R NM v The London Borough of Islington Northamptonshire County Council First (Interested Party) The Parole Board Second (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Sales |
| Judgment Date | 29 February 2012 |
| Neutral Citation | [2012] EWHC 414 (Admin) |
| Docket Number | Case No: CO/9335/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 29 February 2012 |
[2012] EWHC 414 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Sales
Case No: CO/9335/2011
and
and
Ms Felicity Williams (instructed by T V Edwards LLP) for the Claimant
Mr Bryan McGuire QC (instructed by Islington Legal Services) for the Defendant
Mr Ranjit Bhose (instructed by Northamptonshire Legal Services) for the First Interested Party
The Second Interested Party did not appear and was not represented.
Hearing dates: 15 – 16/02/2012
Introduction
This is an application for judicial review of a decision by the Social Services Department of the Defendant council ("Islington") not to conduct an assessment of the Claimant's needs under section 47 of the National Health Service and Community Care Act 1990 ("the NHSCCA") with a view to provision of accommodation and support services to the Claimant if he is released from prison.
The Claimant has been in prison since 2006 and is currently detained under a sentence of imprisonment for the protection of the public. He is assessed as having significant learning disabilities.
Part of the background to the case has been a dispute between Islington and other local authorities who might have responsibility to provide support to the Claimant if he is released. In view of that dispute, Northamptonshire County Council ("Northamptonshire") has been joined as an interested party in these proceedings and appeared by counsel at the hearing. The Parole Board was also joined as an interested party since it had sought, via the Secretary of State for Justice, to obtain information from the relevant local authority about the accommodation and support which might be provided to the Claimant if he were released from prison. That information would be relevant to an assessment by the Parole Board of the risk of re-offending which the Claimant might pose if he were released.
Statutory and policy guidance framework
Section 47(1) and (2) of the NHSCCA provides:
" 47. – Assessment of needs for community care services.
(1) Subject to subsections (5) and (6) below, where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority—
(a) shall carry out an assessment of his needs for those services; and:
(b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services.
(2) If at any time during the assessment of the needs of any person under subsection (1)(a) above it appears to a local authority that he is a disabled person, the authority—
(a) shall proceed to make such a decision as to the services he requires as is mentioned in section 4 of the Disabled Persons (Services, Consultation and Representation) Act 1986 without his requesting them to do so under that section; and
(b) shall inform him that they will be doing so and of his rights under that Act."
For the purposes of this section, "community care services" includes services under sections 21 and 29 of the National Assistance Act 1948 ("the NAA"): sections 46(3) and 47(8) of the NHSCCA.
Section 21(1) of the NAA provides:
" 21. – Duty of local authorities to provide accommodation.
(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing—
(a) residential accommodation for persons who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them; …"
Section 24 of the NAA provides in relevant part as follows:
" 24. – Authority liable for provision of accommodation.
(1) The local authority [empowered] under this Part of this Act to provide residential accommodation for any person shall subject to the following provisions of this Part of this Act be the authority in whose area the person is ordinarily resident.
[…]
(3)Where a person in the area of a local authority—
(a) is a person with no settled residence, or
(b) not being ordinarily resident in the area of the local authority, is in urgent need of residential accommodation under this Part of this Act,
the authority shall have the like [power] to provide residential accommodation for him as if he were ordinarily resident in their area.
(4) Subject to and in accordance with the [arrangements] under section twenty-one of this Act, a local authority shall have power, as respects a person ordinarily resident in the area of another local authority, with the consent of that other authority to provide residential accommodation for him in any case where the authority would have duty to provide such accommodation if he were ordinarily resident in their area. …"
Section 29(1) of the NAA provides:
" 29. – Welfare arrangements for blind, deaf, dumb and crippled persons, etc.
(1) A local authority may, with the approval of the Secretary of State, and to such extent as he may direct in relation to persons ordinarily resident in the area of the local authority shall make arrangements for promoting the welfare of persons to whom this section applies, that is to say persons who are blind, deaf or dumb, or who suffer from mental disorder of any description and other persons who are substantially and permanently handicapped by illness, injury, or congenital deformity or such other disabilities as may be prescribed by the Minister."
It is accepted that the Claimant suffers from a relevant disability for the purposes of this section. Section 29(4) gives examples, without prejudice to the generality of the power in section 29(1), of the kind of assistance which can be provided under section 29, such as giving "instruction… in methods of overcoming the effects of their disabilities".
Approvals and directions for the purposes of sections 21 and 29 of the NAA have been given by the relevant Secretary of State in circulars to local authorities. The current relevant circular is Local Authority Circular LAC 93(10). Appendix 1 to LAC 93(10) relates to section 21(1) of the NAA. Paragraph 2(1) of Appendix 1 provides:
" Residential accommodation for persons in need of care and attention
2.-(1) The Secretary of State hereby –
(a) approves the making by local authorities of arrangements under section 21(1)(a) of the Act in relation to persons with no settled residence and, to such extent as the authority may consider desirable, in relation to persons who are ordinarily resident in the area of another local authority, with the consent of that other authority; and
(b) directs local authorities to make arrangements under section 21(1)(a) of the Act in relation to persons who are ordinarily resident in their area and other persons who are in urgent need thereof,
to provide residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstance are in need of care and attention not otherwise available to them."
Appendix 2 to LAC 93(10) relates to section 29(1) of the NAA. Paragraph 2(1) of Appendix 2 provides:
" Powers and duties to make welfare arrangements
2.-(1) The Secretary of State hereby approves the making by local authorities of arrangements under section 29(1) of the Act for all persons to whom that subsection applies and directs local authorities to make arrangements under section 29(1) of the Act in relation to persons who are ordinarily resident in their area for all or any of the following purposes –
(a) to provide a social work service and such advice and support as may be needed for people in their own homes or elsewhere;
(b) to provide, whether at centres or elsewhere, facilities for social rehabilitation and adjustment to disability including assistance in overcoming limitations or mobility or communication;
(c) to provide, whether at centres or elsewhere, facilities for occupational, social, cultural and recreational activities and, where appropriate, the making of payments to persons for work undertaken by them (a)."
In relation to both Appendix 1 and Appendix 2 it is relevant to note that the approval given is not limited to persons who are ordinarily resident in the area of a local authority.
Section 7(1) of the Local Authority Social Services Act 1970 ("the LASSA") provides:
" 7. – Local authorities to exercise social services functions under guidance of Secretary of State.
(1) Local authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State."
"Social services functions" include those under sections 21 and 29 of the NAA and under section 47 of the NHSCCA: see section 1A of and Schedule 1 to the LASSA.
Where there is a dispute between local authorities as to whether a person is ordinarily resident in their respective areas, section 32(3) of the NAA makes provision for the dispute to be resolved by the Secretary of State. Directions and guidance have been promulgated in relation to the resolution of such disputes. The Ordinary Residence Disputes (National Assistance Act 1948) Directions 2010 made provision for an "ordinary residence dispute" between local authorities regarding a...
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