R (Abdul Walud) v Tower Hamlets LBC

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Pill,Lady Justice Hale
Judgment Date07 Mar 2002
Neutral Citation[2002] EWCA Civ 287
Docket NumberCase No: C/2001/2061

[2002] EWCA Civ 287

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ADMINISTRATIVE COURT

(MR JUSTICE STANLEY BURNTON)

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before

Lord Justice Pill

Lord Justice Mummery and

Lady Justice Hale

Case No: C/2001/2061

Between
Formtext
Appellant
and
The Mayor and Burgesses of the London Borough of Tower Hamlets
Respondents

James Goudie QC and Zia Nabi (instructed by Messrs Miles and Partners) for the Appellant

Stephen Knafler (instructed by The Solicitor to the Council, London Borough of Tower Hamlets) for the Respondents

Lord Justice Pill
1

This is an appeal against the refusal of Stanley Burnton J upon an application for judicial review, to make orders in favour of Mr Abdul Wahid ("the appellant") requiring the London Borough of Tower Hamlets ("the respondents") to provide him and his family with suitable accommodation. The case is reported at (2001) 4 CCLR 455. The submission on appeal is that the respondents were required to provide better accommodation for the applicant as a person in need of care and attention under section 21(1) of the National Assistance Act 1948 ("the 1948 Act").

2

Abdul Wahid is 53 years old and lives with his wife and 8 children in a two bedroomed flat on the ground floor of a large residential block owned by the respondents. The children are from 28 years old to 9 years old. The appellant has suffered from schizophrenia and has at times been an in-patient, including a period of admission under section 3 of the Mental Health Act 1983 in late 2000. Alternative accommodation, which he regards as unsuitable, has been offered to him under the provisions of Part VI of the Housing Act 1996. Two adult sons have been offered, and refused, separate accommodation under the provisions of the Housing Act.

3

Under the heading "Provision of accommodation" section 21 of the 1948 Act, as amended, which is in Part III of the Act provides, insofar as is material:

"(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 aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care of attention which is not otherwise available to them;"

4

Section 21(8) provides:

"… nothing in this section shall authorise or require a local authority to make any provision, authorised or required to be made (whether by that or by any other authority) by or under any enactment not contained in this part of this Act …"

5

The current direction is in Appendix 1 to Department of Health Circular No LAC(93)10. Insofar as is material it provides:

"2(1) The Secretary of State hereby

(a)…

(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

(2) …

(3) without prejudice to the generality of sub-paragraph (1), the Secretary of State hereby directs local authorities to make arrangements under section 21(1)(a) of the Act to provide accommodation—

(a) in relation to persons who are or have been suffering from mental disorder, or

(b) for the purposes of prevention of mental disorder,

for persons who are ordinarily resident in their area and for persons with no settled residence who are in the authority's area."

On behalf of the respondents it is accepted that the appellant is ordinarily resident in their area so that, contrary to the judge's finding, the appellant does not need to rely on the provision as to urgency in paragraph 2(1)(b). On behalf of the appellant it is accepted that the statutory requirement for the "need of care and attention which is not otherwise available" to him must be established.

6

There is also a duty upon the local authority, where it appears to them "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", to carry out "an assessment of his needs for those services" and having regard to the result of that assessment, to "decide whether his needs call for the provision by them of any such services" (section 47(1) of National Health Service and Community Care Act 1990 ("the 1990 Act")). Section 46(3) of the 1990 Act includes within the definition "community care services", services which a local authority may provide or arrange to be provided under Part III of the 1948 Act.

7

There is no doubt that the family accommodation is seriously over-crowded. The appellant is on the respondents' housing waiting list. Particulars of offers made to him and the family are set out in the statements of Mr Alan Mountain who is Team Manager of the respondents' Bethnal Green Community Mental Health Team.

8

On the appellant's release from hospital, on 9 January 2000, a Care Programme Approach – Care Plan was prepared. The medical view was that he no longer required admission and "can be managed effectively at home with community support". In February 2001, he was reported as being mentally stable, compliant with his medication and was being monitored weekly by his community mental health nurse Mr A Golightly. Under the heading "Mood", it was noted that the appellant was "subjectively happy, feels better than he has for the past twenty-eight years". There were stated to be no physical health problems. He could manage his personal care. He attended Friday prayers at the local Mosque and was able to get there on his own. He wanted to move into larger accommodation and believed that would greatly help him and his wife to cope. His wife stated that the major factor affecting her and her husband was their cramped housing situation. The need was to have larger accommodation. This would help to improve their lives and relieve a lot of stress and pressure.

9

The report was prepared by Ms Safia Sharif, a mental health social worker. Under the heading "Summary of needs", she stated: "assistance with liasing with the housing department". Particulars were given of the type and location of premises the family were seeking.

10

Particular reliance is placed on behalf of the appellant upon a "mental state assessment" which was obtained from Mr Golightly as part of the assessment. In his report dated 23 February 2001, Mr Golightly noted that the appellant was mentally stable. Mr Golightly stated:

"I have visited the family home on several occasions, but remain concerned to ensure that my community nursing support is not undermined by their very obviously acute housing problem. I do know at first hand how much Mr Wahid dearly wishes that this long standing problem could be finally solved. It would undoubtedly afford him a degree of happiness and stability which would significantly contribute to his mental welfare.

In summary, I posit that Mr Wahid's present mental stability can only be safely maintained by his transfer into a more congenial and relaxed environment, in the context of a healthy and happy family life."

11

The assessment, including Mr Golightly's report, came before Mr Mountain. He is an approved social worker whose duties include undertaking assessments concerning compulsory admission to hospital. As team manager, he had line management responsibility for the staff within the team, including Mr Golightly.

12

Mr Mountain considered that Mr Golightly had rightly acknowledged concerns about the housing situation and the need for a housing transfer. He did not, however, consider that Mr Golightly was recommending that the appellant's condition was such he required immediate care and attention through the provision of housing. In liaison with the housing department, it was agreed that the appellant would be given top medical priority by them and further agreed that the three older sons would be given separate priority for re-housing. That would considerably alleviate the overcrowding.

13

In his statement, Mr Mountain referred to his further discussion with Mr Golightly in June 2001. Mr Golightly expressed his opinion that there was an element of fragility in the appellant's mental state. He was at significant risk if not re-housed though Mr Golightly was not able to quantify the risk. Mr Golightly "could not state with any degree of precision the extent to which the claimant's housing situation impacts upon his mental health".

14

Mr Mountain's conclusion was:

"43. I have given due regard to Mr Golightly's memorandum dated 23 February 2001 and the views he has subsequently expressed to me about the Claimant's mental state. I agree with Mr Golightly that the Claimant needs better accommodation. It is however a matter for the social services authority whether he needs care and attention.

44. Having regard among other things to Mr Golightly's views, I do not consider the Claimant currently needs care and attention, or that he is likely to need care and attention imminently. I remain of the view that the conclusion of Ms Sharif's assessment (that the Claimant needs better housing and that social services should help him by liaison with the Housing Directorate) is correct.

45. I have taken into account the assessment of Ms Sharif as a whole, the fact that the Claimant was supported in the community and not admitted to hospital between 1996 and November 2000. Further, as Mr Golightly agrees, the Claimant is currently in...

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