R Adalberto Jesus De Almeida v Royal Borough of Kensington and Chelsea
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 27 April 2012 |
| Neutral Citation | [2012] EWHC 1082 (Admin) |
| Docket Number | Case No: CO/2911/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 April 2012 |
[2012] EWHC 1082 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
the Honourable Mrs Justice Lang DBE
Case No: CO/2911/2010
Mr J Burton (instructed by Duncan Lewis & Co) for the Claimant
Ms S Davies (instructed by Royal Borough of Kensington and Chelsea) for the Defendant
Hearing dates: 7 November 2011 & 26 March 2012
Introduction
The Claimant, who is a Portuguese national and resident in the UK, seeks judicial review of the Defendant's decision that he is not entitled to accommodation and support pursuant to s. 21 National Assistance Act 1948, despite his terminal illness. The Claimant contends that the refusal to provide accommodation and support will result in a breach of Articles 3 and 8 of the European Convention on Human Rights ('ECHR').
The Claimant issued his claim on 2 March 2010, at that stage seeking judicial review of the refusal to conduct a community care assessment under s. 47 of the National Health Service and Community Care Act 1990 ('NHSCCA' 1990) and to consider if there was a duty to provide accommodation and care services under ss. 21 and 29 NAA 1948.
The Claimant also sought urgent interim relief as he was due to be made homeless with effect from 2 March 2010. The Court made an interim order on 2 March 2010, requiring the Defendant to provide accommodation and support until the determination of the judicial review or further order.
The Defendant completed an assessment on 11 March 2010, concluding that the Claimant was not entitled to accommodation or services under the NAA 1948.
Permission to apply for judicial review was granted on 5 July 2010, and the Defendant's application to discharge the interim order was refused.
Attempts to re-assess the Claimant were delayed because he was undergoing hospital treatment for an infection. On 27 January 2011, the Defendant sent the Claimant a copy of a 'needs assessment' dated 22 December 2010, recording that the Claimant's needs were 'low'.
The substantive hearing was listed for 7 November 2011. On 27 October 2011, the Defendant sent a decision letter, based on an assessment dated 26 October 2011, stating that the Claimant did not have eligible needs requiring care and attention from the Defendant. Even if such needs did exist, he was ineligible for services under s.21 NAA 1948, as he was an EEA national coming within paragraph 5 of Schedule 3 to the National Immigration and Asylum Act 2002. Any breach of his Convention rights could be averted by his return to his home country of Portugal. Although the move would constitute an interference with his private life under Article 8, it would nonetheless be a justified and proportionate decision by the Defendant, in the light of the other demands on its scarce resources.
At the beginning of the hearing I granted the Claimant permission to amend his Claim Form and his Statement of Facts and Grounds so that the challenge was in relation to the most recent assessment and decision by the Defendant. This course was not opposed by the Defendant. However, the short interval between the latest decision and the hearing meant that the parties had not had time to prepare fully for the revised challenge. In particular, mid-way through the hearing, it became apparent that the dispute between the parties as to the facilities available in Portugal could not be resolved without evidence. This issue was central to the Defendant's argument that any potential breach of human rights arising from the withdrawal of accommodation and support could be averted if the Claimant returned to Portugal. The hearing was therefore adjourned to enable both parties to adduce further evidence.
The statutory scheme
Section 47 National Health Service and Community Care Act 1990 requires a local authority to conduct an assessment of needs and to make a decision on the provision of services following that assessment.
S.21 National Assistance Act 1948 ('NAA 1948) provides:
"21(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 eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them; …
(1A) A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely –
(a) because he is destitute; or
(b) because of the physical effects, or anticipated physical effects, of his being destitute.
(1B) Subsections (3) and (5) to (8) of section 95 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule 8 to that Act, apply for the purposes of subsection (1A) as they apply for the purposes of that section, but for the references in subsections (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local authority.
(8) … 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 or authorised or required to be provided under the National Health Service Act 2006 …"
By section 22, a local authority is entitled to make charges for accommodation.
The Secretary of State made directions pursuant to s.21(1) in LAC 93(10)) directing local authorities to make arrangements under section 21(1)(a) NAA 1948 for those who are eligible. Local authorities are under a duty to comply with the directions, and thus to make such arrangements.
The term 'illness' in s.21 is not defined. Notably, it is not restricted to those with substantial disabling illness, in contrast to s.29 NAA 1948.
LAC 93(10), paragraph 2(5) provides:
"Without prejudice to the generality of sub-paragraph (1), the Secretary of State hereby approves the making by local authorities of arrangements under section 21(1)(a) of the Act to provide accommodation to meet the needs of persons for –
the prevention of illness;
the care of those suffering from illness; and
the aftercare of those so suffering."
The criterion of 'illness' was inserted into s.21 by the National Health Service and Community Care Act 1990. 1 Prior to 1990, a parallel social services accommodation obligation existed under the National Health Service Act 1977 Schedule 8 paragraph 2. According to Clements & Thompson: Community Care and the Law, 4 th ed. 2007, p.199, it was generally used to provide accommodation for people (mostly under pensionable age) who were able to live more independently than those accommodated under section 21, but who nevertheless required some degree of care and support.
Schedule 3 to the National Asylum and Immigration Act 2002 provides in paragraph 1 that a person to whom that paragraph applies shall not be eligible for support or assistance under section 21 or 29 of the National Assistance Act 1948. Paragraph 5 describes the "Second class of ineligible person: citizen of other EEA State". It reads:
"5 Paragraph 1 applies to a person if he –
(a) has the nationality of an EEA State other than the United Kingdom"
Paragraph 7 describes the "Fourth class of ineligible person: person unlawfully in United Kingdom". It reads:
"7 Paragraph 1 applies to a person if –
(a) he is in the United Kingdom in breach of the immigration laws within the meaning of section 11, and
(b) he is not an asylum-seeker."
Schedule 3 provides:
"3. Paragraph 1 does not prevent the exercise of a power or the performance of a duty if, and to the extent that, its exercise or performance is necessary for the purpose of avoiding a breach of—
(a) a person's Convention rights, or
(b) a person's rights under the Community Treaties."
The position of citizens of EU countries was explained by the Court of Appeal in Abdi v Barnet LBC [2006] EWCA (Civ) 383:
"(a) A person is subject to immigration control for the purposes of the Asylum and Immigration Act 1996 if he requires leave to enter or remain in the United Kingdom (whether or not such leave has been given): s.13(2) of the 1996 Act.
(b) A person does not require leave to enter or remain if he is entitled to do so under the Immigration (European Economic Area) Regulations 2000 s.2(2). The regulations make detailed provision for entry to the United Kingdom by nationals of an EEC State and the terms on which they can reside in it.
(c) An EEA national has the right to be admitted to the United Kingdom on production of a valid passport or identity card (reg.12) and they reside in the United Kingdom without requiring leave to remain for as long as he remains a qualified person (reg.14). A qualified person is an EEA national who is in the United Kingdom for a defined purpose, i.e. generally, as a worker, a student, a self-employed person, a provider of services, a recipient of services, a self-sufficient person, a retired person, a student or a self-employed person who has ceased activity: regs.2, 5(1).
(d) An EEA national who is not a qualified person for the purpose of the Immigration (European Economic Area) Regulations 2000 requires leave to remain in the UK and accordingly is...
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