R (Nassery) v London Borough of Brent [2011] EWCA Civ 539

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’.