R P v The London Borough of CAMDEN
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE RICHARDS |
| Judgment Date | 14 January 2004 |
| Neutral Citation | [2004] EWHC 55 (Admin) |
| Date | 14 January 2004 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5844/2003 |
[2004] EWHC 55 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand London WC2
MR JUSTICE RICHARDS
CO/5844/2003
MR ZIA NABI (instructed by Duncan Lewis & Co) appeared on behalf of the CLAIMANT
MR CLIVE LEWIS (instructed by london Borough of Camden, Legal Services) appeared on behalf of the DEFENDANT
This is a challenge to a decision by the defendant authority, following an assessment of the claimant's community care needs, that he does not qualify under section 21 of the National Assistance Act 1948 for the provision of residential accommodation. The decision was made both on the ground that care and attention were "otherwise available" to the claimant within the meaning of section 21(1)(a), and on the ground that he comes within the prohibition in section 21(1A) on the provision of residential accommodation because he is a person subject to immigration control and his need for care and attention arises solely because of his destitution.
Legal framework
Section 47(1) of the National Health Service and Community Care Act 1990 provides for a local authority —(a) to carry out an assessment of a person's needs for community care services, and (b) having regard to the results of that assessment, to decide whether his needs call for the provision by them of any such services. Community care services are defined in section 46 and include services which a local authority may provide under section 21 of the 1948 Act.
Section 47(3) of the 1990 Act empowers the local authority to invite the relevant health authority to assist in the making of any assessment. The same sub-section provides that in making its decision on whether there is a need for the local authority to provide services, the authority shall take into account any services which are likely to be made available to the person by the relevant health authority.
Section 21(1)(a) of the 1948 Act provides:
"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 [aged 18 or over] 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."
Thus there is no duty to provide residential accommodation if any care and attention that may be needed is otherwise available.
Directions have been made by the Secretary of State requiring local authorities to make arrangements under section 21(1)(a) to provide residential accommodation for persons meeting the statutory criteria, including arrangements to provide accommodation in relation to persons who are or have been suffering from mental disorder.
Section 21(1A) provides:
"A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under sub-section (1)(a) if his need for care and attention has arisen solely —
(a) because he is destitute; or
(b) because of the physical effects, or anticipated physical effects of being destitute."
It was held in R v Wandsworth London Borough Council ex.p O [2000] 1 WLR 2539 that the prohibition in section 21(1A) does not apply if a person's needs are to any material extent made more acute by some circumstance other than the mere lack of accommodation and funds.
Lord Hoffmann expressed the effect of the provision in this way in R(Westminster City Council) v Secretary of State for the Home Department [2002] HLR 58 at para 32 of his speech:
"The use of the word 'solely' makes it clear that only the able bodied destitute are excluded from the powers and duties of section 21(1)(a). The infirm destitute remain within. Their need for care and attention arises because they are infirm as well as because they are destitute. They would need care and attention even if they were wealthy. They would not of course need accommodation, but that is not where section 21(1A) draws the line."
Facts
The claimant is a 44 year-old US citizen who entered the United Kingdom in July 2001. He is a person subject to immigration control, but lawfully within this country. It is a condition of his leave to enter the United Kingdom that he is not allowed to have recourse to public funds. He is therefore not entitled to the standard range of welfare benefits. He married a British citizen in September 2001. The relationship between him and his wife is a continuing one, and, indeed, they are on good terms and determined that their marriage should succeed, but they do not currently live together for reasons that I shall explain.
Between 2001 and the latter part of 2003, the claimant spent some of his time in the United Kingdom, but also returned to the USA some four times and lived with his family there for lengthy periods. He last came back to this country on 3 September 2003.
The claimant suffers from mental health difficulties, to which I will refer in greater detail in a moment. His wife is disabled and suffers from grand mal epilepsy. She is the tenant of a flat and he has lived with her in that flat from time to time. His evidence is, however, that when he is mentally unwell it is too stressful for his wife to have him living with her; so that when he has relapses he has to leave the flat and they live apart. I should also perhaps mention that his wife has no financial resources of her own and depends on state benefits and assistance.
On 3 October 2003, the claimant was admitted to a hospital psychiatric unit by reason of his mental health condition. He was discharged on 14 October. His evidence is that on his discharge his wife did not feel that she could cope with his living with her at present. He applied to the defendant authority's housing and social services departments and was placed in bed and breakfast accommodation pending an assessment of his needs.
He was assessed by a psychiatrist, Dr Ornstein, who provided a report on 15 October in which he concluded that the claimant did not have any acute psychiatric needs, although in the long term he might benefit from involvement with psychiatric services.
Two weeks later, on 29 October, the claimant's solicitors provided the defendant with a report dated 28 October, prepared by Dr Hill, a psychiatric consultant whom they had instructed on the claimant's behalf. In his report, Dr Hill reached the following conclusions, amongst others:
"He has had lifelong problems with his personality which have made him socially inept, excessively dependent on and suspicious of others …
He has become increasingly depressed and suicidal because of his failure [to make his marriage work] and has now reached a critical point in his life.
In addition to his depression, he has had quite severe obsessional compulsive symptoms that are interfering increasingly with his life. The symptoms are probably independent of his depression although almost certainly made worse by it. They also make him appear to be more eccentric and thus increase the difficulty of his social relationships …
Although anti-depressant medication is not the complete answer to his lifelong problems, there is a good chance that if he could persist with it, his obsessional compulsive symptoms could be substantially relieved and the depression could also be alleviated. It should be possible for him to get back to the much better mental state of his first months with [his wife]. He is more likely to persist with medication in a settled and supportive environment, where he could be encouraged to continue with medication when he becomes dejected. He would also have confidence that the medication is not harming him if he could be closely monitored while taking it.
… Cognitive behavioural psychotherapy is probably more suited to his immediate needs and in particular would help him to make the marriage work. It would be a major step forward for him and [his wife], who is also a fragile person, if they could get to the point where they could mutually satisfy their needs. They are currently committed towards one another, but there is a limit to how long commitment can last if the relationship remains eternally in the doldrums.
It is abundantly clear that he now has substantial mental health problems, which are made very much worse by his inability to have settled accommodation. Apart from any other considerations, it makes him feel a total failure on the scrapheap of humanity and makes any ongoing therapeutic attempts more or less impossible. If his needs continue to be neglected, there is a very real risk of achieved suicide."
In a supplementary letter of 30 October, Dr Hill made explicit what was said to be implicit in his report, that the claimant was in dire need of treatment for his psychiatric condition and that it would be impossible for him to receive such treatment unless he was in stable accommodation. If his present unstable arrangements were continued, treatment would be impossible and his condition would be further exacerbated.
In relation to the issue of psychiatric evidence provided to the defendant by the claimant's solicitors, I should also mention a much earlier report by a Dr Adelstein, dated 25 July 2003, which the claimant had obtained while in the USA. It does not assist greatly, but it may be noted that Dr Adelstein concluded that the claimant "is suffering from a severe level of depression and anxiety...
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