R AA, a protected party, by his litigation friend, the Official Solicitor v London Borough of Hackney
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 22 March 2021 |
| Neutral Citation | [2021] EWHC 674 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4089/2019 |
| Date | 22 March 2021 |
[2021] EWHC 674 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Chamberlain
Case No: CO/4089/2019
Rowena Moffatt (instructed by Wilson Solicitors LLP) for the Claimant
Lee Parkhill (instructed by Hackney Legal Department) for the Defendant
Hearing date: 3 March 2021
Approved Judgment
Introduction
The Claimant is a Nigerian failed asylum seeker with long-term physical and mental health conditions. He has been recognised as a potential victim of trafficking and sexual exploitation. On 8 October 2019, the Defendant (“Hackney”) decided on the basis of an assessment carried out by one of its social workers that he had no eligible care needs for the purposes of the Care Act 2014 (“the 2014 Act”).
By a claim issued on 18 October 2019, the Claimant challenged this decision and also the decision of the Secretary of State for the Home Department not to provide him with accommodation in London. On the same day, Foster J granted interim relief requiring Hackney to accommodate him. On 31 January 2020, Jay J granted permission to challenge the Defendant's decision that he had no eligible care needs. Permission was refused to challenge other decisions, in particular those of the Secretary of State.
Background
The Claimant suffers from osteoarthritis of the knee, osteonecrosis (a disease which causes bone tissue to die, causing pain in the affected area), chronic venous insufficiency (a condition affecting the leg veins causing blood to collect in these veins) and leg swelling. These conditions affect his legs and thus his ability to mobilise without difficulty and pain. He also suffers from anal fistulas, which cause faecal urgency and partial incontinence.
In 2016, the Claimant was assessed by Professor Cornelius Katona, Emeritus Professor of Psychiatry at the University of Kent. Professor Katona concluded that the Claimant suffered from mild depressive symptoms and diagnosed him with delusional disorder of the persecutory type. Professor Katona concluded that he was unlikely to have a major cognitive impairment or learning disability, but he may have borderline learning difficulties, which warranted further investigation. The Claimant has received medication for his depressive symptoms from his GP.
The Claimant came to the attention of the Helen Bamber Foundation (“HBF”) in 2015–2016 and again in 2019, when he presented as homeless. On 9 July 2019, the HBF made a referral to Hackney's Adult Social Care Department, requesting an assessment of the Claimant's needs. It set out a list of day-to-day tasks which the Claimant was unable to carry out without difficulty or pain.
Hackney carried out an assessment of the Claimant's needs. There were two interviews conducted by the lead social worker, Paola Marin Blanco, on 2 and 5 August 2019 and a functional assessment conducted by an occupational therapist, Danielle Leben-Beckles, on 22 August 2019. Ms Blanco conducted a human rights assessment on 23 August 2019.
The functional assessment recorded, among other things, that the Claimant experiences chronic pain in his knees, ankles, lower back, flank and shoulders, has difficulties mobilising, requires two crutches, has laboured movement in his lower limbs and limited floor clearance. It noted that he had a standing tolerance of 5–10 minutes before needing to sit down due to pain in his lower limbs. He required one crutch to undertake seating/standing transfers and had reported falls off the bed whilst repositioning. His toilet transfers were “unsafe” because he “holds on to basin and radiator to assist transfers”. He had difficulty using stairs due to pain in his lower limbs and lower back and had difficulty controlling his bladder and bowels and required a strict toileting regime involving not drinking or eating when in the community. The conclusion of the functional assessment was, however, that the Claimant was “fully independent in all aspects of his daily living” and that his “presenting challenge” was “as a result of his inability to access public funds or employment to tell to obtain remuneration and accommodation given his current immigration status”.
In its needs assessment dated 8 October 2019, Ms Blanco concluded that the Claimant was “able to meet all his care and support needs independently”. She continued: “His current needs are related to his immigration status and housing situation not because of any physical or mental impairment”.
The law
Where it appears to a local authority that an adult may have needs for care and support, s. 9(1) requires a local authority to assess (a) whether the adult does have needs for care and support and (b) if the adult does, what those needs are.
By s. 9(4), a needs assessment must include an assessment of the impact of the adult's needs for care and support on the matters specified in s. 1(2). Section 1(2) specifies the elements of a person's “well-being” which must be assessed: (a) personal dignity (including treatment of the individual with respect); (b) physical and mental health and emotional well-being; (c) protection from abuse and neglect; (d) control by the individual over day-to-day life (including over care and support, or support, provided to the individual and the way in which it is provided); (e) participation in work, education, training or recreation; (f) social and economic well-being; (g) domestic, family and personal relationships; (h) suitability of living accommodation; (i) the individual's contribution to society.
Where a local authority is satisfied that an adult has needs for care and support, it must determine whether any of these needs meet the eligibility criteria: see s. 13(1). Needs meet these criteria if (a) they are of a description specified in regulations, or (b) they form part of a combination of needs of a description so specified: s. 13(7).
Section 18 of the 2014 Act imposes a duty on a local authority to meet an adult's care and support needs “which meet the eligibility criteria”. Section 19 confers a power to meet needs which the local authority is not required to meet under s. 18.
Section 67 of the 2014 Act applies to a local authority in the performance of various functions, including when carrying out a needs assessment. In a case where the condition in s. 67(4) is met, s. 67(2) requires a local authority to arrange for a person who is independent of the authority (an “independent advocate”) to be available to represent and support the individual for the purpose of facilitating the individual's involvement. Section 67(4) provides as follows:
“The condition is that the local authority considers that, were an independent advocate not to be available, the individual will experience substantial difficulty in doing one or more of the following–
(a) understanding relevant information;
(b) retaining that information;
(c) using or weighing that information as part of the process of being involved;
(d) communicating the individual's views, wishes or feelings (whether by talking, using sign language or any other means).”
The Care and Support (Eligibility Criteria) Regulations 2015 (SI 2015/313: “the Regulations”), made under s. 13 of the 2014 Act, provide in reg. 2(1) that an adult's needs meet the eligibility criteria if:
“(a) the adult's needs arise from or are related to a physical or mental impairment or illness;
(b) as a result of the adult's needs the adult is unable to achieve two or more of the outcomes specified in paragraph (2); and
(c) as a consequence there is, or is likely to be, a significant impact on the adult's well-being.”
The outcomes specified in reg. 2(2) are:
“(a) managing and maintaining nutrition;
(b) maintaining personal hygiene;
(c) managing toilet needs;
(d) being appropriately clothed;
(e) being able to make use of the adult's home safely;
(f) maintaining a habitable home environment;
(g) developing and maintaining family or other personal relationships;
(h) accessing and engaging in work, training, education or volunteering;
(i) making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and
(j) carrying out any caring responsibilities the adult has for a child.”
Regulation 2(3) provides:
“For the purposes of this regulation an adult is to be regarded as being unable to achieve an outcome if the adult—
(a) is unable to achieve it without assistance;
(b) is able to achieve it without assistance but doing so causes the adult significant pain, distress or anxiety;
(c) is able to achieve it without assistance but doing so endangers or is likely to endanger the health or safety of the adult, or of others; or
(d) is able to achieve it without assistance but takes significantly longer than would normally be expected.”
There is no dispute that the provision of accommodation may be called for under the 2014 Act, but only where it is “the necessary and appropriate conduit for the practical and effective delivery of care and support for the relevant ‘looked after needs’”: R (Aburas) v London Borough of Southwark [2019] EWHC 2754 (Admin), [6] (Michael Fordham QC). The concept of “looked after needs” was explained (in the context of the predecessor legislation) by Lady Hale in R (M) v Slough Borough Council [2008] UKHL 52, [2008] 1 WLR 1808, at [33]:
“Looking after means doing something for the person being cared for which he cannot or should not be expected to do for himself: it might be household tasks which an old person can no longer perform or can only perform with great difficulty; it might be protection from risks which...
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