R AR v London Borough of Hammersmith and Fulham
| Jurisdiction | England & Wales |
| Judge | Markus |
| Judgment Date | 19 December 2018 |
| Neutral Citation | [2018] EWHC 3453 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1519/2018 |
| Date | 19 December 2018 |
[2018] EWHC 3453 (Admin)
IN THE HIGH COURT OF JUSTICE QUEEN'S
BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
UPPER TRIBUNAL JUDGE Markus QC SITTING AS A JUDGE OF THE HIGH COURT
Case No: CO/1519/2018
Mr James Presland (instructed by Lawstop) for the claimant
Mr Hilton Harrop-Griffiths (instructed by Hammersmith and Fulham Legal Department) for the defendant
Hearing date: 21 st November 2018
Approved Judgment
Upper Tribunal Judge Markus QC:
The claimant is a citizen of Lithuania. There is an order in these proceedings that he is not to be identified and is to be referred to as “AR” in any report of the proceedings. He came to the UK in 2011. For a period of time he was in receipt of jobseeker's allowance and housing benefit. In 2012 he was assaulted and suffered a serious injury as a result of which he spent several months in hospital. At some point during his stay in or on his discharge from hospital his benefits ceased and he became homeless. He suffered a second serious assault in 2015 and once again remained in hospital for a considerable time. He was again homeless on discharge from hospital. He had tried to work for two days a week at a warehouse but was too unwell to do so and stopped after a very short time. During 2017 a charity arranged for him to be accommodated in church halls in West London.
The claimant had been awarded the enhanced rate of both the daily living and mobility components of personal independence payment (‘PIP’) from May 2016. However, on 21 st April 2018 the DWP notified him that he was no longer entitled to PIP. His charity caseworker requested a mandatory reconsideration of that decision and an appeal to the First-tier Tribunal is pending.
For present purposes there is no need to rehearse the background to the claimant's application for assistance from the defendant. It is sufficient to note that on 15 th February 2018 the claimant's caseworker requested assistance for the claimant from the defendant's Adult Social Services Department. The defendant did not respond to that referral nor, after solicitors were instructed, to pre-action protocol correspondence. On 13 th April 2018, on an urgent application, Mr Justice Dove ordered interim relief by way of accommodation and resources to meet the claimant's essential living needs, until a hearing of the application for interim relief. Judicial review proceedings were issued shortly afterwards but no interim relief hearing took place as the defendant agreed to continue to accommodate the claimant and to carry out an assessment of the claimant's needs for care and support under the Care Act 2014 and a human rights assessment.
The claimant's solicitor had sent the order of Mr Justice Dove to the defendant's Emergency Homeless Team which found accommodation for the claimant. An assessment was carried out as to whether the claimant was also entitled to assistance as a homeless person under Part 7 of the Housing Act 1996. On 16 th April the defendant wrote to the claimant to notify him that he was not eligible for assistance under Part 7, pursuant to section 185 of the Act and regulation 6 of the Allocation of Housing and Homelessness (Eligibility)(England) Regulations 2006. Following completion of the two assessments, on 17 th May the claimant's solicitor wrote to the defendant to say that they were investigating the claimant's immigration status including whether he had a right to reside in the UK and challenging the conclusions of the assessments. The defendant replied on 24 th May resisting the challenges and explaining the basis on which it was concluded that the claimant did not have a right to reside. The claimant did not seek a review of the decision that he was ineligible for assistance under Part 7.
With the permission of the court, the claimant filed amended grounds to which the defendant responded. Richard Clayton QC, sitting as a Deputy High Court Judge, gave permission on all grounds on 24 th August 2018.
The claimant's case, as advanced by Mr Presland, was that the assessments were unlawful, that (were it not for the claimant's nationality), the defendant had power to support him under either the Care Act 2014 or the Localism Act 2011, and that he required such support in order to avoid a breach of his Convention or EU Treaty rights.
The Care Act 2014
Section 9 of the Care Act 2014 provides that, where it appears to a local authority that an adult may have needs for care and support, the authority must assess whether the adult does have such needs and, if so, what they are. If the authority is satisfied on the basis of a needs assessment that an adult has such needs it must, under section 13(1), determine whether any of those needs meet the eligibility criteria in accordance with the Care and Support (Eligibility Criteria) Regulations 2015.
Regulation 2 of the 2015 Regulations provides that an adult's needs meet the eligibility criteria if: (a) they arise from or are related to a physical or mental impairment or illness; (b) as a result of their needs the adult is unable to achieve two or more of the specified outcomes; and (c) as a consequence there is, or is likely to be, a significant impact on the adult's well-being. The outcomes 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.
Section 18(1) of the Act provides that an authority must meet the adult's needs for care and support which meet the eligibility criteria if, amongst other things, they are ordinarily resident in the authority's area or are present in its area but of no settled residence. If the authority is not required to meet needs under section 18(1), section 19(1) provides that it may meet such an adult's needs for care and support.
The defendant's assessment of the claimant under the Care Act noted the past serious assaults suffered by him, that he had undergone neurosurgery and was due to undergo further surgery, that injuries to his shoulder and hand continued to affect him, he had difficulties with memory, and was unable to work. He suffered from periods of depression and had attempted suicide in August 2017 when under the influence of alcohol, had been assessed under the Mental Health Act and had been discharged and signposted to alcohol services. There were medical reports from May 2016 and December 2017 referring to the above injuries, as well as chronic and acute pancreatitis, a history of chronic alcoholism, acute gastritis, and anxiety disorder. The assessment recorded a number of statements by the claimant making it clear that the only assistance that he sought was in obtaining somewhere to live. The assessor noted that the claimant was no longer receiving PIP, and concluded that the need for support identified in the previous PIP assessment (relating to the earlier PIP award) was “not apparent from his current presentation”. The only risks identified in the care assessment were those arising from his being homeless. The assessment summary identified one outcome which the claimant was unable to achieve, that he was not able to access and engage in work, training, education or volunteering independently, but the detailed assessment was that this was also due to the claimant's homelessness. The conclusion of the assessment was:
“[AR] has a complexity of acute medical conditions as highlighted throughout this assessment. [AR] nevertheless presents as someone who is able to live independently and undertake essential day to day tasks. Due to [AR]'s current social situation his ability to further his personal development including further education, retraining is severely compromised. In addition, being homeless can also enforce a sense of social isolation, impacting on [AR]'s confidence and feeling of belonging which could lead to further self medicating behaviour including substance abuse.”
The assessor, Colin Pope, concluded that the claimant was not eligible for support under the Care Act because he did not satisfy the requirement of there being “two or more areas where outcome cannot be achieved and there is, or is likely to be, a significant impact on his wellbeing.”
Mr Presland's first ground of challenge to the assessment was that Mr Pope had failed to explain how he was able to judge the claimant's ability to understand questions and communicate effectively. I reject this. Mr Pope had the opportunity to discuss the claimant's history, current circumstances and needs, and he set out in some detail what the claimant had told him. This provided Mr Pope with the opportunity to assess the claimant's understanding and communication. Mr Pope noted the claimant's difficulties with memory recall, a factor which might affect the claimant's understanding and communication, and recorded that throughout the assessment the claimant was given time to consider the questions. Mr Pope also noted that there was no doubt about the claimant's capacity.
Mr Presland said Mr Pope's assessment of the claimant's understanding was undermined by inconsistency between the claimant expressing no concerns regarding how other people had treated him while saying that he was aware of the risks associated with rough sleeping. It is not appropriate to subject the...
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