Toussaint v Home Office (2015)
Keywords: Immigration, approved premises, reasonable adjustments, discrimination
FACTS: The claimant was an illegal entrant who had a history of deception and of overstaying. He was physically disabled as a result of a severe and very rare blood disorder. He had been detained at Harmondsworth immigration detention centre for two periods (totalling 66 days) during 2012 and challenged these periods of detention as unlawful.
On his discharge from hospital following treatment for his blood disorder, the claimant had significant social care and some medical needs. However at that point no local authority accepted responsibility for accommodating him. In order for him to be discharged in mid-2011, the NHS paid for him to be accommodated in a hotel and he was provided with some district nursing services and a wheelchair whilst he was there. Early in 2012 he was arrested and detained in Harmondsworth. Multiple factors seem to have been involved in that decision including the intention to attempt his removal to his home country, but also mentioned was the ongoing cost to the NHS of providing him with accommodation in the hotel.
During the first period of detention, a doctor had assessed him as unfit for detention because Harmondsworth did not have the facilities to meet his needs. He had difficulties with toileting, bathing, laundry and with getting around the centre, causing him to miss visits and appointments. During both periods of detention he was without access to a self-propelling wheelchair for some of the time. During his second period of detention, he did not have an assessment of his fitness for detention.
He was ultimately released when a local authority was persuaded to assess him and offer accommodation under s.21 NAA (because his access to suitable accommodation thus ensured that the Home Office knew where he was for immigration purposes, which then tipped the balance in favour of releasing him).
The issues were wide ranging, but the Court held as follows:
The Home Office (as responsible for Prisons) conceded that the failure to provide a suitable wheelchair and an adapted drinking cup during some of his detention was a failure to make reasonable adjustments in breach of the Equality Act.
The Home Office also accepted that the failure to carry out an assessment of fitness for detention under Detention Centre Rules r34 meant the second period of detention was unlawful, but argued that an assessment would have made no material difference to the decision to detain the claimant.
The claimant argued that both periods of detention were unlawful because it was contrary to the Home Office’s published policy that those with serious disabilities that cannot be satisfactorily managed in detention should not normally be detained. The court agreed: the defendant had failed to assess the claimant’s day-to-day capabilities and needs at the outset and measure them against the environment at Harmondsworth, to ascertain if his needs could be met.
The court also found that in a number of respects the Home Office had breached the duty to make reasonable adjustments under the Equality Act in relation to failing to consider adjustments to rules relating to laundry and visiting arrangements, to prevent substantial disadvantage to the claimant. Similarly, it was held that failure to maintain a functioning lift and provide appropriate and consistent physical adaptations for the claimant’s bathing and toileting needs breached the duty to make reasonable adjustments.
Of greatest relevance from the social care point of view however, is that Hand J held that the detention itself was also unlawful because the Home Office wrongly believed that no other public body was under a duty to accommodate the claimant (having failed to consider S.21 NAA). As Hand J neatly summarised “The real choice was not between Harmondsworth and rough sleeping on the streets but between Harmondsworth and the sort of accommodation, which was ultimately provided, by the London Borough of Hillingdon.” (para. 138)
The events with which this case was concerned occurred before the implementation of the Care Act, when there was no case law on whether social care was available beyond the prison door. It is useful, therefore, to consider how similar cases would fare now that the Care Act is in force.
Would an adult in similar circumstances be entitled to social care under the Care Act or are they excluded on immigration status grounds? s.21 Care Act does not exclude individuals subject to immigration control whose social care needs arise from causes other than destitution. Therefore local authorities are under the s.18 duty to meet the needs of an adult with similar needs arising from a medical condition resulting in disability, even if the person has an immigration status.
An individual subject to immigration control may not have acquired ordinary residence in any local authority. Does that mean that local authorities do not have to meet needs under s.18?
No. If an adult is of no settled residence, then mere presence in a local authority’s area is enough.
Do local authorities have to provide social care to adults with care and support needs being held in immigration detention centres?
An immigration detention centre is not a Prison or Approved Premises (as defined by s.76 Care Act and the statutory provisions on which it draws, for those definitions). Thus the provision requiring the local authority in whose area a facility is located, to meet the social care needs of prisoners, despite lack of ordinary residence, does not apply. However, this only means that the normal meaning of ordinary residence (where one last chose to live, before the need arose) doesn’t apply to prison and approved premises detainees.
Consequently, the normal s.18 duty and the normal rules of ordinary residence do apply to an adult with needs for care and support who is not otherwise excluded (see below). The responsible local authority will be the local authority where that adult is ordinarily resident. The presence of an adult in an Immigration Detention Centre is not voluntary, nor for settled purposes. Consequently, O/R would not move as a result of the adult’s detention if the adult were already O/R elsewhere.
However, in the case of many adults subject to immigration control, they may not have acquired O/R anywhere (due to absence of “settled purposes”). If that is the case, then the responsible local authority will be the one in which the adult is present, if they have no settled residence. If the adult’s needs for care and support have come to the attention of a local authority as a result of their detention, this is very likely to be the local authority where the immigration detention centre is located. This means that the consequences for local authorities (such as Hillingdon) where large immigration detention centres are located are quite severe compared to those areas containing large prisons. This is because prisoners will revert to being the responsibility of their ‘home’ local authority on release, at least in the case of shorter sentences, in ordinary prisons, absent special circumstances. However, immigration detainees with needs for care and support (and not excluded by s.21) will in many cases become the responsibility of the local authority where the detention centre is located as soon as they are detained and indefinitely thereafter.
It gets even worse however.
This is because of an interesting interaction between social care law and immigration detention policy. As discussed at several points in the judgment, Immigration detention policy is that there should be a presumption in favour of releasing a detainee who has access to accommodation.
Consequently, as in this case, an adult whose needs for care and support require the provision of accommodation under the Care Act is likely to be released if provided with such accommodation.
However, an adult whose needs for care and support can be met by the provision of non-accommodation services would be entitled to be provided by the relevant original ‘home’ or ‘wherever present’ local authority with support to meet those needs whilst detained inside an immigration detention centre but would not gain release as a consequence of their needs being met.
So Home Office decisions to detain for immigration control purposes an adult with needs for care and support (especially if those needs require accommodation) can have costly long term implications for a few unfortunate local authorities.
What of the implications for care within establishments that ARE prisons, now that Care Act care does go beyond the prison door?
If a person with severe disabilities is detained, the Prison Governor clearly owes a duty of care in negligence, to take his/her prisoners as they find them – that is, to take reasonable care of them, given the state they are in when they arrive. If they die in custody, there will be a post mortem, to meet with ECHR principles; and if they deteriorate in prison, it is fair to assume that their condition is the responsibility of the Prison Governor unless or until that Governor gets someone else who is liable, to take care of the person. At first glance, that would be the social services authority, or NHS England if the person was eligible for CHC. Social services and the NHS however, are entitled to say that the person’s needs could or should be met by other services; in this case, the Prison Governor, we would think, acting compliantly with the Equality Act, and making reasonable adjustments out of the prison’s own budget, for a basic response. It is hard for us to envisage a prisoner whose needs for social and personal care, such as can be provided feasibly within a prison environment in any event, would not be seen to be squarely part of the Governor’s own responsibility in the public sector equality duty sense, as well as the law of negligence.
This case certainly establishes that that is the situation in premises that are not prisons, where there is no jostling for position in terms of liability. It means that a council can at least argue the point, and the outcome could prove that the Care Act has not resolved the question of who pays for the care needs of prisoners, at all….