SB v London Borough of Newham
| Jurisdiction | England & Wales |
| Judge | Dan Kolinsky |
| Judgment Date | 30 October 2023 |
| Neutral Citation | [2023] EWHC 2701 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Claim No. AC-2023-LON-001619: CO/1911/2023 |
The King (on the Application of
and
[2023] EWHC 2701 (Admin)
Dan Kolinsky KC
(sitting as a Deputy Judge of the High Court)
Claim No. AC-2023-LON-001619: CO/1911/2023
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Azeem Suterwalla, instructed by Deighton Pierce Glynn for the Claimants
Catherine Rowlands instructed by London Borough of Newham for the Defendant
Sian Reeves instructed by the Government Legal Department for the Interested Party
Hearing date: 18 October 2023
FINAL JUDGMENT
This judgment was handed down remotely at 2.00pm on 30 October 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Dan Kolinsky KC (sitting as a Deputy Judge of the High Court):
This judicial review claim concerns the interaction between a local authority's obligations under the Care Act 2014 (“CA 2014”) and the obligations of the Secretary of State for the Home Department (“SSHD”) under s.95 of the Immigration and Asylum Act 1999 (“IAA 1999”) in relation to the provision of accommodation to asylum seekers with eligible care needs.
The Claimants are nationals of Bangladesh who made claims for asylum in the United Kingdom which are currently being processed. The First Claimant has been diagnosed with amongst other things learning disabilities, depression and an adjustment disorder. The Second Claimant (who is his mother) is his full-time carer.
The London Borough of Newham (the Defendant) undertook an assessment of the First Claimant's eligible needs for care and support under the CA 2014 and a carer's assessment of the Second Claimant. It provided the Claimants with accommodation and financial support (pursuant to its powers under s.19 of the CA 2014) whilst those assessments were being undertaken. The Claimants contended that the assessment identified accommodation-related care and support needs and that the Defendant should provide the Claimants with accommodation as part of its duty (under s.18 of the CA 2014) to meet the First Claimant's eligible needs.
By a decision dated 5 May 2023, the Defendant decided to terminate the provision of accommodation and assistance to the Claimants with effect from 2 June 2023. This claim is a challenge to legality of that decision.
The Proceedings
The claim was issued on 25 May 2023 challenging the decision dated 5 May 2023 and seeking interim relief. Time for responding was abridged and, following receipt of the Defendant's summary grounds of resistance, Constance J granted interim relief on 31 May 2023. He ordered the Defendant to provide the Claimants with accommodation and financial support pending the consideration of permission. He also made an anonymity order.
On 9 June 2023, Eleanor Grey KC sitting as a Deputy Judge of the High Court granted permission, expedited the claim and extended the interim relief until the determination of the substantive hearing. In granting permission, the Deputy Judge observed:
“I am satisfied that there is an arguable issue as to whether the Defendant owes a duty to house the Claimants, in circumstances where the Claimant has care needs, and accommodation is required to effectively deliver care and support, but those needs do not require the provision of residential care or supported accommodation and (says the Defendant) could be met in accommodation that should be provided by the Interested Party under s95 of the [IAA 1999]”.
The Defendant disputes the proposition that the First Claimant has accommodation-related needs for care and support.
The SSHD is an interested party to this claim. There is no challenge to the legality of any decision by the SSHD. At an earlier stage of proceedings, it appeared that the correctness of the SSHD's guidance in Asylum Seekers with Care Needs (version 2.0) (3 August 2018) (“SSHD Guidance”) was a live issue in this claim. However, this issue has fallen away. The SSHD has participated in the proceedings, adopting a position of neutrality but assisting the Court with observations as to the interplay of the applicable statutory duties.
This judgment is structured as follows:-
a. Background (including the assessments and the decision under challenge) (para 10)
b. The parties' positions (para 30)
c. Legal Context (para 36)
d. Analysis (para 73)
i. Preliminary issue (para 74)
ii. Ground 1 (para 102)
iii. Ground 2 (para 113)
iv. Ground 3 (para 122)
v. Alternative remedy (para 127)
vi. The position of the Second Claimant (para 130)
e. Relief (para 132)
Part A: Background (including the assessments and the decision under challenge)
The First Claimant is a 28 year old who has learning disabilities, depression and adjustment disorder. He requires support from his 55 year old mother who is the Second Claimant. They are Bangladeshi nationals who came to the UK in 2010. They applied for asylum in July 2022 and are awaiting a decision on their application. They had made previous attempts to apply for leave to remain in the UK which were unsuccessful.
The Claimants have lived in Newham for over 10 years. They have strong links with the local community including local Bangladeshi and British Bangladeshi communities. Their supporting witness statements explain their local links, the difficulties which they have experienced as a result of the First Claimant's care needs and the impact on the Second Claimant's mental health of the combination of her caring responsibilities and their lack of recourse to public funds.
The Claimants were housed during the pandemic under the “Everyone In” programme. However, after that they became street homeless (in May 2022). On 11 May 2022 the Defendant agreed to carry out an assessment under the CA 2014 of the Claimants and provide emergency accommodation in a hotel. At this time, the Defendant gave support to the First Claimant including reablement work. The success of this and the extent of the First Claimant's continuing needs for care and support are analysed in the care and support assessments referred to below.
In August 2022 the Defendant moved the Claimants to their current accommodation which consists of two studio flats side by side.
On 26 October 2022 the Defendant completed a care and support assessment of the First Claimant under the CA 2014. The assessment concluded he is a vulnerable learning disabled adult with eligible care needs.
I set out the material parts of the assessment replacing the Claimants' names with C1/C2 respectively. The assessment:-
a. Set out the First Claimant's medical history (p.8), noting he has (p.9) “moderate-severe learning disabilities”, “delayed movement development” and “autistic features”.
b. Noted the role of the Second Claimant as an informal carer (p.13).
c. Analysed the First Claimant's care and support needs in respect of “managing and maintaining nutrition” (p.15–16), noting that this could not be met independently. The outcome was recorded as: “Based on all of the information gathered it is evident that C1 will still require support to achieve this outcome independently. C1 will need support to build his confidence in using appliances in the kitchen and choosing healthy meals to prepare”. In respect of the role of C2 as carer it was noted: “C2 supports him by providing and cooking his meals. Instead it would be advised that mum supports C1 in completing these tasks alone in order to support his independence”. In terms of the support needed from adult social care services, it was noted: “It is recommended that C1 has a care package to support him to meet this domain independently as the reablement period was not sufficient to meet this need independently. A period of support over 6–12 months is recommended to allow C1 to be able to meet this domain independently”.
d. In respect of developing and maintaining relationships, noted (p.18–19) the benefit of the First Claimant attending structured activities without his mother and that he would be supported to identify activities which he could attend with support from a community link worker.
e. In respect of accessing community facilities (p.19–20), identified the need for support to access community facilities and that the need could not be met independently.
f. In respect of maintaining a habitable home environment (p.21–23), noted needs which could not be met independently. The outcome recorded as “C1 will still require support to achieve this outcome independently. C1 will need further ongoing support to maintain a habitable home environment”. In terms of the role of C2 as a carer, it noted that she helped him to maintain a habitable home environment but stated: “Instead, C1 would benefit from a carer to regain the skills he needs to maintain his space, complete his laundry without his mother's help”. The assessment envisaged a role for additional support as follows: “It is recommended that C1 has a care package to support him to maintain a habitable home independently as the reablement period was not sufficient to meet this need independently”.
g. Identified (at page 26) that the First Claimant had the following eligible needs: (i) managing and maintaining nutrition, (ii) developing and maintaining family or other personal relationships, (iii) making use of necessary facilities or services in the local community, (iv) maintaining a habitable home environment and (v) assessing and engaging in work/training.
h. Contained (at page 30) the pro-forma question, “are the person's needs best met in accommodation based services”. The answer given was “no”.
i. Set out in pages 30–32 a summary and “practitioner justification”. The summary recorded the views of others including the reablement officer who...
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