R (Shehab Aburas) v London Borough of Southwark
| Jurisdiction | England & Wales |
| Judge | Michael Fordham |
| Judgment Date | 21 October 2019 |
| Neutral Citation | [2019] EWHC 2754 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/562/2019 |
| Date | 21 October 2019 |
[2019] EWHC 2754 (Admin)
Michael Fordham QC
Case No: CO/562/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Nabila Mallick (instructed by Instalaw Solicitors) for the Claimant
Catherine Rowlands (instructed by London Borough of Southwark) for the Defendant
Hearing dates: 18 September 2019
Judgment Approved by the court for handing down
Michael Fordham QC:
Introduction:
This claim for judicial review is found on that part of the legal map where there is an intersection between (i) local authority functions of assessing and meeting adult needs for care and support under Part I of the Care Act 2014 (CA14) and (ii) human rights arguments invoking the Convention rights in Article 3 (protection from inhuman and degrading treatment) and Article 8 (right to respect for private and family life) of Schedule 1 to the Human Rights Act 1998 ( HRA98). The claimant (Mr Aburas) was represented by Ms Mallick and the defendant (Southwark) by Ms Rowlands.
i) The essence of Ms Mallick's argument was that, linked to but wider than being destitute and in need of accommodation and subsistence, Mr Aburas has a ‘looked-after need’ of support by a social worker to access food and medication, which support requires for its effective delivery the provision of accommodation, refusing which supported accommodation has consequences so serious as to breach Mr Aburas's Convention rights.
ii) The essence of Ms Rowlands' defence of the claim was that, even if (which is not accepted) Mr Aburas is destitute and in need of accommodation and subsistence, it is to the Home Secretary through Asylum Support that he must look for human rights-compatible action, Southwark having lawfully discharged its statutory ‘looked-after needs’ functions under CA14 read with HRA98.
These were the key factual features on which the argument proceeded:
i) Mr Aburas is aged 58. He is an apparently stateless Palestinian who came to the United Kingdom from Kuwait, arriving in 1996. He has mental health issues and has been diagnosed with bi-polar disorder and depression. He is a failed asylum-seeker without regular immigration status. He is a person in the category ‘no recourse to public funds’. He is a ‘person subject to immigration control’ for the purposes of CA14 section 21. He is present in the United Kingdom as a ‘person in breach of immigration control’ for the purposes of Schedule 3 paragraphs 1 and 7(1)(a) to the Nationality Immigration and Asylum Act 2002 (NIAA02). He faces barriers to a proposed removal to Kuwait.
ii) Southwark's acceptance that Mr Aburas is a person facing barriers to removal has the consequences that removal is not the human rights solution; nor is it the human rights problem. As to the human rights solution, Mr Aburas's needs for care and support cannot be said to be met by his going to Kuwait and being looked-after there. In some cases that can be an answer to human rights arguments: see R (AR) v London Borough of Hammersmith and Fulham [2018] EWHC 3453 (Admin) at §42. As to the human rights problem, no issues as to the human rights-compatibility of the act and implications of removal from the United Kingdom arise for consideration, as they do in some cases. These consequences explain why various human rights topics relating to the human rights implications of removal appeared in Southwark's Assessment document and why they were filled in as ‘not-applicable’.
iii) Mr Peter Bondzie is a social worker employed by Southwark who has dealt with Mr Aburas's case. Mr Bondzie issued a No Recourse to Public Funds Adults Assessment on 14 January 2019, which Mr Bondzie then revised on 4 February 2019, within which a Manager review was added by Mr Jermine Nuby on 6 February 2019. It was common ground that the original assessment, the revisions and the review together and as a whole constitute the relevant CA14 section 9 needs assessment (the Assessment). The Assessment was a negative one: Southwark decided that there were no relevant needs for care and support and that no action was needed.
iv) Mr Brian Dikoff is the Legal Organiser at the non-governmental organisation Migrants Organise (MO). It was Mr Dikoff who had referred Mr Aburas's case to Southwark. MO works primarily with vulnerable migrants and refugees, typically those with ongoing mental health issues. Mr Aburas had been referred to MO in June 2018, as a person without regular immigration status and who was homeless. Initially, MO had referred Mr Aburas to homelessness charities and charities who could arrange private hosting (short-term stays in spare bedrooms), to the Waterloo Multi-Ethnic Counselling Service, to a GP, and to its own weekly counselling sessions. Such were the concerns about Mr Aburas by the autumn of 2018 that Mr Dikoff became involved and made a referral to Southwark's Adult Social Care Team, requesting a CA14 assessment of care and support needs.
v) Central to MO's concerns about Mr Aburas's need for a proper assessment as to care and support in relation to ‘looked-after needs’ were issues regarding Mr Aburas's vulnerability, physical and mental health conditions, a lack of insight and uncomplaining nature, problems with not taking medication linked to a lack of support, not eating and not being able to take medication on an empty stomach. What MO has consistently said is Mr Aburas is someone needing care and support, which care and support would for effective delivery require accommodation. I read and heard submissions on the evidence before the Court relating to these and other concerns about Mr Aburas and his well-being.
vi) So it was that Southwark received a reasoned written referral from MO on 9 November 2018. Mr Bondzie then conducted a two-hour meeting with Mr Aburas on 14 January 2019, which meeting was also attended by Mr Dikoff who followed up the same day with an email containing matters he wished to bring to Mr Bondzie's attention. On 24 January 2019 Mr Dikoff provided detailed written representations. It was on receipt of those representations that the Assessment included the revisions dated 4 February 2019. For transparency, the Assessment was written up in a way which showed what text had been added by those revisions.
vii) The Assessment recorded and was reasoned on the basis that Mr Aburas is “a current asylum seeker”. That would have meant that the Home Secretary has the function through Asylum Support of providing appropriate accommodation and subsistence support in accordance with IAA99 section 95, including a duty to do so in order to secure compatibility with Convention rights to protect against destitution. The position for Mr Aburas, as explained by Ms Mallick in her skeleton argument, accepted by Ms Rowlands in post-hearing submissions, is that Mr Aburas is a failed-asylum seeker. That would mean that the Home Secretary had the statutory function through Asylum Support of providing appropriate accommodation and subsistence support in accordance with IAA99 section 4 (which Ms Mallick's post-hearing submissions told me has been replaced by equivalent provision under Immigration Act 2016 Schedule 10 paragraph 9), including a duty to do so in order to secure compatibility with Convention rights to protect against destitution. Nobody submitted that the difference between current and failed asylum-seeker was material in this case and, ultimately, it was accepted that Mr Aburas is a failed asylum-seeker. It was common ground that Mr Aburas has in the past been accommodated by the Home Office under section 4 of IAA99. It was also accepted that, in principle, he would stand to be so accommodated again if he approached the Home Office and if he met the relevant test as to accommodation and subsistence support were met.
viii) Southwark considered that the availability of human rights-compatible protection in relation to destitution from the Home Office provided the answer in this case, so far as accommodation and subsistence is concerned. The Assessment said this:
“The council believes that Mr Aburas is able to make representation to Asylum Support for support with accommodation and subsistence … This would meet his current needs around accommodation and subsistence.”
Ms Mallick accepted that this would be the legally legitimate answer, if this case were solely about accommodation and subsistence needs and about protection from destitution. Her case is that none of this is an answer if this case is more than that, because Mr Aburas (a) has a ‘looked-after need’ for social worker support (b) whose effective delivery requires accommodation (c) the denial of which has such serious consequences as to breach his Convention rights.
ix) The Assessment addressed Mr Aburas's current situation, background and health issues. It set out functional assessments, by reference to headings reflecting the criteria for ‘eligible needs’ under the legislative scheme. It then addressed risks, as to homelessness, mental health issues and malnutrition. A ‘human rights’ section, concerned with the question of immigration removal and its human rights implications, recorded that there were barriers to return. There was an eligibility determination by reference to wellbeing criteria, followed by a summary of well-being. The outcome was that there was no relevant ‘looked-after need’, the Assessment concluding as follows:
“The council does not believe that Mr Aburas has eligible needs under its duties of the Care Act 2014 nor non-eligible needs that require the Council to use its powers under the Care Act 2014.”
I will need to explain below the lexicon of “eligible needs” which trigger a CA14 duty, and “non-eligible needs” which trigger a CA14 power.
Ms Mallick challenges the Assessment on grounds of incompatibility with...
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