R GS (by her litigation friend the Official Solicitor) v London Borough of Camden
| Jurisdiction | England & Wales |
| Judge | Mr Peter Marquand |
| Judgment Date | 27 July 2016 |
| Neutral Citation | [2016] EWHC 1762 (Admin) |
| Docket Number | Case No: CO/5982/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 July 2016 |
[2016] EWHC 1762 (Admin)
Mr Peter Marquand
(Sitting as a Deputy High Court Judge)
Case No: CO/5982/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Jamie Burton (instructed by Maxwell Gillott) for the Claimant
Mr Lee Parkhill (instructed by The London Borough of Camden) for the Defendant
Hearing dates: 5 May and 3 June 2016
Summary
This is a challenge by way of judicial review of the Defendant's decision of 26 October 2015. The Claimant is an adult and a Swiss National who suffers from physical and mental health problems and she challenges the Defendant's decision following an assessment under the Care Act 2014 that she did not have a need for care and support, in particular a need for accommodation. The Defendant's position is that the need for accommodation is not a need for care and support within the Care Act 2014 and that it has no power under statute to provide for such a need. In addition, the Defendant's position is that as a matter of fact the Claimant's situation is one that does not put her at risk of a breach of her rights under the European Convention on Human Rights (the Convention).
Mr Burton represented the Claimant and Mr Parkhill the Defendant and I had the benefit of their written submissions, a lever arch file of evidence and 2 lever arch files of authorities. I have considered all materials, even though I may not mention all of them in this judgement. The Claimant has the benefit of an anonymity order and having issued proceedings started to receive the personal independence payment benefit. As a result Sir Stephen Silber permitted the Claimant to rely on amended statement of facts and grounds by order dated 16 December 2015.
Facts
The Claimant is 49 years old and she was born in Afghanistan. She has physical and mental health problems and is wheelchair dependent. She initially, with the assistance of United Nations, relocated to Iran and then to Switzerland in 1992 where she lived in Zurich and received accommodation and support from the Swiss authorities. The Claimant obtained Swiss citizenship in 2006.
In 2011 it seems the Claimant believed that she had been discriminated against, that she had been raped on two occasions and suffered other forms of adverse treatment. As a result she became voluntarily homeless and spent some time sleeping in Zurich airport. The Claimant arrived in the United Kingdom from Switzerland in June 2013 and lived in Heathrow airport for approximately 6 months. She was admitted to hospital suffering with mental health problems but subsequently, with assistance from her adoptive mother who lives in Canada, the Claimant moved into a hostel.
In July 2014 the Claimant received assistance from a charity and applied to the Defendant for temporary support and accommodation and this was agreed to in August 2014. During this period the Claimant was assessed by her general practitioner and the North Camden Crisis Team. On 12 September 2014, following an assessment by the Defendant, a decision was made that she was ineligible for support under section 21 of the National Assistance Act 1948. That Act is the predecessor to the Care Act 2014 and its relevance and the significance of the two Acts will become apparent further on in this Judgment. As a result of this conclusion the Claimant was offered money to return to Switzerland and required to leave her accommodation.
During 2014 the Claimant was assessed by a consultant psychiatrist, Dr Robertson, instructed by her solicitors and various reports were produced. The Claimant's own general practitioner and the mental health team from Camden and Islington NHS Foundation Trust assessed the Claimant as well as Dr Jeffreys, consultant psychiatrist and Rachel Duffield, social worker. The psychiatrists essentially agreed that the Claimant had a persistent delusional disorder of the paranoid type and a severe and enduring mental illness. They agreed that the Claimant did not have the mental capacity to decide whether to return to Switzerland or to consent to treatment for her mental disorder.
On 19 February 2015 the Claimant's solicitors sent a pre-action protocol letter to the Defendant seeking an assessment under section 21 of the National Assistance Act 1948. In March, the Defendant provided the Claimant with accommodation and support and in particular accepted her return to Switzerland was not available because of the Claimant's mental health condition. At the end of March the Claimant served a further pre-action protocol letter to the Defendant claiming that what was being provided was insufficient and in particular that the Claimant was in bed and breakfast accommodation, which was not wheelchair accessible. The Claimant's mental health deteriorated around this time and she was admitted as an emergency to Charing Cross Hospital 25th of March 2015.
At this point the Claimant wished to go to Canada to visit her adoptive mother and she was assisted by the Defendant to undertake this trip. The Claimant returned from Canada in July 2015 and booked herself into a backpackers' hostel. The Defendant was asked to reassess the Claimant. Another pre-action protocol letter was sent to the Defendant on 30 July 2015 again saying that the accommodation was not suitable. Following a further assessment the Defendant moved the Claimant to a hotel in Hendon where she stayed until 16 October 2015 when she moved to an enablement flat. However the Defendant made it clear to the Claimant that she only had a licence to remain at the flat and was not a tenant.
In August the Claimant submitted a claim for the personal independence payment (PIP) to the Department of Work and Pensions, it having been refused initially March 2015 (the Claimant is not entitled to any other benefits because of her nationality, including housing benefit). Again the Claimant's mental and physical health deteriorated and she sought help from the mental health professionals in Camden.
On 23 October 2015, Mr Wright, social worker, conducted a needs assessment under the Care Act 2014 and that was provided to the Claimant on 26 October 2015. This communication represents the decision that is under challenge in this case. The outcome of that assessment was that the Claimant did not have any need for care and support within the meaning of the Care Act 2014.
The Claimant sent another pre-action protocol letter dated 3 November 2015 claiming that the assessment was unlawful and that her article 3 rights under the Convention would be breached in the absence of support. The Defendant responded on 10 November 2015 maintaining that its assessment was lawful. There was then further correspondence between the parties which essentially left the position unchanged.
The claim was issued on 2 December 2015 and on the same day interim relief was granted by Mr Justice Ouseley in the form of accommodation and a weekly subsistence payment. However, the Claimant was awarded PIP subsequently and as a result the Defendant agreed to continue to provide accommodation but ceased to provide the weekly subsistence payment. Amended grounds of challenge were ordered by Sir Stephen Silber, in light of this development.
Grounds of Challenge
Mr Burton stated that the money the Claimant receives is insufficient for her to secure accommodation and meet her needs. Therefore, it was necessary for the Defendant to provide assistance. The Claimant makes the following challenges to the decision of 26 th October 2015:
i) There are errors of law in the needs assessment conducted under the Care Act namely:
a) the risks posed by the Claimant's mental health;
b) the failure to disregard support already being provided by the Defendant;
c) errors in the assessment of the Claimant's physical functioning;
ii) The Defendant's decision not to exercise its power to provide care and support under section 18 and or 19 of the Care Act 2014 and section 1 of the Localism Act 2011;
iii) A failure to provide advice and information about meeting/reducing needs under section 24 (2) Care Act 2014; and
iv) A failure to consider the impact on the Claimant's human rights of the Defendant's decision.
I will deal with these in detail below. It was not in dispute that the Claimant was in the United Kingdom lawfully and as a Swiss national she was to be considered legally as an EEA national. It was not in dispute that the Claimant could not be returned to Switzerland. In similar circumstances the Defendant would be able to discharge its obligations to a person from an EEA state by offering to pay for them to return to their country where they would then have the availability of support of their own state. However, that was not available because of the Claimant's mental condition. The Claimant was not entitled to any benefits in the United Kingdom apart from the PIP payment.
Is accommodation a "need for care and support" under the Care Act 2014?
Before I turn to the individual Grounds I think it is helpful to deal with a central issue in this case which is whether a need for accommodation is capable of amounting to a "need for care and support" under the Care Act 2014. In essence, Mr Burton says it does and Mr Parkhill says it does not. It is necessary to set out the relevant extracts from the Care Act to deal with this issue.
I was referred to the general scheme of the Act, in particular section 1 the general duty to promote an...
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