R (N (South Africa)) v Coventry City Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wilson |
| Judgment Date | 13 October 2009 |
| Neutral Citation | [2009] EWCA Civ 1144 |
| Docket Number | Case No: C4/2008/2675 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 October 2009 |
[2009] EWCA Civ 1144
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE,
(MR NEIL GARNHAM QC)
Lower Court No: CO/2899/2007
QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
Lord Justice Wilson
Case No: C4/2008/2675
Mr Nigel Pleming QC and Mr James Presland (instructed by Coventry Law Centre) appeared on behalf of the Applicant
The Respondent did not appear and was not represented
Lord Justice Wilson:
Following its refusal on paper by Moses LJ, the proposed appellant makes a renewed application for permission to appeal against the dismissal of his claim for judicial review by Mr Neil Garnham QC, sitting as a judge of the High Court, Queen's Bench Division, Administrative Court on 17 October 2008. The claimant is a South African national and came to the UK on a six-month visa in 2002. His visa was not renewed. He applied for asylum but the Secretary of State refused his application and in 2007 the AIT dismissed his appeal against refusal. The claimant is thus an unlawful overstayer; and, although Mr Pleming QC has told me this afternoon on his behalf that a recent application has been made to the Secretary of State to reconsider his case on compassionate grounds, the claimant is, as things stand, liable to be the subject of removal directions in due course. Meanwhile, however, he applied to Coventry City Council (“Coventry”) for financial and other assistance. He has the misfortune to have suffered various medical conditions, including syphilis, tubercular meningitis, and an HIV infection which of course remains. In 2006 he was an in-patient at the Birmingham Heartlands Hospital for no less than ten months. On admission he was noted to be confused and a CT scan showed a cerebral oedema. It was there that the diagnoses of tubercular meningitis, syphilis and HIV were made and treatments in respect thereof began. Nevertheless, until a late trial of oral thalidomide, his condition continued to deteriorate and he developed hemiparesis. He was also noted to have significant cognitive disturbance. In the end he was discharged to live with his cousin.
By his solicitors the claimant asked Coventry to assess his needs under s.47 of the National Health Services and Community Care Act 1990 and to grant him support under s.21 of the National Assistance Act 1948. When the assessment under s.47 was negative and when support under s.21 was refused, the proceedings for judicial review were issued; and a second negative assessment followed. By a reserved judgment, delivered orally, the judge referred in detail to the various statutory provisions referable to the sources of obligation on the part of local authorities to overstayers and summarised them, in terms with which both counsel then appearing before him agreed, as follows:
“To establish that there is a power to provide him with support or assistance, the claimant here has to show that he is in need of care and attention and that that need has not arisen solely from his destitution and that the exercise of the power is necessary to avoid a breach of the Convention.”
The judge explained that nothing turned on the second of those three requirements, namely that any need of care and attention had not arisen solely from the claimant's destitution. It is not clear to me that Coventry had concluded to the contrary; but the judge implied that, had it done so, he would have been unable to uphold the validity of any such conclusion. What Coventry had, however, clearly decided was that the claimant had not established either that he was in need of care and attention or that the exercise of their power was necessary in order to avoid their breach of his Convention rights, in particular under Article 3. It was the judge's conclusion that each of those decisions on the part of Coventry could not be the subject of successful challenge.
In the present proposed appeal the claimant aspires to establish that the judge's conclusion on each of those two matters was wrong. At this stage, however, it is important for me to note developments which have occurred since his judgment was delivered.
The context of the first development is that, when making its initial assessment of the claimant, Coventry had considered that he should be the subject of assessment by Dr Plowman, a consultant neuropsychologist. The claimant, however, had failed to attend the fixed appointments with Dr Plowman, as a result of which Coventry had abandoned its effort to secure that evidence. It was the submission of Mr Presland, then appearing alone for the claimant before the judge, that there should be an adjournment of the hearing in order that the claimant should indeed be assessed by Dr Plowman; but the judge rejected the application. In his substantive submissions to the judge Mr Presland proceeded to contend that the absence of neuropsychological evidence vitiated Coventry's assessments; but it is clear from the decision that that contention was also rejected. Following the judge's decision, however, the claimant's lawyers apparently obtained public funding for Dr Plowman to make an assessment of him. The claimant was duly brought for interview by Dr Plowman on 23 March 2009; and the doctor provided his report dated 1 April 2009. It is unfortunate, although it may not in the event prove to be a matter of criticism, that it was served on Coventry only under cover of a letter dated 26...
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