SL, R (on the application of) v City of Westminster Council [2010] EWHC 3182 (Admin)

Case No CO/4742/2010[2010] EWHC 3182 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 15 November 2010
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE BURNETT
Between
THE QUEEN ON THE APPLICATION OF SLClaimantv
Between
CITY OF WESTMINSTER COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr J Auburn Appeared for ClaimantMr H Harrob-Griffiths Appeared for Defendant
J U D G M E N T
[1]MR JUSTICE BURNETT: This is a rolled up application for permission to apply for judicial review of the decision of Westminster City Council which was crystallised in a letter from the Council's solicitor on 14 April 2010, by which it refused to accommodate the claimant pursuant to duties under section 21(1)(a) of the National Assistance Act 1948.[2]The claimant is a young man born on 21 September 1990. He is an Iranian who failed in his initial bid for asylum and humanitarian protection. The underlying basis of his claim was that he is gay and at risk if returned to Iran. He made fresh representations to the United Kingdom Border Agency in January of this year. Those representations may well have been overtaken by the decision of the Supreme Court in HJ Iran v Secretary of State for the Home Department [2010] 3 WLR 386. In that decision the Supreme Court overruled a line of authority relating to the correct legal approach in cases of that sort. The evidence lodged in this application does not reveal the current attitude of the UKBA to those fresh representations.[3]In December 2009 serious mental health problems were diagnosed in the claimant. He had, a few months before, become homeless. The claimant was admitted to a psychiatric hospital where he remained until he was assessed by Adam Wyman, a social worker employed by the Council, for the purposes of the 1948 Act. Mr Wyman concluded that the Council had no duty to accommodate the claimant. That view was endorsed by the Council and explained fully in the letter from its solicitors to which I have referred.[4]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 18 or over, who by reason of age, illness, disability or any other circumstances, are in need of care and attention which is not otherwise available to them"
. The council contends, first, that the claimant did not need "care and attention" within the meaning of that subsection; and secondly, that such support as he needed from a social worker was available to him whatever his accommodation arrangements.[5]Two additional subsections of section 21 are material for the purposes of this application.

(a) Section 21(1A) provides:

"A person to whom section 115 of the Immigration and Asylum Act 1999 (Exclusion from Benefits) applies, may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely - (a) because he is destitute; or (b) because of the physical effects or anticipated physical effects of his being destitute."
The effect of this subsection in broad terms is to remove a local authority's obligation to accommodate a range of foreign nationals who have exhausted immigration appeal rights and have no lawful basis for remaining in the United Kingdom, even though they would qualify by reference to the language of section 21(1)(a) alone. Some, but not all, of those so excluded are entitled to accommodation provided by the National Asylum Support Service (NASS).[6]In this case, NASS has recognised that it has a duty to provide accommodation for the claimant. This, therefore, is not one of those cases, of which there have been a number, where the local authority on the one hand and NASS on the other are suggesting that the other should accommodate a homeless or potentially homeless individual. The Secretary of State for the Home Department was served as an interested party in these proceedings but was discharged by order of the court on 17 August 2010.[7]The proceedings were lodged on 16 April 2010 very promptly after the material decision was made. An application for interim relief was made. That application was granted by Saunders J on 16 April. The claimant has been accommodated by the Council pursuant to that interim order, as I understand it, since that date.[8]Mr Wyman's assessment noted that the claimant had been supported by the Abbey Road Community Mental Health Team prior to his admission to hospital. It also noted that such support would be needed after his discharge. He concluded that the claimant did not need "looking after". On the contrary, his view and the view of Dr Maria Clarke, the consultant psychiatrist responsible for the claimant, was that the claimant should not only be encouraged to live independently but that any other arrangement would be to his detriment. National Health Service support would be provided, but the limit of the input from the Council would be social worker support. That support would be provided through weekly meetings with Mr Wyman at Abbey Road.[9]Very extensive evidence has been served in this case of the position as it developed after April of this year. The Council was concerned that the claimant might be seeking to argue that the assessment of the claimant's needs, as opposed to the legal consequences flowing from that assessment, was defective and irrational on the basis that Mr Wyman misunderstood or misstated them. Mr Auburn, who appears for the claimant, has disavowed any such intention. Most of the evidence has thus turned out to be immaterial to the legal arguments which focus on the legality of the decision made in April. Nonetheless, a very recent assessment of the claimant's needs was carried out by Dr Clarke on 2 November 2010. It was carried out independently of this litigation. I refer to it because it very neatly encapsulates the nature of the support both needed and provided to the claimant. Having reviewed his condition and presentation, Dr Clarke concluded by saying:
"In summary, whilst there are clearly a number of maintaining factors, S is presenting with some persistent depressive symptomology and we agreed the following care plan: (1) switch (gradual cross taper) Sertraline to Mirtazepine (more sedative antidepressant to assist with insomnia). (2) trial increase dose of Risperidone 5mg to 6mg od. (3) Risperidone monitoring bloods - FBC, U/E, LFT, RBS, Cholesterol/Lipids at GP surgery. I would be grateful if you would kindly advise if any abnormalities. (4) ongoing weekly sessions with Tracey Chotoo, clinical psychologist. (5) weekly meetings with care coordinator, Adam Wyman. (6) discuss with occupational therapist regarding further assessment to develop meaningful day time activities. (7) next CPA meeting 16/11/10 at 2.30pm"
. Those conclusions were contained in a letter written to the claimant's general practitioner.[10]The claimant submits that the refusal of the Council to accommodate him was unlawful because, as a matter of law, it was obliged to do so. The claimant submits that the state of the authorities demonstrates that it was wrong to conclude that the claimant does not fall within section 21(1)(a) of the 1948 Act and also wrong to conclude, in consequence, that the obligation to house the claimant fell upon NASS.[11]Section 21(1)(a) and its inter-relationship with section 21(1A) of the 1948 Act have been the subject of analysis in the House of Lords in R (Westminster City Council) v NASS [2002] 1 WLR 2956. That case involved a dispute between the Council and NASS, about which of them was obliged to house a foreign national who was seriously ill. The Council took the view that it had been absolved of its duty by section 21(1A) because the lady concerned was a destitute asylum seeker. The House of Lords concluded that the lady's circumstances brought her within section 21(1)(a), and also that she was not removed from the Council's area of responsibility by section 21(1A). That was because she needed care and attention which did not arise "solely" from her destitution but also from her infirmity.[12]The structure of section 21 itself makes plain that the first question for consideration is whether the applicant for accommodation falls within section 21(1)(a). Only if the answer to the first question is yes, does it become necessary to consider whether the exclusions provided in section 21(1A) apply.[13]The submissions advanced before me on behalf of the claimant have focussed on the distribution of responsibilities between local authorities and NASS, rather than on this sequential approach to the legal obligations. The sequential approach was adopted by the House of Lords in the Westminster case. In particular, see the speech of Lord Hoffmann at paragraph 49. In the same speech at paragraph 26 he said this:
"It is apparent from the language of section 21(1)(a) that the power or duty to provide accommodation is dependant upon three conditions being satisfied. First, the person must be in need of care and attention; secondly the need must arise by reason of age, illness, disability or 'other circumstances'; and thirdly, the care and attention which is needed must not be available otherwise than by the provision of accommodation under section 21. I take these conditions from the valuable analysis of Hale LJ in Wahid v Tower Hamlets London Borough Council [2002] EWCA Civ 287 at 30. The effect of the third condition is that normally a person needing care and attention which could be provided in his own home or in a home provided by a local authority under the housing legislation is not entitled to accommodation under section 21. That is why the use of the section had previously been, for the most part, limited to the provision of accommodation in specialist institutions, like homes for the aged, in which the necessary care and attention could be provided more conveniently than in separate dwellings"
. This analysis was accepted explicitly by Lord Millet and Lord Roger of Earlsferry; it was accepted by Lord Steyn implicitly, because he agreed in the result which depended upon it; and it was not disputed by Lord Slynn who delivered a separate speech. It was also accepted in R (M) v Slough London Borough Council [2008] 1 WLR 1808, see for example the opinion of Lord Neuberger at paragraph 45.[14]Having set out the conditions, as we have seen, Lord Hoffman gave two examples of circumstances in which an applicant for accommodation would be unsuccessful because the care and attention needed was available otherwise than by the provision of that accommodation. In other words, the third condition was not satisfied. Put simply, and assuming that care and attention is required, the question which arises at the third stage is a straightforward one: Is the care and attention available otherwise than by the provision of accommodation?[15]If the answer to that question is yes, then no duty is owed by the local authority under section 21(1)(a) and no question arises under section 21(1A).[16]The focus of submissions before me was very much on Lord Hoffmann's third condition rather than on the question whether the nature of the assistance provided to the claimant amounted to "care and attention". I shall return to that question but deal with this issue first.[17]It seems to me that, on the basis of the evidence before me concerning the assessment carried out in April of this year, the answer to the question that I have formulated is self-evidently "yes". The assistance provided by the local authority, even if it is properly described as care and attention, is limited to social worker input provided by Mr Wyman when the claimant visits him at the Abbey Road Centre. The balance of the claimant's needs identified in the original assessment, and indeed confirmed in the recent review of Dr Clarke, are all being met by the NHS. As it happens, those too are being met at the Abbey Road Centre. Mr Auburn seeks to avoid this conclusion by submissions developed, first, by reference to the facts, and secondly by reference to the law. The factual submission is that, if the claimant is not accommodated by the Council, his care needs will significantly increase because he will be on the streets. Thus, whatever the position when the assessment was made, the necessary care would no longer be capable of being delivered without providing accommodation.[18]The principal difficulty with that submission is that, on the evidence in this case, there was no question of the claimant being homeless. NASS had accepted its responsibility to accommodate the claimant and, as the evidence suggests, were seeking to do so either within Westminster or close to it so as to avoid discontinuity in the provision of medical care. Whatever might be the legal consequences of imminent street homelessness, they do not arise on the facts of this case.[19]Mr Auburn further submits that the contention that the assistance provided to the claimant falls outwith the scope of section 21(1)(a) because it is not and never will be provided in his home, wherever that may be, repeats arguments advanced by this Council in the NASS case which were rejected. In particular, he refers to paragraph 42 of Lord Hoffmann's speech. Lord Hoffmann recorded the Council's submission in these terms:
"Mr Pleming, who appeared for Westminster, submitted that even if Mrs Y-Ahmed was not excluded by section 21(1A) she did not come within section 21(1)(a) in the first place. This was because her need for care and attention did not entail a need to be provided with accommodation. It was care and attention which could be provided in her own accommodation. If she had been an ordinary UK resident she would never have been assessed as requiring part 3 accommodation."
It is clear that the argument was not the same as is being made in this case. Assistance to this claimant is provided outside of his home, wherever that home happens to be. It is provided when he visits the Abbey Road Centre. Mrs Y-Ahmed needed the care in her own home. She had no home.[20]Lord Hoffmann rejected the submission advanced in the NASS case in the very next paragraph: "The difficulty about this argument [the argument advanced by Mr Pleming] is that it seems to me to run counter to the reasoning in R v Hammersmith and Fulham London Borough Council ex parte M 30 HLR 10. The able-bodied destitute asylum seekers in that case would never have been given part 3 accommodation if they had not been subject to immigration control. They would have been given income support and Housing Act accommodation. They had to be given accommodation because otherwise there was nowhere else they could receive care and attention".[21]In that paragraph, one finds the explanation of the real issue. In ex parte M the applicants required the section 21 accommodation. They had to be housed under the 1948 Act to enable them to receive the care and attention that they needed. That is not so in respect of the claimant in the case before me.[22]Mr Auburn also relies on the distinction drawn by Lord Hoffmann between the "infirm destitute" and the "able-bodied destitute" in the NASS case. He submits that that provides the key to the question of whether the Council should provide accommodation for the claimant. That is because the claimant is infirm and destitute. However, that distinction only becomes material if, leaving aside section 21(1A), an applicant for assistance has first fallen to be accommodated under section 21(1)(a). As is apparent, the statutory scheme only excludes the able-bodied destitute from local authority assistance if they otherwise satisfy the criteria in section 21(1)(a).[23]Mr Auburn also relies upon a number of other judgments of the Court of Appeal, in particular R (Mani) v the London Borough of Lambeth [2003] EWCA Civ 836. He draws attention to the judgment of Simon Brown LJ, and in particular paragraphs 18 to 21. It seems to me that the argument there being considered was not the same as that before me. In any event, the conclusion of the court must be read with the caveats Lord Brown himself entered at paragraphs 42 and 43 of the Slough case. Earlier in his opinion in that case, Lord Brown had expressly endorsed the approach of Lord Hoffmann in the NASS case. At paragraph 40 he said this:
"All that is required is that the care and attention needed must not be available to him otherwise than by the provision of section 21 accommodation"
. That is a reformulation of Lord Hoffmann's third condition from paragraph 26 of the Westminster case.[24]For all the reasons I have given, it is apparent that the "care and attention" is available otherwise than by the provision of section 21 accommodation. My conclusion is that the Council was not only entitled to its view, but it was right to decide that such assistance as the claimant needed was available otherwise than by the provision of such accommodation.[25]As I have already noted, the Council also rejected the claimant's application for accommodation on the basis that he was not in need of care and attention for the purposes of section 21(1)(a) of the 1948 Act. The claimant's needs are comprised of medication, regular blood tests, weekly sessions with a clinical psychologist and with Mr Wyman, and the possibility of further occupational therapy input. All of this assistance is provided because of the psychiatric problems suffered by the claimant. They have led in the past to a long stay in hospital as a voluntary patient and also to suicide attempts. It is a comprehensive package of support, albeit one with a light touch, designed to maintain the claimant's stability and well being, and thus avoid further calamitous deterioration.[26]The classic statement of the meaning of "care and attention" in section 21(1)(a) of the 1948 Act is found in Lady Hale's opinion in the Slough case. The claimant in that case was HIV positive and being prescribed medication which had to be kept refrigerated. His application for accommodation was based upon his need for housing, substantially on the premise that without a home it was not possible to have a fridge. Beyond regular medical checks and the medication which was prescribed, the applicant in that case was well able to look after himself. It appeared that the only additional thing he was in need of was accommodation. This contrasted starkly with the situation of Mrs Y-Ahmed whose application for accommodation had given rise to the dispute litigated in the Westminster v NASS case. She had spinal cancer and needed care and attention wherever she lived. At paragraph 33 of her opinion in Slough, Lady Hale said this: "But care and attention must mean something more than accommodation. Section 21(1)(a) is not a general power to provide housing, that is dealt with by other legislation entirely with its own criteria for eligibility. If a simple need for housing, with or without the means of subsistence were within section 21(1)(a) there would have been no need for the original section 21(1)(b). Furthermore, every homeless person who did not qualify for housing under the Housing Act 1996 would be able to turn to the local social services authority instead. That was definitely not what parliament intended in 1977. This view is consistent with R v Hammersmith and Fulham London Borough Council ex parte M 30 HLR 10, in which Lord Wolf MR emphasised at page 20 that asylum seekers were not entitled merely because they lacked money or accommodation. I remain of the view which I expressed in R Wahid V Tower Hamlets London Borough Council [2002] LGR 545 paragraph 32 that the natural and ordinary meaning of the words 'care and attention' in this context is 'looking after'. Looking after means doing something for the person being cared for which he cannot or should not be expected to do for himself. It might be household tasks which an old person can no longer perform or can only with great difficulty; it might be protection for risks which a mentally disabled person cannot perceive; it might be personal care such as feeding, washing or toileting. This is not an exhaustive list. The provision of medical care is expressly excluded. Viewed in this light, I think it likely that all three of Mrs Y-Ahmed, Mrs O and Mrs Beaker needed some care and attention, as did Mr Wahid. But in his case it was available to him in his own home, overcrowded though it was. This definition draws a reasonable line between able-bodied and the infirm".[27]Returning to the facts in the Slough case, Lady Hale concluded at paragraph 36:
"Although M is HIV positive, his medical needs are being catered for by the National Health Service so, even if they did amount to a need for care and attention within the meaning of section 21(1)(a), he would not qualify, but, for the reasons given above, I do not think that they amount to such a need ... as he does not fall within section 21(1)(a) it is unnecessary to decide whether he would be excluded by section 21(1A)"
. Lord Bingham and Lord Scott agreed with Lady Hale, and both Lord Brown and Lord Neuberger supported her analysis.[28]At the time that Mr Wyman made his assessment on 6 April 2010, the claimant remained an in-patient at the hospital. Arrangements were being put in place for his discharge. The assessment noted that the claimant's extended admission to hospital was compromising his treatment. It has remained a constant theme that too much intervention in this claimant's case is counter productive. Mr Wyman recorded the development of mental health problems culminating in the claimant's admission to hospital on 21 December 2009 following an attempt on his life. He referred to an occupational therapist's report prepared by Carolyn Chong a couple of weeks beforehand, which made plain that the claimant was independent in all self-care needs. The claimant's problems centred around his post-traumatic stress disorder, depression and anxiety. Mr Wyman also noted the claimant's social isolation. He referred to his isolation from the Anglo-Iranian community and also that the claimant had no interest in re-establishing contact with that community. Under the heading of "Risk", Mr Wyman noted:
"No issues of risk to others. Some risk, as a consequence of S's inexperience and relative youth, that he may be at risk of self-neglect. Some risk, due to the trauma S has experienced, his depression and anxiety, that S may chose to make a 'dramatic gesture', an impulsive suicide attempt, along the lines that he had already demonstrated in December 2009"
. Mr Wyman then concluded:
"21 year old Iranian man forced to flee home country because of persecution over his sexuality. Experience in trauma and distress precipitating a suicide attempt in December 2009 after learning of the death of his partner at the hands of the police and unable to return to home country. S has been diagnosed with PTSD and depression, and is currently in hospital while accommodation and appropriate support in the community is arranged. Client remains at some risk of suicide but continuing admission is prejudicing any recovery and discharge remains preferable when accommodation is secured. Under the National Assistance Act (section 21(1)(a)) I am required to consider whether or not S has a 'need of care and attention which is not otherwise available' to him"
. Mr Wyman then referred to the Slough case and continued: "Applying the term 'care and attention' in this case, I can see no evidence that S meets this criteria. The OT report makes clear he has no functional needs or deficits in his activities of daily living. Certainly S's mental state is fluctuating and he continues to experience genuine emotional distress, including symptoms of depression, anxiety and low confidence. Unfortunately, S also exhibits broadly emotionally immature and histrionic personality symptoms that combine with his distress to put him at some risk of self-harm. In my view, however, this risk does not warrant the need for S to be looked after. In my experience, and also the view of Dr Clarke, S's consultant at St Charles, confirms that such support will likely be counter effective to that which would be considered therapeutic, associating in S's mind his recovery with the provision of dedicated mental health services, rather than coming to understand his responsibilities with the availability of social work and counselling services to manage both the distress he is experiencing and the set of difficult social circumstances he is currently facing. At the same time, although currently in distress, S is an intelligent and creative young man who has had the advantage of a good education in Iran. He will continue to receive social work support if he will accept it and his solicitors have intimated that his current asylum application has a good chance of being approved. Until a decision has been made he has been awarded section 4 status that will entitle him to accommodation and a subsistence allowance from UKBA. My recommendations are he accepts the accommodation provided by the Home Office. I would recommend that this accommodation is within the Westminster area or its vicinity to enable myself and Dr Clarke to continue to support S. If S is, however, accommodated too far outside Abbey Road's catchment area he will be referred to the local community Mental Health Trust".[29]In the light of the findings in that assessment, Mr Auburn submits that the support provided to the claimant, consequent upon his mental illness, shows that he was in need of "care and attention". In other words, using the language of the Slough case, he needed looking after for the purposes of section 21(1)(a). Mr Auburn reminds me that Lady Hale's examples, which are set out in the paragraph I have quoted, do not purport to be exhaustive. He focuses in particular on the reference within the passage to protecting a mentally disabled person from risks which he might not himself be able to perceive.[30]Mr Harrob-Griffiths, who has appeared for the Council, by contrast submits that the nature and degree of support provided in this case falls far short of care and attention for the purposes of the 1948 Act. The claimant, he submits, does not need looking after in the sense discussed in the Slough case.[31]On analysis, Mr Wyman's input was expected to be limited to a weekly meeting with the claimant to provide social work support. Important though that no doubt is, and has been, to the claimant's continued well being, my conclusion is that it does not amount to care and attention for the purposes of section 21(1)(a) of the 1948 Act. To suggest that the claimant needs "looking after" would stretch the meaning of those words beyond their proper limit. In my judgment, it would be more accurate to say that the support that the claimant needs amounts to keeping an eye on him. That is a rather different matter. It imports the notion that whilst keeping an eye on him, if circumstances change, different or further interventions might become necessary. It is not, however, in my view, care and attention. On this basis also, the claimant fails to establish that he came within the criteria found in section 21(1)(a).[32]In the result, I shall grant permission to apply for judicial review but, for the reasons I have sought to summarise, dismiss the claim.[33]Are there any consequential matters?[34]MR HARROB-GRIFFITHS: Yes. I ask for an order of costs against the claimant.[35]MR JUSTICE BURNETT: The claimant is publicly fund, is he not. So, the formula -- I am trying to remember the precise words -- but the formula has the effect that you can have your costs but you have got to make an application to have his means assessed and so forth.[36]MR HARROB-GRIFFITHS: Absolutely. Either not to be enforced without leave of the court or with reference to section 11 in the Administration of Justice Act 1999.[37]MR JUSTICE BURNETT: Yes. Mr Auburn, I think that is the right order, is it not?[38]MR AUBURN: Yes, my Lord. We do not object in principle.

MR JUSTICE BURNETT: I am confidant that the learned associate can formulate that in the usual way.

[40]MR AUBURN: My Lord, there are four consequential matters, if I may. The first is that we seek a continuation of the anonymity order previously granted.

MR JUSTICE BURNETT: Yes.

[42]MR AUBURN: That order, for reference --[43]MR JUSTICE BURNETT: Well, Mr Auburn, you will have seen that I attempted to take care not to name the claimant in the course of my judgment. I think I may have spoken his first name, or at least half of it, once inadvertently, but it seems to me, given that the case generally and my judgment has travelled across a fair amount of detail of his mental health problems, this is a paradigm case in which to maintain anonymity. I am assuming there is no objection?[44]MR HARROB-GRIFFITHS: No objection.

MR JUSTICE BURNETT: All right, so that is number 1 dealt with.

[46]MR AUBURN: I am grateful. My Lord, the second matter is that we would ask that the transcript of the judgment be at public expense so we can obtain that to review that for the purposes of appeal.[47]MR JUSTICE BURNETT: In fact, because I have given you permission and refused your application, this being the Administrative Court, the transcript will be made and it will in due course go on Bailii in any event.[48]MR AUBURN: I am very grateful, my Lord.

MR JUSTICE BURNETT: So, no need for that order.

[50]MR AUBURN: The third matter is simply the usual order for a detailed assessment of the claimant's publicly funded costs.

MR JUSTICE BURNETT: Yes.

[52]MR AUBURN: And the fourth matter is to apply for permission to appeal.

MR JUSTICE BURNETT: Yes.

[54]MR AUBURN: My Lord, I can say some brief words on that.[55]MR JUSTICE BURNETT: Well, I will save your blushes, if I may. Your submission would be that, on the first argument I have totally misunderstood the effect of the authorities; and on the second argument I have drawn the line in quite the wrong place.[56]MR AUBURN: My Lord, yes. If I may, we would rely on both aspects of Rule 52.[57]MR JUSTICE BURNETT: Yes. Well, I need not trouble you, I think, Mr Harrob-Griffiths on this aspect. I am not going to grant permission to appeal in this case, because it does not seem to me that there are reasonable prospects of success, nor on the facts of this case is there any other reason why it should go forward as I see it. Mr Auburn, if you are minded to seek to appeal this decision, you are going to have to approach the Court of Appeal.[58]Thank you both very much indeed.

Cited in 1 later judgment