R (on the application of Michael Mwanza) v (1) Greenwich London Borough Council (2) Bromley London Borough Council (2010) EWHC 1462 (Admin)

In this rolled up hearing for permission and the substantial arguments the High Court considered the extent of the after-care obligations owed under s117 of the Mental Health Act 1983 to those in the UK illegally. The applicant, MM, was a Zambian national who had originally entered the UK as a dependant on his wife’s student visa in 2000. Shortly after their arrival MM’s mental health deteriorated and he was admitted into hospital, first as a voluntary patient, then detained under s.3 of the Mental Health Act 1983 with a diagnosis of paranoid schizophrenia. He was discharged from the s3 detention on the 08.10.01 but remained a voluntary inpatient for one week.  During a meeting at the hospital on the 15.01.01 a care plan was drawn up detailing MM’s needs and what services would be made available under s117 MHA to prevent a relapse. It was noted on this form that MM was worried about his lack of employment and accommodation, but this was to be addressed with the offer of assistance in finding work and for him to seek private rented accommodation as he was not entitled, because of his immigration status, to accommodation under the Housing Act 1996. He later moved with his wife to Bromley and disengaged with the Greenwich Community Mental health Team. He was discharged from the Greenwich CMHT service in November 2001. He remained registered as an outpatient with the NHS Trust but did not attend any appointments from October 2001. In 2004 the couple’s two children joined them in the UK. In 2006 MM’s wife made a ‘misguided’ application for an extension to her visa, but in MM’s name which was rejected. It is unclear whether this was appealed, but they have been treated by the authorities as unlawfully in the UK since 2008. As a consequence MM was unable to work; the family’s housing situation worsened, as did MM’s mental health.
In January 2010 MM made an application to the London Borough of Bromley (the second defendants) for an assessment under s47 NHSCCA and requested accommodation either under the duty set out in s117 MHA, or, if no duty existed, under s21 of the National Assistance Act 1948. The second defendants conducted an assessment of MM, which determined that MM was not in need of care and attention that was not otherwise available to him as he was suitably cared for by his wife. In a separate carer’s assessment it was noted that the couple could not sustain the level of poverty or stress without becoming “overwhelmed”. It was conceded that, if any duty arose under s117 MHA, it would be for LB of Greenwich to fulfil and that their obligations under s117MHA continued until such a time that both the local authority and health authority agreed that services were no longer necessary. However Greenwich sought to defend the proceedings on the basis that the request for assistance was for ordinary housing and financial assistance which was outside the remit of s117 MHA, that this duty was lawfully discharged in 2001 and that any claim that the decision to discharge him from aftercare services was now well out of time.
The judge held that the obligation under s117 MHA was limited to “a service that is necessary to meet a need arising from a person’s mental disorder.” Clunis v Camden and Islington HA (1998) and R (on the application of Stennett) v Manchester City Council (2002) considered. The judge did not follow R (on the application of B) v Lambeth LBC (2006) because the parties in that case had agreed that ordinary accommodation was required to be provided under s117MHA. The Judge in this case believed that government guidance supported his view that a proper interpretation of s117 MHA would not permit ordinary accommodation to be provided under s117 MHA even where it could be demonstrated that a lack of appropriate housing would cause deterioration in a person’s mental health, because this was better provided under s21 NAA. He commented that “it simply cannot have been the intention of Parliament to have required local authorities (let alone health authorities), free of charge, to provide a roof over the head of former section 3 patients so long as they simply required housing.”
The Judge accepted the position of the first defendant that his need for accommodation did not arise from his mental health condition but was a consequence of the family’s destitution brought about by their immigration status. He concluded that even if Greenwich did owe MM a continued duty under s117MHA this would not extend to the provision of accommodation as this need was not as a result of his mental health. Rejecting the applicant’s argument that any discharge in 2001 was unlawful because it had not followed a reassessment of need, the Judge went on to conclude that the duty under s117MHA was lawfully discharged in November 2001, because on the available ‘sparse’ evidence MM’s mental health had improved and the couple had indicated that they knew to approach the authorities if his health deteriorated again. He refused to exercise his discretion to extend the time limit imposed by CPR 54.5 for challenging public law decisions on the basis that the first defendants would suffer serious prejudice as a result of the very long delay (8 years) in initiating the claim as staff members involved in the case had long since left their employment. The claim for assistance under s117MHA therefore failed.
Turning to the claim against Bromley, that their decision not to provide assistance under s21NAA was unlawful, the Judge quoted from Hale LJ as she then was in Waheed v London Borough of Tower Hamlets [2002] that whilst the “threshold for ‘care and attention’ is no doubt relatively low, … it is essentially a matter for the relevant local authority to “assess whether or not these conditions are fulfilled, and, if so, how the need is to be met… Need is a relative concept which trained and experienced social workers are much better equipped to assess than lawyers and courts provided that they act rationally”. The second defendant’s assessment that MM’s care needs were met in full by his family was not irrational or otherwise unlawful. He did comment that he was concerned by the separate assessment of MM’s wife, but was satisfied on the evidence that the local authority’s conclusion (that she would continue to look after her husband for the immediate future and, despite the stress this imposed upon her, it was reasonable to allow her to do so, without support) was justifiable, given that the identified risk to her of doing so was high but not immediate. The judge was not satisfied that MM’s needs triggered entitlement under s21 NAA, so he did not go onto consider whether s21(1A) NAA applied. The Judge did conclude that because they fell within the categories of those excluded from assistance by schedule 3 of the Nationality, Immigration and Asylum Act 2002 the second defendants were prohibited from providing assistance under s21NAA as no plausible arguments had been put forward that non provision would amount to a breach of human rights.

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