R (WG) v Local Authority A [2010] EWHC 2608 (Admin) [Not on Bailii yet]

This is a downright odd case, an application for judicial review where the Claimant’s solicitors came off the record at hearing, Claimant’s counsel (the in-the-circumstances heroic Zia Nabi), was left without instructions but felt duty bound to make submissions on the relevant law, where the Defendant Council had been trying to do more or less what it was supposed to do, and where the Claimant refused to be identified, even to the Court.

As far as I can tell, this is a sequel to AB v (A Council), a Court of Appeal homelessness case in February 2009 (our report here), but I have no idea what happened in the interim.

What was at stake was the Council’s failure to carry out an assessment under s.47(1) of the National Health Service and Community Care Act 1990, under which the Council must arrange for the provision of community care services where it appears to them that a person is in need of such services. WG had refused to engage with an assessment. There was some evidence before the Court that WG suffered from Post Traumatic Stress Disorder, although the most recent medical assessment dated from 2008, prior to the break down in relations between WG and her doctor.

However, the fact that a person was unco-operative and not willing to engage was not, in itself a reason for an authority not to carry out its obligations. R (J) v Caerphilly LBC [2005] EWHC 286 Admin considered. Although this was a decision under a different legislative provision, the conclusions applied here.

There had been an agreement between the Council and WG’s previous solicitors, Fisher Meredith, for a process under which the assessment was to take place, but this had broken down on WG’s refusal to engage. The current firm, Steel & Shamash, had filed amended grounds in this claim, but had applied to come off the record following a breakdown in relations with WG. Over the last three years at least half a dozen firms of solicitors had been engaged, including on a Court of Appeal hearing on an application for homelessness assistance, [2009] EWCA Civ 192, (this was the subject of our earlier report, it now appears).

The Court held that at this point a line had to be drawn.

While there was an application by the firm that had just come of the record for the appointment of the Official Solicitor, this could not be determined in the absence of any up to date medical information.

So, the Council was to provide accommodation and basic assistance for a further three months, during which it was to carry out a s.47 assessment, which would, inevitably, turn on the extent of the Claimant’s co-operation. The Court hoped that the Claimant would now be prepared to engage with the Council in the assessment.

Claim stayed for three months. The Claim could not continue after the three months unless the Claimant was prepared to disclose her name to the Court. There was a basic principle that the parties must reveal their identity to the court, even if that is then anonymised.

Comment
This is clearly a fairly exceptional case, both in the number of firms WG has got through and also in the clear recognition by all concerned that it is very likely that she will be owed some form of duty and support by a Council once an assessment actually is carried out. However, the case does illustrate the shortcomings of the Official Solicitor regime. It must also sound familiar in many ways to those acting for both ‘applicants’ and Councils. I suspect most of us have been involved in a similar case.

There is, quite simply, no way of coping with a refusal to engage – in specific ways – within the legal system. That the Court system has shown extended patience illustrates an awareness that this is so, but as both courts, lawyers and indeed Councils can only attempt to find solutions within the limited ranges open to them, eventually the only apparent resolution will be – as here – some form of ultimatum.

I have no great answer or proposal. But it is a dilemma that does concern me when it crops up. It is clear – from this and our previous note, assuming it is related – that this is frankly not a situation that should have reached a court, as not only is it not really justiciable, but also neither is the court going to be able to conjure a practical solution out of the technical impasse.

However, unless lack of capacity is found to be the case, the client’s instructions must be followed…