Y, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 4141 (Admin)

Case No CO/5429/2011[2013] EWHC 4141 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/12/2013
Before
MR JUSTICE FOSKETT
Between
THE QUEENClaimanton the application ofClaimantYClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Charlotte Kilroy (instructed by Birnberg Peirce & Partners) for ClaimantAndrew O’Connor (instructed by The Treasury Solicitor) for DefendantHearing Hearing dates: 12 November 2013
Judgment

Introduction

[1]This case has a chequered history and the background to the application before me has not been without forensic and other incident. However, I will endeavour to focus on what is essential for present purposes. Ultimately, the issues for my decision are quite narrow and both Counsel have sensibly focused on the matters of central concern.[2]It relates to the location of the accommodation in which the Claimant is required to live pending the outcome of other proceedings.

Background

[3]The background in summary is that the Claimant (who was born on 28 October 1969) is an Algerian national whose formal immigration status at present is that he has indefinite leave to remain in the UK, a status he was given in November 2001 after having claimed asylum. However, in January 2003 he was arrested in connection with what became known as the 'ricin plot' and, along with others, stood trial at the Central Criminal Court in 2005 having been remanded in custody pending the trial. He was acquitted at the conclusion of the trial in April 2005, but since September 2005 he has been the subject of deportation proceedings under the Defendant’s Deportation With Assurances (DWA) programme. His deportation was ordered on the basis that it would be conducive to the public good for reasons of national security. That deportation order is still the subject of challenge in the sense that the most recent rejection of his appeal against the deportation order by the Special Immigration Appeals Commission (‘SIAC’) is the subject of a renewed oral application for permission to appeal in the Court of Appeal in January 2014. I was told by Ms Kilroy that if that application fails, the case will be taken to the European Court of Human Rights. It should be emphasized that this application has nothing to do with the merits or otherwise of those proceedings.[4]Following the making of the deportation order he was initially detained, but as from 16 December 2005, by virtue of a decision of SIAC, he was released on bail on strict conditions. He then lived at a property he had found. In August 2006 his bail was revoked a few days before his first appeal against the deportation order was dismissed by SIAC. In an open judgment dated 29 September 2006, SIAC upheld the decision to revoke bail for reasons which could only be given in any detail in a closed judgment. Further applications for bail were refused by SIAC until April 2008. In March that year the House of Lords granted two Algerians in related appeals leave to appeal and on 19 March 2008 the then Secretary of State indicated that he did not oppose the grant of bail to the Claimant on strict conditions and in July 2008 he was released, on stringent bail conditions, to an address on a housing estate on the outskirts of Bedford. The Claimant had contended in those proceedings that he should be located in London because location in Bedford would isolate him. Mitting J, on behalf of SIAC, had rejected that submission for reasons encapsulated in the following passage of his judgment:
“As far as location is concerned, the Secretary of State proposes that he should be housed in Bedford. There are, first, the National Security reasons and policy reasons to which we have already referred, and, secondly, there is the relatively lesser expense and difficulty of housing someone in a town outside London than within London. For [Y] to be housed in Bedford would not … isolate him. He will of course be isolated to the extent that the curfew conditions would isolate him from the world generally, but he would not be isolated from those of his friends who may wish to visit him, or indeed to meet him within the geographical boundary within Bedford which he will be permitted to use.”
[5]The Claimant remained of the view that the accommodation in Bedford was inappropriate and in October 2008 launched judicial review proceedings of the then Secretary of State’s refusal to find an alternative address in Bedford or elsewhere on the grounds that it represented a disproportionate interference with his rights under Articles 8 and 9 ECHR. Reliance was placed upon the isolation he experienced against the background of certain mental health problems to which I will refer in more detail below (see paragraph 28). The substantive application was considered by Mitting J on 17 December 2008 when he sat as an Administrative Court Judge in relation to the judicial review claim and as Chairman of SIAC in relation to an application to vary the bail conditions. In relation to the procedure he said this:
"The only means by which the location of his accommodation can be challenged is by judicial review. The Commission has no power to direct the Secretary of State to accommodate an individual at any particular address. All it can do is to set bail conditions which require an individual to reside at a particular address. It lacks both the jurisdiction and the capacity to identify an address not identified by either the Secretary of State or the appellant."
[6]I do not understand that assessment of the legal position to be in dispute.[7]In relation to the merits of the application, in rejecting it he said this:
“6. I deal first of all with the claimant’s challenge to the Secretary of State’s decision to accommodate him elsewhere than in his present accommodation. Her decision is based, in part, on national security grounds and, in part, on the proposition that the accommodation is in principle adequate for him so that there is no legal error or want of proportionality in the decision to accommodate him there rather than elsewhere. 7. As far as national security grounds are concerned, the Secretary of State is entitled to take the view that it is necessary that he should be located at a town distant from his former associates where the opportunity to re-engage with them will be difficult. The reasons for that are set out in the closed national security judgment on his appeal and in particular in the closed judgment given in August 2006 when bail was revoked. 8. I am satisfied that the Secretary of State and I can properly take into account those matters, notwithstanding that they have not been disclosed to the appellant - for the reasons which the Commission set out in its recent judgment on the decision to revoke the bail of Mohammed Othman. 9. As far as the decision of the Secretary of State to maintain his accommodation at the present address goes, it is in my judgment within the range of responses which the Secretary of State can give to the difficulties which he faces. With appropriate adjustments his circumstances can be sufficiently alleviated to afford him adequate access to amenities and to a mosque and to alleviate the stress imposed upon his mental state. In those circumstances the decision to maintain his present accommodation can neither be criticised as irrational nor disproportionate.”
[8]Although the Claimant’s application for judicial review was refused, in his capacity as Chairman of SIAC Mitting J increased the Claimant’s bail boundary so as to include access to a swimming pool, a cake shop and a library. In relation to these matters Mitting J said this:
“10. These will, in my judgment, represent a significant improvement on his current conditions. They will not go the whole way towards that which [is considered by the consultant psychiatrist who had prepared a report to be] necessary to procure an improvement in his mental state, namely the provision of opportunities for more meaningful and frequent social interactions and recreational or occupational activities, but they are a start.”
[9]That is how matters stood at the end of 2008. The Claimant’s position, informed by the views of his medical advisers in particular, was that the location of his accommodation continued to be unsatisfactory notwithstanding the steps taken by Mitting J and that the location of the accommodation contributed to the continuation and worsening of his mental and physical condition. Those views prompted a good number of applications for variation of the bail terms over the next 12 months or so. In short summary, variations were granted to permit the Claimant to visit Bedford town centre and to allow him to meet cleared visitors (i.e. those who have permission from the Secretary of State to visit the Claimant in his home) outside his bail boundary including in London. From June 2009 the Claimant was permitted fortnightly visits to Bedford Town Centre during his afternoon three hours out of curfew. At a hearing on 15 June 2009, which dealt with a number of matters concerning the bail conditions, Mitting J is recorded as making the following observation:
“… I at least understand how being kept in a small flat in a town unknown to him until he was sent there on the outskirts for a man with mental problems ought to be alleviated if it can be.”
[10]The visits to Bedford Town Centre were increased to weekly visits from October 2009.[11]On 18 January 2010 Mitting J (again in his role as Chairman of SIAC) had a number of applications to consider involving four individuals including, in relation to the Claimant, his bail conditions. The issue of the location of his accommodation was raised again. In advance of that hearing the Claimant’s solicitors wrote to the Defendant on 12 January 2010 putting forward two alternative bail addresses, one in London, owned and occupied by a Mr Tim Wardle, where the Claimant had previously lived when on bail in 2006, and the other a commercially let property in central Bedford in respect of which a swift response was requested because it was advertised for let. The Defendant was also invited to state, in the event of his objecting to either or both properties, “whether the objection is to the particular properties or to the areas” and, if it was the former, to confirm that there was no objection in principle to the Claimant being housed in certain specified postcodes areas.[12]There was no response to that letter before the hearing on 18 January and Mitting J sought information from Counsel then representing the Defendant on his attitude. The position is revealed by the following interchange which followed a question from Mitting J as to his (the Defendant’s) attitude to the two suggestions made in the letter of 12 January. “COUNSEL: Any suggestion for a new address is opposed on the grounds that the Secretary of State’s position is that the current address is suitable to meet all his requirements and needs. MITTING J:That is a slightly unhelpful answer. If, for example, the address nearer the town centre of Bedford was suitable from all points of view, other than the fact that it was not where he is at the moment and it may be inconvenient to cause him to be moved, then why shouldn’t he live there? COUNSEL: … the first address … is Mr Wardle’s address MITTING J: … As I understand the position, he was deliberately moved to Bedford so that(a) it was out of London and(b) it was not Luton. The address in Bedford has caused long running problems because it is in an isolated area in a north-eastern suburb. In principle, an address nearer to the middle of Bedford where he would be less isolated would preserve the advantage of it not being Luton or London, although bringing him nearer to travel facilities might cause a problem, I suppose. But merely to say that the present address is suitable, no, we are not going to consider any other is not a helpful way forward. COUNSEL: I appreciate that. That is the starting position ….” COUNSEL: … the first address … is Mr Wardle’s address COUNSEL: I appreciate that. That is the starting position ….”

COUNSEL: … the first address … is Mr Wardle’s address

[13]There was further discussion which included an acknowledgement by Counsel for the Defendant that the new Bedford address “[had] not been sufficiently investigated at present”. Shortly after this the following interchange took place: MITTING J: A certain amount has been done to alleviate the social isolation to which he would otherwise be plunged, but it can only go so far and, as we are all aware, it causes endless applications for me to deal with and if the other address nearer to the centre of Bedford is accepted as suitable, it may be that some of these problems will be alleviated and goodness knows how long the problems are likely to endure. There could be anything from the, I hope, short time between now and the final determination in the Court of Appeal of the two grounds of appeal that have been permitted in his case or it may be much longer down the line, possibly after the Secretary of State has made a deportation order and taken action upon bail which he is entitled to under the statute and the case goes to Strasbourg, we just do not know. It may be quite a long time that we have to deal with Y’s accommodation in Bedford or wherever it may be. If we can reduce the problems both for him and arising out of his problems the better. COUNSEL: Can I just perhaps rephrase what I was saying at the beginning which is this? The Secretary of State’s position is that he is adequately accommodated. This is a point that was made to this Commission on 12 December 2008 during the course of those judicial review proceedings. Sir, you asked the question on that occasion what is the reason for declining to look for alternative accommodation for him in Bedford, and the response then is really the same response as now as to why we are resistant to any such move. It is this. The policy reason was that the Secretary of State provided accommodation which he still considers to be suitable stands and the Secretary of State is resistant to setting a precedent to those who may dislike their present accommodation but may not need to move. Sir, that remains the point. MR JUSTICE MITTING: I am not overly impressed by that as a reason. It is up to him to propose alternatives. The Secretary of State cannot be forced to find other accommodation for him, but he has put forward a proposal and, if it is in all other respects suitable, then it may alleviate the difficulties in which he finds himself and which he causes to everyone else. COUNSEL: Sir, perhaps I will say no more than there is a resistance to devoting public resources to considering the suitability of an address when the suitability of his present address is not questioned by the Secretary of State. I hear what the Commission says. MR JUSTICE MITTING: The location, Bedford, has been identified by the Secretary of State as being a suitable town in which he can live. I am not at the moment asking that the address in London is separately investigated unless it is thought to be an easier task. If Bedford is a suitable town in which he can live, then all that needs to be looked at [are] the circumstances affecting this particular property.”[14]At a later stage Mitting J said this:
“MITTING J: Let me set out the position. Y is undoubtedly socially isolated where he is. Hence the large number of applications with which I have had to deal over the months. If his social isolation can be alleviated by moving him to an address nearer to facilities in the centre of Bedford and there is no objection to that, in principle, then we may be able to alleviate his social isolation and should do so if it can be done without significant risk to national security. It can only be achieved if everyone cooperates and there is a certain amount of mileage in it for the Secretary of State, because you may be bombarded with fewer applications. They are running about one every two days at the moment…and it will assist us all if they diminish somewhat. That is all I can do at the moment.”
That is all I can do at the moment.”[15]The order made by Mitting J on this occasion was that the Defendant should investigate the suitability of the proposed new Bedford property by 1 February 2010 and to report its suitability to the Claimant’s solicitors and SIAC by 10.00 am on 1 February 2010. If it was acceptable then the bail conditions would be varied to substitute that address for his then address. The Secretary of State was also invited by SIAC to say whether an address in any of the postcodes identified in the letter of 12 January “would be unacceptable for generic reasons” – in other words, whether there would be any objection in principle.[16]On the day following the hearing the Claimant’s solicitors wrote to the Treasury Solicitor indicating that since the Claimant was in receipt of Income Support and that the proposed new Bedford property could be held for 14 days only on the payment of a deposit of £135, he could not afford to fund that payment.[17]On 2 February the Treasury Solicitor wrote on the Defendant’s behalf to SIAC in the following terms:
“The Secretary of State has no objections to the suitability of [the new property in Bedford]. However, he would wish to point out that any boundary will not incorporate Bedford Town Centre. Y’s representatives informed the SSHD that Y would not be providing the deposit to keep this property available. The Secretary of State maintains that the responsibility to source suitable bail accommodation should remain with the SSHD and on this basis would prefer for Y to remain at his current address. In line with SIAC’s order, the Secretary of State is not required to comment further on the other proposed postcodes as he is content with the suitability of the [new address].”
[18]There was further, somewhat inconsequential, correspondence thereafter until on 4 May 2010 the Claimant’s solicitors wrote to the Treasury Solicitor explaining that ways of sourcing potentially suitable properties in Bedford had been investigated but had come to nothing because the Claimant could not afford a deposit. It was stated that he wanted to pursue relocating to London because of the continued difficulties of living at the Bedford address with the effect that his continued social isolation was having on his mental health. Reference was made to the expense that his cleared visitors had to incur to visit him. The letter asked for more detail on the objections to Mr Wardle’s address and the previously specified postcodes. The letter also questioned why the policy of dispersal from London that was applied two years previously was still considered necessary in the Claimant’s case when other single Algerian SIAC detainees had more recently been bailed to addresses in London.[19]By a letter dated 19 May 2010 the Treasury Solicitor on behalf of the present Secretary of State declined to provide any further detail on her objections to the London postcodes that had previously been identified and asserted as follows:
“Your application to reside in London appears to seek to rerun many of the arguments that were before SIAC in January and rejected. Following that hearing the Secretary of State agreed to a significant increase in the size of the boundaries and the facilities available to your client which, she considers, went a significant way to addressing the concerns of both your client and the Commission. We also note that [your] client currently receives considerable support from the local mental health team, something he would no doubt lose if relocated to London.”
[20]It is a fair point made by Ms Kilroy that the Claimant had not made any specific arguments about relocation to London before SIAC at the hearing in January or that there was any increase in the size of the Claimant’s boundary after that hearing. The only increase in the facilities available to him since this date was that once a week he was permitted when going to the mosque to go to a bookshop near the mosque. Nonetheless, the Defendant’s position was clear – she was not proposing to accede to the suggestion that the Claimant should move to London.[21]On 20 May 2010 SIAC directed the Defendant to provide a detailed statement setting out her objections to the specified postcodes and the Claimant, if he wished to move to Mr Wardle’s home, to produce a statement explaining why the previous arrangement at this address had broken down and Mr Wardle to produce a statement to like effect and also to confirm that he was willing for the Claimant to stay with him for up to two years.[22]The Defendant complied with the order. Mr Wardle, however, could not confirm that he could accommodate the Claimant for up to two years and as a result the Claimant’s solicitors contacted the London Borough of Islington, which owed him a housing duty under section 193 of the Housing Act 1996 (because one of his previous bail addresses had been within the Borough), asking it to provide an address for him. Over the next few months Islington LBC did put forward certain addresses, none of which, for various reasons, proved to be either suitable for the Claimant or acceptable to the Defendant. The Defendant’s general attitude, however, is to be found in the following passages in two letters sent during the sequence of correspondence that ensued. In a letter dated 18 October 2010 the following paragraphs appeared:
“With regard to your client the SSHD strongly believes that Bedford, his current place of residence, meets your clients need whilst minimising the risk to national security. It is noted that he has strong support from the local medical services and is enrolled on an educational course, positive factors that would not be immediately available to him if he moved to London. … In light of the above and for the reasons previously given in the statement served on 12 July 2010 the SSHD maintains the view that Y should remain at his current residence.”
[23]After further representations were made by the Claimant’s solicitors, to which it is unnecessary to refer in detail, the Treasury Solicitor said this in a letter dated 14 December 2010 replying to a letter dated 3 December 2010 which, amongst other matters, raised a specific address in London, found by Islington Borough Council, as a place to which the Claimant might go which was close to one of his principal cleared visitors and close to his previous GP’s surgery (both factors, it was said, were of importance when he was “experiencing increased epileptic fits”):
“… The Secretary of State considers that your client’s current residence and bail conditions minimise the risk to national security and absconding whilst providing your client with suitable accommodation and facilities. You have failed to put forward any compelling reason why your client need move from his current accommodation. Therefore … my client does not believe it is necessary to seek to enter into a discussion on the address proposed by yourself or other addresses in the future.”
[24]This certainly appeared to constitute a refusal by the Defendant to countenance any move from the address in Bedford about which the Claimant had been complaining for some considerable time and about which Mitting J had expressed concerns (see paragraphs 13-14 above). The reply did not mention his epilepsy, but there was no up-to-date medical evidence available at that time.[25]On 28 March 2011 the Claimant’s solicitors wrote to the Treasury Solicitor asking the Defendant to propose a property in London herself or to fund the provision of deposit on properties proposed by the Claimant whilst security checks were carried out on any such property. The letter raised other matters concerning the powers under which the Defendant was acting when providing the accommodation in which he was housed.[26]The letter alleged breaches of his Article 8 rights and the first two points relied upon in this context were expressed as follows:
“(1) Due to his restrictive bail conditions your client exercises an extraordinary level of control over every aspect of our client’s life. He is effectively in solitary confinement for much of the day and unable to engage with the outside world still less earn a living. (2) In the exceptional circumstances of his case, which include not only the restrictive conditions to which he is subject but also his long standing mental health issues, the location of his bail address, which is currently on a housing estate on the outskirts of Bedford, is capable of significantly exacerbating or alleviating the impact of his bail conditions on his private life.”
[27]The substantive reply to that letter was by means of a letter dated 5 May 2011. It took issue with a number of the assertions made in the Claimant’s solicitors letter and said this in relation to Article 8:
“In essence it appears that you allege a breach of Article 8 because your client is located in Bedford whereas a number of persons who have sought to spend time with him live in around the London area. We do not accept that you have established that his relationship with cleared visitors establishes a private life for the purposes of Article 8. Even if it was considered that your client’s relationships with these visitors amounted to private life for the purposes of Article 8 any interference due to your client’s current location in comparison with an alternative bail address would be minor and not amount to a breach. We do not accept any of the breaches you allege, moreover most of your assertions are either factually incorrect or made without supporting evidence. I apply your numbering in the response to each issue you raise. 1. Your client is free to leave his property during his non curfew hours which now amount to 8 hours a day, he attends his local mosque, has engaged in sporting activities and attended training sessions at a college. His bail conditions do not prevent him from taking employment although he must obtain the prior authority of the Secretary of State to do so. 2. It is unclear what your client finds so “exacerbating … the impact of bail conditions” about Bedford but we do not accept that requiring your client to live at his bail address amounts to a breach of Article 8. 3. The only interference you have identified is the lack of proximity your client has to his cleared visitors, we do not accept that those facts create an intensity of interference that you say exists.”
[28]That exchange of letters provided the backdrop to the judicial review application that was launched on the Claimant’s behalf on 13 June 2011. That application was supported by a detailed 10-page report from Professor Michael Kopelman (Professor of Neuropsychiatry, Consultant Neuropsychiatrist and Chartered Psychologist) of the Academic Unit of Psychiatry at St Thomas’ Hospital. He is plainly a very distinguished neuropsychiatrist and had available to him a great deal of background material, including previous medical and psychiatric reports. He saw the Claimant on 9 April 2011. I need not, for present purposes, do more than quote what Mitting J said about that report when he granted permission to apply for judicial review at a hearing on 13 July 2011. He said this (referring initially to his own efforts to make the Claimant's life easier):
“5. There is now clear evidence that those efforts have not succeeded. A report from Professor Kopelman … of 3 June 2011 describe Y's circumstances in unmistakable terms. The picture painted is somewhat worse than that painted by medical reports which I had in December 2008. He suffers from complex partial seizures, which now require the taking of a high dose of carbamazepine. He suffers from a depressive disorder, which on the Beck depression scale, signifies a very severe degree of depression. He suffers from post traumatic stress disorder. He has also recently received a provisional diagnosis of angina, which is potentially life-threatening and sensitive to psychological stress. Apart from the angina, all of these conditions were present in 2008, but the epilepsy has worsened, as has the depression. 6. In Professor Kopelman's opinion: ‘[Y's] depression, post-traumatic stress disorder and his preoccupation with his various physical and psychological symptoms are, in my view, greatly exacerbated by his social isolation. He was previously a sociable man and he complained to me that the few visitors he is allowed are now elderly people who have difficulty visiting him in Bedford. [Y] believes that it would be much easier for them to visit him if he were moved back to London and he would then be able to resume some kind of useful occupation such as attempting to attend College. I believe that this would lead to a partial amelioration of [Y's] psychological symptoms, with benefit to his physical illnesses, including angina and asthma, which are known to be very sensitive to psychosocial stress.’” ‘[Y's] depression, post-traumatic stress disorder and his preoccupation with his various physical and psychological symptoms are, in my view, greatly exacerbated by his social isolation. He was previously a sociable man and he complained to me that the few visitors he is allowed are now elderly people who have difficulty visiting him in Bedford. [Y] believes that it would be much easier for them to visit him if he were moved back to London and he would then be able to resume some kind of useful occupation such as attempting to attend College. I believe that this would lead to a partial amelioration of [Y's] psychological symptoms, with benefit to his physical illnesses, including angina and asthma, which are known to be very sensitive to psychosocial stress.’”
[29]It was against that background that Mitting J gave permission to apply for judicial review of the Defendant’s decision not to re-consider the location of where the Claimant should live. He expressed himself thus:
“7. As is apparent from that brief recitation of the history and Professor Kopelman's opinion about Y's current condition, the situation has changed since I last considered his case and since the Secretary of State's decision to require him to remain at the Bedford address was upheld by me in the earlier judicial review challenge. It seems to me to be at least arguable that the Secretary of State should retake the decision about where Y should live in the light of those new factors. In summary, that despite the measures that have been taken by me as President of SIAC to alleviate social isolation, his social isolation has not been materially alleviated and his health, both psychological and physical, has deteriorated, and the risks to his health resulting from social isolation have increased. 8. The Secretary of State has not retaken her decision in the light of those factors; indeed, a letter of 14 December 2010 to the claimant's solicitors suggests that further consideration to such matters need not be given at all. 9. From the factors which I have identified, it is obvious that the right to respect to private life of Y is in issue here. For all of those reasons, it seems to me that the claimant has at least an arguable ground of challenge that the Secretary of State's decision to continue to maintain that his current address is suitable is legally erroneous, principally because it does not take into account the developments which I have identified, but also, arguably, because it may not now be a rational or proportionate response to the manifold problems which Y's situation creates.”
[30]Mitting J also said this to Mr O’Connor, who was representing the Defendant on that occasion:
“Mr O'Connor, I am not going to prejudge the outcome because I expect to be hearing the claim if it proceeds to a full hearing, but I think the time has now come to reconsider Y's circumstances, and if there is a short circuit available it would, I think, be in everybody's interest if it was taken now rather than at the end of a process of litigation.”
[31]Although the view expressed was, of course, provisional, the message to the Defendant was, if I may say so, unmistakable. It needs to be remembered that Mitting J had had effective control of the proceedings involving the Claimant for several years by then. There was a debate about whether there should be expedition of the substantive application. In view of an indication from Mr O’Connor that there was “at least the possibility that we will wish to obtain our own medical evidence”, Mitting J decided not to order expedition, but he did reserve the matter to himself and, at that stage, anticipated hearing the substantive application on “a day in the first week in October”.[32]In a letter dated 10 August 2011 the Treasury Solicitor indicated that, in the light of Professor Kopelman's report and Mitting J’s observations, the Defendant was proposing to relocate the Claimant “to an address in the South East that would enable his cleared visitors to visit him on a more regular basis.” The expressed intention was to ask the London Borough of Islington first and if no suitable property emerged “alternative arrangements” would be made. The letter invited a withdrawal of the judicial review proceedings and indeed on 17 August 2011 the Defendant issued an application for a stay of the proceedings pending the Claimant’s relocation on the basis that the proceedings were “unnecessary”.[33]A good deal of correspondence then ensued in which the Claimant’s solicitors emphasised the need for, as they argued, and served further evidence in relation to, his relocation to London.[34]In the midst of this correspondence, the Defendant served her Detailed Grounds of Defence which, so far as material, were in the following terms:
“5. The Secretary of State’s position is that she is not required as a matter of law to effect and/or facilitate the Claimant’s move away from Bedford. The Claimant has lived at his current address in Bedford since his release on bail in 2008. Previous judicial review proceedings brought by the Claimant challenging the Secretary of State’s refusal to move him away from Bedford were unsuccessful, the Court holding that the decision not to move him did not amount to a disproportionate interference with the Claimant’s Article 8 rights. The Secretary of State contends that this remains the position (and, similarly, does not accept that such a contention amounts to any unlawful breach of policy or irrationality). As a result of those previous judicial review proceedings, the Secretary of State took steps to widen the boundary and increase the facilities available to Y at the direction of the court. 6. However, the Secretary of State does accept that Professor Kopelman’s recent report amounts to compelling fresh evidence as to the Claimant’s particular position in Bedford. The Secretary of State has carefully considered this report. She has further taken careful note of the indications given by Mitting J at the permission hearing on 13 July 2011. In the light of these matters, the Secretary of State has decided to facilitate and/or effect the Claimant’s move away from Bedford to a new residence in the South East of England that will enable his cleared visitors to visit him on a more regular basis. Those acting for the Claimant were informed of this decision by letter dated 10 August 2011 …. Work is currently underway to identify a suitable property. 7. In recent correspondence those acting for the Claimant have sought to insist that the Claimant is relocated to an address in London rather than anywhere else in the South East of England. The Secretary of State’s position in this regard is as follows: (a) If suitable accommodation can be found in London within a reasonable time period, the Claimant will be relocated there. (b) However, if that is not possible, and if a suitable property is identified elsewhere in the South East, he will be moved there. (c) The Secretary of State has well in mind the fact that the main purpose of the move is to make it easier for the Claimant’s cleared visitors to travel to see him. The Secretary of State holds information as to the addresses of these individuals. This information will be taken into account in considering possible new accommodation for the Claimant and will attempt to find accommodation for him (whether inside or outside London) that makes it as easy as possible for these individuals to visit him. (d) There is nothing in Professor Kopelman’s report that suggests that the Claimant’s health would improve from a move to London per se. The thrust of the report is that the Claimant’s health would improve if he were moved to accommodation that is easier for his cleared visitors to visit him at. As set out above, relocating the Claimant to accommodation that meets that criterion is what the Secretary of State is seeking to achieve.”
[35]The Claimant was not prepared to regard the claim as “academic” because the Defendant was declining to commit to relocating him in London and because he was seeking a declaration and damages pursuant to the Human Rights Act. A good number of witness statements (including one from the person I have described as his "principal cleared visitor") were served in early to mid-September responding to the matters raised in the Detailed Grounds of Defence. The Claimant's advisers sought a listing of the application for directions in the first week in October. However, this was not possible and Mitting J provided a Note for the parties suggesting a potential compromise route, but saying that (because of his unavailability) the case should be listed for mention before another judge with a time estimate of one hour. It is not necessary to go into details, but the matter was listed before Collins J on 31 October. On the morning of the hearing an address in Watford was suggested by the Defendant. There was a lengthy discussion before Collins J about what had and had not been done and what was or what was not suitable. Collins J made a number of observations, some of which were undoubtedly favourable to the essential position being maintained on behalf of the Claimant, although he recognised some of the difficulties faced by the Defendant. He urged the Defendant to “keep looking”. Since this was a directions hearing only he did not decide the substantive application for judicial review which, therefore, remained pending.[36]The Claimant’s solicitors wrote a letter to the Treasury Solicitor dated 7 November 2011, indicating that Watford and the Watford address did not meet the important consideration of the need for the Claimant’s cleared visitors to be able to visit at reasonable cost and with reasonable convenience. It made other observations about the background and the Defendant’s apparent attitude to re-locating the Claimant. It was suggested that “effective settlement negotiations” could not take place against the background referred to in the letter and indicated that “an urgent listing” of the judicial review claim would be sought in order to “protect [the Claimant’s] mental and physical health”. The claim for damages for the alleged violation of the Claimant’s Article 8 rights was emphasised.[37]That letter appears to have crossed with a letter from the Treasury Solicitor dated 8 November 2011 in which various points were made about Watford as a suitable location. However, the indication on behalf of the Defendant was that the Watford property was withdrawn from consideration and that a property with a North London postcode had been identified as an “alternative property” in which the Claimant can be housed temporarily whilst the search for a permanent property is undertaken.” The letter concluded as follows:
“The temporary property is located at [address given]. The SSHD recognises the concerns raised on behalf of the Claimant at the hearing on 31 October as to the appropriateness of providing a temporary property to an individual in the Claimant’s position. The SSHD considers, however, that temporary residence at the above address is preferable in the circumstances to the Claimant’s continued residence at his current address. We would therefore invite you to agree to stay of these proceedings pending the identification of a permanent property for your client, and that in the meantime your client would be re-located to the above temporary property ….”
[38]The location appeared to address most, if not all, of the concerns that had previously been expressed on his behalf and it was within easy reach of his principal cleared visitor. The Claimant was prepared to accept the address proffered. However, he was not prepared to agree to the resolution of his judicial review claim on terms which left open the possibility that he might be housed outside his proposed boundary. That boundary was delineated in a map of the South East of England, but confined to an area of London which can broadly be described as following a northern boundary embracing Brent, Wood Green and Chingford, an eastern boundary of Waltham Forest and Newham, an area to the south as far as West Norwood and then a broad western boundary embracing Clapham, Hammersmith and then back in a northerly direction to Brent. (The area the Secretary of State had indicated that she might consider was a much wider area of south east England embracing a large irregularly shaped quadrilateral with Chesham, Epping, Chevening and Reigate being the approximate locations of its four corners.) The Claimant’s area had been chosen as representing an area within which it would be possible for most of the Claimant’s cleared visitors to visit him without unreasonable inconvenience.[39]By a letter dated 18 November 2011 the Claimant declined to agree the draft consent order proposed by the Defendant in the following terms:
“We refer you to our letter of 7 November 2011 and the terms in that letter which are those on which we are prepared to settle this matter. Our position remains as stated in that letter. Your client has provided no defence to the claimed violation of Article 8 on which our client has been granted permission and her explanation of what she has been doing in order to achieve the relocation of our client since permission was granted on 13 July 2011 confirms that the delay in his relocation which occurred until we requested an urgent hearing on 31 October 2011 is completely without justification. Further your client has not given any explanation as to why she is not prepared to commit to relocating our client within the area we have suggested.”
[40]The terms referred to in the letter of 7 November 2011 proposed that the Defendant should(i) admit liability for the violation of the Claimant’s Article 8 rights and to pay damages under the Human Rights Act 1998,(ii) agree to relocate the Claimant to an address within convenient reach of his cleared visitors and within the area he has proposed within two weeks and(iii) to pay the Claimant’s costs on an indemnity basis.[41]That was not agreed by the Defendant, but, as I have indicated, neither was the proposed consent order suggested by the Defendant agreed to by the Claimant. I have been shown an e-mail from Mr Ronnie Graham, who has conduct of this case within the Claimant's solicitors, to the Administrative Court Office dated 8 December 2011 indicating that he had received no substantive response from the Defendant to that final letter and invited the listing of the application in January 2012. That did not occur and, for reasons that are not entirely plain, the application was not listed until the hearing before me on 12 November 2013, the court having given notice of that hearing date to the parties in mid-October 2013.[42]I will return to recent matters shortly, but there matters stood. As a matter of fact in late November 2011 the Claimant did move into the property identified in the Treasury Solicitor's letter (a property which was just inside part of the northern boundary of the area he had proposed) and has remained there ever since. Until the matters to which I will refer shortly (see paragraphs 43-45), there has been no suggestion that he might have to move even though the address was said merely to be temporary (see paragraph 37 above). The most recent bail order made by SIAC was made on 22 May 2013 and its principal condition was a condition of residence at the Claimant's present address and, as Mr O'Connor said in his Skeleton Argument dated 8 November 2013, the "address became his long-term accommodation."[43]Notification of the hearing before me was given to the parties in mid-October and on 14 October 2013 the Claimant's solicitors invited the Treasury Solicitor to confirm that the Defendant would accept the current address as the permanent address. On 24 October 2013 the Treasury Solicitor replied on behalf of the Defendant indicating that they were "unable to confirm" that the address could be regarded as his "permanent address". The reason for this was said to be the possibility of future changes of circumstances. The reasons given were as follows:
“… you will appreciate that your client’s current accommodation is a rental property currently leased from a commercial landlord through a property provider. If the landlord determined that the lease should end then, save for the normal notice periods, my client would be required to give up the current property and your client would face a move to a different property. Similarly my client may, in the future, be required to source properties through a different property provider than is currently contracted and if that is the case it may be that the current property would not be available to any new provider and a new property would have to be sourced for your client. Furthermore, given the national security concerns that surround your client there may be an operational need to re-locate your client to a different property. Nevertheless, given my client’s stated position within the Detailed Grounds of Defence, a copy of which I attach for ease of reference, any future move, if necessary, would take into consideration the points set out in paragraphs 7 of the Detailed Grounds, if they remain valid. Given my client’s position as set out above and the length of time your client has lived at this current address it is clear that your claim for judicial review has now become academic and we will invite you to now withdraw the claim before unnecessary costs are incurred in preparation for the imminent substantive hearing.”
[44]The Detailed Grounds of Defence contained within the letter of 24 October 2013 were those settled by Mr O'Connor in September 2011 and referred to in paragraph 34 above. Those grounds (particularly at paragraph 7) referred to the possibility of relocation in the South East generally. Given the history, it was to be anticipated that the Claimant would not be satisfied with the proposal in the final paragraph of this letter. His solicitors replied on 30 October 2013 making the point that the current address could not now be regarded as "temporary" and made the following proposal:
“ … we propose that order is amended to reflect the reality of the Claimant’s current circumstances, namely that he has now re-located to [the North London address] and has lived there for almost two years. The fact that in the future circumstances may change, as your client suggests in her letter, is no reason for failing to recognise that, in the absence of those changed circumstances, this is his permanent address.”
[45]No letter responding to that letter emerged until a letter dated 7 November 2013 was received by the Claimant's solicitors, two working days before the hearing. In relation to the address where the Claimant had been living the letter read as follows:
“There seems … to have been some misunderstanding on this issue. The purpose of my letter of 24 October 2013 was simply to point out that since the accommodation where the Claimant lives is leased by a property company on behalf of the Secretary of State, and since the Claimant is a SIAC bailee in respect of whom there are continuing national security concerns, it was possible that it might become necessary for the Claimant to be re-located at some such stage in the future. Since writing that letter, it has in fact become apparent that it will be necessary to re-locate the Claimant at some time in the coming months. The search is now underway for alternative accommodation for him. My clients are attempting to find such accommodation in north London, preferably close to the Claimant’s current address. You will of course be informed once new accommodation has been arranged.”
[46]Again, hardly surprisingly, given the background to which I have referred, this provoked a strongly-worded response from the Claimant's solicitors of the same date. The letter confirmed that the substantive hearing would proceed and the suggestion made on behalf of the Defendant that the damages claim should be adjourned for further evidence and directions was rejected.[47]The next step in the process was the lodging on 12 November 2013 by Mr O'Connor of his Skeleton Argument for the hearing which contained the following paragraphs of relevance to the issue of accommodation: "6. The Claimant is one of a number of SIAC appellants who live (under stringent bail conditions, owing to national security concerns) in bail accommodation specially provided for the purpose by the Secretary of State. It occasionally becomes necessary for individual appellants to be moved from one address to another. Such moves take place for a number of reasons, including, for example, commercial issues relating to the availability of rental property and operational concerns relating to national security. Where possible and/or appropriate, appellants are provided with notice of such a change. 7. As stated in the Treasury Solicitor’s letter of 7 November 2013, a decision has very recently been taken to move the Claimant to new accommodation. For the avoidance of doubt:a. The move is not imminent.b. In searching for new accommodation, the Secretary of State has well in mind the particular features of the Claimant’s case, including his mental health issues and the desirability of him being accommodated within a reasonable distance of his cleared visitors.c. It is hoped to move the Claimant to another address in the same area – i.e., North London.d. No new address has yet been found; when it has, the Claimant will be given details. 8. The fact that the Secretary of State has been obliged to begin searching for new accommodation for the Claimant so shortly before this hearing was a complete coincidence. The Claimant was told about the decision because the question of the ‘permanence’ of his current accommodation had been raised. Ultimately, however, this matter has no direct bearing on the present claim, which is concerned with the lawfulness of the Claimant being accommodated in Bedford in 2011, and his move to London in the same year." a. The move is not imminent. b. In searching for new accommodation, the Secretary of State has well in mind the particular features of the Claimant’s case, including his mental health issues and the desirability of him being accommodated within a reasonable distance of his cleared visitors. c. It is hoped to move the Claimant to another address in the same area – i.e., North London. d. No new address has yet been found; when it has, the Claimant will be given details.[48]Ms Kilroy lodged a further Skeleton Argument the day before the hearing before me. She asserted, with undoubted justification, that the letter from the Treasury Solicitor came as a complete surprise to the Claimant and his legal team. Indeed she and Mr O'Connor had spoken on 6 November 2013 and Mr O'Connor was unaware that this was the position.[49]Very quickly the Claimant and his principal cleared visitor prepared witness statements. The Claimant indicated that he had settled into the accommodation and that he was near to things he needed, particularly the medical and psychiatric support that was required. His cleared visitors had been able to visit him such that he sees people two or three times per week and he sees his principal cleared visitor at least once a week. He has access to a mosque and uses the local library. He says that since he moved two years ago he has felt more “normal and less depressed”, having felt lonely and depressed in Bedford. The receipt of the news of a possible move made him feel anxious and stressed. His principal cleared visitor, who saw him when he was in Bedford, said in his witness statement that he has noticed how much happier the Claimant has been since the move and confirms that the present address is such that he can see the Claimant regularly.

The issues

[50]It has been important to set out the history of what led to the hearing before me in some detail. Although the judicial review claim was brought initially to challenge the decision of the Secretary of State not to consider further a move of the Claimant from Bedford to London, Ms Kilroy submits that, in a sense, that issue is still alive notwithstanding that the Claimant has since then lived in London for nearly two years. The threat of being moved away from London into some other part of the South East of England generally still exists notwithstanding the contents of the letter referred to in paragraph 45 above and the contents of Mr O’Connor’s Skeleton Argument. Mr O’Connor still adheres to the position taken by the Defendant in November 2011 that the claim had by then become academic and he also submits that recent events concerning the possibility of a move from the Claimant’s present accommodation “has no direct bearing on the present claim”.[51]I did not, however, understand Mr O’Connor’s submission to be to the effect that I should not express views about the current position even if he were right in the contentions to which I have just referred. If he had done so, I would have regarded the submission as far too technical in the circumstances. Given the extensive history in this matter, it would be unrealistic of the court to wash its hands of the issues between the parties in relation to the question of accommodation. I do not consider I should do so.[52]Ms Kilroy has a fair point that the Secretary of State has not served any witness evidence in connection with the recent decision made in relation to the Claimant and concerning the change of housing provider to which reference has been made. However, if it is the case that these considerations have arisen only very recently, it is understandable why that should be so. Mr O’Connor has not sought an adjournment to put in evidence and I must plainly deal with the issues before me on the material I have. Equally, I do not have any up-to-date expert evidence about the Claimant’s physical and mental condition. Again, the whole issue of a potential move was not known until a few days before the hearing before me and it is understandable why it has not been possible to commission an up-to-date report in relation to those matters. The only evidence I have is that referred to in paragraph 49 above. However, given the views of Professor Kopelman expressed two years ago (namely, that a move to London would produce a partial amelioration of the Claimant’s problems) it would be an obvious inference that the move to London has had a beneficial impact, at least to that effect. I must approach the present situation on that basis.[53]I will return to the present position when I have addressed the challenges made to the Defendant's position in late 2010 through to November 2011 which formed the principal focus of Ms Kilroy's submissions. She asserts that the Defendant's position represented a breach of her own policy, was irrational and constituted a disproportionate interference with the Claimant's Article 8 rights. In relation to that final matter, she seeks damages.[54]One challenge originally mounted was that the Defendant had no published policy. Mitting J refused permission to rely on that ground. There is no published policy, but it is, I understand, common ground that the approach outlined in the Summary Grounds of Defence dated 5 July 2011 represents effectively the policy. The relevant parts read as follows: "14. The provision of bail accommodation by the Secretary of State in SIAC cases always follows a ruling by the Commission granting bail. Once the decision has been made in principle, it is usual for a dialogue to take place between the Commission, the Secretary of State and those representing the appellant in question relating to the setting of bail conditions. 15. The Secretary of State’s primary concern in making decisions as to the provision of accommodation in SIAC bail cases (both at the initial stage when bail is first granted and in dealing with subsequent requests for variations) is to minimize the national security and abscond risks posed by the appellant in question. This includes consideration of specific national security concerns linked to a particular area or location and the links or infrastructure that could aid in an abscond attempt. Such concerns may be more or less relevant depending on the particular facts of the individual case. 16. A number of other issues may also be considered by the Secretary of State in making decisions regarding the provision of accommodation to an individual appellant. These considerations may be summarised as follows:a. Resource implications, such as the cost of accommodation and issues relating to the monitoring of the individual at a particular location, including the availability of a UKBA team to undertake this task, the response time of that team and whether its members have previous experience of dealing with individuals on SIAC bail.b. The level of police support required to manage the relocation of the individual and the ability of the local police force to provide such support.c. Community issues - including the availability of suitable facilities, for example a mosque, halal shop, etc; any issues of known racial/religious tensions within the proposed area which may involve liaison with the local community policing team.d. Considerations relating to specific residences, including whether appropriate facilities for the individual are available within the proposed boundary area. 17. The extent to which any of the matters listed above are of significance to the choice of accommodation in any particular case will depend largely on the facts of the case. There may also be other case specific considerations, for example the presence of other family members, to be taken into account. 18. The considerations that the Secretary of State takes into account in assessing the suitability of a particular address are regularly discussed before SIAC. The process of setting suitable bail conditions and, subsequently, adjudicating on any requests for bail variations is one that takes place by means of a dialogue between the Commission, the Secretary of State and those representing the appellant. On occasions, it is necessary for the Secretary of State to make closed submissions relating to bail conditions, in which case the special advocate is in a position to respond on behalf of the appellant in question. 19. Once suitable accommodation has been found, in the absence of any change that would impact on the appropriateness of that address, there is a presumption that the individual will not be moved. Any move will impact on the role of the UKBA team and others involved in the management and monitoring of the individual. Monitoring teams will build up an expertise and a relationship with a particular individual. Where there is a team who are well placed to visit, have built up a relationship with the individual and have an understanding of his usual behaviour, there are operational and resource benefits in keeping that team engaged with that individual (rather than handing over to a new UKBA team in another region). Further, it is considered to be an inappropriate use of public resources to move an individual when their current address is deemed suitable. 20. Where an individual proposes an alternative bail address at his own expense or provided by a local authority, consideration will be given to the appropriateness of that address taking into account national security and abscond concerns as well as, where appropriate, the matters set out above and any other factors that arise on the facts of a particular case." a. Resource implications, such as the cost of accommodation and issues relating to the monitoring of the individual at a particular location, including the availability of a UKBA team to undertake this task, the response time of that team and whether its members have previous experience of dealing with individuals on SIAC bail. b. The level of police support required to manage the relocation of the individual and the ability of the local police force to provide such support. d. Considerations relating to specific residences, including whether appropriate facilities for the individual are available within the proposed boundary area.[55]This, therefore, is the unpublished policy on the grant of bail to someone who is subject to the SIAC regime.[56]Ms Kilroy draws attention to section 4 of the 1999 Act which states as follows:
“(1) The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of persons - … (c) released on bail from detention under any provision of the Immigration Acts.”
[57]This, she says, confers an extremely wide power to provide or arrange for the provision of accommodation to those in immigration detention and the unpublished policy referred to above is the way the Secretary of State will use this power to fund accommodation for those granted bail by SIAC. (She had referred in the Amended Grounds to the published policy on the operation of section 4(1)(c) entitled “Section 4 Bail Accommodation”, but, as I understood the course of the argument, did not pursue any argument as to its applicability in the present situation.)[58]The case she advances in relation to the position by about the end of 2010 is that the failure to use the powers under section 4(1)(c) to provide or arrange for the provision to the Claimant of an alternative address in London and/or the failure to take a new decision on the use of these powers was a breach of the unpublished policy because(i) there was accumulating evidence of the inappropriateness of the address in Bedford culminating in Professor Kopelman’s report,(ii) no rational decision-maker could conclude that this evidence did not constitute a change that impacted on the appropriateness of the address within the meaning of the policy (see paragraph 19 quoted in paragraph 54 above) and(iii) the letter of 14 December 2010 (paragraph 23 above) stated that it was not necessary to discuss any addresses proposed by the Claimant in the future because of the Secretary of State’s view that his current address was suitable.[59]Mr O’Connor contends that there was no breach of the policy and rejects Ms Kilroy’s further argument that, in any event, there was a disproportionate interference with the Claimant’s Article 8 rights on effectively the same basis as her argument in relation to the policy.[60]I am not sure that there is much purpose in this case in trying to distinguish between a potential breach of the unpublished policy and an arguable breach of the claimant’s Article 8 rights. There may be cases where such a distinction is relevant, but I cannot see any material distinction in this case. There is little doubt that the focus of the policy is, unsurprisingly, on the security and absconding implications of any accommodation providing to the SIAC bailee and with very much less emphasis on the personal interests of the individual concerned. It is quite possible to see the justification for the working rule (set out in paragraph 19 of the policy) that “in the absence of any change that would impact on the appropriateness of [the existing] address, there is a presumption that the individual will not be moved.” The way in which that paragraph is framed, however, does suggest that the primary purpose of the working rule is to benefit the UKBA team responsible for looking after the individual rather than one which offers that individual any realistic prospect of persuading the team to arrange for a move because he or she is unhappy in the accommodation. This would seem to be the message conveyed by the reference to “the inappropriate use of public resources to move an individual when their current address is deemed suitable.” It is, of course, correct to say that there is some inbuilt flexibility in the policy, but the general tenor is that a move from accommodation “deemed suitable” will rarely, if ever, be sanctioned.[61]Doubtless there is much to commend that policy. Equally, it would be surprising if, in the balancing exercise required when consideration is given to someone’s Article 8 rights, the security and absconding issues do not weigh heavily in the balance. However, in an individual case there may come a time when it is quite clear that there are circumstances personal to the individual concerned that tip the balance decidedly in a different direction. In this case the Secretary of State recognised, when Professor Kopelman’s report became available, that there was “compelling fresh evidence as to the claimant’s particular position in Bedford” (see paragraph 34 above). From that time on (in August 2011) steps were said to be being taken on the Secretary of State’s behalf to move the claimant from the Bedford address. There was, of course, the issue as to whether the move might be to the south east of England generally (see paragraph 32 et seq above) or to an address in London. To my mind, there is no doubt that Professor Kopelman was advocating a move to London as the way in which there would be a partial improvement in the Claimant’s physical and mental condition. I do not agree with paragraph 7(d) of the Defendant’s Detailed Grounds of Defence to which I referred in paragraph 34 above.[62]It seems to me that a failure on the Secretary of State’s part to recognise that, plus a degree of dragging of feet over trying to find further accommodation, led to an unnecessary delay until November 2011 in finding suitable alternative accommodation. I do not consider that prior to receipt of Professor Kopelman’s report (in June 2011) that it could be said that the Secretary of State was either in breach of her own policy or was interfering disproportionately with the Claimant’s Article 8 rights: simple assertions that his health was becoming worse without some convincing medical support would not have been enough to make a difference – or at least that was a reasonable position for the Secretary of State to take. However, once that report was to hand, and a decision taken not to commission a report from another medical practitioner to check its accuracy and reliability, there was a very strong case for facilitating a move of the Claimant from his address in Bedford to an address in London.[63]The transcript of the hearing before Collins J does not inspire confidence that the UKBA team was working with any great expedition to deal with the situation. But, given what I am sure are difficulties in finding accommodation that not only meet the individual’s requirements, but also the security and absconding concerns, there will doubtless be delays in getting to the position in which a move can be made. Doing the best I can, it seems to me that it probably took about two months longer than it ought to have done to secure suitable accommodation for the Claimant.[64]On that the basis the Claimant is entitled to a modest level of damages to reflect this. Given that the award will be very modest, I will be forgiven for not setting out any very detailed reasoning: it is very much a matter of “feel”. I have read the very helpful analysis of Sullivan J (as he then was) in the situation that confronted him in the case of R (Bernard) v Enfield London Borough Council [2003] HRLR 4 and this has afforded me some guidance. Overall, I consider that an award of £500 is adequate to reflect the delay to which I have referred.[65]So far as the future is concerned, if the Secretary of State is obliged to consider moving the Claimant for any reason connected with the change of housing provider, or indeed for any other reason, then consistent with the way she has dealt with his case since Professor Kopelman’s report became available (which was regarded by her as “compelling fresh evidence”), it is my view that any decision taken about the Claimant’s future accommodation that failed to take account of, and failed to endeavour to meet, an up-to-date expert assessment of his psychological and physical condition would almost certainly be capable of successful challenge by way of judicial review. I would make it clear that any such medical assessment would have to be at a level commensurate with the experience, skill and eminence of someone like Professor Kopelman – a short GP’s report or the report of someone with insufficient expertise would be of no material value. Of course, it is always open to the Secretary of State to commission her own report if not sure about a report obtained on the Claimant’s behalf – although there is always the possibility of a joint examination and report by experts instructed by the Secretary of State and by the Claimant. However, in this case any move that failed to take into account his up-to-date medical condition and any informed assessment of the likely impact of any move would, in my view, be a decision which failed to take into account a material consideration.[66]I have already observed that I have not been supplied with an up-to-date medical assessment of the Claimant and indeed there is no reason why I should have been. However, it would be surprising if(a) the Claimant’s condition has not improved over the last two years given the view Professor Kopelman expressed and(b) his condition did not take a downward course if moved outside the area delineated on the map referred to in paragraph 38 above unless the medical view was that such a course would be unlikely to have that result.[67]Further than that, I do not think I could, or should, go. I would emphasise that these observations are confined solely to the individual facts of this case. The outcome should not under any circumstances be seen as a green light for SIAC bailees generally to produce tendentious and unconvincing medical reports in support of a change of accommodation and expect to achieve it. There is compelling evidence about this Claimant’s physical and mental health that almost certainly marks out this case as different from others.

Conclusion

[68]It may be that this judgment will be seen as an adequate outcome of the Claimant’s claim (with, of course, the damages award) without the need for any declaration. However, I will consider any written representations on that issue if the Claimant seeks a declaration.[69]I would observe finally that there remains considerable advantage from a practical point of view that any future application to the court concerning the Claimant’s accommodation was dealt with by a judge of the Administrative Court who is also a SIAC judge.[70]I am grateful to both Counsel for their assistance.