorities may be a cause of concern, in this case it was considered not to be. On the evidence, that was justified. The reports from his out-patient appointments had been positive. The team were entitled to come to the view, as they did, that their job was at an end: although Michael continued to be an out-patient with Dr Cozzolino.[88]I am quite satisfied that the decision by Greenwich Council (and Oxleas NHS Trust) on 14 November 2001 to discharge section 117 responsibilities was a lawful decision, based upon a proper conclusion that Michael was no longer in need of such after-care services. That finding is supported by the fact that, for several years after 2001, Michael did not seek or require any services that could properly have fallen within the scope of section 117. He did not require assistance until 2009, when the ability of Prudence and Michael to work was jeopardised by their immigration status.

Delay

[89]However, even if, contrary to my firm finding, the decision to discharge section 117 responsibilities in November 2001 was unlawful, a challenge to that decision is very late indeed. If an unlawful decision were made, then it would be voidable not void, i.e. it would stand until successfully challenged. No challenge to that decision is expressly made in this claim, but in any event CPR Rule 54.5 requires any judicial review claim to be made promptly and in any event within 3 months from the decision to be challenged. Although that time can be extended, in the exercise of my discretion, I am of the clear view that such an extension in this case would be inappropriate. The delay in very long indeed (over 8 years), and, in addition to the general importance of certainty in public law decisions, Greenwich Council have suffered real prejudice by the delay. Mr Marsh left their employ in 2003, and went to work for Oxleas NHS Trust. He no longer works there, and has proved uncontactable. Even if he were available, his memory of this case - one of very many cases for him, and so long ago - would almost certainly have faded. Documents too will inevitably have gone missing.[90]In terms of the lapse of time, Greenwich Council are blameless. There is no evidence from Michael or Prudence to the effect that they never knew that he had been discharged. Mr Marsh certainly wrote to Michael’s GP on 26 November 2001 to that effect. However, even if neither Mr Marsh nor Dr Divall wrote to Michael about the discharge, both Prudence and he must have known that Greenwich Council had terminated their section 117 responsibilities and care plan, because there were no efforts to contact them to set up meetings etc which were, to their knowledge, an integral part of the plan. Neither Michael nor Prudence made any attempt to contact, or draw upon the services of, Greenwich Council for 8 years. In the circumstances, I am satisfied that both Prudence and Michael were aware that Greenwich Council had terminated their after-care responsibility.[91]For those reasons, although I consider the available evidence is unambiguous and sufficient for me to find for Greenwich Council on the merits, if it were not, then I would consider the delay argument would be overwhelming in force in Greenwich Council’s favour. I would not grant the appropriate extension of time to allow the Claimant to challenge the decision of November 2001 to discharge the section 117 responsibilities.

Section 117 Claim: Conclusion

[92]For all of those reasons, the section 117 claim fails. As this is a rolled-up hearing and I consider the delay argument unaswerable, I shall formally refuse permission to bring this claim.

The Section 21 Claim

[93]I now turn to the claim against Bromley Council, under section 21. Mr Armstrong submitted that, if no duty were owed to Michael under section 117, then Bromley would owe a duty to accommodate and support him under section 21.[94]The duty to provide accommodation under section 21 is conditional upon the applicant being in need of “care and attention which is not otherwise available to them”. That requirement was considered by the House of Lords in R (M) v Slough Borough Council [2008] UKHL 52, and particularly in the opinion of Baroness Hale at [33]. She considered that “care and attention” means more than “accommodation”, the natural and ordinary meaning of those words being “looking after”, which means “doing something for the person being cared for which he cannot or should not be expected to do for himself”. As she commented, medical care is expressly excluded (by section 21(8)). The entire Judicial Committee agreed with Baroness Hale.[95]The threshold for “care and attention” is no doubt relatively low, but it is essentially a matter for the relevant local authority to “assess whether or not these conditions are fulfilled, and, if so, how the need is to be met… Need is a relative concept which trained and experienced social workers are much better equipped to assess than lawyers and courts provided that they act rationally” (Waheed v London Borough of Tower Hamlets [2002] EWCA Civ 287 at [30] and [33] per Hale LJ as she then was). Therefore, although of course any decision will be subject to judicial review, as with decisions made under section 117, in relation to decisions under section 21 the courts will give considerable respect to the professional judgment of the local authority in question, which Parliament has determined should make such decisions.[96]In this case, Bromley Council have made an assessment of Michael’s needs (see paragraphs 48 and following above). Over and above his medical requirements, they have determined that he needs accommodation - but that he does not have the need of “care and attention which is not otherwise available to [him]”, because he is looked after by Prudence and (to a lesser extent) his son. In other words, although he has a need to be looked after, that need is fully catered for by his family. He has no unsatisfied need for being looked after.[97]Mr Sharland on behalf of Bromley Council submitted that that assessment is unimpeachable on public law grounds - nor was any challenge to the lawfulness of that assessment made - and, as the “care and attention” hurdle is not met, section 21 is not triggered.[98]I accept that submission. There are no grounds for suggesting that Bromley Council’s section 47 assessment was irrational or otherwise unlawful. Where there are care and attention (“looking after”) needs, they can be met as a matter of law and in practice by (e.g.) relatives (see Waheed at [33]). This is not a case in which the applicant was relying on the goodwill of friends that might evaporate over time (cf R (Zarzour) v London Borough of Hillingdon [2009] EWCA Civ 1529 especially at [21]). As I have indicated, Prudence has made it very clear that she will look after Michael, indefinitely, whilst she can. Bromley Council cannot arguably be irrational in considering that she will do so.[99]My only hesitation in finding that this case falls below the so-called Slough threshold is the separate assessment of Prudence (see paragraph 51 above), which concluded that she is at risk because of the potential long-term effects of looking after Michael. However, looking at all of the evidence, I am satisfied that Bromley Council’s conclusion that Prudence will continue to look after Michael for the immediate future (and, despite the stresses and strains caring for Michael imposes upon her, it is reasonable to allow her to do so, without support) is justifiable, given that the identified risk to her of doing so is high but not immediate.[100]In any event, I return to the relief sought by Michael (see paragraphs 55-56 above). He claims relief in the form of accommodation, i.e. that Bromley Council be required to accommodate him, and his family. Indeed, it is the basis of his claim that accommodation for his family is required as well, because they look after him. The letter of claim dated 29 January 2010 asks the Council to accommodate the whole family, as “this will enable Mrs Mwanza to continue to act as her husband’s full-time carer…”, a position maintained after the section 47 assessment (letter dated 31 March 2010, which refers to Prudence caring for Michael rather than having paid carers: and letter dated 1 April 2010). He does not seek assistance with his care, from other carers.[101]For those reasons, I am not satisfied that Michael triggers section 21 at all.[102]That was the primary submission of Mr Sharland for Bromley Council. My finding in relation to it is sufficient to dispose of the claim, by dismissing it. However, again, in my view the section 21 claim has more fundamental problems.[103]Mr Sharland did not argue at the hearing that Michael fell within section 21(1A) (see paragraph 44(v) above). He focussed on schedule 3 to the Nationality, Immigration and Asylum Act 2002 (see paragraph 44(vi) above), by virtue of which a person who is in the United Kingdom in breach of immigration laws is not eligible for section 21 assistance. If Prudence and, hence, Michael do not have leave to remain, Bromley Council are forbidden from providing section 21 assistance (unless not to do so would breach their human rights, an issue to which I shall come).[104]Mr Sharland submitted that whether Prudence has leave is a matter for the Secretary of State, and, in a recent letter to the court, she has unequivocally said that Prudence does not have leave (see paragraph 36 above). Mr Sharland submits I should not go behind that.[105]Mr Armstrong submitted that Prudence could prove that she had lodged a notice of appeal in time - she had the recorded letter receipt - and therefore I must recognise that her leave was automatically extended (see paragraph 33 above). However, that is not so. That is not an issue for me. Mr Sharland submits that it is conclusively a matter for the Secretary of State. There is force in that: and, in any event, even if that were not conclusive, in the absence of any clear evidence from Prudence (and any evidence at all from Michael), I would be satisfied on the basis of the recent letter that the tribunal had indeed considered an application, found that the appeal was out of time and consequently not accepted it. I am therefore satisfied that the appeal has been disposed of.[106]However, even if I were not to accept the evidence from the Secretary of State as to the status of the appeal, looking at the Claimant’s case at its highest, Mr Armstrong properly concedes there would be an issue relating to the timing of the appeal that “clearly needs resolving, but it cannot be resolved in these proceedings” (skeleton argument, paragraph 11). That is correct: the appropriate forum for that issue to be resolved is the tribunal (see paragraph 34 above). But, on this alternative factual basis, Prudence has not put that in issue before the tribunal. Whilst, for the reasons advanced by Mr Armstrong, the tribunal may be convinced in due course that there is an in-time appeal pending, Prudence has singularly failed yet to make any application to the tribunal to put that in issue. In my judgment, simply because she may in the future make an application to the tribunal to the effect that she did make an in-time appeal, that does not affect the position as it stands now. She currently has no extant “immigration claim”.[107]For those reasons, I consider that the claim does clearly fall within the scope of schedule 3, such that Bromley Council are forbidden from granting section 21 assistance, unless to refrain from doing so would put the Council in breach of their human rights.[108]However, the claim that it would be in breach is unarguable.[109]Neither Michael nor Prudence have in fact advanced any human rights claim. Article 8 has been mentioned, and even threatened, but no claim under it has been made. Bromley Council cannot therefore be criticised for considering that there would be no breach if assistance was not provided.[110]But, even if they were to make such a claim, the evidence of any possible breach is extremely thin. Michael and Prudence have been in the United Kingdom for 10 years, during which time Prudence has amassed a considerable number of qualifications, up to doctorate level. She wishes to stay, to engage in one further one-year course in consultancy. No details of that course have been provided. There appears on the evidence before me no question that, although they might prefer to stay in the United Kingdom, Michael and his family are fully able to return to Zambia, together as a family, and it is not arguably unreasonable for them to do so. Even if Article 8 is engaged, in my judgment it is unarguable that any independent tribunal would find that their removal as a family would be a disproportionate, given the proper public interest in having a structured immigration policy.[111]The fallacy of Michael suggesting that he cannot reasonably be expected to return to Zambia is betrayed by his immigration history, provided by the Secretary of State, which shows that on 8 September 2009, he applied for assisted voluntary return to Zambia, which was rejected on the basis that he was not entitled to a funded return because he has never applied for asylum. However, far from considering that it is unreasonable to expect him to return to Zambia because of his rights to a family and private life here, the evidence is that, as recently as last September, Michael positively wishes to return to Zambia, the only possible factor preventing him being funding to do so. Michael has not submitted any evidence to explain that. There is certainly no evidence that the position has significantly changed in the last 9 months

Section 21 Claim: Conclusion

[112]For those reasons, although I shall grant permission in relation to the section 21 claim, I shall dismiss the substantive application.

Conclusion

[113]This claim consequently fails. In relation to the section 117 claim, I shall refuse permission: in relation to the section 21 claim, I shall grant permission, but refuse the substantive application.

Cited in 5 later judgments