R (N) v Coventry City Council
| Jurisdiction | England & Wales |
| Judgment Date | 17 October 2008 |
| Neutral Citation | [2008] EWHC 2786 (Admin) |
| Date | 17 October 2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2899/2007 |
[2008] EWHC 2786 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Garnham Qc
(Sitting as a Deputy High Court Judge)
CO/2899/2007
James Presland (instructed by Coventry Law Centre) appeared on behalf of the Claimant
Bryan McGuire (instructed by Coventry City Council) appeared on behalf of the Defendant
(Approved by the court)
NB Transcribed without the aid of all the documents
THE DEPUTY HIGH COURT JUDGE:
Introduction
This case concerns the assessment by Coventry City Council (“Coventry”) of the claimant's needs under section 47 of the National Health Services and Community Care Act 1990 (“the 1990 Act”) and its decision to refuse him support under section 21 of the National Assistance Act 1948 (“the 1948 Act”). It turns, in particular, on the meaning of “care and attention” in section 21, as interpreted by the House of Lords recently, and the ambit of Article 3 ECHR in the context of community care legislation.
The claimant seeks orders requiring the Council, Coventry, to “undertake a lawful assessment of [his] needs” pursuant to the 1990 Act and the provision of accommodation and support pursuant to section 21 of the 1948 Act.
On 4th April 2007, Langstaff J granted interim relief in this case. He ordered the Council to provide suitable accommodation, food and necessary support pending the outcome of this judicial review. The Council complied with that order and to date have continued to make such provision. They propose, if this challenge were to fail, to discontinue those arrangements 21 days after the date of judgment. There is an anonymity order in force in this case and I propose to refer to the claimant as “N” or “Mr N”, as appropriate.
The Factual History
The claimant, a South African national, came to the United Kingdom in 2002 on a 6 month visitor visa. He stayed on after the expiry of that period and subsequently claimed asylum. In February 2006 he was admitted as an emergency to Walsgrave Hospital, where he was diagnosed as suffering from tuberculosis, TB meningitis and syphilis. He was also HIV positive and demonstrated cognitive disturbance. He was transferred to Birmingham Heartlands Hospital, where he remained an in-patient until 10th December 2006. His treating physician wrote on 20th March 2007:
“If the treatment stopped temporarily or otherwise his condition would deteriorate quickly and [he] may suffer from premature death as a result.”
The claimant was discharged to accommodation in Coventry, paid for, at least initially, by his cousin. He sought assistance from Coventry through a body called “Birmingham Money Advice and Grants”. In the period 8th January to 5th February 2007, he was assessed by the local authority pursuant to Section 47 of the 1990 Act and a report dated 5th February 2007 set out Coventry's conclusions. That assessment, like a later one to which I will return, was conducted for the purposes of both a section 47 assessment and an assessment of Coventry's obligations to the claimant under the Human Rights Act 1998. It is that assessment which was the principle focus of these proceedings when they were commenced.
Coventry determined that Mr N:
“… is not destitute at present as he has accommodation, his cousin has been providing financial support however states that he is no longer able to do this… no care needs have been identified requiring assistance from community services, therefore support cannot be provided to relieve destitution. At present it would not breach [Mr N]'s human rights by not providing support.” (Sic).
Having paid no rent since December 2006, the claimant was required by his landlord to leave his rented accommodation. He has subsequently returned to the property which he then occupied with his cousin without his landlord's consent. Since the interim relief ordered by Langstaff J, he has been accommodated at the expense of Coventry. He says he has no money for food, that his medication should be taken with food and that because he has none, he often vomits when he has taken his medication.
The claimant has since made significant recovery from the TB and the Syphilis, in respect of which he no longer receives medication. His HIV is apparently stable with antiretroviral drugs. In that regard, Dr Wade, his treating consultant HIV physician, reported on 18th April 2008 that, “Since his arrival in Coventry his condition hasn't improved and has been the same”.
A second section 47 assessment was carried out in April 2008 resulting in a report dated 16th May 2008. This time Coventry concluded:
“At present he has no eligible care needs that meet the 'destitute plus' criteria for support. This has been evidenced as follows:
• Medical reports… confirm that his anti-viral medication is effective at present and his prognosis is dependant on his compliance with the medication regime.
• [He] reports that he is able to complete most of his daily living tasks.
• [He] continues to have other support available to him in the short term from his cousin [C] and in the long term he is free to return to South Africa to access the support available to him there.
• Observations confirm his functional abilities in completing tasks
• His immigration status has changed
He appears now to be excluded from support under section 21… As he has no eligible care needs, there would be no breach of Convention rights by not providing support”.
( Quotation not checked).
Whilst strictly speaking this assessment postdates the decision under challenge, both counsel agreed that it would be wholly artificial for me to disregard it in considering the legality of Coventry's assessment of the claimant's needs. Given the discretionary nature of relief in JR proceedings, that must be right.
The claimant continues to receive treatment as an outpatient at the Department of Genito-urinary Medicine at the Coventry and Warwickshire Hospital. He continues to report weakness on his right side and takes painkillers. He remains on antiretroviral treatment.
During the course of the May 2008 review, the following was recorded as to his immigration history.
“… At the review meeting on 17/03/2008, [N] reported that he is not sure what his current immigration status is. A telephone call was made to… the Local Authority Home Office Inquiry Line on 09/05/2008 to ascertain his current status. It was reported that on 20/06/2007 an application was made for leave to remain on asylum grounds. On 10/07/07 the application was refused. On 19/07/2007 the refusal was appealed. On 29/08/07 the appeal was dismissed. It was confirmed that [N]'s claim is rights-exhausted and that at present he is illegally present in the UK”.
(Emphasis added). ( Quotation not checked).
It has subsequently been confirmed that on 29th August 2007 the AIT rejected the claimant's appeal against refusal of asylum. Although, like this court, they have not seen the determination, it is understood by those acting for the claimant that the basis of the AIT's decision was that the claimant could properly be returned to South Africa, because his medical condition was not so serious as to reach the Article 3 threshold described by the House of Lords in N v Secretary of State for the Home Department [2005] UKHL 31, a case to which I return below.
A further check was made with the Home Office by Coventry on 3rd October 2008. The Home Office confirmed that the position remained as previously described and as set out in the review. Thus, it is asserted by Coventry that the Home Office have confirmed that the claimant has exhausted his rights of appeal under immigration law and that he is now “unlawfully present in the UK”. There are no further immigration claims pending. Mr Presland, who appears for the claimant, accepts that that is right.
Mr Presland points out that removal directions have not yet been set by the Secretary of State and that it may be some time before the Home Office takes steps to remove the claimant. In the meantime, he will remain in the UK and, says Mr Presland, is in need of assistance.
At the beginning of the hearing of this case, Mr Presland made an application for an adjournment on the basis that Coventry ought to obtain an up-to-date and comprehensive cognitive assessment as part of their section 47 obligations. He suggested that that was always their intention and that various appointments had been missed by the claimant, substantially as a result of his cognitive difficulties. Mr McGuire, who appears for Coventry, opposed that application and I rejected it. It was my view that this public law challenge stands or falls on the material available to Coventry when they made their assessments; if they had failed to obtain information which they ought to have considered, that might legitimately form part of the complaint that I was considering. I reconsidered this issue after the conclusion of the argument, as I was invited to do, but remain of the same view.
The Legislative Scheme
I have had cited to me, orally or in writing, a great many legislative provisions and Government circulars. In my judgment, the issues in this case fall to be considered against a background of five pieces of legislation relating to community care, and immigration and asylum law.
First, section 47 of the 1990 Act provides for the assessment of needs for community care services:
“(1) Subject to subsections (5) and (6) below [which are not immediately relevant to the issues I am...
To continue reading
Request your trial
-
R (Sheref) v Coventry City Council
...assistance under section 21 should be given. He pointed to the decision of Mr Garnham QC, sitting as a deputy High Court judge in R (N) v Coventry City Council [2008] EWHC 2786 (Admin). At paragraph 29, the deputy judge referred to the decision of Walker J in R (N) v LB Lambeth [2006] EWH......