NM, R (on the application of) v London Borough of Islington & Ors [2012] EWHC 414 (Admin)

Case No CO/9335/2011[2012] EWHC 414 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29/02/2012
Before
THE HONOURABLE MR JUSTICE SALES
Between
The Queen on the application of NMClaimantThe London Borough of IslingtonDefendantNorthamptonshire County CouncilFirst Interested PartyThe Parole BoardSecond Interested Party
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Ms Felicity Williams (instructed by T V Edwards LLP) for ClaimantMr Bryan McGuire QC (instructed by Islington Legal Services) for DefendantMr Ranjit Bhose (instructed by Northamptonshire Legal Services) for First Interested Party for The Second Interested Party did not appear and was not represented.Hearing Hearing dates: 15 – 16/02/2012
JudgmentMr Justice Sales :Introduction
[1]This is an application for judicial review of a decision by the Social Services Department of the Defendant council (“Islington”) not to conduct an assessment of the Claimant’s needs under section 47 of the National Health Service and Community Care Act 1990 (“the NHSCCA”) with a view to provision of accommodation and support services to the Claimant if he is released from prison.[2]The Claimant has been in prison since 2006 and is currently detained under a sentence of imprisonment for the protection of the public. He is assessed as having significant learning disabilities.[3]Part of the background to the case has been a dispute between Islington and other local authorities who might have responsibility to provide support to the Claimant if he is released. In view of that dispute, Northamptonshire County Council (“Northamptonshire”) has been joined as an interested party in these proceedings and appeared by counsel at the hearing. The Parole Board was also joined as an interested party since it had sought, via the Secretary of State for Justice, to obtain information from the relevant local authority about the accommodation and support which might be provided to the Claimant if he were released from prison. That information would be relevant to an assessment by the Parole Board of the risk of re-offending which the Claimant might pose if he were released.

Statutory and policy guidance framework

[4]Section 47(1) and (2) of the NHSCCA provides:
“47. – Assessment of needs for community care services. (1) Subject to subsections (5) and (6) below, where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority- (a) shall carry out an assessment of his needs for those services; and: (b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services. (2) If at any time during the assessment of the needs of any person under subsection (1)(a) above it appears to a local authority that he is a disabled person, the authority- (a) shall proceed to make such a decision as to the services he requires as is mentioned in section 4 of the Disabled Persons (Services, Consultation and Representation) Act 1986 without his requesting them to do so under that section; and (b) shall inform him that they will be doing so and of his rights under that Act.” (a) shall carry out an assessment of his needs for those services; and: (b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services. (a) shall proceed to make such a decision as to the services he requires as is mentioned in section 4 of the Disabled Persons (Services, Consultation and Representation) Act 1986 without his requesting them to do so under that section; and (b) shall inform him that they will be doing so and of his rights under that Act.”
[5]For the purposes of this section, “community care services” includes services under sections 21 and 29 of the National Assistance Act 1948 (“the NAA”): sections 46(3) and 47(8) of the NHSCCA.[6]Section 21(1) of the NAA provides:
“21. – Duty of local authorities to provide accommodation. (1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing- (a) residential accommodation for persons who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them; …” (a) residential accommodation for persons who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them; …”
[7]Section 24 of the NAA provides in relevant part as follows: “24. – Authority liable for provision of accommodation. (1) The local authority [empowered] under this Part of this Act to provide residential accommodation for any person shall subject to the following provisions of this Part of this Act be the authority in whose area the person is ordinarily resident. […] (3)Where a person in the area of a local authority- (a) is a person with no settled residence, or (b) not being ordinarily resident in the area of the local authority, is in urgent need of residential accommodation under this Part of this Act, the authority shall have the like [power] to provide residential accommodation for him as if he were ordinarily resident in their area. (4) Subject to and in accordance with the [arrangements] under section twenty-one of this Act, a local authority shall have power, as respects a person ordinarily resident in the area of another local authority, with the consent of that other authority to provide residential accommodation for him in any case where the authority would have duty to provide such accommodation if he were ordinarily resident in their area. …” (b) not being ordinarily resident in the area of the local authority, is in urgent need of residential accommodation under this Part of this Act,[8]Section 29(1) of the NAA provides:
“29. – Welfare arrangements for blind, deaf, dumb and crippled persons, etc. (1) A local authority may, with the approval of the Secretary of State, and to such extent as he may direct in relation to persons ordinarily resident in the area of the local authority shall make arrangements for promoting the welfare of persons to whom this section applies, that is to say persons who are blind, deaf or dumb, or who suffer from mental disorder of any description and other persons who are substantially and permanently handicapped by illness, injury, or congenital deformity or such other disabilities as may be prescribed by the Minister.”
[9]It is accepted that the Claimant suffers from a relevant disability for the purposes of this section. Section 29(4) gives examples, without prejudice to the generality of the power in section 29(1), of the kind of assistance which can be provided under section 29, such as giving “instruction… in methods of overcoming the effects of their disabilities”.[10]Approvals and directions for the purposes of sections 21 and 29 of the NAA have been given by the relevant Secretary of State in circulars to local authorities. The current relevant circular is Local Authority Circular LAC 93(10). Appendix 1 to LAC 93(10) relates to section 21(1) of the NAA. Paragraph 2(1) of Appendix 1 provides: “Residential accommodation for persons in need of care and attention 2.-(1) The Secretary of State hereby –(a) approves the making by local authorities of arrangements under section 21(1)(a) of the Act in relation to persons with no settled residence and, to such extent as the authority may consider desirable, in relation to persons who are ordinarily resident in the area of another local authority, with the consent of that other authority; and(b) directs local authorities to make arrangements under section 21(1)(a) of the Act in relation to persons who are ordinarily resident in their area and other persons who are in urgent need thereof, to provide residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstance are in need of care and attention not otherwise available to them.” (a) approves the making by local authorities of arrangements under section 21(1)(a) of the Act in relation to persons with no settled residence and, to such extent as the authority may consider desirable, in relation to persons who are ordinarily resident in the area of another local authority, with the consent of that other authority; and (b) directs local authorities to make arrangements under section 21(1)(a) of the Act in relation to persons who are ordinarily resident in their area and other persons who are in urgent need thereof,[11]Appendix 2 to LAC 93(10) relates to section 29(1) of the NAA. Paragraph 2(1) of Appendix 2 provides:
“Powers and duties to make welfare arrangements 2.-(1) The Secretary of State hereby approves the making by local authorities of arrangements under section 29(1) of the Act for all persons to whom that subsection applies and directs local authorities to make arrangements under section 29(1) of the Act in relation to persons who are ordinarily resident in their area for all or any of the following purposes – (a) to provide a social work service and such advice and support as may be needed for people in their own homes or elsewhere; (b) to provide, whether at centres or elsewhere, facilities for social rehabilitation and adjustment to disability including assistance in overcoming limitations or mobility or communication; (c) to provide, whether at centres or elsewhere, facilities for occupational, social, cultural and recreational activities and, where appropriate, the making of payments to persons for work undertaken by them (a).” (a) to provide a social work service and such advice and support as may be needed for people in their own homes or elsewhere; (b) to provide, whether at centres or elsewhere, facilities for social rehabilitation and adjustment to disability including assistance in overcoming limitations or mobility or communication; (c) to provide, whether at centres or elsewhere, facilities for occupational, social, cultural and recreational activities and, where appropriate, the making of payments to persons for work undertaken by them (a).”
[12]In relation to both Appendix 1 and Appendix 2 it is relevant to note that the approval given is not limited to persons who are ordinarily resident in the area of a local authority.[13]Section 7(1) of the Local Authority Social Services Act 1970 (“the LASSA”) provides: “7. – Local authorities to exercise social services functions under guidance of Secretary of State. (1) Local authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State.” “Social services functions” include those under sections 21 and 29 of the NAA and under section 47 of the NHSCCA: see section 1A of and Schedule 1 to the LASSA.[14]Where there is a dispute between local authorities as to whether a person is ordinarily resident in their respective areas, section 32(3) of the NAA makes provision for the dispute to be resolved by the Secretary of State. Directions and guidance have been promulgated in relation to the resolution of such disputes. The Ordinary Residence Disputes (National Assistance Act 1948) Directions 2010 made provision for an “ordinary residence dispute” between local authorities regarding a person whose needs have been assessed as calling for the provision of services under Part 3 of the NAA (which includes sections 21 and 29) to be referred to the Secretary of State for resolution: Directions 1(2), 1(3), 3 and 4.[15]These Directions do not yet apply, because the Claimant has not yet been assessed to have needs calling for the provision of services under Part 3 of the NAA. But there is already a clear dispute in existence between Northamptonshire and Islington as to whether the Claimant should be treated as ordinarily resident in Northamptonshire.[16]In response to questions from the bench, Mr McGuire QC for Islington and Mr Bhose for Northamptonshire agreed that their respective clients would enter discussions now to see if they could resolve this dispute in advance of any assessment of the Claimant’s needs under section 47 of the NHSCCA, and would, if necessary, seek to take the dispute to the Secretary of State for guidance as to its resolution in advance of the Directions coming to have application. That seems to me to be a sensible course, since it may assist in clarifying questions of ultimate responsibility as between Islington and Northamptonshire for providing assistance to the Claimant in future.[17]Various guidance documents have been issued by the Secretary of State under section 7 of the LASSA relating to the exercise by local authorities of their social services functions. The Department of Health’s guidance document, “Ordinary Residence: guidance on the identification of the ordinary residence of people in need of community care services, in England”, dated July 2011 (“the Ordinary Residence Guidance”) includes the following:
“Introduction 1. Under section 47 of the National Health Service and Community Care Act 1990 (“the 1990 Act”), local authorities have a duty to assess the needs of any person for whom the authority may provide or arrange the provision of community care services and who may be in need of such services. They have a further duty to decide, having regard to the results of the assessment, what, if any, services they should provide to meet the individual’s needs. 2. The term “community care services” is defined in section 46(3) of the 1990 Act and includes services under Part 3 of the National Assistance Act 1948 (“the 1948 Act”). This guidance is mainly concerned with these services, which are also referred to in it as “social care services”. 3. Once a decision has been made on the services that need to be provided, the duty to provide those services, whether these are residential or non-residential, primarily rests with the local authority in whose area the person is “ordinarily resident”. 4. Part 3 of the 1948 Act provides the statutory framework for the provision of residential accommodation and other community care services to people assessed as being in need of such services. It also contains provisions which can affect the determination of a person’s ordinary residence. 5. If there is a dispute between two or more local authorities about the ordinary residence of a person in need of services, it should be resolved after the assessment and any provision of services. The provision of services should never be delayed because of uncertainty about which authority is responsible. An agreement to provide and fund services until the issue of ordinary residence is resolved has no bearing on the ultimate outcome. Where there is a dispute as to a person’s place of ordinary residence, one of the local authorities concerned is under a duty to provide any community care services required pending resolution of the issue. The local authority which is to provide services should be determined in accordance with directions issued by the Secretary of State as follows: - if the person is already in receipt of services, the local authority providing them should continue to do so; - if the person is not in receipt of services, the local authorities in dispute may agree which of them will provide services pending the resolution of the dispute; - if the local authorities in dispute cannot agree, the local authority in which the person is living must provide the services; and - if the person is not living anywhere, the local authority in whose area the person is physically present (the “local authority of the moment”) must do so. Community care services Community care assessments 6. Under section 47 of the 1990 Act, local authorities have a duty to assess the needs of any person for whom the authority may provide or arrange the provision of community care services and who may be in need of such services. Because local authorities have a power to provide services to people who live outside of their area, the duty to assess is not limited to people who are ordinarily resident in the authority’s area. This gives rise to the question of when it might appear that a person who is not ordinarily resident in an authority’s area “may be in need” of services. 7. Local authorities are already required to assess people who are about to be discharged from hospital and may need community care services under the delayed discharges legislation. The Courts have recognised that a pragmatic approach needs to be taken in similar circumstances. For example, it was held in the case of R (on the application of B) v Camden LBC and Camden and Islington Mental Health and Social Care Trust [2005] 1366 (Admin) that the words “a person… may be in need of such services” refer to a person who may be in need at the time, or who may be about to be in need. That case concerned a detained patient whose conditional discharge had been deferred until suitable hostel accommodation could be found. A prisoner who will not be given parole until suitable care arrangements are in place would be in a similar position. 8. This pragmatic approach should also be taken in relation to people with firm plans to move to another local authority’s area, for example, a person with a job offer who intends to take it up, subject to suitable community care services being available. Such people could be described as “about to be in need” in the local authority’s area, even though they may already be in receipt of services in the area which they are leaving. The person’s move must be reasonably certain: local authorities would not be obliged to assess a person who was simply considering a move to the area. … People moving from one local authority area to another of their own volition 105. When a person who is not being provided with Part 3 accommodation by a local authority chooses to relocate permanently to another local authority area of their own volition, perhaps to be near their family or to move from a self-funded care home into independent living accommodation (see paragraphs 72-76 (People who are self-funding their residential care) and paragraphs 92-101 (People moving into independent living who have mental capacity)), they generally acquire an ordinary residence in their new area. If the person needs community care services, they would therefore need to approach their new local authority for an assessment (see paragraph 99 above and paragraphs 6-8 (Community care assessments)). 106 Each local authority is responsible for setting its own eligibility criteria in accordance with the Department’s guidance on eligibility criteria for adult social care Prioritising need in the context of Putting People First: A whole system approach to eligibility for social care. This means that when a person moves from one area to another and acquires a new ordinary residence, they do not automatically receive the same package of care. However, the guidance on eligibility criteria makes clear that where a person moves (or intends to move) permanently from one local authority area to another, the new local authority, when carrying out their assessment and reaching longer-term decisions about what services should be provided, should take account of services that were provided by the person’s previous local authority. People leaving prison, resettlement units and other similar establishments 107. The deeming provisions in section 24(5) and (6) of the 1948 Act, which provide that a person’s ordinary residence is retained where they are placed out of area in Part 3 accommodation or are receiving care or treatment in NHS accommodation, do not apply to people who are leaving prison, resettlement units and similar establishments. However, local authorities could reasonably follow the approach set out in these sections for people who are due for release from prison. Therefore, where a person requires Part 3 accommodation on release from prison, local authorities should start from a presumption that they remain ordinarily resident in the area in which they were ordinarily resident before the start of their sentence. 108. However, determining an offender’s ordinary residence on release from prison will not always be straightforward and each case must be considered on an individual basis. It may not be possible for an offender to return to their prior local authority area due to the history of their case and any risks associated with a return to that area. Therefore, any presumption of ordinary residence may be rebutted by a number of factors, including the offender’s wishes and intentions about where to live, the length of their sentence and remaining ties with their previous area. 109. In situations where an offender is likely to require community care services on release from prison and their place of ordinary residence is unclear and/or they express an intention to settle in a new local authority area, the local authority to which they plan to move should have regard to paragraphs 6-8 of this guidance (Community care assessments) and take responsibility for carrying out the community care assessment. The duty to assess is not limited to people who are ordinarily resident in a local authority area; it extends to those people who are about to be in need in a local authority’s area. 110. Given the difficulties associated with determining some offenders’ ordinary residence on release, it is good practice for prisons to initiate joint planning for release at least 3 months before it is due. Prisons should work with the National Offender Management Service, the relevant local authority and Primary Care Trust to support assessment and care planning for those offenders who will require community care services on their release from prison. 111. If a person due for release from prison was not ordinarily resident in any area prior to being sentenced and does not have a permanent place to live on release, they may fall within the provisions of section 24(3) of the 1948 Act and be found to be of “no settled residence” and/or in “urgent need” (see paragraphs 43-50). A prisoner who is transferred to hospital under a hospital direction may on release be entitled to after-care under section 117 of the Mental Health Act 1983 (see paragraphs 182-189 (After-care services under section 117 of the Mental Health Act 1983)). …”
Community care services Community care assessments People moving from one local authority area to another of their own volition

People leaving prison, resettlement units and other similar establishments

[18]The Department of Health guidance, “Prioritising need in the context of Putting People First: A whole system approach to eligibility for social care – Guidance on Eligibility Criteria for Adult Social Care, England 2011”, published in February 2010 (“the Prioritising Need Guidance”) contains, at paragraphs 48-50, guidance similar to that in paragraphs 6-8 of the Ordinary Residence Guidance set out above. The Prioritising Need Guidance includes the following:
“Response to first contact and assessment 68. Given the necessity of prioritising needs for social care, fair and transparent allocation of available resources depends upon effective assessment. Decisions as to who gets local authority support should be made after an assessment, which should be centred on the person’s aspirations and support needs, involving both the person seeking support and their carers. Similarly, decisions on whether to offer specific support for carers should be made following a carer’s assessment. When responding to and assessing people in need of assistance, councils should pay particular attention to the values set out in the General Social Care Council’s Code of Practice. 69. Councils should not operate eligibility criteria to determine the complexity of the assessment offered; rather the depth and breadth of the assessment should be proportionate to individuals’ presenting needs and circumstances, including how much support carers are able to provide, where appropriate. … Assessment 78. The purpose of a community care assessment is to identify and evaluate an individual’s presenting needs and how these needs impose barriers to that person’s independence and/or well-being. Information derived from an individual’s assessment should be used to inform decisions on eligibility. Where eligible needs have been identified, an appropriate support plan can then be put together in collaboration with the individual, describing the support they will draw upon to overcome barriers to independence and well-being, both immediately and over the longer term. … 87. When a service user permanently moves from one council area to another (or has a clear intention to move to another council – See the “Determining eligibility in respect of individuals” section of this guidance), the council whose area they move into should take account of the support that was previously received and the effect of any substantial changes on the service user when carrying out the assessment and making decisions about what level of support will be provided. If the new council decides to provide a significantly different support package, they should produce clear and written explanations for the service user. As discussed above, the future reform of the care and support system may have implications for portability of social care, but the Green Paper also recognises the role of local authorities in shaping services according to the needs of their local area. … Equality and human rights 90. Councils have statutory duties to have due regard to the need to promote disability, gender and race equality, as described in paragraphs 29 to 32 of this guidance. Councils should be also proactive about putting in place arrangements to ensure that they do not unfairly discriminate against individuals on the grounds of their age, religion, personal relationships, or living and caring arrangements, or whether they live in an urban or rural area. 91. Equality should be integral to the way in which social care is prioritised and delivered, allowing people to enjoy quality of life and to be treated with dignity and respect. Such objectives will be supported by: - Equality of access to care and support, meaning that councils should not preclude anyone from having an assessment for community care services, if their needs appear to be such that they may be eligible for support. - Equality of outcomes from care and support, meaning that within the same council area people with similar levels of needs should expect to achieve similar quality of outcomes, although the type of support they choose to receive may differ depending on individual circumstances. The development of resource allocation systems (RAS) should support greater transparency in how resources are allocated to individual service users (see paragraphs 127 – 132 of this guidance. - Equality of opportunity, meaning that councils should work together with individuals to identify and overcome any barriers to economic and social participation within society. 92. Assessment of eligibility for services and the application of the eligibility criteria should be undertaken before decisions are taken on the overall amount of resource which will be available to the individual to meet these needs, Councils may identify those resources through the use of a Resource Allocation System (RAS) or by some other transparent local mechanism (see paragraphs 127 – 132 of this guidance).”
Assessment

Equality and human rights

[19]Paragraph 109 of the Ordinary Residence Guidance, set out above, indicates that, in the circumstances of this case, any duty to assess the Claimant’s needs which might arise under section 47 of the NHSCCA should be fulfilled by Islington, as the local authority to which the Claimant plans to move. I discuss below the question whether a duty to assess has yet arisen under section 47, which Islington disputes.

Factual background

[20]The Claimant was born on 10 April 1987 into a difficult family situation. He was placed on the Child Protection Register at birth. He had a very troubled childhood. By the age of six it was noted that the Claimant was failing to keep up at school. He is currently assessed as having exceptionally low IQ and learning disabilities. The Claimant suffered incidents of physical and sexual abuse from both the maternal and paternal sides of his family. His parents are now separated. His mother lives in Northamptonshire, his father in Tottenham in the London Borough of Haringey. The Claimant was made the subject of care proceedings at the age of ten. By this stage, Islington and Northamptonshire were already in disagreement about who should have responsibility for the Claimant.[21]In 1998, when the Claimant was eleven, he was made the subject of a full care order in favour of Northamptonshire. The Claimant’s behaviour at school was poor, with him exhibiting violence to other pupils. His learning difficulties became still more evident.[22]In July 1999, the Claimant’s full care order was transferred to Islington. After a while he was placed into foster care. However, those arrangements broke down and he went back to live with his mother and step-father. He left school at sixteen. He moved out of his mother’s home and after living rough for some weeks, was placed in supported lodgings by Islington. His behaviour remained poor with significant drunkenness. Various accommodation arrangements broke down. When he was eighteen he went to live with his father and step-mother. He broke up with his girlfriend and between September 2005 and January 2006 he moved to and fro between London and Northamptonshire. He made a number of suicide attempts in this period. He then decided to return to Northamptonshire as that was where his friends were.[23]On 14 March 2006, he was taken into custody on suspicion of arson in relation to a motor vehicle. He was released on bail but shortly afterwards, now aged nineteen, he was arrested again on suspicion of rape, burglary and arson. The rape allegations related to an incident in which he got a fourteen-year old girl drunk and had sex with her. He was charged with a number of offences.[24]On 30 November 2006, he pleaded guilty to arson, criminal damage and burglary but not guilty to witness intimidation and rape. At this stage, as he was now over eighteen, the Claimant was under the supervision of Islington’s Leaving Care Service which had statutory responsibility for him up to the age of twenty-one, pursuant to section 23C of the Children Act 1989.[25]In December 2006, the Leaving Care Service identified bed and breakfast accommodation for the Claimant’s use whilst on bail and awaiting the opportunity to bid for a local authority independent flat.[26]On 13 February 2007, the Claimant pleaded guilty to two counts of unlawful sexual activity with an underage girl and to a charge of witness intimidation. The more serious charge of rape was dropped.[27]On 12 March 2007, the Claimant was sentenced to imprisonment for public protection with a tariff period of 15 months. While in prison he has suffered depression and was the subject of sexual assaults by his cell-mates. There are proceedings currently on foot against the Secretary of State for Justice in relation to one such incident.[28]Islington Social Services Department undertook planning for what should happen when the Claimant was released from prison and when he became twenty-one. In a Pathway Plan dated 17 October 2007, Islington noted that in twelve months time the Claimant hoped to be released from prison and to have his own flat after a period staying with his father in Tottenham. It was recorded that a flat in which the Claimant had been living in Northampton had been repossessed whilst he was in prison. The report stated “[the Claimant] would like to come to live in the London area upon release. Northampton Probation Service will transfer his case to London Probation Service and they will secure an initial B+B accommodation for [the Claimant] until permanent plans can be made for him. [The Claimant] understands that because he is on the Sexual Offenders List, securing accommodation for him will have to be through this route”.[29]It remains the Claimant’s settled preference to come to live in London when he is released from prison. He is looking to Islington to assist him in doing so. This is in part on the basis of Islington’s previous responsibility for his welfare.[30]While in prison the Claimant has undertaken relevant courses and programmes, including a sexual offenders rehabilitation programme. Since the end of his tariff period, he has twice been considered for release by the Parole Board, but it decided that there remained a significant risk of his re-offending and did not direct his release.[31]The Claimant is due for a further review of his case by the Parole Board. It has become clear that one factor potentially relevant to the decision of the Parole Board whether he can safely be released into the community is the question of where he would live and what support he might receive from Social Services. He does not own a property and therefore needs to find accommodation.[32]In view of his learning disability, it may be the case that he would require support from the social services department of a local authority to cope with day-to-day living in the community. It is in an attempt to obtain information about what accommodation and support would be available for him upon release from prison that the Claimant brings these proceedings to seek an order compelling Islington to undertake an assessment of his needs pursuant to section 47 of the NHSCCA. The Claimant’s hope is that, if his needs are assessed under section 47(1)(a), Islington would then decide, under section 47(1)(b), that his needs, as assessed, call for the provision by Islington of care services, including (possibly) accommodation and support for him to live in the community, and that Islington’s proposals could then be put before the Parole Board at his next review so as to persuade the Board to direct his release from prison.[33]I analyse the Claimant’s claim under section 47 below. At this stage, however, it should be noted that the Parole Board’s assessment whether the Claimant can safely be released into the community will not depend solely on whether accommodation and Social Services support will be provided to him. It will often be the case that matters such as the exact location where an offender may go to live will be relevant, as one factor among many, to the Parole Board’s assessment of risk upon release (it may be relevant to such issues as whether it may place him at risk of becoming involved with criminal associates or networks or put him in close proximity to the victims of his offence). That is particularly the case where, as here, the offender in question is guilty of a sexual offence.[34]In relation to such offenders, section 325 of the Criminal Justice Act 2003 provides for multi-agency public protection arrangements (“MAPPA”) to be established, as follows: “325. Arrangements for assessing etc risks posed by certain offenders(1) In this section - “relevant sexual or violent offender” has the meaning given by section 327; “responsible authority”, in relation to any area, means the chief officer of police, the local probation board for that area or (if there is no local probation board for that area) a relevant provider of probation services and the Minister of the Crown exercising functions in relation to prisons, acting jointly.(2) The responsible authority for each area must establish arrangements for the purpose of assessing and managing the risks posed in that area by - (a) relevant sexual and violent offenders, and (b) other persons who, by reason of offences committed by them (wherever committed), are considered by the responsible authority to be persons who may cause serious harm to the public.(3) In establishing those arrangements, the responsible authority must act in co-operation with the persons specified in subsection (6); and it is the duty of those persons to co-operate in the establishment by the responsible authority of those arrangements, to the extent that such co-operation is compatible with the exercise by those persons of their functions under any other enactment.(4) Co-operation under subsection (3) may include the exchange of information.(5) The responsible authority for each area (“the relevant area”) and the persons specified in subsection (6) must together draw up a memorandum setting out the ways in which they are to co-operate.(6) The persons referred to in subsections (3) and (5) are – (a) every youth offending team established for an area any part of which falls within the relevant area, (b) the Ministers of the Crown exercising functions in relation to social security, child support, war pensions, employment and training, (c) every local education authority any part of whose area falls within the relevant area, (d) every local housing authority or social services authority any part of whose area falls within the relevant area, (e) every registered social landlord which provides or manages residential accommodation in the relevant area in which persons falling within subsection (2)(a) or (b) reside or may reside, (f) every Health Authority or Strategic Health Authority any part of whose area falls within the relevant area, (g) every Primary Care Trust or Local Health Board any part of whose area falls within the relevant area, (h) every NHS trust any part of whose area falls within the relevant area, and (i) every person who is designated by the Secretary of State by order for the purposes of this paragraph as a provider of electronic monitoring services. …” “relevant sexual or violent offender” has the meaning given by section 327; “responsible authority”, in relation to any area, means the chief officer of police, the local probation board for that area or (if there is no local probation board for that area) a relevant provider of probation services and the Minister of the Crown exercising functions in relation to prisons, acting jointly. (b) other persons who, by reason of offences committed by them (wherever committed), are considered by the responsible authority to be persons who may cause serious harm to the public.[35]The object of the MAPPA system is to ensure that careful liaison takes place between different public authorities which may have a role to play in policing or supporting a relevant sexual or violent offender once released into the community. In such case the “responsible authority” in relation to any area will be the police, the probation board for that area and the prison service, acting jointly: section 325(1). They may require other persons, including the Social Services authority for the relevant area (section 325(6)(d)) to co-operate in establishing arrangements for managing the risk posed by such an offender on release: section 325(3)-(6).[36]In considering arrangements which might be suitable to address adequately any risk posed by an offender on being released into the community, liaison between different public authorities with different functions and responsibilities, in a forum where each can react flexibly to the concerns of the others, is likely to be very important. For example, if there is a question of accommodation being provided either by the probation service or a local authority for an offender who the police or prison service consider might pose a risk to children, it will often be desirable for that offender to be accommodated, if possible, at a location away from schools. It will be in the multi-agency discussions contemplated by the MAPPA procedure that such concerns and practical options (if any) to meet those concerns can be canvassed between the relevant public authorities. The net product of discussions through the MAPPA process – the overall package of arrangements which it might be possible to put in place if the offender is released (including police and probation reporting and accommodation requirements, any social services support likely to be available and – in the case of an offender who has committed arson, as the Claimant did – reflecting input from the local fire service) – is likely to be a significant factor in the Parole Board’s consideration whether to direct the release of the offender.[37]Detailed and lengthy guidance has been issued by the Ministry of Justice regarding the operation of the MAPPA system. Its current form is “MAPPA Guidance 2009 version 3.0”. Section 7.9 of this guidance includes the following statement:
“One of the benefits of closer working relationships with the other agencies in MAPPA, is that access to other forms of needs assessment are made available which can complement formal risk assessment. These assessments will be of particular importance in assessing offenders with, for example, mental health problems or learning difficulties. Needs assessments made by colleagues in other agencies, including those in Health, Education, Housing and Social Services, can critically inform the assessment of the risk of serious harm.”
[38]Section 17 of the guidance deals with the transfer of MAPPA cases between areas in England and Wales. It includes the following:
“This section explains how the mechanics of transferring MAPPA cases should operate between areas in England and Wales and in cross jurisdiction cases. Experience and various investigations into serious further offending show that weaknesses can arise in risk management when a case is being transferred between areas. It is therefore critical to ensure that all transfers are properly planned and managed. It is important to remember that there is no such thing as an “informal” transfer. The following principles should be followed in all transfer cases: - The over-riding consideration in relation to case transfers should be the protection of the public; - National standards for reporting and enforcement are maintained, regardless of the transfer; - Seamless supervision of offenders is provided in the community; - All necessary information is transferred on a case file to manage the offender effectively; and - The MAPPA agencies do not have the authority to refuse a case transfer; this remains a Probation Service decision where the offender is under their supervision. However, they can have an important role to play in ensuring that transfers are managed in a way that ensures that the risk(s) posed by an offender are managed as effectively as possible.”
Thus the probation service has primary responsibility for arranging for the transfer of a MAPPA case to a particular area, which will have its own “responsible authority” for the purposes of section 325. - The over-riding consideration in relation to case transfers should be the protection of the public; - National standards for reporting and enforcement are maintained, regardless of the transfer; - Seamless supervision of offenders is provided in the community; - All necessary information is transferred on a case file to manage the offender effectively; and - The MAPPA agencies do not have the authority to refuse a case transfer; this remains a Probation Service decision where the offender is under their supervision. However, they can have an important role to play in ensuring that transfers are managed in a way that ensures that the risk(s) posed by an offender are managed as effectively as possible.”[39]The MAPPA “responsible authority” in relation to the Claimant will be different depending on whether the Claimant is released to live in Northamptonshire (where it will comprise the Northamptonshire Police and the Northampton Probation Office, along with the prison service) or is released to live in Islington’s area (where it would comprise the Metropolitan Police and the London Probation Office, again together with the prison service). In the same way, the relevant social services authority which may be required to co-operate in the MAPPA process would be different (Northamptonshire in the first case, Islington in the second).[40]Until the relevant MAPPA procedures have been operated and the relevant arrangements debated by the relevant public authorities with responsibility for the area to which an offender is to be released, it will be unlikely that the Parole Board will decide that a relevant sexual or violent offender can safely be released from prison.[41]At present, no MAPPA procedure has been operated in relation to a release of the Claimant to live in Islington. The probation office which had responsibility for the Claimant when he commenced his sentence was the Northampton office. It appears that they have arranged for multi-agency meetings for MAPPA purposes to take place in relation to the Northamptonshire area, but they have not arranged for the transfer of MAPPA responsibility to the “responsible authority” for the Islington area where the Claimant has made clear he intends to go to live. Nor have any multi-agency meetings or liaison for MAPPA purposes taken place between authorities, including Social Services, relevant to the Islington area.[42]Upon the Claimant reaching the age of twenty-one on 10 April 2008, when Islington’s statutory responsibilities to him under the Children Act 1989 came to an end, Islington conducted a closing review of his case. It noted that the Claimant was engaging with education whilst in prison and wanted to be a construction worker when he left. It is recorded in the report of the review, under the heading “Accommodation”, that upon release the Claimant hoped to move nearer to his father in London and stated:
“Northampton Probation will transfer his case to London Probation and he will probably be moved to a B & B whilst accommodation is sorted out for him. [The Claimant’s] status as a sex offender will be taken into consideration when his accommodation is being sorted out. [The Claimant] understands that because he is on the sexual offenders’ list securing accommodation for him will have to be through this route.”
[43]The report stated that (despite the history of the Claimant’s childhood) the Claimant’s father “is a very good influence upon his life” and that his step-mother was close to him, which is why he wished to move to London to be close to them. The report noted that the Claimant was now represented by the Howard League for Penal Reform; that his probation officer (at that stage Ms Theresa Woodward) was from the Northampton Probation Office; that she would “follow up on [the Claimant’s] case and upon his release will transfer [his] case to the London area”; and that the Claimant was waiting to complete his Sexual Offenders Rehabilitation Programme.[44]Islington has not had significant involvement with the Claimant since he turned twenty-one. He is now twenty-four. Despite the indication that his case would be transferred to the London Probation Office, that did not happen. The probation service was not a party to these proceedings and was not represented before me. It is not clear what occurred and in the absence of the probation service having an opportunity to explain and defend itself, it would not be right to make criticisms of it or any individual probation officers. On the evidence before me, it seems that what may have happened is that as the Claimant’s Parole Board reviews came and went without his release and the identity of his probation officer changed, the proposal to transfer the Claimant’s case to the London Probation Office (which would then have assumed the MAPPA responsibilities for the Claimant) was lost sight of and not pursued.[45]In 2011 a further round of reports in relation to the Claimant was commissioned for a further review of the Claimant’s case by the Parole Board to take place that year. These included reports from a psychologist, his Offender Supervisor (a prison officer allocated responsibility for the Claimant) and his Offender Manager (a probation service officer allocated to the Claimant – now Mr Gary Thompson, still of the Northampton Probation Office as that office had retained responsibility for the Claimant’s case).[46]Mr Thompson, in his report dated 27 April 2011, considered that the Claimant needed to maintain a more consistent acceptable level of behaviour over time and so did not support his release, nor a move to Category D status (i.e. for placement in an open prison). In section 11 of his report, entitled “Resettlement and Supervision Plan”, he wrote:
“Relevant applications for hostel placements have been sent to central referrals for the South East and East Midlands regions. I have discussed possible placements with his legal representative and they are aware of the issues which are presented by [the Claimant]. Any transfer outside of Northamptonshire would require multi agency liaison between areas including the police, probation and fire service. I envisage that extra funding would be required from the public protection unit to source any placement for [the Claimant]. The area of Greater London is currently over subscribed. I have identified the Thames Valley area as there are good links to London, however I am mindful that the relevant local authority will only house offenders who have a stake in that region. The same is broadly true across the east midland counties with the exception of Northamptonshire, where a positive partnership exists between the local authority and MAPPA.”
[47]A psychologist’s report dated 12 April 2011 by Emma Wilkinson, forensic psychologist in training, countersigned by her supervising registered forensic psychologist, identified risks posed by the Claimant if released and recommended that he remain in Category C conditions to consolidate his skills in managing his feelings.[48]These and other reports were before the Parole Board at a case management review on 9 June 2011 to prepare for a parole hearing for the Claimant in September 2011. At the case management review the Parole Board issued directions regarding further reports and assessments to be provided. The directions called for fresh reports from the Claimant’s psychologist, Offender Supervisor and Offender Manager. In relation to the latter, the Parole Board made the following observations:
“To update the report of 27th April 2011. The report should have regard to the psychological reports submitted and to the representations made on [the Claimant’s] behalf and should be prepared following direct contact with [the Claimant] (by whatever medium the OM considers necessary) to make appropriate assessments. The OM’s attention is drawn to the submissions that [the Claimant’s] condition is such that he is entitled to look to his local authority to undertake a needs assessment and provide intensively supported accommodation in the community which can be achieved on the basis that he is a vulnerable adult and is entitled to both accommodation and support (s47 NHS and Community Care Act 1990 and s21 National Assistance Act 1921). It should also have regard to any entitlements he has to support as a former looked after child. There is no reference to liaison with MAPPA and the report should state whether there has been such liaison. The OM should undertake the requested risk assessment in relation to the suitability of Approved Premises to accommodating [the Claimant] safely and liaise with the relevant Social Services authority (see direction below) in considering [the Claimant’s] entitlements and, if appropriate, in the preparation of proposals for supported release within the community for submission to the hearing. The addendum should conclude with a recommendation as to [the Claimant’s] suitability for release or transfer to open conditions, including risk management arrangements.”
This indicates the significance likely to be attached by the Parole Board to the outcome of relevant MAPPA liaison between different public authorities. Unfortunately, the Parole Board did not specify that, in light of the Claimant’s desire to be released to live in Islington, it should have the benefit of MAPPA consideration in relation to Islington’s area, rather than (or in addition to) Northamptonshire’s area.[49]The Parole Board directions also included a direction addressed to the Secretary of State for

Justice and accompanying explanation as follows:

“To secure reports from the relevant local authority Director of Adult Services. The Secretary of State should, without delay, ascertain which Social Services Department (it appears likely to be either Northamptonshire or the London Borough of Islington but no statement is made in recent reports as to this responsibility) holds responsibility for [the Claimant] (a former looked-after child who is diagnosed with a significant learning disability) and secure the preparation of an assessment of his needs. Should the outcome show an entitlement to relevant services, SOS should ensure that the responsible authority liaises with the Offender Manager to prepare a care plan/risk management proposals appropriate for [the Claimant’s] care and safe management in the community were his release to be directed by the Board and a report in relation thereto should be submitted to the Board. [The Claimant’s] representatives and the psychological reports and the SARN dated March 2011 will need to be made available to the relevant authority, any necessary consents being sought from [the Claimant’s] representatives.”
[50]I can see that the Parole Board might be assisted by having such information. However, the Secretary of State has no power to require a local authority to undertake an assessment under section 47 of the NHSCCA. A local authority will only be obliged to dedicate the resources to conduct an assessment where the duty under section 47 is found to arise.[51]A further report by the Claimant’s Offender Supervisor dated 12 August 2011 recommended against immediate release but in favour of a progression to Category D status. Ms Wilkinson provided an updated report dated 23 August 2011, again countersigned by her supervisor. In this report she assessed that the Claimant had begun to reduce his level of risk, had developed his skills to manage his risk factors more effectively and had demonstrated more consistency in applying them. She wrote:
“In my opinion, [the Claimant’s] risk can be effectively managed in the community with appropriate and consistent support from agencies involved in his risk management (including Social Services). If he were to be released, he should be considered for supported housing through the Local Authority, with access to a key worker. He needs considerable support with everyday living and should be provided with a clear structure to help increase the development of his skills towards more independent living. Without this support in place, [the Claimant] will find it more difficult to manage his areas of risk. If appropriate supported accommodation cannot be secured, I would recommend that [the Claimant] transfer to a Category D establishment so that he can further practice his skills in managing his risk. I have some concerns over the level of support [the Claimant] would receive in relation to his learning difficulties: however, if [the Claimant] is not able to secure support through the appropriate agencies for release, a progressive move to a Category D establishment is more favourable. It will provide him with the opportunity to practice using his skills consistently in more testing situations. [The Claimant] should continue to fill out his learning logs when his ‘risky things’ have triggered for him, so he can share his management strategies with those involved in his risk management. He should also continue to engage with alcohol support services whilst in the community or in a Category D establishment. [The Claimant’s] Offender Manager raised concerns in relation to [his] Arson offence. Whilst he has not specifically completed treatment to address this offence, he has worked to address the risk factors such as ‘rushing into things’ that were linked to this. [The Claimant’s] Offender Manager recommended that he continue to address this offence through work carried out with an Offender Supervisor in a Category D establishment, or with those responsible for his risk management in the community. I agree with this recommendation. Conclusion In my opinion, a progressive move to a Category D establishment is not essential for [the Claimant’s] risk management. He has reduced his risk and is employing strategies to manage his risk factors more consistently to the extent that his risk can be effectively managed in the community with strong solid support. However, if supported accommodation cannot be secured for [the Claimant’s] release, given his learning difficulties and the ongoing support he requires for everyday living, I would recommend that he progresses to a Category D establishment.”

Conclusion

[52]Mr Thompson provided a further report dated 27 September 2011. He responded to the Parole Board’s request for information about the MAPPA process as follows:
“[The Claimant] has been the subject of two Multi Agency Public Protection meetings. I can report concerns arising from these meetings regarding releasing [the Claimant] at this time. It would appear that offending behaviour work concerning the arson offence has not been fully addressed. Representatives from Northamptonshire Arson Taskforce were present and they voiced concerns about the nature of [the Claimant’s] offence and echoed the comments made by the sentencing judge. Northamptonshire Police also voiced concerns regarding any return to Northampton as this would bring him near to his victims and other persons deemed ‘at risk’ including his mother and [step-father].”
[53]It is clear that (probably because the Northampton Probation Office retained responsibility for the Claimant’s case) the MAPPA process had only been carried out in relation to a possible release in Northamptonshire’s area. Even in relation to that, it is not clear that Northamptonshire’s Social Services Department had been involved. No relevant MAPPA liaison has taken place in relation to the Claimant’s possible release in London in Islington’s area, which is where he intends to go.[54]Under the heading “Supervision Plan”, Mr Thompson wrote:
“[The Claimant] would be directed to reside at Approved Premises, subject to bed availability. It is likely that he would be sharing accommodation with other men who have been assessed as a high risk of serious harm. A risk assessment would be completed prior to such a placement to ensure that his level of sharing is appropriate given previous allegations of sexual assault. He would be allocated a named key worker who will assist him with his day to day needs as appropriate and would meet on a minimum weekly basis. He would also be given support finding suitable accommodation within the Borough of Northampton. Alternatively and after a suitable time lapse [the Claimant] can be allowed time away to spend with appropriate members of his family subject to an assessment. He would be expected to take part in a minimum of 20 hours’ purposeful activities, this may include training or job seeking and structured leisure activities. He would also be assessed for relapse prevention work by a trained facilitator for the Community Sex Offender Group-work Programme. [The Claimant] would be expected to attend weekly appointments with his supervising officer. He would also be expected to receive visits from a supervising police officer and register with police as instructed. He can also be expected to be managed under Multi Agency Public Protection Arrangements until such time as there is an identified reduction in the risk he presents. I anticipate that there will be intervention by The Arson Taskforce to minimise the risk of serious harm. He can also expect to be tested for alcohol use should he present at the hostel as inebriated and presenting an unacceptable risk to himself or others.”
Mr Thompson concluded that he did not feel that the Claimant was ready for release and referred to, amongst other matters, work being required to address his arson offence.[55]Meanwhile, Mr Callender, a solicitor with the Howard League for Penal Reform acting for the Claimant, pressed Islington in a letter dated 24 June 2011 to carry out a needs assessment for the Claimant with a view to providing a package of support for him if released from prison. The request was primarily directed to Islington because the Claimant had been subject to a full care order held by Islington (after transfer from Northamptonshire), had been provided with services by Islington as a former relevant child, and he wished to return and settle in the Islington area. The letter was copied to Northamptonshire and to Nottinghamshire County Council (“Nottinghamshire”) (the local authority in whose area the prison where the Claimant was held happened to be located).[56]By a letter dated 7 July 2011, Islington replied declining to carry out an assessment and denying that there was any duty to do so under section 47 of the NHSCCA, on the grounds that it was not known whether the Claimant would be released and so a need by him for community care services was neither predictable nor imminent. Islington maintained that “prior to any assessment of need for community care services, an in principle decision as to release would be required…”; only at that point would the Claimant’s need for such services be predictable and imminent. Islington also maintained that for the purposes of section 21 of the NAA Northamptonshire should be considered to be the place where the Claimant was ordinarily resident (since he had been living there prior to his imprisonment) and so any duty to assess under section 47 lay with Northamptonshire.[57]On 6 September 2011 the Claimant’s solicitors, T V Edwards LLP (the firm Mr Callender had now moved to), wrote a letter before action addressed to Islington, Northamptonshire and Nottinghamshire, requesting an assessment of the Claimant’s needs as a vulnerable adult pursuant to section 47 of the NHSCCA, with a view to (in particular) provision of accommodation pursuant to section 21 of the NAA. The letter explained that the Claimant’s primary case, particularly in light of paragraph 109 of the Ordinary Residence Guidance set out above, was that Islington was subject to the relevant duty of assessment in section 47.[58]Islington replied by letter dated 19 September 2011, denying the claim against it. Northamptonshire replied by letter dated 20 September 2011 referring to the dispute which had arisen between it and Islington in relation to the Claimant’s place of ordinary residence, stating that that would need to be resolved by the Secretary of State and drawing attention to paragraph 109 of the Ordinary Residence Guidance, and indicating that since the Claimant wished to settle in Islington’s area, it was Islington which had a duty to assess his needs.[59]With notice of this letter, Islington wrote again on 22 September 2011, disputing once more that it had any liability under section 47 to conduct an assessment, because the Claimant had no predictable or imminent need for community services. It maintained that an assessment in those circumstances “would be a waste of scarce local authority resources” which could not have been intended by Parliament.[60]For the hearing, Islington supported this point by evidence from Sue Powell, the Service Manager for Islington Learning Disabilities Partnership, a multi-disciplinary health and social care team providing services for adults with learning disabilities under the responsibility of Islington. Based on the reports available about the Claimant, she describes him as having “mild to moderate learning disabilities”. She described the significant financial and demographic pressures in relation to the resources available to meet eligible needs within Islington. She described the likely substantial costs involved in the section 47 process in the Claimant’s case, where social workers would have to travel to Nottinghamshire to interview the Claimant and assess him, at a cost of between about £1,200 and £2,600 plus the loss of officer time (depending on the detail of the assessment and the specialist contributions which might be required). In a hard-pressed Social Services Department these are not insignificant matters.[61]In light of Islington’s response, the Claimant commenced these judicial review proceedings on 29 September 2011. The same day the Parole Board held an oral hearing in relation to the Claimant’s case. At that hearing, together with various reports, the Parole Board had before it written submissions dated 10 June 2011 and 28 September 2011 by Mr Callender on behalf of the Claimant. In the latter submissions, Mr Callender referred to the judicial review proceedings issued against the three local authorities, seeking in particular an assessment of the Claimant’s needs by Islington and a care plan from Islington in light of that assessment. He referred to Ms Wilkinson’s report of 23 August 2011 and wrote:
“18. [The Claimant] recognises and accepts that he has critical and substantial needs which will need to be provided with intensive support in the community. He seeks the intensive support as recommended by Ms Wilkinson from adult social care. 19. [The Claimant] would ask that the Parole Board agree a short adjournment of the hearing in order that he can prepare a detailed and intensive adult social care package for resettlement to the community. He recognises and accepts that an adjournment does not mean that he will be granted parole. …”
[62]At the hearing on 29 September 2011 the Claimant told the Parole Board panel that he did not wish to return to Northamptonshire; he wished to go to London (this was in line with settled indications from the Claimant over a considerable period of time). Mr Callender made oral submissions to seek an adjournment for an alternative resettlement care package to be put together to be taken into consideration by the Parole Board in its review of the Claimant’s case. The Parole Board granted that adjournment. At the same time it called for further reports from the Claimant’s Offender Supervisor and from Ms Wilkinson (especially in relation to the arson risk posed by the Claimant). It called for a further report from the Claimant’s Offender Manager:
“… to update the risk management plan. To take account of your [i.e. the Claimant’s] statement to the panel that you are not willing to return to Northamptonshire. To provide more information about the issues that might arise on release to Northamptonshire, in relation to victims, your mother and [step-father]. To clarify timescales regarding the availability of a hostel placement, and anticipated dates for transfer to move-on accommodation. To clarify the nature and extent of the ‘work’ that would be undertaken by the Arson Taskforce. To provide information about the specialist services that could be made available to respond to your learning disability. To indicate how the Probation Service would manage your own vulnerability, within the hostel environment, particularly to predatory behaviour by fellow hostel residents.”
[63]I was shown a further report from Ms Wilkinson dated 21 October 2011 in relation to the Claimant’s arson offence. Her view is that relevant work on this could be done by the Claimant when he was released and that it was not outstanding work which he needed to complete prior to release. According to the witness statement of Mr Callender, dated 24 January 2012, the Claimant is now located on the “resettlement wing” of the prison, for prisoners who are highly trusted. The Claimant’s case is that he continues to maintain high standards of behaviour. All this will no doubt be taken into account by the Parole Board when it resumes the adjourned hearing to consider the Claimant’s case.[64]By order dated 8 November 2011, Bean J granted permission for the judicial review claim to proceed against Islington but refused permission in relation to the claims against Northamptonshire and Nottinghamshire. By its Acknowledgement of Service dated 6 December 2011, Islington again maintained that Northamptonshire, not it, was the responsible authority in relation to the Claimant.[65]The Claimant therefore applied to the court for Northamptonshire to be joined as an Interested Party. By order dated 12 January 2012, Wilkie J ordered that the Parole Board and Northamptonshire (but not Nottinghamshire) be joined as Interested Parties and certified the case as fit for expedition.

Legal Analysis

[66]At the hearing, Ms Williams for the Claimant submitted that I could and should determine whether a duty of assessment under section 47(1)(a) of the NHSCCA arose in relation to Islington and that is was not necessary to resolve any question of the place (if any) of ordinary residence of the Claimant. The Ordinary Residence Guidance indicated that an assessment of needs pursuant to section 47 could take place without being delayed by reason of disputes between local authorities about questions of ordinary residence and paragraph 109 of that guidance indicates that – assuming a duty under section 47 arises in the circumstances of this case – the local authority which should carry out the assessment is Islington. In the event, both Mr Bhose for Northamptonshire and, as I understood him, Mr McGuire for Islington agreed with this. I accept Ms Williams’ submission on this point.[67]The sole question for determination therefore is whether a duty of assessment of the community care needs of the Claimant has arisen under section 47(1) in the circumstances of this case.[68]Ms Williams submitted that the threshold for the duty to arise is a low one. She correctly pointed out that the phrase in section 47(1), “any person for whom [the local authority] may provide or arrange for the provision of community care services”, covered the case of the Claimant, since a local authority has a power under section 21 of the NAA and by virtue of Appendix 1 to LAC 93(10) to make arrangements to provide residential accommodation for persons who are in need of care and attention by reason of disability, even when they are not ordinarily resident in the area of that local authority. She made the same point in relation to section 29(1) of the NAA by reference to Appendix 2 to LAC 93(10). Where there is a power to provide services to persons who are non-resident in the local authority’s area, that is capable of providing part of the necessary foundation of the duty of assessment under section 47(1)(a) to apply: see R v Berkshire County Council, ex p. P (1997-98) 1 CCL Rep 141, especially at 148-149 per Laws J.[69]Ms Williams then submitted that the words in section 47(1), that the relevant person “may be in need of any such services”, were of wide ambit and were apt to cover the circumstances in which the Claimant finds himself in this case. The psychologist’s report recommends the release of the Claimant provided that strong community care support is in place. The Parole Board has said that it wishes to have an assessment of the Claimant’s community care needs with a view to knowing what community care provision might be made for him. That shows that the Parole Board is contemplating that it may direct the release of the Claimant and if it does, he proposes to turn to Islington to meet his needs. This interpretation also accords, Ms Williams submitted, with paragraphs 7 and 109-110 of the Ordinary Residence Guidance and paragraph 49 of the Prioritising Needs Guidance.[70]In support of her submission on the interpretation of section 47(1) of the NHSCCA, Ms Williams also sought to rely on other matters, as follows: i) The public sector equality duty resting on Islington as a public authority under section 149(1) of the Equality Act 2010, which includes an obligation to have “due regard to the need to … advance equality of opportunity” between persons who are disabled and those who are not, including (see section 149(3)) by having due regard to the need to remove or minimise disadvantages suffered by persons with a disability, taking steps to meet the distinct needs of persons who have a disability, and to encourage disabled persons to participate in public life. Ms Williams did not seek to maintain a distinct claim against Islington based on breach of that duty, but rather relied upon it as an aid to the interpretation of section 47(1) itself; ii) Section 3(1) of the Human Rights Act 1998 (“the HRA”) and the obligation under that provision to construe section 47(1) in a manner compatible with the Claimant’s Convention rights set out in the HRA and the European Convention of Human Rights (“ECHR”) under Article 5 (Security of the person), Article 8 (Right to respect for private and family life) and Article 14 (Right against discrimination). In this regard she also relied on the UN Convention on the Rights of Persons with Disabilities, 2006 (“the CRPD”). Ms Williams relied on Articles 19 and 26 of the CRPD as provisions which should be taken to inform the meaning and effect of Articles 5, 8 and 14 of the ECHR in this context. Article 19 of the CRPD provides:
“Living independently and being included in the community States Parties to the present Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that; (a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement; (b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community; (c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.”
Article 26 of the CRPD provides: “Habilitation and rehabilitation 1. States Parties shall take effective and appropriate measures, including through peer support, to enable persons with disabilities to attain and maintain maximum independence, full physical, mental and social and vocational ability, and full inclusion and participation in all aspects of life. To that end, States Parties shall organize, strengthen and extend comprehensive habilitation and rehabilitation services and programmes, particularly in the areas of health, employment, education and social services, in such a way that these services and programmes: (a) Begin at the earliest possible stage, and are based on the multidisciplinary assessment of individual needs and strengths; (b) Support participation and inclusion in the community and all aspects of society, are voluntary, and are available to persons with disabilities as close as possible to their own communities, including in rural areas. 2. States Parties shall promote the development of initial and continuing training for professionals and staff working in habilitation and rehabilitation services. 3. States Parties shall promote the availability, knowledge and use of assistive devices and technologies, designed for persons with disabilities, as they relate to habilitation and rehabilitation.” (a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement; (b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community; (c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.” (a) Begin at the earliest possible stage, and are based on the multidisciplinary assessment of individual needs and strengths; (b) Support participation and inclusion in the community and all aspects of society, are voluntary, and are available to persons with disabilities as close as possible to their own communities, including in rural areas.[71]Ms Williams referred me to a decision of the Divisional Court R v Mid- Glamorgan County Council, ex p.Miles, 16 November 1993, noted in Legal Action for January 1994, in which the court approved an agreement between the defendant Council and the claimant, who was in prison and was seeking probation and required the defendant to assess his needs for community care services under section 47 of the NHSCCA in order to support his application for parole (i.e. a context similar to that in the present case), and made an order for mandatory and declaratory relief. I did not find this case of great assistance because it was clear that the claim was determined by the court without argument on the issue.[72]Ms Williams relied more particularly on R v Bristol City Council, ex p. Penfold (1998) 1 CCLR 315 and R(B) v Camden London Borough Council (2005) EWHC 1366 (Admin). In Penfold Scott-Baker J said: “The question is whether in conducting the first stage of the exercise under Section 47(1), that is in deciding whether the Applicant may be in need, the Respondent is entitled to take into account resources. Mr McLaren points out that there are very serious cost implications. He said, although there was no evidence of this, that an assessment can take 15 hours. It is also, and this is clearly correct, expensive in manpower and consequently money. It would he argues be pointless for local authorities to spend vast sums of money on conducting assessments when there is no hope of meeting any established need. The man hours and consequent cost would be better spent elsewhere. Mr McLaren’s argument is that once it is accepted that ‘need’ can be a resource related test, the matters the local authority, or team leader on its behalf, can take into account include their knowledge of current policy within that authority. It seems to me that Parliament has expressed Section 47(1) in very clear terms. The opening words of the subsection, the first step in the three stage process, provide a very low threshold test. The reference is to community care services the authority may provide or arrange for. And the services are those of which the person may be in need. If that test is passed it is mandatory to carry out the assessment. The word shall emphasises that this is so. The discretionary element comes in at the third stage when the authority decides, in the light of the results of the assessment what, if any, services to provide. Usually, but not inevitably, the section will be triggered by, or on behalf of, a person claiming to have a need. But the initiative could come from the local authority. In practice however only those who think they have a need will ask for a community care assessment. As a matter of logic it is difficult to see how the existence or otherwise of resources to meet a need can determine whether or not that need exists. The practical reality of success of the Applicant’s argument is that the potentially deserving cases will be prioritised in terms of:(i) assessed needs that are to be met;(ii) assessed needs that must remain current but will be recorded in the local authority’s records for planning purposes; and(iii) aspirations that following assessment turn out not to be a need. I do not, therefore, accept Mr McLaren’s submission that Parliament cannot have intended expenditure to a pointless end when it was clear that any established need could not be met. Even if there is no hope from the resource point of view of meeting any needs identified in the assessment, the assessment may serve a useful purpose in identifying for the local authority unmet needs which will help it to plan for the future. Without assessment this could not be done. If the Respondent’s argument on construction is accepted, the consequence will be that not only can authorities set wholly disparate eligibility criteria for services they intend to provide but they may also utilise such criteria as a basis for whether they will undertake a community care assessment at all. This cannot be right. The mere fact of unavailability of resources to meet a need does not mean that there is no need to be met. Resource implications in my view play no part in the decision whether to carry out an assessment.” (i) assessed needs that are to be met; (ii) assessed needs that must remain current but will be recorded in the local authority’s records for planning purposes; and (iii) aspirations that following assessment turn out not to be a need.[73]R (B) v Camden LBC concerned a decision of a mental health review tribunal ordering the discharge of the claimant from a secure hospital subject to specified conditions, comprising the establishment by the claimant’s local authority of a suitable care package, including accommodation. One argument advanced by the claimant was that the defendant authority was obliged under section 47(1) of the NHSCCA to assess his needs and provide a suitable care package. In the event, that claim failed because at the relevant time the local authority was not on notice of his needs: paras. [67]-[68]. But Stanley Burnton J made the following observations at paras. [65]-[66]:
“65. Mr Lewis submitted that section 47(1) refers to immediate needs that may arise in the future. Mr Bowen submitted that section 47 is not so limited. In this connection, it must be borne in mind that section 47 is not restricted to services that may be provided under section 117. It applies also to services that may be provided under Part III of the National Assistance Act 1948, or section 45 of the Health Services and Public Health Act 1968 (arrangements for the benefit of old people) and section 21 of and Schedule 8 to the National Health Service Act 1977. Parliament could not have intended local authorities to have to devote their resources to making assessments of the possible future needs of persons for such services. Furthermore, subsection (2) requires a local authority, on completion of its assessment, to “then decide whether his needs as assessed call for the provision by them of such services”
. The words, “then” and “call for” show that Parliament envisaged a need at the date of assessment. The words “may be in need” were used in subsection (1) because, necessarily when the assessment is carried out, it has not yet been ascertained whether the person in question has a need for services. They denote possibility, not futurity. They do not refer forward in time. 66. In my judgment, the words “a person may be in need of such services” refer to a person who may be in need at the time, or who may be about to be in need. A detained patient who is the subject of a deferred conditional discharge decision of a tribunal, which envisages his conditional discharge once section 117 after-care services are in place, is a person who “may be in need of such services”, since if such services are available to him he will be discharged and immediately need them. Whether a patient who may reasonably be considered to be liable to have such an order made in an impending tribunal hearing is an issue I do not have to decide in the instant case, but I incline to the view that he is.”[74]Ms Williams submitted that in the circumstances of the present case the Claimant falls within the guidance given by Stanley Burnton J in para. [66]: the Claimant is “about to be in need” of community care services since the Parole Board could be about to order his discharge if those services are in place; alternatively, the Claimant is a person “who may reasonably be considered to be liable to have” an order for his discharge made in the impending Parole Board hearing and so falls within the scope of the indication given by Stanley Burnton J in the last sentence of that paragraph.[75]Mr McGuire for Islington, on the other hand, submitted that no obligation to assess under section 47 has arisen in this case. He submitted that no obligation to assess under section 47 could arise until the Parole Board had taken a decision in principle to release the Claimant. I accept the first of these submissions but not the second.[76]In my judgment the correct analysis is as follows. The Claimant is a “person for whom [Islington] may provide or arrange for the provision of community care services” within the meaning of that phrase in section 47(1) of the NHSCCA. Even though it seems he is not ordinarily resident in Islington (which is not for me to decide), Islington would have the power under section 21 and section 29 of the NAA to provide community care services (in the form of accommodation and/or other services) to him: see above.[77]The critical question is whether the Claimant is the person who “may be in need of any such services” within the meaning of that phrase in section 47(1). In my view, on proper interpretation of that phrase, to bring himself within the scope of this section it is necessary for a claimant to show that there is a sufficiently concrete and likely prospect of him being in a position where community care services may need to be provided to him if he has relevant needs which would require to be met by the provision of such services. The words “may be in need” are in the present tense and do not import a flavour of coverage of possible needs which may arise in the future, as Ms Williams sought to argue. In context, the word “may” is apt because it indicates that there has to appear to the relevant local authority a significant possibility that the person in question might have a present need for community care services to be provided to him by that local authority and it is that possibility which then has to be investigated by means of the assessment under section 47(1)(a).[78]However, in a number of situations – such as release from mental hospital as contemplated in R(B) v Camden LBC, discharge from hospital as in R v Berkshire County Council, ex p. P and release from prison as in R v Mid Glamorgan CC, ex p. Miles – it may be sufficiently clear that a person is likely in the very near future to be present in the area of the local authority and, when they are, may then be in need of community care services, so that the obligation of assessment under section 47(1)(a) arises before the person actually arrives.[79]In my view, this interpretation of the words “may be in need of any such services” as covering both cases of present need and a narrow penumbra of cases of reasonably predictable future need is justified by reference to the statutory purpose of section 47 and of the community care provisions (such as sections 21 and 29 of the NAA) to which it refers, namely to ensure that persons who may have needs of the requisite character (i.e. are vulnerable in some relevant way) have those needs assessed and met, and receive proper social welfare protection in respect of their vulnerability. To limit the obligation of assessment in section 47(1) to cases where a person is already present in the area of a local authority or already presenting needs for the local authority to meet now in cases where a person is known to be about to require community care services in the near future would create a gap in time when the intended social welfare protection was not or might not be provided. Parliament cannot sensibly be supposed to have intended to allow such a gap in protection to exist.[80]That impression is reinforced by section 47(5) of the NHSCCA, which provides:
“(5) Nothing in this section shall prevent a local authority from temporarily providing or arranging for the provision of community care services for any person without carrying out a prior assessment of his needs in accordance with the preceding provisions of this section if, in the opinion of the authority, the condition of that person is such that he requires those services as a matter of urgency.”
[81]It is obvious that arranging for an assessment of needs may take some time and section 47(5) makes clear that Parliament intended that social welfare protection should be provided in the interim – in the case contemplated by section 47(5), by the local authority if the person is on their doorstep. But where the person’s needs are presently being met by another public authority (in this case the prison service), but it is reasonably clear that they may be about to need provision of services by the local authority, it is reasonable to infer that Parliament intended that the person’s needs should be assessed before arrival on the local authority’s doorstep – otherwise, there would be a risk of a real need, which would be recognised upon assessment but might be missed otherwise, going unmet for a period of time (i.e. between arrival on the local authority’s doorstep and the carrying out of the assessment and the taking of the decision under section 47(1)(a) and (b)).[82]In further support of this interpretation of section 47(1), I also consider that Parliament should be taken to have had in its contemplation when enacting section 47 in 1990, the sort of situations in which the release of a person maintained in a mental hospital or the release on parole of a person in prison might well be informed by questions of the availability of care services for that person in the community. The relevance of such matters in such cases will not be unusual but could potentially arise in many cases. Against that background, it is reasonable to infer that Parliament intended that in appropriate cases a local authority should be required to make an assessment and decision under section 47 so as to assist other relevant public bodies (for instance, in these examples, a secure mental hospital or the prison authorities, or Parole Board or mental health review tribunal) to take a decision affecting the liberty of the person in question and their general welfare. Their well-being might well be better promoted and their underlying needs better catered for by being at liberty and in the general community with appropriate support rather than in detention. The authority of R (B) v Camden LBC at para. [66], even if only obiter, also supports the interpretation I prefer. Further, it may be noted that Mr McGuire’s own submission for Islington also implicitly accepted that the opening part of section 47(1) was properly to be interpreted as covering a class of at least some cases of needs which might have to be met by a local authority in the future. Any other approach would be far too rigid, having regard to the context in which section 47 has application.[83]The question then becomes, how definite does the likelihood of the local authority having responsibility for meeting the relevant needs of a person in future have to be before the obligation to assess under section 47(1) arises? Islington submitted that a very clear and definite expectation was necessary before the obligation could arise. In the present context, it contended, nothing short of a decision of the Parole Board in principle to release the Claimant, if adequate community care services were provided, would do.[84]Ms Williams for the Claimant submitted that a much wider class of case would be covered, including cases where there was a far higher degree of contingency and uncertainty about whether a person would in fact arrive on the doorstep of a local authority needing welfare support and that the Claimant’s case fell within the relevant class. Ms Williams particularly emphasised the direction of the Parole Board in June 2011, calling for an assessment of the Claimant’s needs to be carried out to inform its next review, as showing that there is a sufficient nexus of likelihood between the decision to be taken by the Parole Board and the arrival of the Claimant on Islington’s doorstep for the obligation of assessment under section 47(1)(a) to arise. She also particularly emphasised the expression of view by Stanley Burnton J in the last sentence of para. [66] in R (B) v Camden LBC and argued that the Claimant could “reasonably be considered to be liable to have” an order for release made in his favour at the impending Parole Board hearing.[85]In my judgment, the true position lies between these contending submissions. Parliament cannot have intended to create an obligation of assessment in relation to a very wide class of cases of future provision of services, since doing so would create a serious risk of scarce resources available to local authorities for community care being wasted through assessments being carried out for no ultimate good purpose, thereby depleting funds available to provide much-needed services to vulnerable people who actually do require social welfare support from the local authority in question. In interpreting the intended ambit of the class of cases of future provision covered by section 47(1), it is necessary to bear in mind that the relevant condition set out in the opening part of the provision is expressed in the present tense, so it is reasonable to suppose that Parliament intended the relevant extension to cover future cases on pragmatic grounds, as set out above, to be narrow. The future cases intended to be covered are those which are closely analogous to those where there is a (possible) present need for provision of community care. It is only in relation to such a narrow class that it can be said that “the contextual imperative” is so powerful as to allow the language in the present tense in section 47(1) to be interpreted as covering future or future conditional cases (see the approach to interpretation of community care legislation indicated by Lord Neuberger in R (M) v Slough Borough Council [2008] UKHL 52; [2008] 1WLR 1808 at para. [55]).[86]In the present case, I consider that the connection between the proposed consideration of the Claimant’s case by the Parole Board as things stand on the case before the Board and the release of the Claimant to go to Islington is too conditional and speculative to fall within the narrow class of future provision cases covered by section 47(1). Nor can it be properly said that the Claimant is “about to be in need” or “may reasonably be considered to be liable” to have an order for release made in his favour, in line with the indication by Stanley Burnton J in R (B) v Camden LBC at para. [66].[87]It is clear that if the Claimant is to be released to live in Islington, as he intends to do, the MAPPA under section 325 of the Criminal Justice Act 2003 will have to be operated in relation to the Claimant and his intended location in the Islington area. In accordance with the MAPPA guidance, the Claimant’s case will have to be transferred from the Northampton Probation Office to the London Probation Office and the “responsible authority” in relation to the Islington area will need to assess what arrangements can and should be put in place if he is released. The Parole Board cannot take a properly informed decision until that has been done.[88]In my view, the contingent element affecting any Parole Board decision in the Claimant’s case in present circumstances, where no relevant MAPPA process has been undertaken in relation to a release to live in London, is simply too great for the Claimant’s case to fall within the narrow class of future provision cases covered by section 47(1). Whether or not the Claimant might in fact need to resort to community care services provided by Islington is too speculative at this stage for him to fall within the scope of that provision.[89]In the course of the MAPPA consideration in relation to a move to London, Islington will have to provide information under section 325 to the London “responsible authority” regarding the community care services which it is likely to be able to provide to the Claimant. With the information Islington already has about the Claimant from reports on him, and with Islington’s knowledge of the resources available to it, and with the benefit of liaison with the relevant “responsible authority” in London (and the London Fire Brigade) about their concerns, it is likely that Islington will be able to give a reasonable indication in the course of the MAPPA consideration, at least in broad terms, of the type and level of support it would be likely to be able to provide to the Claimant if he is living in the community in Islington. This can be done without a full assessment under section 47 and without major expense for Islington. It may be the case that Islington, when weighing the Claimant’s possible needs against those of other persons in the borough, would conclude that it is unlikely that he should be given priority for a scarce place in supported accommodation run by the Council and may conclude that the extent of other community care services to be provided to him might be limited. In the first instance that would be a matter for their assessment and this court can make no observations about that.[90]The results of that MAPPA consideration can then be provided to the Parole Board to inform its assessment whether the Claimant is safe to be released in London. It may be that this would provide the Parole Board with sufficient information to allow it to take a decision.[91]However, I should also make it clear that circumstances could arise in which, as the Claimant’s case advances, an obligation does arise under section 47(1)(a) for Islington to assess the Claimant’s needs and to make a decision under section 47(1)(b) how they might be met. I do not accept the submission for Islington that such an obligation could only arise when the Parole Board takes a decision in principle that the Claimant should be released. In my view, that would place too narrow an interpretation on section 47(1) in relation to the class of cases of future provision which fall within it. Section 47(1) is to be interpreted in a practical and pragmatic way, having regard to the context in which it operates and the provision of community care services and protection for vulnerable people which it is its object to promote.[92]It is obvious that on this very narrow interpretation argued by Islington serious “chicken and egg” or “Catch 22” type problems could arise in which the Parole Board (or, for example, as the case may be in other situations, a secure mental hospital or mental health review tribunal) could only decide whether it was safe to release a person if it had a good and reasonably concrete idea of what community care services would in fact be provided after release, yet the local authority in question would decline to carry out the assessment under section 47 necessary to allow such information to be provided. The net result in such cases would be that the welfare of the person concerned which section 47 and the statutory community care provisions to which it refers are supposed to promote, would be undermined and the object of those provisions defeated.[93]In my judgment, the practical tipping point in this sort of case at which the obligation under section 47(1)(a) would be likely to arise would be if, after the Parole Board had the benefit of a full relevant MAPPA consideration by the appropriate “responsible authority” with an indication from the relevant local authority of what community care services were likely to be available, the Parole Board required still greater detail and more final concrete information from the local authority about the services which would be provided upon release and gave some form of clear and definite indication to the relevant local authority of that requirement. A letter of request to the local authority explaining why the Parole Board thought it necessary to seek such information over and above any information provided by the local authority in the MAPPA process would be a good way for the Parole Board to do this. If the Parole Board is considering whether to make such a request, it should of course behave responsibly and duly take into account the fact that to do so will be likely to impose a not insignificant burden on a local authority in carrying out an assessment under section 47(1)(a). The Parole Board should take care not to issue such requests on a whim or simply to obtain further information to supplement its case file but which it does not, in truth, really need in order to make its assessment in relation to the case at hand.[94]If this position were arrived at, I think there would be a sufficiently clear and definite link between the consideration of the person’s case by the Parole Board and his possible release onto the doorstep of the local authority as to bring the case within the class of future provision cases falling within the ambit of section 47(1). In such a situation, it could fairly be said that the person in prison “may reasonably be considered to be liable” to the requisite degree to have an order made for his release, to adapt the wider formulation by Stanley Burnton J in R (B) v Camden LBC at para. [66], which I found provided helpful guidance.[95]This situation, however, is some way away from the position in the present circumstances of the case before me. I do not consider that this view of the meaning and effect of section 47(1) is altered by the further arguments presented by Ms Williams: see para. [70] above. Section 149 of the Equality Act 2010 does not assist in the interpretation of section 47 of the NHSCCA, because the Equality Act, and the Disability Discrimination Act 1995 which preceded it and contained a similar provision, both post-dated the NHSCCA. They did not purport to amend the NHSCCA and are not legitimate aids to its construction. Ms Williams did not seek to base any distinct claim on the public sector equality duty in section 149 of the Equality Act as a freestanding duty of the local authority.[96]Ms Williams’ argument based on section 3(1) of the HRA had a more promising starting point, as section 3(1) imposes an interpretive obligation to construe statutory provisions whenever enacted in a manner compatible with the Convention rights, if it is “possible” to do so. Also, it is established in the Strasbourg case-law that a significant mental or physical disability can qualify as a “status” for the purposes of the application of Article 14 of the ECHR (prohibition of discrimination), which provides:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, property, birth or other status”
[97]The prohibition of discrimination in Article 14 applies both to direct forms of discrimination (treating a person differently from others where there is no proper ground for doing so) and to indirect forms of discrimination (failing, without objective and reasonable justification, to treat differently persons whose situations are significantly different: see e.g. Thlimmenos v Greece (2001) 31 EHRR 15 and AM (Somalia) v Entry Clearance Officer [2009] EWCA Civ 634). Although not a point debated at the hearing, it may be that it is the indirect form of discrimination which is potentially more in issue in this case, on the footing that the Parole Board presumably applies a similar standard of review to all cases, but it is suggested that in the absence of a section 47 assessment by Islington it will do so without being able to assess that proper provision will be made for the Claimant to meet his special needs if he is released into the community.[98]The CPRD is an unincorporated international treaty and so does not have direct effect in English law. It came into force and was ratified by the United Kingdom after the NHSCCA was enacted, so it cannot act as a potential aid to interpretation of that statute in cases of ambiguity. Ms Williams argued, however, that I should take the CPRD into account when deciding how to interpret or apply the Convention rights in Articles 5, 8 and 14 on which the Claimant seeks to rely.[99]I confess that I do not find the relationship between the CPRD and the Convention rights in the ECHR and the HRA transparently clear under the Strasbourg jurisprudence and in what little domestic authority there is.[100]It is, of course, well established that the ECHR is a “living instrument” whose meaning and application may vary over time as conditions change and where commonly accepted standards develop among the member states of the Council of Europe: Tyrer v United Kingdom (1979-80) 2 EHRR 1, para. [31]. When interpreting concepts in the ECHR - such as the meaning of degrading treatment in Article 3, as in Tyrer, or the meaning of the right to life in Article 2, as in Vo v France (2005) 40 EHRR 12 (GC), at para. [82] - the ECtHR looks to identify whether there is any consensus in the domestic law or practice of member states or any relevant development or trend in relevant international instruments which might supply an appropriate standard for judgment regarding the current meaning to be given to the rather open-ended Articles of the ECHR: see also Marckx v Belgium (1979-80) 2 EHRR 330, para. [41]; Goodwin v United Kingdom (2002) 35 EHRR 18, paras. [74] and [84]-[85]; Bayatyan v Armenia (2012) 54 EHRR 15 (GC), paras. [101]-[109]. Further, when assessing the width of the margin of appreciation to be accorded to state authorities in a range of contexts, the identification of common European standards or a clear approach to the issue in other international instruments is a relevant factor as tending to narrow the margin of appreciation (or, if there is no consensus, as tending to widen it): see e.g. Goodwin v United Kingdom; Bayatyan v Armenia; Rasmussen v Denmark (1985) 7 EHRR 371, paras. [40]-[41]; Petrovic v Austria (2001) 33 EHRR 14, para. [38].[101]There are examples of other international treaties which have been taken to inform the proper current interpretation of the Convention rights in the ECHR, such as the UN Convention on the Rights of the Child (see e.g. In re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27; [2011] 2 WLR 1326 at [26]) and the Hague Convention on the Civil Aspects of International Child Abduction (see e.g. Ignaccolo-Zenide v Romania (2001) 31 EHRR 7, paras. [102] and [103]).[102]In principle, a point might be reached when the CPRD has been ratified by sufficient European states, or when sufficient European states have brought their domestic law and practice into line with the standards set out in the CPRD, that the CPRD or the practice flowing from it could be taken to amount to a relevant European consensus to inform the interpretation and application of the Convention rights. Also, though the position is less clear, a point might be reached where the CPRD is taken to be a leading international instrument establishing an appropriate standard against which to judge the conduct of member states of the Council of Europe, as in relation to other international instruments in such cases as Goodwin v United Kingdom, Bayatyan v Armenia and Genovese v Malta (53124/09), ECtHR, judgment of 11 October 2011, para. [44].[103]What is rather unclear at present is whether the CPRD has yet acquired this significance for the purposes of interpretation and application of the Convention rights (or some of the Convention rights). The CPRD was adopted by the General Assembly of the United Nations on 13 December 2006 and came into force on 3 May 2008. The United Kingdom ratified the CPRD on 8 June 2009. The European Union ratified it with regard to those powers within its competence on 23 December 2010. However, a significant number of member states of the Council of Europe have not ratified it, including Bulgaria, Estonia, Finland, Greece, Iceland, Ireland, Malta, the Netherlands, Norway, Poland and the Russian Federation. Others have ratified it only very recently (e.g. Luxembourg on 26 September 2011). Switzerland and Liechtenstein are not signatories to the CPRD.[104]The ECtHR, in recent jurisprudence, appears to be ready to accord some weight to the CPRD when interpreting the ECHR, but its references to the CPRD have not been central to nor determinative of any finding of a violation of the ECHR: i) In Glor v Switzerland (13444/04), ECtHR, judgment of 30 April 2009, a violation of Article 14 taken with Article 8 was found where the applicant had been subjected to a fine or levy because he did not undertake military service, in circumstances where he had been refused permission to do so because he was a diabetic. At para. [53], in its consideration of the admissibility of the complaint, the ECtHR observed that there is a European and universal consensus on the necessity of addressing the treatment of persons suffering from a handicap within the scope of laws on the protection against discrimination, and in that regard particularly noted a recommendation of the Council of Europe parliamentary assembly and the CPRD (perhaps somewhat surprisingly, as the CPRD had not yet been adopted nor come into force at the time of the application and Switzerland was not even a signatory of the CPRD, let alone a state that had ratified it). In the operative part of its reasoning to explain the finding of a violation, however, the Court did not rely on the CPRD. At para. [80], without referring to the CPRD, the Court held that having a physical handicap constituted a “status” for the purposes of Article 14. At para. [84], again without reference to the CPRD, the Court observed that the disabled are a vulnerable group in relation to whom the state’s margin of appreciation to permit differential treatment would be narrow; ii) In Kiss v Hungary (38832/06), ECtHR, judgment of 20 May 2010; [2010] MHLR 245, the applicant sought to rely on the CPRD in support of his case, but the ECtHR did not refer to it in its reasons for finding a violation of Article 14 in the case of a disabled person. At para. [42] the Court identified disabled people as a vulnerable group in relation to whom the state’s margin of appreciation to treat them differently would be narrow. It did not refer to the CPRD in that regard. Similarly, in Seal v United Kingdom (2012) 54 EHRR 6 the applicant sought to rely on the CPRD in support of a complaint under Article 6 of the ECHR, but the ECtHR did not refer to it in its reasons for rejecting that complaint; iii) In Jasinskis v Latvia (45744/08), ECtHR, judgment of 21 December 2010, the Court found a breach of the obligation under Article 2 of the ECHR to carry out a proper investigation of the death of a person in custody in relation to a deaf and mute man who died after being taken into police custody after an incident, because proper medical treatment was not provided to him in relation to an injury received when he fell and hit his head. In its reasons, at para. [59], the Court stated that if the state decides to place and maintain in detention a person with disabilities it should demonstrate special care in guaranteeing such conditions as would accommodate his special needs resulting from his disabilities, and in support of that proposition made compendious reference to its previous case-law and various international instruments, including the CPRD; iv) In Kyutin v Russia (2011) 53 EHRR 26, a case in which a violation of Article 14 taken with Article 8 was found where the applicant had been denied a residence permit on the grounds that he was HIV positive, the ECtHR found that his health status constituted a relevant “status” for the purposes of Article 14 by referring to its own case-law (including Glor v Switzerland) and noting that this approach was “compatible” with that in certain international instruments, including the CPRD: paras. [56]-[57]. However, in its analysis whether the Russian rule to refuse a residence permit to persons with HIV fell within the state’s margin of appreciation, the Court did not refer to the CPRD: see in particular paras. [64]-[67].[105]Domestic authority on the point is still more exiguous. In AH v West London Mental Health Trust and Secretary of State for Justice [2011] UKUT 74 (AAC) the Upper Tribunal (Carnwath LJ) gave a ruling that a hearing before a mental health review tribunal should take place in public, as the claimant patient contended it should. The Tribunal reached that conclusion on the basis of the claimant’s rights under Article 6 of the ECHR, “reinforced by Article 13 of the CPRD”. The judgment is short, and contains no discussion of whether, how or the extent to which Article 13 of the CPRD affected the Tribunal’s interpretation of Article 6 itself. In AM (Somalia) v Entry Clearance Officer [2009] EWCA Civ 634, Maurice Kay LJ made passing obiter reference to the CPRD, amongst other international instruments, at para. [15], in support of the view that disabled persons fall within a suspect category for the purposes of protection under Article 14 of the ECHR (it seems that he was not referred to Glor, para. [84], and Kiss, para. [42], which support that view without the need to refer to the CPRD).[106]In earlier Strasbourg case-law relating to claims under Article 8 for special provision to be made for disabled people to assist them in being provided with support for ordinary living or so as to have access to public facilities to enjoy them in the same way as able-bodied people, the ECtHR has tended not to interpret Article 8 as including such extensive protections: see, e.g., Botta v Italy (1998) 26 EHRR 241; Zehnalova and Zehnal v Czech Republic (38621/97), ECtHR, decision of 14 May 2002; and Sentges v The Netherlands (27677/02), ECtHR, decision of 8 July 2003.[107]In the light of this discussion, I would be very hesitant to conclude that Articles 19 and 26 of the CPRD should be taken to inform the meaning and effect of any of Articles 5, 8 or 14 of the ECHR in the direct and extensive way suggested by Ms Williams. None of the Strasbourg or domestic authorities goes so far as to say that an individual can in substance rely directly on the provisions of the CPRD under the guise of relying on the ECHR Convention rights. Had the issue been critical to my analysis of the position in the present case, then in view of the absence of any clear guidance from the jurisprudence of the ECtHR about the effect of the CPRD and the difficulties referred to above in regarding it as establishing (at this stage in the process of it being adopted and ratified) a clear European or international consensus, I would provisionally have been inclined to take a more cautious approach to interpretation of Articles 5, 8 and 14 of the ECHR, in line with the guidance of the majority of the Supreme Court in Ambrose v Harris [2011] UKSC 43; [2011] 1 WLR 2435.[108]However, in the event, it is not necessary to reach a final view about this. In my judgment, even if the content or application of the Convention rights in Articles 5, 8 and 14 of the ECHR is to be taken to be informed by Articles 19 and 26 of the CPRD, the interpretation of section 47 of the NHSCCA which I have concluded is correct would be compatible with those provisions. Miss Williams’ central complaint by reference to those provisions is that Islington’s failure to carry out a section 47 assessment “is preventing any progression towards the Claimant’s reintegration into the community”. But, as explained above, the obligation of Islington to assist in the MAPPA process in relation to the Claimant’s proposed move to London and its possible obligation in future, if requested by the Parole Board in the way I have outlined, to conduct a section 47 assessment means that there ought to be no prevention of progression of the Claimant’s reintegration into the community by reason of the Parole Board not having access to relevant information about what community care services might be available to the Claimant if he is released.[109]It may, of course, prove to be the case that there are limits to the community care services which might be available to the Claimant if he were released (since his needs will need to be weighed by Islington – and, indeed, by the relevant probation service, which has its own stock of accommodation for use by persons leaving prison - by reference to their limited resources and against what may be the pressing claims of others upon those resources) and other factors relating to risk of re-offending might also carry weight with the Parole Board at the impending review of the Claimant’s case. These will be matters for Islington, the probation service and the Parole Board, respectively, to decide, acting in accordance with their relevant public law obligations.

Conclusion

[110]For the reasons set out above, I dismiss this claim for judicial review. At the same time, however, I give guidance as to what seems to me to be the appropriate way forward to seek to progress the sensible preparation of the case for review by the Parole Board, so as to avoid the impasse which appeared to be developing which led the Claimant to bring these proceedings.[111]The Claimant has made clear his intention to live in London, if possible, if he is released. In my view, therefore, arrangements should be made for an appropriate MAPPA consideration to take place in relation to a possible move of the Claimant to London. In the course of that MAPPA process, it will be incumbent on Islington to provide information about what community care services would be likely to be available to the Claimant if he were released. Islington would not have to carry out a full section 47 assessment for that. There would then be an avenue for the Parole Board to consider the MAPPA proposals and, if it judged it necessary and proportionate to its consideration of the case to do so, to press Islington to go on to conduct a section 47 assessment at that stage.[112]In this way, in my view, a proper and fair balance will be struck between the interests of the Claimant in progressing consideration of his application to be released from prison and the interests of the general community in ensuring that scarce public resources are utilised in an appropriate and effective way.

Cited in 1 later judgment