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“About to be in need” and prospective care assessment


This is a quick note on the effect of  NM, R (on the application of) v London Borough of Islington & Ors [2012] EWHC 414 (Admin) on when a Council is required to carry out an assessment under section 47 of the National Health Service and Community Care Act 1990.

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.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


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