The actual judicial review that gave rise to this hearing was an age assessment case which was conceded by the Local Authority following a second expert’s report. A consent order was agreed, but no agreement on costs. Submissions on paper resulted in a first instance order that:

‘Having considered the submissions on costs made by both parties and having regard to the principles referred to by the court in R (Boxall) v Waltham Forest LBC (2001) 4 CCLR 258 and to the caveat added by Hallett LJ in R (Scott) v Hackney LBC [2009] EWCA Civ 217 at 51 – to the effect that a judge must not be tempted too readily to adopt the default position of making no order for costs – I accept that this is the just outcome here. As has been submitted for the defendant this is not a case where the case was obvious from the outset. And in view of the dynamic development of this area of the law while the claim was live and the burdens on the defendant which are referred to in paragraph 12 of its submissions I do not consider the defendant’s conduct in the proceedings has been such as to justify an award of costs being made against it.’

The Claimant appealed, arguing that:
(i) The judge failed to address the appellant’s primary argument that costs should follow the event.
(ii) The judge misdirected himself in refusing to award costs because the outcome was not obvious from the outset.

Permission to appeal was given in light of Bahta.

I’ll turn to the specific points on this case at the end of this note, including the basis of the arguments. However, the primary interest is in what amounts to guidance set out by the Court of Appeal on costs in settled Judicial Reviews.

The Master of Rolls at paras 60 to 63, says:

60. Thus, in Administrative Court cases, just as in other civil litigation, particularly where a claim has been settled, there is, in my view, a sharp difference between (i) a case where a claimant has been wholly successful whether following a contested hearing or pursuant to a settlement, and (ii) a case where he has only succeeded in part following a contested hearing, or pursuant to a settlement, and (iii) a case where there has been some compromise which does not actually reflect the claimant’s claims. While in every case, the allocation of costs will depend on the specific facts, there are some points which can be made about these different types of case.

61. In case (i), it is hard to see why the claimant should not recover all his costs, unless there is some good reason to the contrary. Whether pursuant to judgment following a contested hearing, or by virtue of a settlement, the claimant can, at least absent special circumstances, say that he has been vindicated, and, as the successful party, that he should recover his costs. In the latter case, the defendants can no doubt say that they were realistic in settling, and should not be penalised in costs, but the answer to that point is that the defendants should, on that basis, have settled before the proceedings were issued: that is one of the main points of the pre-action protocols. Ultimately, it seems to me that Bahta was decided on this basis.

62. In case (ii), when deciding how to allocate liability for costs after a trial, the court will normally determine questions such as how reasonable the claimant was in pursuing the unsuccessful claim, how important it was compared with the successful claim, and how much the costs were increased as a result of the claimant pursuing the unsuccessful claim. Given that there will have been a hearing, the court will be in a reasonably good position to make findings on such questions. However, where there has been a settlement, the court will, at least normally, be in a significantly worse position to make findings on such issues than where the case has been fought out. In many such cases, the court will be able to form a view as to the appropriate costs order based on such issues; in other cases, it will be much more difficult. I would accept the argument that, where the parties have settled the claimant’s substantive claims on the basis that he succeeds in part, but only in part, there is often much to be said for concluding that there is no order for costs. That I think was the approach adopted in Scott. However, where there is not a clear winner, so much would depend on the particular facts. In some such cases, it may help to consider who would have won if the matter had proceeded to trial, as, if it is tolerably clear, it may, for instance support or undermine the contention that one of the two claims was stronger than the other. Boxall appears to have been such case.

63. In case (iii), the court is often unable to gauge whether there is a successful party in any respect, and, if so, who it is. In such cases, therefore, there is an even more powerful argument that the default position should be no order for costs. However, in some such cases, it may well be sensible to look at the underlying claims and inquire whether it was tolerably clear who would have won if the matter had not settled. If it is, then that may well strongly support the contention that the party who would have won did better out of the settlement, and therefore did win.

And Stanley Burnton LJ states at paras 75 to 77:

75. The consequence of our decision should be a greater willingness on the part of the parties to judicial review proceedings, at first instance and on appeal, to agree not only the substantive provision of the order to be made by the Court, but also the issue of costs. Settlements in which the question of costs is left to be determined by the Court at a later date are common, and perhaps too common. Parties can no longer assume that the likely order is no order as to costs, even where one party or another has conceded the whole, or substantially the whole, of the other side’s case.

76. A successful negotiation of costs issues is likely to be cost effective, saving the costs of subsequent written submissions and saving the time of the judge who is required to determine costs. It is in both parties’ interests to address the question of comprehensive settlement as early as possible.

77. Where the parties are unable to agree costs, and they are left to be determined by the Court, it is important that both the work and costs involved in preparing the parties’ submissions on costs, and the material the judge is asked to consider, are proportionate to the amount at stake. No order for costs will be the default order when the judge cannot without disproportionate expenditure of judicial time, if at all, fairly and sensibly make an order in favour of either party. This is not to say that there are not cases where the merits can be determined and no order for costs can be seen to be the appropriate order; but in such cases that order is not a default order, but an order made on the merits.

In this particular case, with quite a complex history, the Defendant had argued that
i) the respondents settled on the assumption that there would be no order for costs.
ii) There had been a change in the perceived legal position as a result of the Supreme Court’s decision in R (A) v Croydon in November 2009.
ii) There was a substantial amount of evidence and the issue was diffcult, including the change in the weight to be given to Dr Birch’s views, following the judgment in R (A) v Croydon and R (WK) v Kent County Council [2009] EWHC 939 (Admin).

This being in effect a restatement of the Boxall based arguments that had been successful at first instance.

The Court of Appeal’s view was summed up by Stanley Burton LJ as follows:

The respondents’ maintenance of their position was entirely reasonable while the law was as it was generally thought to be before the decision of the Supreme Court in R (A) v Croydon. That decision led eventually to the order His Honour Judge McMullen QC of 26 July 2010. The respondents then had to reconsider their case, if they had not already done so. The appellant’s reliance on the evidence of Dr Birch may have been ill-advised, but ultimately it was his case, based on his account of his age, that prevailed. The respondent agreed not merely to re-assess his age, but that his age was as he contended it to be: i.e., they conceded the entirety of his claim.

Costs to the Claimant.

Comment
The judgment refers to Sir Rupert Jackson’s cost review, where he states

‘The Boxall approach made eminently good sense at the time that case was decided. However, now that there is an extremely sensible protocol in place for judicial review claims, I consider the Boxall approach needs modification, essentially for the reasons which have been urged upon me ….
. . . in any judicial review case where the claimant has complied with the protocol, if the defendant settles the claim after (rather than before) issue by conceding any material part of the relief sought, then the normal order should be that the defendant pays the claimant’s costs. A rule along these lines would not prevent the court from making a different order in those cases where particular circumstances warranted a different costs order.’

The Judgment also highlights the increasing number of cases settled save for costs, where the courts have had to deal with written submissions on costs. This increase was clearly something of which the Court of Appeal disapproved.

The result, being an extension of Bahta but falling perhaps just a little short of the Jackson proposals, is very useful for claimants. It makes clear that the usual Defendant arguments (e.g. that settlement was a practical or commercial decision, that it had nothing to do with the merits of the claim and that it was not at all clear that the Claimant would win), will not be sufficient to result in no order as to costs. The usual principles of civil litigation costs will apply. Boxall is effectively distinguished as being a case where the Claimant had only succeeded on a lesser part of the Claim.

The Defendant’s frequent tactic offer of a settlement on the basis of no order as to costs was always difficult for the Claimant’s solicitors to resist, given the client’s interests. However, this judgment now puts any settlement negotiations on the basis that the default position is that the Claimant should have their costs and that the Defendant will have to have a very strong reason to seek to depart from that.

The same principle should apply to s.204 appeals, as they are based on judicial review principles. There seems to be no good argument why a s.204 appeal should not have the ‘ordinary civil litigation principles’ apply equally.

Congratulations to Robert Latham and Hansen Palomares for the appellant on this result and for finally bringing some sanity to this costs issue.

This was a judicial review of RBK&C’s refusal to provide support under s.21 and s.29 National Assistance Act 1948 and indeed to carry out an assessment under s.47 of the National Health Service and Community Care Act 1990.

Mr De A is a Portuguese national. He lived in the UK from 1998 to 2001 and from 2008 to date. He worked during the first period and for a year after his return. Mr De A had contracted HIV and AIDS. His health deteriorated so that he was not able to work. His prognosis in October 2010 was that he had about a year to live. At the time of the first hearing in this case in November 2011, his prognosis was about 6 months.

Mr De A was evicted from his private accommodation. With the help of friends he was provided with food and accommodation in a hostel for a while, but this could not be sustained. Mr De A applied to RBK&C for assessment and assistance under the National Assistance Act 1948. His sole income was DLA, the DWP having decided he was ineligible for Income Support.

After a couple of assessments, RBK&C decided that he was not in need of care and assistance and in any event, he was ineligible by reason of para 5, Schedule 3 of National Asylum and Immigration Act 2002 as he “has the nationality of an EEA State other than the United Kingdom”.

Mr De A applied for judicial review.

ON the need for care and assistance RBK&C had found that Mr De A was, at the times of the assessments, able to look after himself and had no need for care and assistance. This despite medical reports and Mr De A’s own report being that he needed significant support with shopping, personal hygiene, laundry and meal preparation. IN the JR, RBK&C’s case was that

the evidence indicated that his needs fluctuated. As at the date of assessment, the Defendant [Mr De A] was able to live independently with minimal support, and therefore was not “in need of care and attention”. The fact that he might deteriorate at a later date did not trigger a duty under s.21(1)(a) at the present time.

The Court rejected this line of argument

65. In my judgment, the Defendant misdirected itself in the way it assessed the Claimant’s needs under s.21(1)(a). First, it is not a pre-requisite of eligibility under s.21(1)(a) that the person is incapable of performing a domestic task himself. Lady Hale gave the example of “household tasks which an old person ….can only perform with great difficulty”. In the Claimant’s case, it was sufficient that, because of his fragile condition, he reasonably required support with domestic tasks, such as shopping, cleaning, cooking etc.

66. Secondly, the nature of the Claimant’s illnesses meant that the level of his fatigue, weakness, pain and secondary infections fluctuated from time to time. It followed that his ability to look after himself also fluctuated, from day to day, from week to week and from month to month. This is not an unusual feature of long-term illnesses, and LAC 93 (10) paragraph 2(5) expressly approved the provision of accommodation for the purpose of caring for those who are ill. A fluctuating need does not necessarily take a person outside the scope of s.21(1)(a). In Mani for example, the claimant needed help with household tasks “on days when he is in pain” (at [2]), i.e. not all the time.

The principles in R (M) v Slough Borough Council [2008] UKHL 52 should be applied, both as to the threshold for s.21(1)(a), met “as soon as a person can be said to be in need of some care and attention, even to a relatively small degree” [Lord Neuberger in M] and considering current and prospective need:

Having regard to the principles set out in M in relation to current and prospective need (at [35], [55]), it will be a question of fact in each case whether a person’s condition is such that he should be treated as “in need of care and attention” even though the extent of his need for care and assistance fluctuates from time to time. For example, in R (Nassery) v Brent LBC [2011] EWCA Civ 539 the Court of Appeal upheld the Council’s assessment that, despite the claimant’s sporadic past episodes of mental disorder, he was not “in need of care and attention” at the time of its assessment. In this Claimant’s case, given the seriousness of his illnesses, his ongoing, debilitating physical symptoms, his frequent periods of acute illness requiring hospitalisation, and his very poor prognosis, I consider it was irrational for the Defendant to conclude that he was not “in need of care and assistance” when there was ample evidence that he had a continuing need for support in day-to-day living, albeit fluctuating in extent from time to time, depending upon his state of health.

On the issue of eligibility and human rights, it was common ground that Mr De A was ineligible for assistance under s.21(1)(a) NAA by reason of Schedule 3 to the National Asylum and Immigration Act 2002. The issue was how far it was necessary to provide assistance in order to avoid a breach of Mr De A’s convention rights, specifically Article 3 and Article 8.

RBK&C conceded that if a need for assistance was found then there would be a potential breach, following R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396. However, RBK&C maintained that such a breach could be averted by Mr De A’s return to Portugal, where he would be eligible for appropriate support services, relying on R (Kimani) v London Borough of Lambeth [2003] EWCA Civ 1159 and N v UK (2008) 47 EHRR 885.

RBK&C further argued that

in deciding the human rights issue, the court’s role was limited to determining “whether there is an error of law in the council’s human rights assessment on traditional judicial review principles” (skeleton argument, paragraph 5). It was for the Defendant to decide, under paragraph 3 of Schedule 3 to the NIAA 2002, whether the making of s.21(1)(a) arrangements was “necessary for the purpose of avoiding a breach of a person’s Convention rights”. The Court did not have the information required to make this judgment, nor was it entitled to substitute its judgment for that of the Defendant. It followed from this analysis that the issue had to be decided on the basis of the evidence available to the Defendant at the date it made its human rights assessment, in October 2011, not 6 months later.

The Court held that this was too restrictive an interpretation of the Court’s role:

As the Court is itself a public authority for the purposes of the Human Rights Act 1998, it is subject to the duty in s.6 not to act incompatibly with Convention rights. It must also ensure that other public authorities, such as the Defendant, do not act incompatibly with Convention rights. This is an essential part of the way in which the ECHR is enforced in domestic law.

Article 3 is an unqualified right. It was not proper that the Court should not defer to the judgement of the local authority, “if the Court is satisfied that the Defendant’s acts or omissions are exposing the Claimant to an imminent risk of suffering cruel, inhuman or degrading treatment, it must act to prevent such a breach of Article 3 from occurring”. And

When considering a qualified right, such as Article 8, the Court must consider the legitimate aims of the decision-maker and the proportionality of the interference with the right to family and private life. However, it should not adopt a traditional judicial review approach.

Huang v Secretary of State for the Home Department [2007] 2 A.C. 167 and Pinnock adopted.

On the evidence, Mr De A’s physical and psychological condition, his experimental treatment and the presence of his support network in England all strongly suggested a considerable degree of suffering if her were to return to Portugal at this stage. The available services in Portugal, and the time it would take to receive them, were not comparable and would involve delay.

Although Portugal is an EU country and signatory to the ECHR, with a health and welfare system, it is too late for this impoverished Claimant to access the immediate support which he needs on his return, because of his weakened physical condition; his vulnerable mental state; the absence of any friends or family in Portugal to assist him; and the ‘cumbersome’ and slow assessment procedures in Portugal (for exemption from health care charges, eligibility for financial benefits, and any type of accommodation). The Defendant’s offer of financial support for 4 weeks is insufficient, as the evidence is that it will take much longer than that for him to obtain the accommodation and benefits he needs, and so there is, in my view, a real risk that the Claimant will end up sleeping rough on the streets. As M said; “[t]he effect of what would essentially be a forced return of a sick man …would be to condemn this man to a very likely relapse, a hastened death, and a lonely end to what has been a brave struggle to live with dignity.”

Following D v United Kingdom (1997) 24 EHRR (and BB v France (see N v UK at D68), the case was exceptional because Mr De A was at the end of his life. It was not simply a matter of the lack of availability of treatment to prolong life, as in N v UK App. No. 26565/05. The case fell within the exceptional class described by Lady Hale in N v Secretary of State for the Home Department [2005] 2 AC 296 [at 69]:

“…the test, in this sort of case, is whether the applicant’s illness has reached such a critical stage (i.e. he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity.”

Refusing to provide accommodation and support, but forcing Mr De A to return to Portugal would be a breach of Article 3, involving inhuman treatment.

Article 8 was also interfered with, but the interference was lawful under Schedule 3 to the NIAA 2002. The question was therefore whether the interference would be necessary and proportionate.

RBk&C argued that “it is exercising a legitimate aim, in the interests of “the economic well-being of the country” in seeking to minimise its expenditure on social services, and prioritising its scarce resources for the benefit of UK nationals”. R. (Clue) v Birmingham City Council [2011] 1 W.L.R. 99 in support.

Weighing against this was the likely limited time support would be required and the costs that RBK&C would incur in facilitating Mr De A’s move to Portugal. Any saving to the public purse would be minimal.

In addition, it was appropriate to weigh in the balance that Mr De A had entered the UK lawfully and worked here.

Held on Article 8:

In my judgment, the Claimant [Mr De A] is justified in submitting that any potential saving to the public purse will be minimal and does not reasonably justify a decision which will have such severe consequences for the Claimant. The Claimant’s terminal illness means that he faces an undignified and distressing end in Portugal, struggling to find any accommodation and means of support, and parted from his existing support network of friends and healthcare professionals.

Held overall:

a) the Defendant’s decision, of 27 October 2011, that the Claimant had no eligible needs requiring care and attention within the meaning of s.21 NAA 1948, was unlawful;

b) the Defendant’s decision, of 27 October 2011, that it was not necessary, within the meaning of paragraph 3 of Schedule 3 to the NAIA 2002, to make arrangements for the Claimant under s.21 NAA 1948 for the purpose of avoiding a breach of his Convention rights, was unlawful;

c) the Defendant’s refusal to make arrangements for the Claimant under s.21 NAA 1948 is incompatible with the Claimant’s rights under Article 3 and Article 8 of the ECHR, contrary to s.6(1) Human Rights Act 1998.

NM was a prisoner with an upcoming parole hearing. He had significant learning disabilities. Both NM and the parole board wanted to know what accommodation and support would be offered if he was released. If supported accommodation was not available, it was likely that NM would be instead sent to a low security prison. However, Islington (and another local authority) refused to carry out an assessment as being premature, there was no need on the part of NM at the time.

NM sought Judicial Review, relying on the observations of Stanley Burton J in R (B) v Camden LBC (2005) EWHC 1366 (Admin)

66. In my judgment, the words “a person may be in need of such services” refer to a person who may be in need at the time, or who may be about to be in need. A detained patient who is the subject of a deferred conditional discharge decision of a tribunal, which envisages his conditional discharge once section 117 after-care services are in place, is a person who “may be in need of such services”, since if such services are available to him he will be discharged and immediately need them. Whether a patient who may reasonably be considered to be liable to have such an order made in an impending tribunal hearing is an issue I do not have to decide in the instant case, but I incline to the view that he is.”

However, the Court held that otherwise. While:
in a number of situations – such as release from mental hospital as contemplated in R(B) v Camden LBC, discharge from hospital as in R v Berkshire County Council, ex p. P and release from prison as in R v Mid Glamorgan CC, ex p. Miles – it may be sufficiently clear that a person is likely in the very near future to be present in the area of the local authority and, when they are, may then be in need of community care services, so that the obligation of assessment under section 47(1)(a) arises before the person actually arrives.

In the present situation:

I consider that the connection between the proposed consideration of the Claimant’s case by the Parole Board as things stand on the case before the Board and the release of the Claimant to go to Islington is too conditional and speculative to fall within the narrow class of future provision cases covered by section 47(1). Nor can it be properly said that the Claimant is “about to be in need” or “may reasonably be considered to be liable” to have an order for release made in his favour, in line with the indication by Stanley Burnton J in R (B) v Camden LBC

There were a number of other separate conditions to be met before the Parole Board could be satisfied on conditions for NM’s release, not just the availability of support and accommodation. It could not be said to be imminent.

The general principle is that

The future cases intended to be covered are those which are closely analogous to those where there is a (possible) present need for provision of community care. It is only in relation to such a narrow class that it can be said that “the contextual imperative” is so powerful as to allow the language in the present tense in section 47(1) to be interpreted as covering future or future conditional cases.

The applicant was an Afghan national. Upon arriving in the UK he made an asylum application and claimed he was 15 years old. The UK Border Agency did not accept that was his age and referrred him to Croydon for their social services department to carry out an assessment as to his age. Croydon, after assessining the applicant, decided he wasn’t 15 and that he was in fact over 18. Accordingly, they referred him back to the UK Border Agency who provided him with accommodation and assistance under Immigration Act 1999 up until his 18th birthday.

On a judicial review the applicant succeeded in having Croydon’s age assessment quashed and he also obtained a declaration that at the date of his claim for asylum he was 15 years of age. However, by the time of this decision the applicant had turned 18 and Croydon refused to accommodate the applicant on the basis that he was no longer a child in need – for the purposes of s.20 – and, as he had not been accommodated by Croydon for a sufficient time before he turned 18, nor was he a relevant child.

The applicant therefore judicially reviewed Croydon again, this time arguing that the accommodation provided by the UKBA should be treated as being provided by the local authority under s.20, which would ensure that he met the requirements to become a former relevant child.

The High Court decided that the fact the accommodation had been provided by the UKBA did not mean that it could not be deemed to have been provided by the local authority and, in the circumstances, it was proper to deem that it had been provided by Croydon under s.20. It followed that the applicant was a former relevant child.

Comment

While this might seem like a fair result, some of you might be thinking, hang on a second, I seem to recall a few years ago the House of Lords decided something else. The case you are thinking of is M v Hammersmith & Fulham LBC [2008] UKHL 14, [2008] 1 WLR 535. In that case the applicant had been housed by the authority’s housing department under the Housing Act 1996 rather than by social services under s.20. At no point was M referred to the social services department for an assessment until M was over 18. Despite deciding that the failure to refer M to its social services department was wholly unlawful, Baroness Hale never the less said this:

“[34]… In hindsight, perhaps we can all agree on what ought to have happened. But the claim is that we should treat what ought to have happened as if it had actually happened. The claim is for the extra help and support available to former relevant children, even after they reach the age of 18, under section 23C of the 1989 Act. To be a relevant child, one must first have been an eligible child: section 23A(1) . To be an eligible child one must have been “looked after” by a local authority for the requisite period of time: Schedule 2, paragraph 19B(1) (as inserted) and Leaving Care Regulations . Who then is a “looked after” child? As M was never a child in care, the question is whether she was accommodated in the exercise of the local authority’s social services functions, and specifically their functions under section 20 of the 1989 Act. Essentially the argument is that the local authority were in fact acting under section 20 when they thought they were acting under section 188 of the 1996 Act.

…

[44]… In this case, there is no evidence that the children’s services authority did anything at all. It is impossible to read the words

“a child who is … provided with accommodation by the authority in the exercise of any functions … which are social services functions within the meaning of the Local Authority Social Services Act 1970 …”

to include a child who has not been drawn to the attention of the local social services authority or provided with any accommodation or other services by that authority.”

In the recent case of R (TG) v Lambeth LBC [2011] EWCA Civ 526, the Court of Appeal managed to get round this by deciding that an applicant who had been provided with accommodation by its housing department under Housing Act 1996, was deemed to have been accommodated by the authority’s social services department because he had been referred to the housing department by a social worker seconded to the authority’s youth offending team. He had therefore been drawn to the attention of the local social services authority and the authority had also provided him with accommodation.

That of course was a case in which the authority had actually accommodated the applicant (and there is a case load of authority for the proposition that where an authority says it is accommodating under a paritcular statutory provision it can be deemed to be accommodating under s.20).

However, this is a case where the applicant has been drawn to the attention of the authority’s social services department, but has never actually been accommodated by the authority. I’d be fascinated to know how the High Court managed to construe “accommodated by the authority” to mean “accommodated by the UKBA”.

Does anyone have any more information on this that they might be willing to share in advance of the transcript being transcribed? If it stands up, this will be a really useful decision.

The important aspect of this appeal is the way the Court deals with the difficult issue of burden of proof. The approach approved at first instance and in KN was that the burden fell on the Claimant to prove his age, if the Court was unable to make an assessment. The Court of Appeal has now established that there is no burden and it reached this conclusion (para 23):

“In the present case there was a range of powers and duties exercisable by public authorities dependent upon the single issue of age. Where the issue is whether the claimant is a child for the purposes of the Children Act it seems to me that the application of a legal burden is not the correct approach. There is no hurdle which the claimant must overcome. The court will decide whether, on a balance of probability, the claimant was or was not at the material time a child. The court will not ask whether the local authority has established on a balance of probabilities that the claimant was an adult; nor will it ask whether the claimant has established on a balance of probabilities that he is a child.”

In the light of the concerns we raised in the KN report, this conclusion is reassuring.

KN was the victim of sexual abuse in her home country, the Democratic Republic of Congo and she was later smuggled to the UK, where the abuse continued. KN eventually managed to flee her captors and, after a period in foster care, she applied to Barnet for assistance. KN asserted that she was a child with a date of birth of 23/8/1993, a date that had been accepted by the Home Office. Nevertheless, Barnet’s Social Services department took the view that KN appeared significantly more mature than her claimed age and they obtained a Forensic Dental Assessment, which largely corroborated Barnet’s view that she was over 18. Barnet accordingly concluded that KN was over the age of 18 at the relevant time and she was therefore ineligible for s.20 Children Act services. Barnet’s decision resulted in this application to the Court.

HHJ Pearl (sitting as a Deputy High Court Judge) reviewed the various evidence available to determine KN’s age and he was particularly critical of Barnet’s reliance both on the report of an inexperienced social worker and on the Forensic Dental Assessment. The Judge referred to the Home Office Consultation Paper “Planning Better Outcomes and Support for Unaccompanied Asylum Seeking Children” (May 2007) and commented that the results of dental X-Rays carried a margin of error of up to 6-7 years. As such, the dental assessment in KN’s case could not be determinative of her age.

The key witness as far as the Judge was concerned was Dr Helen Bamber of the Medical Foundation for the Care of Victims of Torture. Dr Bamber had had numerous consultations with KN and, drawing on her experience of treating women in similar circumstances, she believed that KN was about 17 years of age as at the date of the hearing. This reflected what KN had earlier asserted about her age.

HHJ Pearl accepted Dr Bamber’s assessment and concluded that KN’s date of birth was as stated by the Claimant and that she was entitled to s.20 Children Act services.

Comment: this case is useful not only because it showcases the innovative fact-finding role of the Admin Court but it also demonstrates that on the question of age assessments, there can be no substitute for the evidence of an expert who is well-known to the Claimant. The other point of interest is that the burden of proof will fall on the Claimant to demonstrate that he or she is under 18 only if the Court is unable to reach an assessment on the available evidence. Although the issue did not arise in KN’s case, it is difficult to see how she could have satisfied the Court of her age given that the Court had excused her from giving evidence because of the likely trauma she would suffer from participating at the hearing. There are likely to be other applicants in a position of vulnerability similar to KN so it will be interesting to see how the Courts grapple with the burden of proof point in the future.

The question concerns the position of someone lacking capacity under the Mental Capacity Act 1985 when an independent tenancy is sought. There is conflicting guidance and threatening case law to deal with.

The starting point is that someone lacking capacity cannot enter into a binding contractual agreement, including a tenancy.

The frequent advice of local authorities and others used to be to say to, for instance, parents of adult children with learning disabilities, ‘sign on their behalf’. This was, of course, always bad advice – it would have resulted in an instant breach of the primary or principle residence requirement of an assured shorthold tenancy. But since the Mental Capacity Act 2005, it would be dreadful advice, as under the Act nobody is vested with the authority to enter into a contract on somebody else’s behalf unless a) they have a lasting power of attorney; b) they are appointed a property/affairs deputy by the court; c) the Court of Protection authorises the contract.

But none of these are easy options.A person without capacity can’t usually enter an LPA, and either of the other two options require a £400 fee, legal costs and a time consuming application to the Court of Protection. In a situation where a tenancy may only be briefly available, or someone has had to leave home or is leaving institutional care and needs a tenancy urgently, there may not be time. And of course, the fee and costs may not be affordable.

To add to the difficulties, there is competing guidance. The Court of Protection guidance on tenancy agreements from June 2011 states, pretty categorically:

If a person lacks the mental capacity to sign the tenancy agreement or terminate it, then anyone intending to sign on the person’s behalf can only do so if they are authorised to do so by the Court of Protection (unless the person had capacity to make a power of attorney and has done so)

While clearly this would be the most authoritative route, the problems with pursuing it have already been noted.

On the other hand, there is Department of Health guidance from March 2011 which states (at page 21/22)

In law, a tenancy taken on by someone whose lack of capacity is known by landlord is “voidable”. The person has the same rights as any other tenant and the same obligations unless the tenancy is voided. Only the tenant or someone acting on behalf of the tenant with the legal authority to do so (an attorney or a person / deputy appointed by the Court of Protection) can void a tenancy by showing that at the time the tenancy was taken on, the tenant did not have the capacity to make the decision and the arrangement was not in their best interests, When the tenancy is voided the tenant is no longer bound by the terms of the contract. Voiding a tenancy for lack of capacity is therefore possible at law, but it is rare that a tenant or their attorney, person / deputy appointed by the Court will decide to do this unless they wanted to stop the arrangement because if they did they would not have any right to remain in the property and would in practice simply be giving notice in the normal way. Therefore, the fact that the tenancy is voidable is unlikely to have any practical impact if the tenant is receiving proper support to manage their tenancy. They are entitled to Housing Benefit to pay their rent in the usual way regardless of their capacity.

My first thought was that this DoH guidance is right. It is pretty much given that a tenancy agreement, as with any contract, if entered into by someone who at the time lacked capacity is a voidable (not void) contract. It would only be voidable by the person who lacked capacity to enter the contract, thus the landlord could not use the tenant’s lack of capacity as a device to end the tenancy. Until such time as it is voided, the contract (or tenancy) continues with the obligations on both parties, including the rent liability, so housing benefit should be paid.

However, a 2011 decision of the Upper Tribunal on a housing benefit appeal makes this less straightforward. Wychavon District Council v EM [2011] UKUT 144 (AAC) (29 March 2011) concerned a profoundly mentally and physically disabled 20 year old adult. He rparents cared for her and had had a home specially constructed for her. This, with round the clock care had deeply stretched their financial position. They made a claim for housing benefit for the daughter for the home, in respect of rent which would in turn cover the mortgage. There was no Court of Protection authority in place at the time.

While the Upper Tribunal rightly found against a submission from the LA that a written tenancy agreement was required, the key finding was that:

A tenancy agreement requires two parties – the landlord and the tenant. Here the claimant was not, and was incapable of being, a party to any agreement. Regardless of her capacity to consent, she could not and did not communicate any agreement to the tenancy and I infer that she could never have been asked to. There simply was no such agreement, and therefore no liability to pay rent.

Following Hart v O’Connor [1985] AC 1000, the Tribunal found that

even if on the face of it there has been a contract, it is void if the one contracting party knew that the other contracting party lacked sufficient mental capacity to reach such an agreement, because the first contracting party would have been aware that the other party was not consenting to the agreement.

Commissioner Mesher’s decision in CH/2121/2006, and that of Commissioner Henty in CH/663/2003 distinguished as having, however problematically, been decided on the basis that there was a voidable contract, rather than a void one.

The real problem here is that Wychavon states that if the landlord is aware of the prospective tenant’s lack of capacity at the point the tenancy is entered into, it would be void rather than voidable. If it is, then no housing benefit would be paid. The difficulty the UT had in distinguishing the earlier Commissioners’ decisions is clear – falling back on the ability of the person without capacity to attend the hearing and ‘communicate to a degree’ to suggest that somehow they must have indicated willingness to enter a tenancy agreement that they actually had no power to enter and that the parents had entered on their behalf. Whether Wychavon is correct or not (see below) it has undone what appears to have been a discreet policy-based approach/nod and a wink to housing benefit for those lacking capacity.

Wychavon would therefore appear to present a real practical problem for those lacking capacity, their carers and landlords otherwise prepared to enter a tenancy agreement, but who face potential non=payment of housing benefit. Unless the landlord is unaware of the prospective tenant’s lack of capacity, the threat is a void agreement, not a voidable one.

I briefly toyed with some alternative arrangements, including a form of trust, but could come up with nothing that wouldn’t fall foul of the requirements of an AST.

This falls – to some degree – outside my practice and knowledge. I’m also, frankly, a bit too busy and knackered to head off to educate myself. But it is clearly a serious issue for many, including some of the most vulnerable individuals of all. I understand from Small Places that there are some anxious organisations trying to make sense of the situation.

So – questions:
1. Is Wychavon rightly decided? I suspect that it is – that knowingly entering a contract with someone who lacks capacity makes the contract void rather than voidable – but haven’t dug any deeper yet.
2. If it is, are there alternative arrangements that would give rise to a viable tenancy, but would not require an order of the Court of Protection?

Over to you…

[Update: 8/10/11.
Since the initial post and the comments below. I have now had a chance to work through the case law, in particular Hart v O'Connor and Imperial Loan Co v Stone [1892] 1 QB 599. I’ve also taken a look at CH/2121/2006 and CH/663/2003.

My view is that Wychavon is wrongly decided.

The position in common law and equity arising out of the Privy Council decision in Hart v O’Connor is that a contract with someone lacking capacity to enter such a contract is voidable (not void) by the person lacking capacity if the other party was aware of their lack of capacity.

If the other party was not aware of the person’s lack of capacity, the contract is not voidable on that basis, but only on the usual equitable grounds (fraud, misrepresentation etc,).

Judge Mark’s interpretation of Hart v O’Connor is in error in confusing ‘void’ and ‘voidable’. This leads to the great difficulty evident in the Judge’s efforts in distinguishing CH/2121/2006 and CH/663/2003.

To this extent, I agree with the DoH guidance and the advice the DWP received set out in Alicia’s comment below.

This is a significant judgment by the Court of Appeal on the ambit of s.21(1)(a) National Assistance Act 1948. It addresses the interrelation of ‘care and attention’ and the provision of accommodation. While the decision does not follow the Local Authorities’ demand that ‘care and attention’ must be such that it cannot be provided otherwise than by provision of accommodation, it does moderate, or limit, the division of asylum seekers (and failed asylum seekers) into the able bodied, for whom any assistance was only by NASS (now UKBA), and the infirm, who fell under s.21(1)(a).

The High Court judgment in this case (our report here) is overturned on both the meaning of care and attention and the relation of care to accommodation.

Briefly the facts were that SL was a failed Iranian gay asylum seeker. His initial application was refused in 2007. SL became homeless in October 2009. In December 2009, after learning of the death of his partner in an Iranian prison, he attempted suicide. He was an in-patient until April 2010, discharged with a diagnosis of depression and post traumatic stress disorder. The full details of SL’s ongoing condition are in our earlier post, but for the moment it is sufficient to say that he had an acknowledged need for support by the Council in the form of weekly meetings with a social services “care co-ordinator Mr Wyman offers advice and encouragement, and generally monitors the appellant’s condition and progress. He has also been instrumental in arranging contact (or the renewal of contact) with the counselling groups to which I have referred, and the appellant’s “befriender” [a volunteer who amongst other things accompanies SL to activities he enjoys].”

SL also received medical support via prescription, whichis excluded from consideration under s.21(1)(a) by s.21(8) NAA 1948. SL was in accommodation provided by the Local Authority pending the outcome of these proceedings.

SL was granted Indefinite Leave to Remain during the course of this appeal (after the judgment below), which made the appeal academic in his case, but the appeal proceeded as the Court of Appeal decided it addressed broader issues of principle.

Asylum seekers, or failed asylum seekers are, of course, excluded from assistance under the NAA simply because of destitution (or the anticipated physical effects of destitution) by s.21(1A). So the issue is wholly whether SL was in need of ‘care and attention’ under s.21(1)(a) NAA, which reads:

“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 eighteen 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.”

In the High Court, the Judge considered that:

“On analysis, Mr Wyman’s input was expected to be limited to a weekly meeting with the claimant to provide social work support. Important though that no doubt is, and has been, to the claimant’s continued well being, my conclusion is that it does not amount to care and attention for the purposes of section 21(1)(a) of the 1948 Act. To suggest that the claimant needs ‘looking after’ would stretch the meaning of those words beyond their proper limit. In my judgment, it would be more accurate to say that the support that the claimant needs amounts to keeping an eye on him. That is a rather different matter. It imports the notion that whilst keeping an eye on him, if circumstances change, different or further interventions might become necessary. It is not, however, in my view, care and attention. On this basis also, the claimant fails to establish that he came within the criteria found in section 21(1)(a).”

‘Looking after’ was not ‘care and attention’, so the claim failed.The appeal to the Court of Appeal therefore turned on the meaning of ‘care and attention’ and ‘not otherwise available to him’.Westminster argued that the Judge below was right. The support needed by SL did not amount to care and attention and certainly not care and attention that was not otherwise available other than by the provision of accommodation.

SL argued that “the provision of accommodation is reasonably required in order for care to be furnished in a way that fully meets the claimant’s needs”.

The sole judgment of Laws LJ takes a route through the history of s.21(1)(a) cases. It is an interesting review of the history and the particular pressures it has put upon the judgments. The issue is the ‘turf wars’ between local government and national government (via NASS as was) that sprang up after the judgment in R v City of Westminster and others ex p M, P, A and X [Ex p. M] (1998) 30 HLR 10 which held that destitute asylum seekers were entitled to support under s.21 (1)(a). S.21(1A) was introduced precisely to prevent this, stating that:

“A person to whom section s.115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under subsection (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 his being destitute.”

The subsequent turf wars over who paid for destitute asylum seekers arguably included such cases as Westminster CC v NASS [2002] 1 WLR 2956, [2002] UKHL 38, W v Croydon, A v Hackney [2007] 1 WLR 3168, [2007] EWCA Civ 266, R v Wandsworth LBC ex p O [2000] 1 WLR 2539, R (Mani) v Lambeth LBC [2002] EWCA Civ 836, and, of course, M v Slough BC [2008] UKHL 52 (our report here) and R (Zarzour) v LB of Hillingdon [2009] EWCA Civ 1529. Laws LJ’s concern is to find a line of precedent, where possible, or, as becomes clear, to find a ‘third way’ which satisfies both statutory language and the demands of precedent in this case.

The meaning of ‘care and attention’ was the less troublesome aspect. The view of Lady Hale in M v Slough ‘has commanded general acceptance’, citing:

I remain of the view which I expressed in Wahid [2003] HLR 2, at para 32, that the natural and ordinary meaning of the words ‘care and attention’ in this context is ‘looking after’. Looking after means doing something for the person being cared for which he cannot or should not be expected to do for himself: it might be household tasks which an old person can no longer perform or can only perform with great difficulty; it might be protection from risks which a mentally disabled person cannot perceive; it might be personal care, such as feeding, washing or toileting. This is not an exhaustive list. The provision of medical care is expressly excluded. [M v Slough para 33]

In that case, M, who needed a refrigerator for his medication and access to a doctor, did not need ‘looking after. However, Lady Hale’s formulation should be taken as meaning that ” the level of support provided by the local authority by way of care and attention does not have to attain any particular level of intensity.

SL’s needs were not, as phrased by the Judge below, simply ‘keeping an eye on him’. Instead, the social worker

is doing something for the appellant which he cannot do for himself: he is monitoring his mental state so as to avoid if possible a relapse or deterioration. He is doing it, no doubt, principally through their weekly meetings; but also by means of the arrangements for contact (or the renewal of contact) with the two counselling groups, and with the “befriender”. It is to be noted that care and attention within the subsection is not limited to acts done by the local authority’s employees or agents. And I have already made it clear that the subsection does not envisage any particular intensity of support in order to constitute care and attention. [para 22]

SL was therefore in need of care and attention.

On the even more fraught question of the meaning of “not otherwise available to them”, the turf war has focussed more on policy than the meaning of the statutory language. The result is the lack of an ‘undistributed middle’ between the able bodied and the infirm.

The authorities indicate that there is a need for some kind of nexus between care and attention on the one hand and the provision of accommodation on the other. But the approach taken by the Court of Appeal in R v Wandsworth London Borough Council, Ex p O [2000] 1 WLR 2539 remained the law and had not been changed by the House of Lords in M v Slough. In ex p O, Simon Brown LJ found:

“[I]f an applicant’s need for care and attention is to any material extent made more acute by some circumstance other than the mere lack of accommodation and funds, then, despite being subject to immigration control, he qualifies for assistance. Other relevant circumstances include, of course, age, illness and disability, all of which are expressly mentioned in section 21(1) itself. If, for example, an immigrant, as well as being destitute, is old, ill or disabled, he is likely to be more vulnerable and less well able to survive than if he were merely destitute.”

Thus “All members of the first class are covered by s.21(1A), and all members of the second by s.21(1)(a); there is no third class, no undistributed middle. And if all asylum seekers who are destitute and infirm are entitled to the benefit of s.21(1)(a), so are all other persons who are destitute and infirm.”

However, this took no account of the third condition for the subsection to apply – “”the care and attention which is needed must not be available otherwise than by the provision of accommodation under section 21″. There must be some consideration of these words, some address to the ‘undistributed middle’.

The Appellant and Respondent had suggested two ways in which this passage could be understood, “First, it might mean that the necessary care and attention unequivocally requires the provision of residential accommodation. Secondly, it might mean that the provision of accommodation is reasonably required in order for care to be furnished in a way that fully meets the claimant’s needs [SL's argument]“.

Laws LJ holds for a third interpretation, “that care and attention is not “otherwise available” unless it would be reasonably practicable and efficacious to supply it without the provision of accommodation”.

He does so with some reluctance, noting that the LA argument for a definition that it must be “care and attention of a kind calling for the provision of residential accommodation” hd been rejected in Mani, which was itself referred to without criticism by the Lords in M v Slough, although this did seem to be the closest to the ‘natural and ordinary meaning’ of the statute. On the other hand, the interpretation argued for by SL was too broad for the statutory language – “The subsection’s terms do not suggest a legislative policy by which accommodation is to be provided in order to maximise the effects of care and attention”.

So, the meaning of ‘not otherwise available’ in s.21(1)(a) is “care and attention is not otherwise available unless it would be reasonably practicable and efficacious to supply it without the provision of accommodation”.

In this case, “Given the evidence of the appellant’s condition which was before the council it would [...] be absurd to provide a programme of assistance and support through a care co-ordinator without also providing the obviously necessary basis of stable accommodation.” The Judge below was not right to find that the ‘care and attention’ was available otherwise than by the provision of accommodation.

Appeal allowed.

Comment
It is largely true that the ‘battles’ over s.21(1)(a) and s.21(1A) had centred on the meaning of ‘care and attention’ and the policy of the exclusion of the ‘able bodied’ asylum seekers by S.21(1A). Given the nature of those battles, the significance of ‘not otherwise available’ as a condition of the provision of residential accommodation was rather in the background. Pace Lord Brown in M v Slough “”The word ‘solely’ in the new section [sc. s.21(1A)] is a strong one and its purpose there seems to me evident. Assistance under the 1948 Act is, it need hardly be emphasised, the last refuge for the destitute. If there are to be immigrant beggars on our streets, then let them at least not be old, ill or disabled”. But this has been, at least in part, because where there is a need for care and attention, the need for accommodation (for the homeless and destitute) has been pretty clearly evident.

While Laws LJ’s evident preference for the interpretation that accommodation must be required by the care and attention, although not open to him on the precedents, is perhaps worrying for applicants, the ‘third way’ formula he adopts is probably likely to be satisfied without too much trouble in most cases. Note the finding in respect of SL. Where an asylum seeker or failed asylum seeker is homeless and destitute, it is hard to see any form of care and attention which would qualify under s.21(1)(a) that could be reasonably and practically provided otherwise than by way of provision of accommodation. Note that the availability of NASS/UKBA accommodation cannot be taken into account. The ‘necessary basis of stable accommodation’ for providing care and attention will be a key factor.

Nonetheless, it is a limiting factor on provision of assistance under s.21(1)(a) and one which now has a test set down for it.

The Court’s finding on ‘care and attention’ the finding that it amounts to ‘do something for a person that they cannot do themselves’ and that this support does not have to attain any particular level of intensity is a clear marker, after the High Court decision in this case, that the Council (and indeed the court) should not impose an additional condition of severity.

This was the appeal of a judicial review of Brent’s decision on provision of care and accommodation under section 21 National Assistance Act 1948.

Mr N was an Iranian asylum seeker (granted indefinite leave to remain during the course of the case). He suffered from mental illness. In late 2008 he had applied for assistance under s.21. Although he had subsequently become eligible for housing assistance under Part 7 Housing Act 1996, he did not consider that the provision of accommodation alone under HA 1996 would be suitable, so no homeless application had been made and no decision as to any duty made by Brent. For that reason the claim continued.

The issue was the meaning and extent of ‘care and attention’ under s.21(1)(a) as a condition for the provision of accommodation under NAA 1948. What Mr N sought was accommodation with regular visits from a social worker with whom he could discuss his day to day problems. Brent had carried out an assessment under s.47 Community Care Act 1990 (actually two assessments). In the assessment, Brent had found:

(1) that no current difficulties, over and above ongoing medical care, lack of access to funds and immigration status in the United Kingdom, could be identified; (2) when Mr Coxall asked Mr Nassery what help he needed, he identified the need for help in making appointments and asked to be given £10,000. Subsequently he said that he was capable of making his own appointments; (3) in the assessment of mental health, the report records that Mr Nassery’s cuts had fully healed, and that the impression was “of a young man who was exhibiting no outward signs of mental illness but who had been under a lot of stress and has poor coping strategies when dealing with things such as deportation and perilous financial situation.”; (4) Mr Nassery’s GP agreed that he should be referred back to his care and that he could provide supportive counselling services; and (5) if those services were not suitable, Brent could make a referral for psychotherapy.

On that basis, there was no need for care and attention, other than medical services.

In early 2009, Mr N had made repeated suicide attempts, calling someone each time. There were a number of incidents of self harm. Then:

on 18 May 2009, he poured petrol over himself and called the emergency services. On their arrival he had a lighter in his hand. He was admitted to a psychiatric hospital again. On 25 May 2009, he absconded and went to Euston station where he poured petrol on himself and stood on the tracks, threatening to commit suicide. He may also have been drinking petrol. This is the only occasion when Mr Nassery did not call for help when he was feeling suicidal. On his return to hospital he said he wanted to be given a social worker, someone he could talk to. He was given the provisional diagnosis of personality disorder. He was discharged on 14 June 2009.

In August 2009, two consultant psychiatrists reported on Mr Nassery at length. Dr Kishore’s diagnosis was that he had an adjustment disorder or post-traumatic stress disorder, rather than a personality disorder, and was at medium risk of self-harm or suicide, with a risk of unintended suicide. He recommended support or counselling through the psychology services or, if not, counselling at primary care level. Dr Amin was the consultant for Mr Nassery during his hospital admissions. He considered that Mr Nassery had an emotionally unstable personality disorder characterised by disharmonious relations with others. He added that Mr Naasery did not need psychiatric services but could benefit from a supportive counselling or psychotherapy. although he recognised that Mr Nassery might not engage in this.

Brent’s decision, following assessment, concluded that:

The issue of Mr Nassery’s ability to perceive the need to seek help was explored in the course of assessment, and he confirmed that in a crisis or if considering self-harm he would call an ambulance and/or go to A & E as he has in the past. He is clearly able to do this. His insight into his mental health is demonstrated by the fact that by compliance with medication he has remained well for a year now, without any incidents of self-harm reported, to the extent that he has been able to establish a relationship with his girlfriend and to obtain employment. [...]

Mr Nassery plainly has a need for accommodation and subsistence support and a need for medication and medical support (possibly counselling). Neither a need for accommodation or a need for medication amount to a relevant need for care and attention the purposes of s.21 of the National Assistance Act 1948.

In the Judicial Review, Mr N’s solicitor had filed a witness statement setting out his high degree of concern for Mr N’s well being and that he had, exceptionally and personally, arranged to see Mr N twice a week. His view was that Mr N required supervision, care and attention for fear that he would seriously injure himself or others. Mr N filed a statement that he was hearing voices and had recently assaulted his girlfriend.

At the judicial review, Mr N argued that i) Brent had failed to take proper account of Mr N’s underlying health problems or the risk they posed for the future; ii) Brent had failed to have regard to the need to avoid the risk of self harm, rather paying attention to would Mr N would do if he did self-harm.

HHJ Robinson held that Brent’s risk assessment included a risk management plan and that had referred to the assault on Mr N’s girlfriend. This was an isolated incident and Brent was not under any obligation to consider it in more detail. On the underlying health issues, Brent had considered them in the risk assessment. Brent were unaware of an attempt at self-harm in December 2009, so the omission was of no consequence.

Brent was entitled to conclude that the need to speak to someone for support did not mean that Mr N was in need of care and attention, rather counselling and psychotherapy, which were medial services. There was not much more assistance a social worker could provide.

Mr N appealed to the Court of Appeal. The Court considered R(M) v Slough BC [2008] UKHL 52 (our report here) as the leading case on s.21(1). In summary, their Lordships’ view in M was taken as follows:

Both the passages last cited emphasise that there must be a need for care and attention at the time of the provision of the supported accommodation, though in the case of a progressive illness, or physical or mental state which is liable to deteriorate without care, it can be a small-scale need at the outset. In the course of his speech Lord Neuberger held a person had to be in need of care and attention before section 21(1) could be invoked but that in the case of a progressive illness it would be possible for the authority to provide accommodation for a person who was to some degree in need of care and attention, in anticipation of the illness deteriorating.

Mr N appealed on the basis that the Judge was wrong to separate his most recent behaviour (a period relatively without incident)  from the history of the case. There was a persistent condition giving rise to a need for care and attention, even though the more extreme aspects of the condition manifested sporadically. In these circumstances a s.21 duty arose. The Judge was also wrong to reject the argument that Brent had failed to to apply the test in R(M) v Slough properly by focussing on the extent to which Mr N had sought help at the time of self-harming, rather than whether he needed to be looked after to  prevent harm, given the foreseeable risk.

Brent submitted that s.21 was not engaged unless there was a current need to be “looked after”. It was not enough that the person might, at some future date, need to be looked after. That was the role of s.47 Community Care Act 1990.

Lady Arden, in the sole judgment, held that Brent were:

correct to make the point that section 21(1) addresses current need but both Lady Hale and Lord Neuberger accepted that there could be a situation where it was clear that a person was in the early stages of what would be likely to develop into much more serious illness, some flexibility was allowed provided that at all times there was indeed a need for care and attention. The same must apply to both physical and mental illness.

In this case, at the time of his assessment, Mr Nassery’s condition appeared to be under control. Accordingly, it could not be said that he was in present need of care and attention. I have set out the assessment in some detail above and it is noticeable how Mr Nassery accepts that he can manage his current condition and how he does not ask for help. The assessment does not suggest that Brent should not have accepted his view on this: on the contrary, the conclusion of the assessment, of which I have set out an extract above, stated that he had an appropriate level of insight and perception of when help is needed and the ability to act appropriately in seeking it.

Further, where there is more than one course capable of meeting the client’s need, it is open to the Authority to permit the client to choose between them.

It is quite clear that Mr Nassery chose a situation where he would have to be responsible for obtaining help if he felt an episode of what Miss Bretherton calls bizarre behaviour approaching. Brent was clearly sufficiently confident that he could do this to permit him to do so. Miss Bretherton criticised the assessment on the basis that it was not put to Mr Nassery that he was no longer at risk because of his medication, but I do not consider that that is a fair criticism to make because it is for those performing the assessment to determine what the risk was, and the chances of its maturing.

Mr N’s ability to seek help was the focus of Brent’s assessment, but that included the ability to seek help before an incident occured, not, as Mr N had argued, once self harm had happened.

The decision to dismiss the claim was upheld.

Mr N was taken to have advanced a new argument in oral submissions, that “Mr Nassery has a need for someone to talk to on a very regular basis. She submits that he is “obsessed” with speaking to someone about the most basic decisions in life, and that he has become so anxious about basic issues that he is unable to function”. This was not put forward to Brent highly at the time of the decision and Mr N’s answers at the time did not suggest it. The proper course of action on this would be to request an assessment on this ‘new’ need and it would be for Brent to assess it.

Comment
While to some extent, this is not a surprising decision in the light of R(M) v Slough, it does raise a difficult point around, for example, health issues which might well be recurrent and serious, but not manifest all the time. Mr N’s case might not be the most straightforward test case on its facts, the border area of ‘some flexibility’ or ‘a physical or mental state which is likely to deteriorate without care’ has grey areas where a condition is not straighforwardly ‘progressive’.

The disconnection between Local Authority Social Services and housing departments has been a frequent topic here and in the courts, not least in the House of Lords decisions in R (G) v Southwark LBC [2009] UKHL 26 and R (M) v Hammersmith and Fulham LBC [2008] UKHL 14. There has also been plenty of Government guidance on the issue, both statutory and non-statutory: the 1999 “Working Together to Safeguard Children”; the 2000 “Framework for the Assessment of Children in Need and their Families”; the Homeless Code of Guidance in various versions; the 2008 “Joint working between Housing and Children’s Services: Preventing homelessness and tackling its effects on children and young people”; and the 2010 “Provision of Accommodation for 16 and 17 year old young people who may be homeless and/or require accommodation”.

So, one might reasonably expect Local Authorities to be fairly clear about what they ought to do when faced with a homeless 16 or 17 year old, which is to refer the child to its Children Services (Social Services) Department for assessment as a potential child in need. One might expect this. One might well be disappointed.

In this case, Lambeth failed to refer the young person, and still don’t have a policy in place for such interaction between housing, youth offending services and Childrens Services departments (although a draft is apparently ‘just about to be signed’). Still more worryingly, when Shelter and Children’s Legal Services requested information from 144 Local Authorities about their procedures as research for their intervention in this case, two thirds failed to respond at all and the level of compliance in those that did reply was ‘a mixed picture’.

It is against this background of a persistent and possibly widespread failure to implement the required procedures by Local Authorities that this case plays out.

In 2006, TG, who was known to the Lambeth Youth Offending Services (YOS), approached a member of YOS, Ms Acquah, and told her he could no longer remain living with his mother and intended to apply to Lambeth Homeless Persons Unit as homeless. He was 16. Ms Acquah was a qualified social worker with experience in working with children and young people. After speaking to TG’s mother, Ms Acquah wrote a report which she gave to TG to give to the HPU. The report concluded “This young person is in desperate need of housing and would hope that his housing need is met as he fulfils the Child in Need criteria”. Lambeth Housing Department then provided TG with accommodation under Part VII Housing Act 1996 and the HPU did not make a referral to Children’s Services.

In 2009, when TG was 20 and in need of housing assistance, following contact from TG’s solicitors, Lambeth decided he was not a ‘former relevant child’ under section 23C(1) Children Act 1989 and that he was therefore not owed the continuing duties. This was on the basis that TG had not been a ‘looked after child’ for the 13 weeks needed to be an eligible child or indeed at all.

TG brought a judicial review, asserting that the housing provided by Lambeth Housing was, or should have been assistance under s.20 Children Act 1989. At hearing of the Judicial Review in 2010 (our report here), the claim was dismissed on the basis that, although Ms Acquah was a social worker, she was not part of the Children’s Services Department. Therefore, following R(M) v Hammersmith, and as Children’s Services had not had any contact with TG, the accommodation provided by the housing department could not be classed as being under s.20 Children Act. Although the “Housing Department or the YOT should probably (as a matter of good practice) have referred the Claimant here to the team in charge of children’s social services …”, this was not enough to bring the case over the ‘dividing line’ set in R(M) v Hammersmith.

TG appealed to the Court of Appeal, with Shelter intervening in writing.

The Court of Appeal politely but firmly disagreed with the High Court. Firstly, it was not the case that Lambeth ‘probably’ should have referred TG to Children’s Services ‘as a matter of good practice’. The 1999 guidance then in force, given under s.7 Local Authority Social Services Act 1970, stated:

A number of the children and young people who fall within the remit of YOTs will also be children in need, including some whose needs will include safeguarding. It is necessary, therefore, for there to be clear links, both at [Area Child Protection Committee]/YOT strategic level, as well as at child-specific operational level, between youth justice and child protection services. These links should be incorporated in each local authority’s Children’s Services Plan, the ACPC business plan and youth justice plan itself. At the operational level, protocols are likely to be of assistance in establishing cross-referral arrangements.

This was guidance on which the Local Authority “shall… act” (s.7). “In the absence of a considered decision that there is good reason to deviate from it, it must be followed”. Lambeth had failed to do so with no good reason.

On the facts, Ms Acquah certainly should have referred TG to Children Services for assessment. Has she done so, it was clear that, as in her report, he would have been a child in need under s.17 Children Act and the s.20 duty would have arisen.

While the situation did resemble that in R(M) v Hammersmith, it was not the same.

Ms Acquah was a social worker with qualification in child care and support. She was appointed as a member of the YOS in 2005. YOS was part of a division of Children’s and Young Persons Services in Lambeth, although Children’s Services per se was another division. In October 2005, Crime and Disorder Act 1998 section 39(5)(aa) came into force, which provided that the YOS should include at least one “person with experience of social work in relation to children nominated by the director of children’s services”. Ms Acquah was therefore:

not merely a qualified social worker with experience of social work in relation to children: her membership of the YOS reflected a statutory requirement that at least one of its members should have such experience. In the YOS she represented, as Lord Justice Toulson suggested in argument, the eyes and ears of the children and families division of the CYPS.

Lambeth’s (astonishing) argument was that Ms Acquah had not been nominated to be the person with experience of social work in YOS by the Director and that no-one had ever been so nominated. In effect, they sought to defend the appeal by arguing that Lambeth had been and remained in continuous breach of its duty under s.39(5)(aa). The Court of Appeal did not agree. Nomination involved nothing special and by continuing Ms Acquah’s secondment to YOS, the Director ‘nominated’ her.

Therefore Ms Acquah’s actions could be imputed to the Children’s Services department. Indeed her report was only suited for the consideration of that department, not the housing department. As TG had been in contact with Children’s Services through Ms Acquah, Lambeth’s actions fell to be considered in terms of what they should have done.

On the evidence, there was no doubt that TG would have been assessed as a child in need. Contrary to Lambeth’s argument that TG may well have not agreed to s.20 support if it had been offered, he would have accepted it, as it was manifestly in his interests to do so. This part of TG’s appeal allowed – he should indeed have been treated as a ‘former relevant child’ in 2009. TG was now 22, however, and beyond the age limit for assistance as a former relevant child. The parties were to seek an agreement on future steps or at least an enquiry into what support should now be given.

The Court of Appeal is clear that this judgment should serve to “advertise the need for all local authorities to take urgent steps to remedy” any failure to ensure co-ordination between housing, youth offending and Children’s Services departments.

There was also the question of the past. TG had been deprived of support as a child in need and the continuing duty to a former relevant child. His claim for judicial review also included a claim for damages for breach of Article 8 under the Human Rights Act.

Although it was a technical possibility, the European Court of Human Rights had never held that a failure to provide financial or other support to a person amounted to a breach of Art. 8. If the failure was so gross as to amount to inhuman or degrading treatment, then Art 3 was engaged. In Andersson and Kullman v. Sweden (1986) 46 DR 251, the COurt dismssied an application that a failure to pay childcare payments was a breach of Art 8. In Marzari v. Italy (1999) 28 EHRR CD 175, a claim that moving the disabled applicant from an adapted flat to another, unsuitable, one was a breach of Art 8 was declared inadmissible:

… although Article 8 does not guarantee the right to have one’s housing problem solved by the authorities, a refusal of the authorities to provide assistance in this respect to an individual suffering from a severe disease might in certain circumstances raise an issue under Article 8 …
… no positive obligation for the local authorities can be inferred from Article 8 to provide the applicant with a specific apartment.

However, there was a domestic case where a breach was found. R (Bernard) v. Enfield LB [2002] EWHC 2282 Admin, on a failure to provide suitable accommodation under s.21 National Assistance Act 1948 to a severely disabled elderly woman and her family. A breach of Art. 8 was found as they had been condemned to living conditions held to mean that it was virtually impossible for them to have any meaningful or private life.

No breach was found in the joined appeals of Anufrijeva v. Southwark LBC and R (N) v. SSHD, [2003] EWCA Civ 1406, ” In Anufrijeva Southwark had failed to discharge its duty under the Act of 1948 to provide accommodation suitable for two parents and for three children, together with a grandmother who was substantially disabled and in extremely poor health. In N the SSHD had wrongfully ceased to pay state benefits to an asylum-seeker as a result of which (so far as relevant) he had had to sell all his furniture and kitchen equipment and therefore to sleep on the carpet and to eat cold food. This court held that in neither case was there a violation of Article 8.”

In this latter case, the Court noted that it would be a very rare case in which a failure to provide positive support would be a breach, save perhaps where resulting degradation was such as to invoke Art. 3, and went on to observe, in relation to Bernard:

“We find it hard to conceive, however, of a situation in which the predicament of an individual will be such that art 8 requires him to be provided with welfare support, where his predicament is not sufficiently severe to engage art 3. Article 8 may more readily be engaged where a family unit is involved. Where the welfare of children is at stake, art 8 may require the provision of welfare support in a manner which enables family life to continue.”

Although there had undoubtedly been a significant failure by Lambeth, and TG had been deprived of the pathway plan, of the adviser and [...] of financial and other support for the appellant pursuant to ss 23B and 23C of the Act, the question was what the situation was of TG now (or over that time) that arose through Lambeth’s failure.

He does not contend that from 2006 to date he suffered inhuman or degrading treatment for the purposes of Article 3. It appears that from October 2006, when he ceased to be accommodated by Lambeth, until October 2009, when a possession order was made against him, he was the holder of an assured shorthold tenancy of accommodation granted to him by the YMCA; that from then until December 2009, in response to the threat of these proceedings, Lambeth again provided him with accommodation as a children’s services authority; and that since December 2009 it has done so as a housing authority under the Act of 1996. The appellant does not contend that at any material time he was on the streets or lacked the funds with which to subsist.

The impact on TG’s private, social and work life in evidence was far too nebulous, speculative and apparently slight to give rise to an Art 8 breach. The duties to aid personal development were cast at an appropriately high level “of which we should all be modestly proud and which in my view we should strive to retain in being notwithstanding the state’s temporary financial difficulties,”, but they are creatures of statute and enforceable only on that basis. They are not the manifestation of the State’s obligation under Art 8. Permission for a claim for damages under Art 8 refused.

Comment
Local Authorities should take careful note if they have not already implemented a suitable policy and procedure for referring 16 and 17 year old homeless children. Although not expressly held to be so in this case, there is a clear suggestion that the Court took the view that such a failure was unlawful, without considered reasons why.

Further, although not going against R(M) v Hammersmith, which is binding as a House of Lords decision, it is clear that the Court of Appeal was not prepared to see Lambeth escape their failure on a technical point on which social services department the social worker concerned belonged to, let alone whether she had been ‘nominated’ by the Director of Children and Young People’s Services or not..

While the principle of R(M) v Hammersmith was that it would be unfair to impose an additional degree of duty on unified authorities, as opposed to those where different authorities had housing and social services functions, that does not mean that unified authorities should or can avoid making the appropriate cross department connections.

The Art 8 damages point is perhaps unsurprising. The reluctance to cast specific provisions as a positive duty under Art 8 is understandable. But the lack of any recourse in damages in view of such a failure to carry out a duty is frustrating.