R (Sheref) v Coventry City Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Beatson,MR JUSTICE BEATSON |
| Judgment Date | 13 May 2009 |
| Neutral Citation | [2009] EWHC 2191 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 May 2009 |
| Docket Number | Case No: C0/4398/2009 |
[2009] EWHC 2191 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at Birmingham Civil Justice Centre
Priory Courts
33 Bull Street
Birmingham B4 6DS
MR Justice Beatson
Case No: C0/4398/2009
Mr R De Mello appeared on behalf of the Claimant
Mr McGuire appeared on behalf of the Defendant
Mr Justice Beatson:
1. This is an application for permission to apply for judicial review of the decisions of the defendant dated 19 February and 25 March 2009, refusing to provide the claimant with welfare assistance and care; failing to conduct an assessment of his needs; and issuing him with a notice to quit his occupation of the accommodation he presently occupies. The proceedings were lodged on 7 May and were filed that day, together with an application for urgent consideration.
2. The conditions for urgent consideration were not met because the claimant had not acted with the expedition required in such an application in view of the time lapse between the decisions challenged and the launching of proceedings. Mr De Mello, who appeared on behalf of the claimant, explained that the delay was due to difficulties in obtaining legal aid. These difficulties were not explained in the form M61 nor was the court given details of them. In a case such as this, in which one of the orders sought is a mandatory order, it is incumbent on the experienced solicitors and counsel to follow the procedures and to provide such explanations.
3. The case came before me as a result of an order I made on 8 May listing the application for permission on notice to the defendant. The defendant, through Mr McGuire has appeared before me. Both parties have agreed to treat the present hearing as in effect a rolled up application. Accordingly, while this is formally an application for permission, the remainder of this judgment will proceed to address the substance of the claim and not make distinctions between arguability and whether the claim is established.
4. The claimant is a national of the Republic of Chad. He arrived in the United Kingdom on 19 August 2002. He applied for asylum. On 3 October 2002 the Secretary of State rejected his application. An appeal was dismissed on 14 April 2003 and an application for permission to appeal to the appellate tribunal was refused on 27 June 2003. The claimant was returned to Chad on 11 October 2005. The authorities did not accept him and he was sent back to the United Kingdom, where he made a fresh claim for asylum. In 2006 the claimant was admitted to hospital and had an operation to remove a lump from his neck. The lump was analysed and he was diagnosed as having follicular non-Hodgkinson's lymphoma.
5. He was released from hospital on 4 August 2006. At that stage the defendant provided him with financial assistance, enabling him to get accommodation, and did so on a without prejudice basis while the claimant was undergoing medical treatment. On 23 February 2007 the defendant's social services department carried out a case management review and recommended that the claimant's welfare support should continue.
6. On 8 March that year the claimant was admitted to hospital because his face was swollen and there was a lump on his chest. Tests were taken. These showed that his cancer had not returned. While he was in hospital his welfare care apparently stopped. After his discharge from hospital the Coventry Law Centre, his solicitors, wrote asking for his care to be reinstated. The social services replied, saying that care had not been withdrawn, and on 14 April he was provided with a care plan. Money and accommodation funded by payments to a landlord was provided to him.
7. The claimant's fresh claim for asylum, made on his return to the UK in October 2005, was refused by the Home Secretary on 7 February 2008. On 2 April 2008 the claimant's GP at the Green Lane Medical Centre wrote to the defendant about the claimant's condition. The material parts of the letter for this purpose are the statement that the claimant was being treated for neck and upper back pain; that no treatment was planned at UHCW, which I take as a hospital; although he continues under regular review. After setting out other details, including that prognosis is difficult and that “he remains clear from his lymphoma”, it states:
“In general, I think he is able to cope with the normal activities of daily living. This may be compromised if his pain was not controlled adequately.”
8. In a letter dated 23 May 2008, Ms Turner, a senior physiotherapist at the primary care trust, wrote to the defendant's physical impairment team reporting on the claimant. After setting out the history, the material part of the letter states:
“…the duration of his ongoing requirement for physiotherapy treatment is at present unpredictable, as this will depend on his response to treatment. In any case, the duration and nature of his symptoms suggest that his condition will require ongoing self-management following discharge from physiotherapy.”
I emphasise that in that physiotherapy context what was being referred to was self-management.
9. There is also a useful letter from the Harnall Lane Medical Practice, dated 20 August 2008. This summarises relevant consultations in the period from 2006 to the date of the letter. These record for 13 May 2008 that:
“Difficulties with Cov. City Council: may have benefits suspended and no more accommodation because he is no longer seen to have a life threatening illness as in remission. Discussed. Plans to see Cov. Refugee Centre and a solicitor”
And for 17 June 2008:
“Under considerable pressure about accommodation. Council have withdrawn flat now that health has improved. Symptoms of dizziness have recurred.”
And for 20 August 2008:
“…he does require specialist NHS treatment and follow-up and care needs are more than the average healthy person and need for supported social housing is important to maintain optimal health in light of his chronic health problems”
10. On 29 October 2008 Dr Barrett, a general practitioner at the Harnall Lane practice, wrote to the Coventry Law Centre about the claimant. Dr Barrett stated that he was aware that the solicitors intended to try and satisfy the “destitution plus” test. The letter, accordingly, was written in contemplation of the claim made against the council on behalf of this claimant. The material parts of the letter are at numbered paragraph 1. Dr Barrett states:
“…Mr Sharef's current state of remission from Follicular Non-Hodgkins lymphoma (‘NHL’) was greatly assisted by his ability to benefit from stable accommodation and financial support whilst he underwent treatment. If that support is withdrawn, the consequences are extreme stress and physical neglect which will very likely precipitate a relapse of NHL.”
11. The letter does not given any indication about the time span for such a relapse or of the severity of the symptoms. What is said about the claimant is that:
“His condition is quite unlike the circumstances of an average healthy person, in that he is always at risk of relapse of disease progression.”
12. Returning to the chronology more generally: In April 2008 the defendant had determined that support should cease and in November 2008 the Home Secretary refused further representations made in support of a fresh asylum application. The request on behalf of the claimant that the defendant review the decision that support should cease was refused on 19 February, the first of the challenged decisions. The material parts of the letter from the litigation and projects team of the defendant state:
“The position is that this authority is always prepared to conduct a reassessment or review when the circumstances warrant it; or where there has been a change of circumstances or where the passage of time causes the authority to consider whether its original assessment remains sound.
However, whilst taking account of the medical report dated 29 th October 2008 which you copied to us, we can see nothing in the circumstances of your client's case which would warrant such a reassessment or review.”
The letter attached a copy of a letter to the claimant and the Notice to Quit.
13. The claimants wrote a Letter Before Action, and the second decision under challenge, on 25 March 2009, is the response to that. The letter sets out the reliance by the defendant on the decision of the House of Lords and, in particular, the speeches of Baroness Hale and Lord Neuberger in R(M) v Slough BC [2008] UKHL 52. After setting out what the council drew from that case the letter states:
“The points you seek to make are contrary to [and they refer to numbered points]. A medical need is not a need for care and attention. A future need for medical treatment or otherwise is not a need for care and attention. Your client does not need to be looked after, he is not in need of care and attention, he is not entitled therefore to a service under Section 21. We see no qualification in the judgment of the House of Lords which would permit continued reliance on the case of Pajaziti contrary to the clear guidance given as to how the term care and attention is to be interpreted.”
And so the issue between the parties was identified at that stage. I turn to the statutory regime.
14. Section 21(1)(a) of the National Assistance Act 1948 empowers a local authority with the approval of the Secretary of State to make arrangements for providing:
“residential accommodation for persons aged eighteen or over who by reason of age, illness,...
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