R (Mwanza (Michael)) v London Borough of Greenwich and another

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMR JUSTICE HICKINBOTTOM
Judgment Date15 June 2010
Neutral Citation[2010] EWHC 1462 (Admin)
Docket NumberCase No: CO/2734/2010
Date15 June 2010

[2010] EWHC 1462 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Before: The Hon Mr Justice Hickinbottom

Case No: CO/2734/2010

Between
The Queen on the Application of Michael Mwanza
Claimant
and
The London Borough of Greenwich
First Defendant
and
The London Borough of Bromley
Second Defendant

Nick Armstrong (instructed by Fisher Meredith LLP) for the Claimant

Ms Jenni Richards (instructed by Katherine Watson, Principal Lawyer (Law and Governance), London Borough of Greenwich) for the First Defendant

Andrew Sharland (instructed by Jim Kilgallen, Senior Lawyer (Education), London Borough of Bromley) for the Second Defendant

Hearing dates: 7 June 2010

MR JUSTICE HICKINBOTTOM

MR JUSTICE HICKINBOTTOM:

Introduction

1

In this claim, the Claimant Michael Mwanza (“Michael”), a Zambian national, seeks to challenge decisions of the two Defendant local authorities not to provide him with accommodation and financial support following his discharge from section 3 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 two children are all Zambian nationals. Michael and Prudence arrived in the United Kingdom in August 2000, both being dependent for leave on Prudence's student visa. It was their intention to stay in the United Kingdom 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 two 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 section 2 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 section 3 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 section 3 that day, but retained as a voluntary section 2 patient on the basis that he would return as an out-patient the following week for a “section 117 meeting”

6

That was a reference to section 117 of the 1983 Act (“section 117”), sub-section (2) of which provides that, in respect of a person who is detained under section 3 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 section 3, the section 117 duty is a continuing one ( R v Ealing District Health Authority ex parte Fox [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 London Borough of Hammersmith & Fulham [2010] EWHC 562). 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 section 117 is in issue, and I consider that below (paragraphs 61 and following). However, they are not “excluded services” within Schedule 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 section 3 in January 2001, Michael was entitled to the benefit of section 117 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 London Borough of 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 in accordance with section 117, as I will shortly describe. It seems clear that Michael was both resident in, and discharged to an address in, the geographical area for which Greenwich Council was the responsible social services authority.

9

Greenwich Council was therefore the local social services authority responsible to Michael under section 117. The relevant Primary Care Trust exercised their responsibility through Oxleas Mental Health Foundation Trust (“Oxleas NHS Trust”).

10

As I have indicated, under section 117, the local social services authority and health authority each have a coterminous but distinct, parallel responsibility. However, they may enter into a formal arrangement under section 75 of the National Health Service Act 2006 (formerly section 31 of the Health Act 1999) to exercise their responsibilities in a partnership. Greenwich Council and Oxleas NHS Trust have worked in such a partnership since 2003. However, in 2001, they had no such formal arrangement—but, nevertheless, there was a joint team drawn from both Greenwich Council and Oxleas NHS Trust that worked together in relation to their respective section 117 duties. That is clear from paragraph 4 of the statement of John Nawrockyi (Director of Adults and Older People Services at Greenwich Council) dated 8 June 2010, but also from both form and substance of the contemporaneous documents, many of which (e.g.) sport both logos and refer to “our team”. Given the inevitable interrelationship between the social services and health aspects of care following discharge from section 3, such a joint venture was an eminently practical and sensible response to the respective duties imposed on the two authorities by section 117.

11

Michael was discharged from section 3 on 8 January 2001, but attended a meeting on 15 January which both discharged him as an in-patient from the hospital and considered the after-care services he would require under section 117. Such services are, of course, inevitably informed by need: and in any event, because services provided under section 117 are “community care” for the purposes of the National Health Service and Community Care Act 1990 (see section 46(3) of that Act), there is a duty on the relevant authority to assess the person's need for those services under section 47(1)(a) of the 1990 Act, in accordance with the relevant statutory guidance, which requires the provision of a care plan.

12

Although, after this length of time, contemporaneous documents are generally sparse, there are several apparently contemporaneous notes of the 15 January 2001 meeting. Those show that it was attended by Michael and Prudence, and four medics, namely Dr Cozzolino, a Senior House Officer, a Staff Nurse and a Community Mental Health Nurse (Fidelis Murape) to whom Michael, as an out-patient, was assigned. In those documents, there is express acknowledgment that “Section 117 applies”: and that that meeting was a “Sec 117 Review”. All of the notes indicate that various areas of concern were discussed, such as mental state, medication, job...

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