R (Michael Mwanza) v LB Greenwich and LB Bromley [Administrative Court]
| Jurisdiction | England & Wales |
| Judgment Date | 15 June 2010 |
| Date | 15 June 2010 |
| Court | Queen's Bench Division (Administrative Court) |
Administrative Court, CO/2734/2010
Hickinbottom J
N Armstrong (instructed by Fisher Meredith LLP) for MM; J Richards (instructed by the Principal Lawyer, LB Greenwich) for LB Greenwich; A Sharland (instructed by the Senior Lawyer, LB Bromley) for LB Bromley.
The extent of the obligation to provide aftercare under s117 Mental Health Act 1983 and/or s21 National Assistance Act 1948; whether either was engaged in relation to a man from Zambia who had been a patient under s3 of the 1983 Act some years previously and whose mental health was deteriorating because of financial difficulties, but who was being cared for by his family and who did not have leave to remain in the UK.
MM and his wife PM came to the UK from Zambia in 2000, leave to enter being granted on the basis of PM's visa for educational purposes; their children joined them in 2004. In September 2000, MM, who had experienced psychiatric symptoms in Zambia, was admitted to hospital, first informally but then under ss2 and 3 Mental Health Act 1983. He was released in January 2001 and a care plan was drafted as to the provision of after-care services under s117 of the Act by LB Greenwich and the local health trust, which involved home visits and out-patient appointments; he was entitled to this as a former s3 patient. His contact with services was limited, and in November 2001 the after-care authorities decided to close the case; although he was offered further out-patient appointments by the trust, he did not attend them and was discharged as an out-patient in September 2002.
The family's leave to remain had expired, which had led to financial difficulties and eviction from their accommodation as rent was unpaid; their immigration status was unresolved. As a result of the deteriorating financial situation, MM's mental health difficulties returned, and in May 2009 he was admitted to hospital under s2 of the 1983 Act. In January 2010, MM's solicitors asked the local authority where they were living, LB Bromley, to conduct an assessment of his needs under s47 National Health Service and Community Care Act 1990 and to provide services under s117 of the 1983 Act and accommodation under s21 National Assistance Act 1948. Under the latter, residential accommodation is to be provided for adults who "by reason of age, illness, disability or any other circumstance are in need of care and attention which is not otherwise available to them". The assessment led to the conclusion that the need established was for accommodation, access to which was problematic because of the financial position of the family; it was also noted that the family was caused stress at having to deal with MM's mental health, but that the family was dealing with his needs. It was determined that the risks faced in the short-term did not merit the provision of accommodation or financial support.
MM then commenced proceedings arguing that LB Greenwich (under s117 of the 1983 Act) and LB Bromley (under s21 of the 1948 Act) were obliged to provide accommodation and financial support. LB Greenwich argued that (i) ordinary accommodation and financial support were outside the scope of s117 and on the facts there was no indication that accommodation and financial support was required as an after-care service rather than as a basic need of the family; (ii) the obligation had been terminated properly in 2001 and, if not, it was too late to challenge it. MM argued that (i) accommodation and financial support might prevent a relapse in mental health difficulties and so was within the scope of s117, and (ii) there had been no lawful discharge of the obligations arising under s117 and so any necessary extension of time to challenge the non-provision of services should be granted.
LB Bromley argued that the needs of MM to be looked after were being met by his wife and so s21 was not triggered; and that by reason of s54 of and Sched 3 to the Nationality, Immigration and Asylum Act 2002, a person who did not have leave to be in the UK was not entitled to assistance under the 1948 Act unless the failure to make provision would breach his or her rights under the Human Rights Act 1998.
Introduction
1. In this claim, the Claimant Michael Mwanza ("Michael"), a Zambian national, seeks to challenge decisions of the 2 Defendant local authorities not to provide him with accommodation and financial support following his discharge from s3 of the Mental Health Act 1983 ("the 1983 Act") and whilst his immigration status is clarified. On 30 March 2010, Collins J ordered this claim to be listed for a rolled-up hearing on an expedited basis, which came before me on 7 June 2010. In the meantime, on a without prejudice basis, the Second Defendant has been providing accommodation and limited financial support for Michael and his family.
Medical Background and the Section 117 Claim
2. Michael, his wife Prudence and their 2 children are all Zambian nationals. Michael and Prudence arrived in the UK in August 2000, both being dependent for leave on Prudence's student visa. It was their intention to stay in the UK whilst Prudence, who is an accountant, obtained academic qualifications, which they thought would hold her in good stead when they returned to Zambia so far as employment was concerned. Whilst Prudence studied, it was intended that Michael should work, as he would have been entitled to do as an accompanying spouse. Their 2 children joined them in January 2004.
3. Unfortunately, those plans were soon put into disarray: because, shortly after arrival, on 27 September 2000, Michael was admitted to hospital, as an informal in-patient under s2 of the 1983 Act, suffering from symptoms of paranoia. Such symptoms were not new for Michael. He had first suffered from paranoid ideation in 1992 (apparently following a mugging), and his condition gradually deteriorated. He saw a psychiatrist in Zambia in 1999, although apparently received no specific treatment then.
4. Following admission in September 2000, his mental condition worsened, and, after a period of home leave from which he failed to return voluntarily, he was assessed, and then admitted and detained in Queen Elizabeth's Hospital, Woolwich under s3 of the 1983 Act, under the care of Dr Cozzolino, with a diagnosis of paranoid schizophrenia.
5. From his available clinical records, the treatment appears to have been quickly and dramatically successful. His wife is noted as considering his improvement "remarkable". By about 1 January 2001, he is noted to have been in a "stable mental state", and was granted extended home leave. When he returned on 8 January, he is noted as having satisfactory appetite and sleep, his persecutory thoughts had "faded out", and he had no hallucinations. He had started looking for work, and was thinking of visiting his parents in Zambia. He was discharged from s3 that day, but retained as a voluntary s2 patient on the basis that he would return as an out-patient the following week for a "s117 meeting".
6. That was a reference to s117 of the 1983 Act ("s117"), subs(2) of which provides that, in respect of a person who is detained under s3 and then ceases to be detained:
"It shall be the duty of the Primary Care Trust… and the local social services authority to provide, in cooperation with relevant voluntary agencies, after-care services… until such time as the Primary Care Trust… and the local social services authority are satisfied that the person concerned is no longer in need of such services…"
7. Of that duty, the following points are noteworthy.
(i) The duty to provide after-care services is imposed upon both the relevant social services authority and the relevant health authority.
(ii) Although triggered by discharge from s3, the s117 duty is a continuing one (R v Ealing District Health Authority ex p FoxUNK[1993] 3 All ER 170) - and it does not cease until both the relevant Primary Care Trust and social services department (or anyone through whom they might exercise their statutory functions) conclude that such services are no longer required.
(iii) Section 117(3) defines the relevant "local social services authority" as "the local social services authority for the area in which the person concerned is resident or to which he is sent on discharge by the hospital in which he was detained". Unless the responsibility is transferred, that duty remains upon that authority until it is discharged, even if the patient moves (R (M) v LB Hammersmith &FulhamMHLR[2010] MHLR 110). There is no statutory mechanism for transfer - and so any transfer of responsibility is a matter for agreement between individual authorities on a case-by-case basis.
(iv) The scope of the services to be provided under s117 is in issue, and I consider that below (paras 61 and following). However, they are not "excluded services" within Sched 3 of the Nationality, Immigration and Asylum Act 2002 - and therefore immigration status is irrelevant to the consideration of whether such a duty to provide such services is owed.
8. Therefore, when he was discharged from s3 in January 2001, Michael was entitled to the benefit of s117 after-care services, the duty for providing them falling on the local authority for the area in which he was resident or discharged. By the time of the hearing before me, it was not in dispute that that was the LB Greenwich ("Greenwich Council") - and, on the evidence, that appears to be quite clear. On admission, an address was given for Michael in London SE18 (in Greenwich), and the application was made by a social worker from Greenwich. He was discharged to his wife, at the same SE18 address, and on discharge he was assigned a social worker from Greenwich and was assigned to the Community Mental Health Team in Greenwich; and indeed Greenwich purported to act...
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