Archive for Care and Health Law Cases – Page 2

ACC & Others [2020] EWCOP 9

Hearing: 7th October 2019

This case involved three individuals, who each had property and affairs deputies appointed from the same law firm.

ACC is now 20 years old. At the age of 4 she was involved in a road traffic incident in which she sustained serious injury and her mother died. A claim for damages was brought on her behalf, and settled in 2012 in the sum of £3 million plus periodical payments which presently amounted to £180,000 per year. She lives in her own home, with her grandparents.

ACC had Irwin Mitchell Trust Corporation Limited (“IMTC”) appointed as her property and affairs deputy. The deputyship order states at paragraph 2(a) that “The court confers general authority on the deputy to take possession or control of the property and affairs of [ACC] and to exercise the same powers of management and investment, including letting property, as she has, as beneficial owner, subject to the terms and conditions set out in this order.” The order did not contain any express provision either granting or excluding authority to instruct solicitors or to conduct any kind of proceedings on behalf of ACC.

In 2018 her local authority suddenly ended her care plan, resulting in an application to the Court of Protection seeking to recover the legal costs she incurred in seeking an appeal against the LA’s decision.

IMTC sought “an order authorising the Deputy to take whatever steps are necessary to ensure that [ACC] has the benefit of legal advice and assistance in relation to the Education, Health and Care Plan appeal, and that costs incurred by the Deputy in retaining solicitors to act on her behalf in that matter are to be assessed on the standard basis” and authority for such costs to be paid from ACC’s funds.

There was some lack of clarity as to who actually instructed the Public Law and Human Rights team at Irwin Mitchell LLP and with what authority; some documents suggested it was her Grandmother, and others suggested it was the deputy.

JDJ is 17 years old. He sustained brain injury due to clinical negligence at birth. He lives in his own home with his parents. In 2013 an order was made appointing a property and affairs deputy for him, which also did not contain any express provision either granting or excluding authority to instruct solicitors or to conduct any kind of proceedings on behalf of him.

His parents found a suitable educational placement for him, and wanted to appeal the Council’s decision that his needs could be met at a different, mainstream college.

By COP1 application dated 31st January 2019 [C10] the deputy applied for:

  • “… authority for costs to be incurred by Irwin Mitchell’s Public Law & Human Rights Department on [JDJ’s] behalf to ensure he receives the correct level of legal advice and representation in relation to education and social care.
  • Urgent authority is sought in order to liaise with the Local Authority regarding funding for [JDJ’s] future college placement and to appeal against their decision to the Tribunal if necessary.
  • The last day for doing this is 10 February 2019, hence the urgency. Anticipated costs in relation to this depends upon what action is required and the experts that will need to be instructed, however we would suggest a limit of £40 000 + VAT.”

Meanwhile, and to comply with Tribunal deadlines, the Public Law and Human Rights team of Irwin Mitchell LLP was instructed to advise and then to appeal against the Local Authority’s decision.

Again, quite who gave the instructions was less clear; different paperwork suggested that the Irwin Mitchell was instructed by JDJ’s parents rather than his deputy.

HPP is 50 years old. In September 2014 he sustained severe brain injury and multiple orthopaedic injuries when his bicycle was hit by a lorry. IMTC was appointed as property and affairs deputy for HPP. Again, the order did not contain any express provision either granting or excluding authority to instruct solicitors or to conduct any kind of proceedings on behalf of HPP.

IMTC brought forward a personal injury claim on his behalf. They appointed one of their directors as HPP’s litigation friend and applied for “the Senior Court Costs Office to carry out a detailed assessment of the costs of Charlotte Lorna-Leigh Waite, as Director of Irwin Mitchell Trust Corporation Ltd as Deputy for [HPP], in connection with her role as litigation friend in the proceedings relating to his personal injury claim…”

Applicant issues

  • The broader question which arose here, was when may a professional deputy instruct a legal firm with which it is associated, and recover the costs from P?
  • The deputies stated that their ‘general authority’ extended to tasks such as:
  1. “unexceptional non-contentious legal tasks,” even if carried out by other members of the deputy’s firm. eg completion of tax returns, drafting of leases and tenancy agreements, and drawing up of carers’ employment contracts;
  2. obtaining legal advice/incurring legal costs in relation to contentious matters but falling short of conduct of litigation. Eg actions up to sending a letter before action
  • The deputies contended that it would be “too restrictive” to require seek advice every time a deputy has to conduct ‘management’ of the property.
  • They said that where circumstances demand urgent action, a deputy should be able to issue proceedings and seek interim relief without specific prior authorisation from the Court of Protection.
  • The deputies recognised the potential conflict of interest, where the deputy will charge P for the work done by the associated firm, but said that those concerns could be addressed by requiring the deputy to obtain details from other firms of applicable rates.
  • The applicant deputies highlighted that the instruction and involvement of family members ‘imports a degree of external detachment sufficient to meet any concerns about conflict of interest’.
  • The Applicant deputies said there was no legal reason why a trust corporation could not act as a litigation friend, and no legal reason why a litigation friend cannot be authorised to charge for so acting.
  • They said that if a person has capacity to give instructions for the work in question, they will also have capacity to agree the legal costs of the work.

The Judge’s findings

General Authority, seeking advice, and conducting litigation

Judge Hilder stated that “The ‘general’ authority of a deputy does not encompass authority to conduct litigation on behalf of P.” and that such authority must be specifically granted.

“the deputy must satisfy himself that any particular act in respect of P’s property and affairs is either specifically authorised or falls within the “general” authority. Ultimately, the deputy is personally at risk as to costs if he acts outside his authority.”

“‘General’ is a term of ordinary language and should be understood as such when used in a deputyship order. Various dictionaries define ‘general’ as ‘common,’ ‘widespread’, ‘not specialised’ …The purpose of the ‘general’ authority is to enable a property and affairs deputy to do on behalf of P those myriad tasks too numerous to identify individually”

Judge Hilder outlined that ‘general authority’ may include preparing a tax return etc, as these are naturally part of managing property and affairs. However she also stated that sometimes seeking legal advice in contentious litigation may be within their ‘general authority’. She stated that ‘seeking legal advice will be obviously an “ordinary” part of discharging some functions of deputyship but not others.’

Examples of situations where a property and affairs deputy may need to form a view about potential proceedings:

a.       whether there are grounds to evict a tenant of a flat belonging to P; and

b.       whether a debt said to have been incurred by P is properly payable as being in respect of “necessary goods and services” under section 7 of the Mental Capacity Act 2005.

Both of these examples are clearly in the realm of property and affairs. Where a deputy has authority to let property belonging to P, forming a view about (a) may reasonably be considered to fall within the “ordinary” discharge of that authority. Using P’s funds to settle his debts falls within the “general management” authority, and forming a view about (b) may reasonably be considered to fall within the “ordinary” discharge of that authority.

However, not all contentious litigation is to do with property and affairs. It must be borne in mind that the “general” authority in the standard terms of the deputyship order is limited by reference to possession, control, management and investment of “property and affairs.”

As already observed, it is in my judgment important to distinguish between the contemplation of litigation in the realm of property and affairs, and the contemplation of otherlitigation. Steps towards contentious litigation of the latter type are unlikely to fall within the “ordinary” discharge of the property and affairs deputy’s authority, and so are not encompassed within the “general management” provision. 

The Judged acknowledged that there was scope to consider whether litigation was in essence a matter concerning property, or welfare. Arguably it ‘is within the authority of the property and affairs deputy “to obtain initial advice on public law decisions which will have an impact on P’s property and affairs (for example because P is being deprived of a source of funding or because P is being deprived of a service which the deputy may need to provide or supplement from P’s funds.)” 

The Court suggested that property and affairs deputies may find themselves having to consider closely the limits of their authority, in regards to public law decisions: 

a. Applications for continuing healthcare funding:

i. the assessment criteria are not financial, but the decision is. Makingan application for continuing healthcare funding for P is ancillary to the “general” authority of a property and affairs deputy to ensure that P receives all the funds he is entitled to;

ii. if the process of application reasonably requires the taking of advice, obtaining that advice is within the “general” authority of the deputy, and no specific authority is required;

iii. where an application is refused, the question of appeal arises. Procedures are not as considered in paragraph 54.3 above – this type of appeal is made by letter to the CCG (or Health Board, in Wales), to be delivered within 6 months of the date of decision;

iv. It is within the “general” authority of a property and affairs deputy to take preliminary steps (including taking advice on the merits of potential appeal) up to but not including delivery of the letter of appeal. The deputy should seek specific authority to conduct the appeal on behalf of P, and without it proceeds at risk as to costs.  

b. Education, Health and Social Care Plans:

i.  the assessment criteria are not financial, and neither is the decision. Even though there may be financial impact, the process of applying for an Education, Health and Social Care Plan is not within the “general” authority of a property and affairs deputy;

ii. Appeal lies to the First-tier Tribunal (Health, Education and Social Care Chamber), and must be made within two months of the decision, either by a parent of P or by P themselves, according to age.

iii. A property and affairs deputy should seek specific authority to take any steps in respect of challenging an Education, Health and Social Care Plan, and without it proceeds at risk as to costs.

iv. Given the short time period for lodging the appeal, any application for authority to conduct such proceedings on behalf of P should clearly indicate that expedited consideration by the Court is sought.

Urgent Matters

There will be some matters that are so urgent that authority to litigate cannot reasonably be obtained prior to taking action which will protect P.”

The deputy “should be able to obtain retrospective approval…provided the Court decides the action was in P’s best interests.”

This is so, not the least because of the need to give a cross-undertaking in damages if an application for an interim injunction is considered. A deputy ought not to be deterred from making that undertaking in a case where they appear to be acting in the best interests of the person or thought that they were at the time.

Conflict of interest

 Judge Hilder stated that ‘the proportionate and required approach to addressing conflict of interests is as follows:

a. when making an application for appointment, a prospective professional deputy considers whether… there is a realistic prospect that the deputy will wish to instruct someone else to give advice or carry out ‘ordinary’ legal tasks in order to be able to discharge the responsibilities of the appointment;

b. if such realistic prospect is identified, the prospective professional deputy further considers whether he may wish to instruct his own firm to advise or carry out the task;

c. if his own firm does provide the service for which he reasonably considers there to be a realistic prospect of need, the prospective professional deputy should then include in his COP1 application a request for specific authority to instruct his own firm to give the advice or carry out the task subject to a specified limit as to costs;

e. the Court’s approach to determining the limit of authorised expenditure of this type should follow the language of the Act in respect of attorneys’ authority to make gifts ie the authorisation must be limited so that it is not unreasonable having regard to all the circumstances and in particular the size of P’s estate. In some cases, the suggested limit of £2 000 + VAT in any given year may be considered sufficiently modest so as not to be disproportionate, sufficiently generous to be useful, and in the best interests of P to avoid the delay and expense of tendering. In other cases a different limit, or no such authorisation at all, may be more appropriate;

f. where seeking advice/ordinary legal tasks is within a deputy’s authority but no specific authority to instruct his own firm has been granted, prior to instructing his own firm a deputy must:

i. obtain three quotations for the work contemplated from providers of legal services who are properly qualified and appropriate to undertake the work. One of those quotations may be from the deputy’s own firm. The obtaining of quotes must be done in a way which is proportionate to the magnitude of the costs involved and the importance of the issue to P. Both monetary and non-monetary significance to P will be relevant; then

ii. make a best interests decision as to which of the three providers to instruct, and document the decision-making process; then

iii. where the deputy’s best interests decision is to instruct his own firm and the anticipated costs exceed £2 000 + VAT, make an application to the court for specific authority; and

What if the deputy is not the instructing party?

“Specific authority is required for a property and affairs deputy to use P’s funds to pay a third party’s costs. The ‘general’ authority of a property and affairs deputyship does not encompass such a use of P’s funds.” Legal expenses were highlighted as an example of what could be considered as ‘costs’. Even if they are a family member, best interest checks and precautions must be followed.

P has capacity for instruction

If P has capacity to give instructions for a specific piece of work, then he will also have capacity to agree the costs in question.”

ACC Case findings

Judge Hilder was ‘satisfied that it is in the best interests of ACC now to authorise the deputy to pay the costs of the challenge to her Education Health and Care Plan, subject to assessment by the Senior Courts Costs Office and up to a limit of £2 500 + VAT (inclusive of the sum of £906.10 that has already been assessed by the SCCO.)’

JDJ Case findings

It is appropriate in this matter to authorise the deputy to pay from JDJ’s funds the costs incurred in the proceedings to challenge his Education, Health and Care Plan, subject to assessment of those costs by the Senior Courts Costs Office.”

However the Judge highlighted that specific authority is required to challenge a care plan being cancelled.

It was not within the “general” authority of the deputyship orders made on to use JDJ’s funds to pay legal costs incurred by his parents.

Nor was it within the authority of those orders to act in respect of a welfare issue, other than to make an application to the Court of Protection for directions/further authority. Payment was authorised because there was a good reason the urgent request, and costs the family incurred were significant, and leaving JDJ’s parents out of pocket would not have been in JDJ’s best interests.

Hilder J emphasised that the Court will not lightly authorise actions retrospectively when there is no good reason why authorisation was not sought prospectively.  

HPP Case Findings

Despite a conflict of interest in Ms. Waite instructing Irwin Mitchell LLP, Judge Hilder reluctantly agreed that it was in HPP’s best interests for the solicitors who were familiar with his case to be allowed to continue.

CASCAIDr does not (yet) get involved in this sort of case, because we are not (yet) able to provide reserved legal activities and we cannot represent people in contentious litigation. However, we do work with law firms that provide legally aided services, in the Court of Protection and in the Administrative Court for judicial review. So please feel free to seek initial advice from CASCAIDr via our referral form on the top bar menu of the site.

The report can be found here

A Local Authority and SF

[2020] EWCOP 19

Date: 20/04/2020

What Happened

X was a 20 year old woman with autism who received 24 hour care at a supported living placement.

In September 2019 the staff at her placement became very concerned that X was in contact with several men via social media and dating websites.

A number of these men had come to her placement and engaged in sexual relations. Only one of the men was actually identified, referred to here as ‘B’.

In January 2020 the Local Authority applied for an injunction against B to stop him from visiting X’s placement (pursuant to s.16(5) and s.48 of the Mental Capacity Act 2005), and then in February they applied for an injunction to stop ‘unknown persons’ attending her placement.

The Court of Protection Judge decided that X lacked capacity in regard to making decisions about her use of social media and internet use, and that it was in her best interests not to have any further contact with B, and therefore granted the injunction.

Issues arose regarding the Court of Protection’s power to grant injunctions. The judge discharged the original injunction, and then made an injunctive order against B in the same terms, but pursuant to the jurisdiction of the High Court.

The Judge then sought to determine whether the Court of Protection had the power to make injunctive orders and, if so, from which provisions of the Mental Capacity Act 2005.

What was found

The Judge stated that the Court of Protection ‘does indeed have the power to grant injunctive relief in support of and to ensure compliance with its best interests decisions and its orders.’

In deciding that, he considered;

  1. s.47(1) of the 2005 Act is drafted in wide and unambiguous terms”

s.47(1) states that “The court has in connection with its jurisdiction the same powers, rights, privileges and authority as the High Court”.

  1. it must follow that the Court of Protection has the power which may be exercised by the High Court pursuant to s.37(1) of the Senior Courts Act 1981 to grant injunctive relief”

The High Court can make interlocutory injunctions by virtue of the provisions of s.37(1) of the 1981 Act, and s.47(1) highlights that the CoP has the same powers, rights privileges and authority as the High Court. Therefore, should have the power to grant an injunction.

  1. s. 48 of the 2005 Act states that the court has the power to make interim orders or directions … if it is in P’s best interests to do so.
  2. s.17(1)(c) of the 2005 Act permits the court to “prohibit contact between a named person and P”, which further supports the power to make injunctive orders by the CoP.
  1. it is further fortified by the terms of ss. 16(2) & (5) of the 2005 Act.

The Judge stated that “the provisions of s.16(5) are drafted in wide terms and enable the court to ‘make such further orders or give such directions…….as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order…….made by it under subsection (2)’”

  1. finally, the 2017 Rules, r.21 & PD21A, make provision for the enforcement of orders made by the Court of Protection including committal to prison for proven breaches of court orders.

The Judge was further persuaded that the CoP had the power to grant injunctions as both Hayden J. and Cobb J. were of the same view;

“Counsel for the Official Solicitor referred me to the three authorities set out above. In the case of MASM (above) paragraph Hayden J. said, “The Court of Protection’s powers of enforcement are extensive. The Court has in connection with its jurisdiction the same powers, rights and privileges and authority as the High Court (COPR 2007, R89) which means that it may find or commit to prison for contempt, grant injunctions where appropriate, summons witnesses when needed and order the production of evidence. (COPR 2007, part 21 makes further provision RR183-194). The relevant practice directions (PD21A) and “practice guidance notes” deal with Contempt of Court, Applications for enforcement may also be made; the CPR relating to third party debt orders and charging orders are applied as are the remaining rules of the Supreme Court 1965 in relation to enforcement of judgments and orders and writs of execution fieri facias (writs and warrants of control, post April 2014)”.

And later at paragraph 39 he said, “Section 16 it must be noted is framed in terms of the court making ‘orders’ and ‘decisions’ rather than the ‘declarations’ contemplated by Section 15. In this area Section 15 largely replaces the High Court’s Inherent Jurisdictional powers under which aegis the Family Division, prior to the Mental Capacity Act 2005, made declarations in respect of mentally incapacitated adults in regard to medical treatment and personal welfare.”

In the case of Re Leslie Whiting (above) Hayden J. made the following observations at paragraph 20, “The Court of Protection is, as the title makes clear, here to protect the vulnerable. The breadth of its work is very wide; its injunctive powers may well not yet have been fully utilised, but it is important, as they develop, that they are deployed with forensic rigour and, where possible, as here, subject to public scrutiny.”

Earlier in his judgment at paragraph 11 he had noted that, “On 28th November, the case was transferred to the High Court because, as I understand it, it was thought that the offices of the Tipstaff might be required. That is, of course, concerned with the apparatus of enforcement but it is perhaps important to note that section 47(1) of the Mental Capacity Act 2005, which relates to the general powers and effect of orders et cetera made in the Court of Protection provides: “(1) The court has in connection with its jurisdiction the same powers, rights, privileges and authority as the High Court.””

The factual background to this case and early history of the orders made in this case are set out by Hayden J. in paragraphs 7 and 8 of his judgment,

“Leslie Whiting formed a relationship with WAJ. During the course of the proceedings he was made a respondent. Social Services were concerned about the dynamic of this relationship. They were worried, too, about a conviction recorded against him in 2009. The details of that conviction are not in my papers but I have been told that it is a sexual offence relating to exploitation of a vulnerable adult. Mr Whiting made it clear to the court that he did not want to play any part in the proceedings when the Court of Protection was looking at the issues that I have outlined as in its focus. He declined to attend. Nonetheless, in his absence, his role in WAJ’s life fell under scrutiny and was the subject of detailed professional evaluation. The conclusion that was reached was that his influence was essentially malign.

On 21st August 2012 an injunction was made by District Judge Rogers, which was designed to protect WAJ and to extricate Leslie Whiting from her life. The terms of that order were as follows: “

Leslie Whiting should be forbidden by himself or acting jointly with any other person from: (a) allowing or threatening any unlawful violence against the first respondent (WAJ); (b) coming within 100 metres of a property in which it was thought she was living at the time, or any other property that he became aware that she might be visiting; (c) communicating with the first respondent, whether by letter, telephone, text message or other means of communication; (d) threatening the first respondent; (e) instructing or encouraging any other person to do anything which is forbidden by the terms of the order.”

He concluded the judgment at paragraph 20 with the following words,

“Having here found the fourth breach to be proved, I propose to take no action in respect of it. A year has passed since it occurred and there are no subsequent allegations. To that extent, the injunction appears ultimately to have been successful. I do, however, intend to continue the injunction in the terms made by District Judge Rogers for a further twelve months, with liberty to Mr Whiting to apply to discharge.”

In the case of North Yorkshire County Council (above) Cobb J. had made injunctive orders against an individual who posed a risk of harm to the vulnerable incapacitous adult who was the subject of the application in the Court of Protection. The factual matrix is set out in paragraphs 2 & 3 of the judgment of HHJ Anderson, before whom committal proceedings were listed for alleged breaches of the injunctions,

“The first of those injunctions was made without notice to George Elliot. The injunction order was set out in clear terms. The injunction prohibited him from contacting or attempting to contact the young woman who is the subject of these proceedings whether directly, face-to-face or indirectly by any means whatsoever including telephone, texting or messaging, email, Skype, FaceTime or through any social media platform including, but not limited to, WhatsApp, Twitter, Instagram or Snapchat”

At the time of that hearing, George Elliot was in prison following an alleged breach of a sexual harm protection order. The second injunction was made in his presence at an on-notice hearing, again before Cobb J. That hearing took place on 21 January 2019. Mr Justice Cobb amended the terms of the first injunction to make them more precise. It seems that the aim of the judge was to make it clear to Mr Elliot that the injunction included a prohibition on any communications even if initiated by the young woman at the heart of this case. So, therefore, an injunction was made in Mr Elliot’s presence prohibiting him from communicating with or attempting to contact her, whether directly, face-to-face, et cetera. The word “communicating” was put in the injunction in place of “contacting”

At paragraph 10 of her judgment HHJ Anderson said,

“I must take into account that this injunction was made in the Court of Protection to protect a vulnerable person from contact with Mr Elliot. I take into account that the terms of the injunction were spelled out clearly by Cobb J to Mr Elliot directly in court. The breaches were deliberate breaches of the court order where Mr Elliot had a choice and took the decision to breach the order.”

The judge discharged the “just in case” injunction against X under the jurisdiction of the High Court, and substituted it for an injunction in the same terms, made in the Court of Protection.

Ali Raja & Anor, R (on the application of) v London Borough of Redbridge (Rev 1) [2020] EWHC 1456 (Admin) (05 June 2020)

What Happened

This case involved two adult men (A and B), aged 25 and 32, with severe physical and learning disabilities who lived with their mother (X).

A and B had extensive night time care needs. They needed to be repositioned numerous times to avoid pressure damage, and it was assessed in a 2017 care plan that X could “reasonably be expected to reposition her disabled sons at night-time, single-handedly”, despite X having her own health issues. She was not unwilling at the time, it should be noted, or dissenting from this view.

In July 2019 they sought urgent interim night time care as their mother’s health had declined and she said she could no longer cope with caring for her two sons without support. This was repeatedly declined.

The High Court granted interim relief (10 hours per day funded night time care) on the 12th of December 2019, and again confirmed this in January 2020 when the deputy judge continued interim relief and granted permission for judicial review.

The Law

The judge referred to an important case by way of background, for the uninitiated – R (GS) v Camden LBC [2016] EWHC 1762 (Admin) [2017] PTSR 140 at paragraph 19:

“The way the Care Act works is as follows:

Where it appears to a local authority that an adult may have need for care and support a care ‘needs assessment’ must be carried out by the local authority under section 9.

Having carried out that assessment, the local authority must go on to consider whether the assessed person has any eligible needs under section 13 and the Eligibility Regulations.

If the person assessed has eligible needs, the local authority is under a duty to provide support by section 18.

If the assessed needs are not eligible needs than the local authority has power under section 19 to meet those needs.”

Mr Justice Fordham added:

“Section 19(3) empowers the local authority to “meet an adult’s needs for care and support which appear to it to be urgent… without having yet

(a) carried out a needs assessment or a financial assessment, or

(b) made a[n eligibility] determination under section 13(1).”

Section 24(1)(a) requires a local authority, when acting under sections 18 or 19(1) to “prepare a care and support plan or a support plan for the adult concerned”.

Under section 25(1), the plan must specify the assessed eligible needs which the local authority is going to meet and the way in which it is going to meet them.

Section 27 provides for [existing] plans to be reviewed and revised, including a duty of re-assessment and re-determination in materially changed circumstances, and specifies how the local authority is to approach review and revision.”

The Statutory Guidance states that ‘urgent’ must take its everyday meaning, and “where an individual with urgent needs approaches or is referred to the local authority, the local authority should provide an immediate response and meet the individual’s care and support needs… Following this initial response, the individual should be informed that a more detailed needs assessment, and any subsequent processes, will follow.”

Councils using a Three Conversations approach may need to consider whether their response to Conversations One and Two actually complies with this Guidance, it is suggested, in light of this case.

Rolling’ Judicial Review

This case is an example of a ‘rolling’ judicial review where some issues get resolved en route to court but there is something remaining still to be sorted out.

R (XY) v Secretary of State for the Home Department [2018] EWCA Civ 2604 [2019] 1 WLR 1297  discussed “rolling reviews” and concluded: “there is no hard and fast rule. It will usually be better for all parties if judicial review proceedings are not treated as ‘rolling’ or ‘evolving’, and it is generally simpler and more cost-effective for the reviewing court to avoid scrutinising post-decision material. But there will also be a need to maintain a certain procedural flexibility so as to do justice as between the parties”.

Mr Justice Fordham stated

“This case called for, and illustrates the appropriateness of, the procedural flexibility which the Courts have described. The design of the claim was permissible, sensible and has been vindicated. The parties were able to focus on the substance, and so was the Court.

The central features of the case as brought were: a continuing statutory function regarding the meeting of needs; a continuing request for a particular care provision response; a continuing refusal of that request; and the consistent central issue as to whether the requested response was, in all the circumstances, the sole justifiable response or not, such that if it was, the refusal was unreasonable in a public law sense.

The discipline came from being able to see clearly the basis on which the claimant says that the defendant is unlawfully failing to comply with a public law duty to act reasonably; and the basis on which the defendant says that its refusal is reasonable.

This approach could take in its stride the reality on the ground, that the parties would continue to communicate about the disputed issue between them.

There was no unfairness or prejudice. There was no problem of inadmissibility or irrelevance of fresh evidence. There was no need for the claim to be re-pleaded. The interests of both parties were protected, as the story of the case unfolded.”

Sole Justifiable Response

The central question which arose in this case… was whether an urgent night-time care need had arisen, because the mother could no longer reasonably be expected to do this, with the sole justifiable response being the urgent interim care provision to allow for night-time carers, pending a full reassessment of needs.”

“The grounds for judicial review put the ‘sole justifiable response’ point as follows:

(a) There is an urgent need for interim care because the claimants are known to require 24-hour care and [the mother] is no longer able to provide it at night;

(b) The only justifiable care to meet this need is funding for 10 hours’ night-time care per day …”

“that immediate funded night-time care is the sole justifiable response to meet their urgent needs”.

The defendant council argued that an interim injunction requiring night time care under section 19(3) was the wrong power to cite as the power in question:

“section 19(3) is only applicable before an initial statutory needs assessment has been conducted: “section 19 is without any application in this case”, since the claimants “seek … a reassessment and not an initial assessment of their needs”.

Secondly, where there have been prior assessments, and where there is a pre-existing care and support plan, the applicable statutory function to address any necessary additional action is “a review under section 27”; and “[u]ntil that review has been completed, the obligation on the Defendant is to meet the claimants’ needs as already assessed“.

Thirdly, in the context of a review under section 27, “if there was an obvious case for intervention, such as an emergency, or an easy adjustment to make… interim arrangements could be made”. This explains the passage in the Guidance at paragraph 13.34, referring to “interim packages to urgently meet needs while the plan is revised”. Such urgent interim action would “need to be provided under section 27, and in particular section 27(4)” [not under section 19….]

The defendant council actually suggested that since the claimants had, throughout, nailed their colours to the mast of section 19(3), the claim must fail for identifying the wrong power. “That is so, even if the defendant is acting unreasonably in failing to provide urgent interim care provision.”

Mr Justice Fordham disagreed with this view (unsurprisingly in our view);

“The fact that there is an existing care and support plan, to which the section 27 function of review and revision is applicable, does not exclude any application of section 19(3).

As the Guidance emphasises (paragraphs 13.8 and 13.27), the section 27 review and revision functions can engage the conduct of a further assessment under section 9(1).

The point can straightforwardly be tested by taking section 27(4). It provides as follows: “Where a local authority is satisfied that circumstances have changed in a way that affect care and support plan or support plan, the authority must – (a) to the extent it thinks appropriate, carry out and needs or carer’s assessment, carry out financial assessment and make a determination under section 13(1), and (b) revised care and support panel support plan accordingly.”

The “needs… Assessment” referred to in section 27(4)(a) would be a section 9(1) “needs assessment” (we are not sure the judge is 100% right about that, because s27 very carefully avoids referring a council back to s9, which would have been the obvious thing to do: it refers to a proportionate reassessment that is possibly a process out there all on its own, as is the care planning equivalent after a revision, but we do not think that it matters in the context of this case).

In the period of time before that section 9(1) needs assessment has been “carried out”, it would be a “needs assessment” which has not “yet” been carried out.

If section 9(1) applies, why not section 19(3)? On the natural and ordinary meaning of the words, section 19(3) would straightforwardly apply to that situation. This is a benign and protective interpretation. It means, simply, that the local authority has the discretionary power to meet care and support needs “which appear to it to be urgent”. It is especially important, given that Parliament referred to revision of the plan as being a step taken after the carrying out of the relevant (4)(a) assessments. That is a very strong indication that urgent needs, pending assessment, would be met not by urgent revision of the plans but by (3) urgent meeting of needs by way of provision of care and support.

It follows, from an examination of section 27(4) alone, that section 19(3) is not in principle restricted to the initial contact stage, and the position prior to the carrying out of a first “needs assessment”. It is to be noted that in section 19(3), Parliament spoke of the local authority as not “having yet – (a) carried out a needs assessment…”; it did not say “having yet – (a) carried out any needs assessment”.

The defendant had agreed from August 2019 onwards to carry out a full reassessment of the claimants’ needs for care and support. That full reassessment would constitute “a needs assessment” for the purposes of section 9(1).

In Mr Justice Fordham’s view, the previous judges’ granting of interim care, were orders relating to the taking of steps which the defendant had the legal power to take, pursuant to section 19(3). 

He stated that the defendants did also have the power to take urgent action pursuant to section 27, which empowers the local authority to revise a care and support plan.

“An urgent revision to a care plan could be made, and that could have been done in the present case. That could, moreover, be especially important if there is a situation where there is something temporary and urgent but where everyone agrees that there is no question of carrying out a further section 9(1) assessment.

In a case where there is to be a section 9(1) further assessment, the local authority has two overlapping powers. They operate in accordance with the ordinary and natural meaning of the words chosen by Parliament, to enable a local authority to respond to urgent needs. This approach is supported by paragraph 13.34 of the Guidance which contemplates that urgent care provision may be implemented not just through an urgently revised plan, but also “to urgently meet needs while the plan is revised.”

Mr Justice Fordham went on to identify three key themes in the defendant’s refusal to grant interim relief;

  1. “The defendant’s ‘inability’ to make any change without a reassessment of needs.

The defendants stated they were “not able to make changes to [the claimants]’ care support plans without completing a reassessment of their needs”. It described a needs assessment as being “required before we instil any change in the care package, urgent or otherwise”.

This language “was an unfortunate overstatement of the position.”

“The statute entrusted the defendant with a discretionary power to act without having completed a reassessment. It did so, even on what emerged as the defendant’s analysis of section 27. A discretionary power, together with repeated requests that it be exercised, required the defendant to address whether to exercise it. Instead, the language of the refusals ruled it out. In concrete human terms, the central question was whether the mother could reasonably be expected to continue to undertake the care provision of repositioning her sons at night, single-handedly? If the local authority was reasonably satisfied that she could, then it could justify refusing to provide urgent interim care. If, on the other hand, the local authority was reasonably satisfied that she could not, then I cannot see how it could in those circumstances justify refusing the urgent interim care provision. In the latter scenario, it would be “able” to make the provision, and the needs assessment would not be “required” before it did so. It needed to ask and answer the question.”

  1. “The defendants had a ‘health and safety’ concern about whether carers could be expected to reposition the claimants without appropriate equipment having first been installed.

The defendant said: “the local authority cannot send staff to undertake night-time care without the proper equipment in place” and “there are health and safety issues that the local authority required to consider[] before sending its staff, if any”.

“There can be no doubt that the defendant was reasonably entitled to be concerned about, and wish to evaluate, equipment and health and safety. However, that could not of itself be a complete answer to whether there was or was not an urgent need, justifying immediate interim action, notwithstanding that the health and safety assessment had not yet taken place.”

  1. “Whether the claimants’ solicitors had provided proper evidence to support the urgent need that they were describing as calling for urgent interim care provision.”

The defendants had argued that the evidence supplied by the occupational therapist did not stipulate that 24 hour care was ‘required’ or ‘urgent’. It stated in both the recommendations only that:

‘[the service users] would benefit from 24-hour care and support as his home environment. He has complex manual handling needs and care needs to justify this level of provision’.

Mr Justice Fordham stated that “In my judgment, the expert reports put forward could not reasonably be regarded as failing to “stipulate” that the additional night-time care and support was “required”, or “urgent”. The key reason given in legal services’ letter focused on the use of the language “would benefit from …” However, a full and fair reading of the reports show that they went far beyond recommending a course as being beneficial or optimal. In his careful and detailed reasons for the grant of interim relief on 12 December 2019, the judge Sam Grodzinski QC said this:

“a need for night-time care is clearly supported by the OT reports, and by what [the mother] states (supported by medical evidence [in] the bundle) about her physical inability to carry on providing such care at night time. The defendant’s… letter takes issue with whether the care needs are urgent, and notes that the OT report states that ‘[the claimant] would benefit from 24-hour care and support in his home environment’ (my emphasis). However, I do not interpret that sentence as implying that such care is regarded by Ms Hillier as an optional or aspirational benefit, rather than an immediate need in particular when the reports are read as a whole.

Mr Justice Fordham stated “I entirely agree with that assessment and cannot improve on it… In my judgment, for these reasons…the defendant was not acting reasonably – in the light of the experts’ reports put forward in October 2019 – in refusing to exercise its discretionary power to provide urgent night-time care and support. Nothing in the documents provides reasonable support for any conclusion that the mother could reasonably be expected to reposition the sons at night, single-handedly. Indeed, I have been able to find no evidence that the defendant – and certainly anyone with decision-making responsibility – asked itself that question and, if they did, as to how they answered that question. It follows that I do not accept Ms Rowlands’ submission that there was no unlawfulness as at the date when proceedings were commenced.

The mother’s continuing support

The defendants argued that that night time care was not urgent, because documents served on 23 April 2020 showed that X continued to reposition her sons herself at night-time, even with two carers in the house. X described herself as “always present at night, and “offers additional support”, stating that “she often sleeps next to [the second claimant], in order to offer him night time support”, “Before we had overnight carers, I would be solely responsible for providing any support, apart from during periods of respite. However, I still choose to assist the workers when they provide physical support.”

The defendant argued that this supported their view that X could meet their night time needs.

However, X explained to the court, using evidence from her GP, why she could no longer be expected to cope or really cope with the physical demands.

“I need surgery to relieve pressure on the spinal nerve which gives me quite a lot of pain when bending. Proposed surgery has a recovery period of 6 weeks, but without support I would have to continue my caring duties without a break. In my present condition I am unable to walk except for short distances indoors at home and not at all outdoors. I am in pain when I stand and can only do so for short periods. I have had a further MRI scan which shows a degenerative problem in my spine which is unlikely to be fixed by surgery. I also have the problem with my right shoulder which are reported to my GP and 2018, and pain to my knees and neck which I’ve been told is due to degeneration and I think the prognosis is not good. In addition, I have high blood pressure. Caring for the claimants is extremely physically demanding. The most physically demanding part is turning them at night, and as I explained in my first statement, I cannot physically do it anymore.”

Mr Justice Fordham highlighted that “the Court was shown no document which addressed the question whether the mother can reasonably be expected to reposition her sons at night, single-handedly, and concluded that she could.”


“The sole justifiable response was the continuation of the urgent interim care provision requested by the claimants, which became the subject of the interim relief orders of the court, which orders have now fallen away. I am satisfied that section 19(3) is a statutory discretionary power which was relevant and applicable in the present case. I am satisfied that the defendant could not justify as reasonable its refusal to act.”

“Until the documents disclosed on 23 April 2020, nobody grappled with the central, straightforward question in this case. Was the mother reasonably to be expected to reposition the claimants during the night-time, single-handedly?”

“The claim for judicial review succeeds. In all the circumstances, I will grant the remedy sought. I will convert into a final mandatory order the order made by way of interim relief by Mr Grodzinski QC on 12 December 2019 and continued by Mr Roger ter Haar QC on 15 January 2020. I have a discretion as to whether to order a remedy. I am satisfied that it is appropriate in this case to do so. The fact that the order embodies what I was told at the hearing is now a decision of the defendant is something which can be recorded in an appropriate recital. I regard as healthy the congruence between what I am ordering under my secondary, supervisory jurisdiction based on public law principles of review, and the position to which the defendant as primary decision-maker dealing with the merits has come in the end. Moreover, the story and circumstances of this case, including the fact that there was no decision letter communicating the new decision, reinforces my view that what is needed, in the current circumstances, is clarity.

What the defendant ultimately decides, once the various steps identified have been carried out, will be a matter for the defendant as the primary decision-maker under the statute. It goes without saying, but perhaps in the circumstances it is worth recording, that that ultimate decision will be the one which the defendant conscientiously considers to be correct, on the merits. In public law terms, it will need to be one which is justifiable as reasonably open to the defendant, on the evidence before it, for the reasons it identifies.”

LB Tower Hamlets v A (by her litigation friend the Official solicitor) & KF [2020]

Keywords: Capacity, Accommodation

A was 69 years old and had a diagnosis of Korsakoff’s dementia.

She had no children and her former husband had died. She has many caring friends who have taken an active part in her life and in these proceedings. She had lived in her flat, of which she was clearly very proud, for more than twenty years. About three years ago A suffered a stroke. Shortly afterwards she executed Lasting Powers of Attorney for both property and welfare. KF was one of the joint and several property attorneys, and the sole welfare attorney.

All parties agreed that she lacked capacity to decide care. She had been admitted, temporarily, to a care home, following a period in hospital as a result of a fall at home and significant confusion, and the issue was now whether she had capacity to decide whether to remain in the care home or return to her own home with a package of care.

Capacity assessments undertaken whilst A was in hospital had found her to lack capacity to decide where to live. A social worker familiar with A had concluded that she lacked capacity to decide where to live on the grounds that she lacked capacity to decide on her care needs and that those needs were crucially relevant to the decision about where she should reside. Similarly, a psychiatrist has also assessed her as lacking capacity to decide where to live because, in his view, A’s denial of her memory problems and lack of understanding of and inability to retain information about her support needs meant that she was unable to understand the relevant information. Further assessments, undertaken in the DOLS process shortly after her arrival in the care home had concurred with these views.

However, an independent psychiatrist jointly instructed by the parties, who assessed A after she had been in the care home for a longer period, considered that her presentation in hospital had been additionally affected by delirium due to an infection, which had now gone.

Additionally, he felt, her cognitive functioning had benefitted from good nutrition and abstinence from alcohol during her stay in the care home.

His view was that, despite lacking capacity to decide her care and to manage property and affairs, A did now have capacity to decide whether to live in residential care or in her own home. He identified that A was able to write down information and use her notes to prompt her recollection and that she was able to understand and weigh the risks and factors she considered important in deciding between returning home with a package of care and remaining in residential care and retain this knowledge for long enough to reach a decision.

This included her understanding of the ‘conditions’ she would have to abide by (such as abstaining from alcohol and accepting care visits) as part of a care package at home and the consequences of failing to comply with these (i.e. a return, permanently, to residential care).

A was visited by her solicitor who explained to her the idea of a care package being provided in terms that there may be ‘conditions’ to her being able to return home. The attendance note records A asking essentially how it would be known if the conditions weren’t met, and then answering her own question: “if I damage myself, or their snooping snoops smell my breath from a quarter of an inch away.” She added “this is blackmail.”

A expressed positive views about C Care Home: “It’s a decent place, run by decent people. They are there to help, not hinder unnecessarily, though obviously they wouldn’t let me get into trouble.” When asked if there was a part of her which would rather remain at C Care Home, A replied “no, but I can understand why you ask that. I would never have imagined having a wobble. It is the prospect of being monitored; it feels like a prison. This place doesn’t.”

In fact it is lawful for a council to make an offer dependent on lawfully relevant conditions, such as controlling tendencies that render the service useless, or make life impossible for carers.

Crucially it was acknowledged that the chances of A actually complying with the conditions might well be below 50%, but that did not necessarily indicate a lack of capacity to make the decision.

She was recorded as saying “I can do as I’m told. It doesn’t mean I have to like it.”

The judge spoke with A, about her wishes and feelings and understanding of what was on offer, and he reported as follows:

“A was very articulate. She told me that her overwhelming feeling was that she would like to get back to her flat and her life. She said she had learned a few lessons, including that she should take more care, and that she is now slightly sadder and wiser than she was previously. A said that the people at C Care Home are nice and the place is comfortable but it is not her home, not where her life is, not where she wants to be. When I explained the proposal for carers, A told me that she “didn’t have an option.” She was able to repeat back to me after a few minutes (and seemingly by reference to her written notes) all four of the “conditions” by which the success of a return home would be measured. She said “I realise that I am not going back to my old life.” “

The Local Authority argued (citing B v A Local Authority [2019]) that the decisions about care and residence could not be considered in ‘silos’, because of the implications of one decision for another.

The judge acknowledged that there was overlap between the factors relevant to each of those decisions, but concluded “Overlap does not however imply that a decision in respect of residence somehow incorporates a decision in respect of care … it is not necessary to make a capacitous decision about care in order to make a capacitous decision about residence. Rather, as Theis J identified, what is required for A to make a capacitous decision about where she lives is a broad understanding of the sort of care which would be provided in each of the two places of residence potentially available to her.” [para. 65]

A very good and long-standing friend of A’s observed that now A’s “emotional self-sufficiency gives the impression of someone far more intelligent and in control of life than is actually the case.” He never realised that there was such a significant issue with alcohol. He too concluded that, if A returned home, he “would resign all further responsibility for being involved in helping to look after her… To send her home under the illusion that she is an independent intelligence capable of making decisions that are in her own best interests, even with multiple carers visiting and preparing her meals, would only be to hasten her decline still further.”

So capacity here was indeed a finely balanced question.

The judge considered what constituted relevant information for the decision as to accommodation generally (derived from LBX v. K, L, M [2013]) and narrowed down those elements relevant in this case as:

a. what the two options were;

b. in broad terms, the care which would be provided to her in each place (including that, in her own flat, carers would visit her several times each day);

c. that the option of living in her flat would be initially on a trial basis for up to 4 weeks;

d. that the trial of living in her flat would be considered successful if A engaged with the carers, took her medication, maintained appropriate nutrition and abstained from alcohol;

e. if the trial of living in her flat were not considered successful, it would end and she would return to C Care Home.

Observing the influence of a protective imperative on the opinions of some of the professionals involved, the judge highlighted the need to formulate an objective assessment of whether A, after a sustained period of care, was now able to decide between the two identified options for herself.

He noted that, once a best interests decision had been made to accept the care package to be provided to A at home, including the conditions, or the care home, A was able to understand what care would be provided to her in each potential place of residence. Therefore he concluded that she did, at present, have capacity to decide where to live.

The judge said this too:

“If, when the details of the care package are settled, A chooses a trial return home and even if ultimately it is not successful, I would not characterise that decision as “unwise.” Had I reached a different conclusion as to A’s capacity, on the basis of her current wishes and feelings, it is highly likely that I would have agreed with the Official Solicitor that the proposed return to live at home with a package of care should be tried. For A as much as anyone, home is more than ‘just bricks and mortar.’ “

Public Law point

There are some interesting titbits in the judgement which shed intriguing light on the Local Authority’s decision-making under the Care Act. The judge notes that the Local Authority failed (twice) to actually produce a social care assessment of A’s needs if she returned home, despite being ordered by the court to do so.

The Official Solicitor pointed out that there needed to be further exploration as to the minimum practicable care package required. However, the Applicant Local Authority has prepared a “proposed support plan” which they were ‘willing’ to provide, setting out a suggested daily timetable for personal care support and visits of 2 hours duration on Mondays and Thursdays to support activities in the community for leisure, appointments, shopping and so forth.

It very much underlines the difference between the jurisdictions of the Court of Protection and the Administrative Court (judicial review). Given the impossibility, under the Care Act, of arriving at a view of the proposed care package without regard to any assessment of the needs to be met, any judge in the Administrative Court would have insisted on a proper assessment before any arbitrary package of 3 visits a day!

We think that the experts should have known enough about the Care Act to insist that that process should have been a precondition of their own input on capacity, because if there was no plain straightforward statement of what were regarded as eligible needs, how could she, or her financially authorised representatives decide what to spend her money on, one way or another? And how could the experts properly explore her understanding of that minimum practicable offer, properly?

Full text at:


What Happened

A 38 year-old Polish national was admitted to a psychiatric ward in 2019 having been found partially clothed and wandering outside. Her medical records showed an extensive history of mental health issues, and led to a conclusion that she was not fit to be detained and should instead be taken to hospital.

In December 2019 she was sentenced to 2 weeks’ imprisonment for public order offences. The decision was made to send her to an immigration detention centre and seek her removal from the UK.

C appealed this decision, which was delayed due to the COVID19 pandemic.

On 22nd Febuary 2020 a rule 35 report completed by a medical practitioner highlighted that C’s mental state would deteriorate if she were kept in detention.

On the 25th Feb the defendant (the secretary of state (SSHD)) requested further evidence of the risk of C’s wellbeing deteriorating, before granting accommodation under schedule 10 of the Immigration Act 2016.

On the 5th March the defendant accepted that C qualified as a level 2 risk, so should therefore be released from the detention centre when accommodation was found for her.

The SSHD officially confirmed C was entitled to accommodation under sch. 10 on the 2nd April. However, due to COVID, they stated they could give no timeframe for when accommodation would be available.

C complained that there was an unreasonable delay in the SSHD confirming she was entitled to accommodation under sch.10. She said that it was clear from as early as January (when she was first placed in the detention centre) that she was vulnerable, yet it still took four months to confirm her eligibility. She said that the application should have started well before April.

What was found

Schedule 10 para.1 of the Act confers powers on D to grant bail to a detained person. 

Schedule 10 para.9 confers the power to provide accommodation to a person who has been bailed if the defendant believed that there were exceptional circumstances which justified the exercise of that power.

Very importantly for the exercise of functions during the Covid 19 period under the Care Act easements, the court found that even though there was only a power, rather than a statutory duty to grant immigration bail at all, it carried with it, there was an obligation to determine an application for sch.10 accommodation fairly and rationally, and to act reasonably to obtain accommodation within a reasonable period.

The SSHD policy stated that if a person was under bail, did not have access to accommodation and ‘faced imminent suffering due to the denial of food, shelter and basic necessities’, then they should consider if there was a duty to provide accommodation under ECHR art.3 (freedom from inhuman or degrading treatment).

There was no doubt that C was eligible for accommodation to be provided by the SSHD. Therefore this placed an obligation on the SSHD to find accommodation in a timely manner.

The Court then had to consider whether the Secretary of State had taken reasonable steps to find accommodation without excessive delay, and if it had failed to do so, then the Court could make an interim order.

Here the Court was sympathetic to D’s circumstances, dealing with unforeseeable challenges during a worldwide emergency. However, after considering C’s history, and the fact that she had been detained for 4 months despite medical professionals expressing concern for her wellbeing, the Court granted an interim order.

The order gave the SSHD 7 days to make accommodation available for C.


In this case, the NHS Foundation Trust applied for an interim injunction on behalf of one of the hospitals it operated, the National Hospital for Neurology and Neurosurgery (a 12-bed ward for those requiring acute neuropsychiatric care for up to 14 days where the patient’s stay could be extended to 28 days in extreme circumstances).

The Trust had sought to discharge one of its patients, referred to as MB, but she had refused to leave, saying that the care package being offered by the London Borough of Camden Council was insufficient. She had mental capacity but a diagnosis of functional neurological disorder with variable upper and lower limb weakness, tremor and speech disturbance, chronic migraine, fatigue and generalised pain, complex psychological conditions, including PTSD, disrupted attachment, OCD, possibly borderline personality disorder and Asperger’s syndrome.

MB’s representative argued that due to her disabilities (she was wheelchair and bed bound) and complex mental health conditions, discharging her without properly addressing her concerns could lead to her suffering extreme distress as well as being at risk of self-harming or of committing suicide. Discharging her in this way would leave the hospital in breach of its responsibilities under articles 3, 8 and 14 of the European Convention on Human Rights (ECHR) and would amount to disability discrimination and a breach of the duty to make reasonable adjustments, contrary to ss. 29 and 149 of the Equality Act 2010, it was argued.

MB had been residing at the ward since collapsing at home on February 18th 2019.

Staff felt that she could be discharged safely and the local authority had offered adapted accommodation and 24-hour care for 1 month and then extended to 3 months by concession for reassurance, but MB wanted guaranteed care for a whole year and refused to leave.

The judge dismissed the hospital’s subsequent possession claim for MB’s room as ALL such claims have been stayed for 90 days under CPR Pt 55 due to the the COVID-19 pandemic. However, the Civil Procedure Rules do not apply to preclude a claim for an injunction, which the hospital applied for on April 3rd.

The judge heard from MB and her sister, and from hospital staff. Most of the evidence for her prompt discharge from the ward was provided by Dr Christofi, a consultant neurologist working for the hospital. Dr Christofi described MB’s behaviour as unmanageable and often aggressive and threatening. He said “It is of paramount importance that [MB] is discharged from [the Hospital/UCLH] immediately. Not only do we need the beds for critically unwell patients, but remaining in a hospital environment places [MB] at unnecessary risk of contracting COVID-19. It is therefore undoubtedly in [MB’s] best interests to be discharged to a safer location urgently.” Dr Christofi was of the view that the care package consisting of 24hr care was reasonable and that there had been no self-inflicted risk incidents to indicate that MB was a risk to herself.

“She engages in activities such as watching films on her laptop. No psychotic symptoms have been observed (relating to hearing voices, nihilistic delusions etc over the time she has been in hospital). Her plans for DSH [deliberate self-harm]/suicide and not in the context of depression. Her history suggests threats of DSH when her needs are not met…She may well try DSH if she found herself in a situation where her perceived needs are not met and I cannot predict with certainty that she will not harm herself.there are no mental health reasons I can think of to keep her in this hospital.”

MB was not allowed to adduce independent medical evidence. Her main concerns with the care package were due to her distrust of Camden Council and the impending 3 month review which she believed would strip her of the 24hr care.

Although this was not an application for judicial review, MB was effectively raising a public law defence to a private law claim for possession, which is allowed as a matter of principle, without any application for permission, as would be essential if she had been the applicant in the Administrative Court. The judge could not see any good reason for permitting her to adduce evidence that would not be admissible on a direct public law challenge; judicial review would not be an appropriate forum for challenging a clinical view that a person was fit for discharge. Moreover, clinicians cannot be required to provide treatment contrary to their own clinical judgement; the treating team’s view was that the patient did not require hospital care and could safely be discharged.

The judge concluded that MB’s care needs could certainly be met by the care package offered to her by Camden. He felt that the Council had made considerable efforts to accommodate her concerns but that it was unrealistic to think that it would ever satisfy them, due to her distrust in them and the hospital. He said that there was a moderate to low risk of MB resorting to suicide or self-harm if discharged now but accepted that she would likely suffer extreme distress. In either case, this could be managed by the 24hr care offered in her care package, in his view.

Regarding the nature of the property rights being protected, the judge said this:

“The Claimant brings this claim to enforce its private law rights as property owner. As a matter of private law, MB became entitled to occupy the room she is currently in because the Claimant permitted her to do so by admitting her to the Hospital. The Claimant has now terminated her licence to occupy that room. It follows that she is now a trespasser.

Ordinarily, the Claimant would be entitled to seek an order for possession pursuant to CPR Pt 55: see e.g. Barnet Primary Care Trust v H [2006] EWHC 787 (QB), (2006) 92 BMLR 17 (Wilkie J); Sussex Community NHS Foundation Trust v Price (HHJ Coe).

That is not currently possible because of the general stay on possession claims effected by CPR 51Z PD.

The stay does not, however, affect claims for injunctions: see para. 3 of the Practice Direction. A property owner is in general entitled to an injunction to enforce its rights as against a trespasser: see the decisions of the Court of Appeal Manchester Corporation v Connolly [1970] Ch 420 and Supreme Court in Secretary of State for the Environment, Food and Rural Affairs v Meier [2009] UKSC 11, [2009] 1 WLR 2780.

A hospital is no different from any other proprietor in this regard.”

The order made was as follows, regardless of the realistic prospect of vociferous non-co-operation:

(a) MB must leave the Ward by [a particular time], provided that by that time the Hospital has made arrangements to facilitate the transfer of MB (by ambulance trolley and ambulance) and her belongings from the Ward to the accommodation to which she is to be discharged;

(b) if such arrangements are made, MB must not obstruct or impede their implementation;

(c) MB may thereafter not re-enter the Hospital’s premises without the prior written permission of the Claimant, save if admitted by ambulance.

If MB does not comply, she will be in contempt of court and the full range of the court’s coercive powers will be available to enforce it.

The judge went on to consider whether MB had any prospect of defending the claim, because if she did, he could not conscionably grant an injunction, because it would effectively determine the case on possession, prematurely.

He said this too:

“It is a tragic feature of MB’s complex constellation of mental health difficulties that she frequently suffers from extreme distress, whether she is in hospital or not. But, if the Hospital were precluded from doing anything which might precipitate such distress, it would soon end up in a situation where it was legally precluded from taking any step other than in accordance with MB’s wishes. In this case, MB would be entitled to insist on the provision of whatever she considers she needs as a condition of discharge from hospital, even if the result of her doing so were that the needs of others could not be met. That is not the law, because her needs are not the only ones that the law regards as relevant.

In some circumstances, a hospital may have to decide which of two patients, A or B, has a better claim to a bed, or a better claim to a bed in a particular unit, even if ceasing to provide in-patient care to one of them will certainly cause extreme distress or will give rise to significant risks to that patient’s health or even life.

A hospital which in those circumstances determines rationally, and in accordance with a lawful policy, that A’s clinical need is greater than B’s, or that A would derive greater clinical benefit from the bed than B, is not precluded by Article 3 ECHR from declining to offer in-patient care to B.

This is because in-patient care is a scarce resource and, as Auld LJ put it in R v North West Lancashire Health Authority ex p. A [2000] 1 WLR 977, at 996, “[i]t is plain… that article 3 was not designed for circumstances… where the challenge is as to a health authority’s allocation of finite funds between competing demands”.

Decisions taken by a health authority on the basis of finite funds are, in my judgment, no different in principle from those taken by a hospital on the basis of finite resources of other kinds.

In each case a choice has to be made and, in making it, it is necessary to consider the needs of more than one person.

Analytically, the reason why a decision to require a patient to leave a hospital is unlikely to infringe Article 3 ECHR is because it is based on a prior decision not to provide [further] in- patient care. Such a decision engages the state’s positive (and limited) obligation to take steps to avoid suffering reaching a level that engages Article 3, rather than its negative (and absolute) obligation not itself to inflict such suffering. Where the decision to discontinue in-patient care involves the allocation of scarce public resources, the positive duty can only be to take reasonable steps to avoid such suffering: cf R (Pretty) v Director of Public Prosecutions [2002] 1 AC 800, [13]-[15] (Lord Bingham). It is difficult to conceive of a case in which it could be appropriate for a court to hold a hospital in breach of that duty by deciding, on the basis of an informed clinical assessment and against the background of a desperate need for beds, to discontinue in-patient care in an individual case and, accordingly, to require the patient to leave the hospital. The present is certainly not one.

Even though the decisions to cease to provide in-patient care to MB and to require her to leave, plainly interfere with MB’s right to respect for private and family life, the evidence adduced by the Claimant amply demonstrates that the interference was justified in order to protect the rights of others, namely those who, unlike MB, need in-patient treatment. Bearing in mind the broad discretionary area of judgment applicable to decisions of this kind, there is no prospect that MB will establish the contrary.”


People may need to know during the Covid 19 period whether they can bring proceedings for possession against anyone whom they would wish to evict for a good reason – residential licensees, for instance, sharing premises with a resident landlord, or from a care home, when the home does not wish to have the person back, after a spell in hospital. This route of seeking an injunction enables some protection of a property owner’s rights, even if no possession order can be granted.

The judge did accept that a decision by an NHS hospital not to provide in-patient care in an individual case might, in principle, be challengeable on public law grounds, by judicial review if the decision were tainted by improper purpose or had been made in breach of statutory duty or otherwise contrary to law. So that preserves public law challenges for anyone in the Covid19 period to raise, for instance on the basis of a blanket policy of non admission or non selection of anyone aged over 90, or just based on being disabled intellectually or physically, assuming the property owner is a public body amenable to judicial review, such as hospitals. The difference between this and any other case that might arise is that here, the view was very firmly that this woman MB did not NEED any other treatment the hospital could give her, whereas in a Covid competition for a ventilator, it will be different, one can only presume.

An interesting question arises in the context of care homes, who do owe human rights, directly to publicly funded clients, but who are not public bodies in the normal sense required by public law before one can bring judicial review – they do not shoulder the actual public function of a council in meeting needs, when contracted to the council, nor act as a delegate.

If one reads the full case, one discovers that the offer of 24 hour care was being made in the context of a tenancy, which MB had been willing to sign. We do not know how that came about but it is a dearly held principle of CASCAIDr’s legal experts that an offer of care cannot be made conditional upon a council’s expectation that a person provides themselves with housing, and pays for it, before it will provide the care. MB had declined services in her own home; she had declined services in a care home setting, and the Council had just kept on trying to obtain her agreement instead of treating her as capacitated to refuse offers they were satisfied were reasonable. That is not a necessary position for any council to take when a person blocking a bed has capacity; but if it does continue to try to reach agreement, that is the council’s choice, and it must still act under the Care Act.

As noted Ground floor wheelchair accessible accommodation was eventually found which could be secured through a tenancy as opposed to a temporary licence. MB’s willingness to move to the particular accommodation finally identified and adapted must be assumed, because she had signed a tenancy, but if she had been told that she was obliged to take on that tenancy in order to obtain discharge from hospital (as happens to many other people with autism in ATUs, for instance) we think that that would have made for a much stronger public law challenge against the council in a different court.

Here is the link to the full judgment:

R (on the application of Glynis McKeown) v Islington LBC (2020)

What Happened

C was 63 years old, and had had health difficulties since the age of 38. In 2019 she had her right leg amputated above the knee, resulting in her being wheelchair bound.

She was a secure tenant of a garden maisonette, and the only way C could get into her home was for someone to carry her up or down the steps to the front door. She applied to the Council for a disabled facilities grant (DFG) to fund a platform lift.

The Council refused funding. It stated that it found the home unsuitable for C, the works were not reasonable or practicable, and offered to find her and her family suitable alternative accommodation.

S23 and 24 of The Housing Grants, Construction and Regeneration Act 1996 set out the purposes of grants, and the approval of applications;

S23 Disabled facilities grants: purposes for which grant must or may be given

(1) The purposes for which an application for a grant must be approved, subject to the provisions of this Chapter, are the following:

(a) facilitating access by the disabled occupant to and from – (i) the dwelling

S24 Grants: approval of application.

(3) A local housing authority shall not approve an application for a grant unless they are satisfied –

(a) that the relevant works are necessary and appropriate to meet the needs of the disabled occupant, and

(b) that it is reasonable and practicable to carryout the relevant works having regard to the age and condition of – (i) the dwelling …”

C declined this offer as she was comfortable in her home and was close to her friends and family. She sought judicial review over the Council’s decision to refuse her application.

What was found

Section 23(1) was satisfied in this case. C could not enter or exit her home, thus a grant for facilitating access (the relevant purpose) must be approved. That means that the Claimant has “established [her] grant eligibility in principle” relying on the judgement in the R(B) v. Calderdale MBC case [2004] EWCA Civ 134 [2004] 1 WLR 2017 at §28) (under section 23(1)(a)).


The only means of facilitating the Claimant’s access to her home was to install a platform lift. In order to determine whether this is “necessary and appropriate”, one has to determine what ‘needs’ are referred to in section 24(3)(a). C stated that she had a ‘need’ to access her home, whereas the Council said this was too narrow.

The Judge started by considering Bloomsbury International Limited v. Sea Fish Industry Authority, which stated that “In matters of statutory construction, the statutory purpose and the general scheme by which it is to be put into effect are of central importance.”

The Judge also stated that “The overriding purpose of the DFG is to make the dwelling or building suitable for the accommodation welfare or employment of the disabled occupant1

“[Sections 21 and 22 of] the statute is making clear that DFGs are not restricted to local authority tenants or tenants more generally but extend to disabled persons whether they are owner occupiers, tenants or simply occupiers (section 22A). The reason for that seems self-evident when one examines the list of purposes in section 23(1) which include facilitating access to the dwelling, making the dwelling safe, facilitating access to the living room, bedroom, bathroom etc. These are very basic needs which persons who are not disabled take for granted and Parliament has decided that grants in respect of such matters will be mandatory”

“The fact that different forms of tenure at the relevant property are included within the terms of DFGs means that in principle the interpretation of sections 23 and 24 must be capable of accommodating not only local authority tenants but tenants generally and indeed owner occupiers. This is important in relation to one of the main planks of the Defendant’s case which is that the Claimant’s home is not suitable for her, that the Defendant will look for a new alternative home and rather than carrying out expensive and not straightforward works to the Claimant’s home, the grant should be refused and the Claimant should move to a new home. But the fact that the terms of sections 23 and 24 must be applicable to all, including owner occupiers, is a strong indication against the Defendant’s position. Had the Claimant exercised her right to buy, it would not in my judgment be open to the Defendant to refuse the grant on the basis that she must sell up and move elsewhere. The structure of the Act, the legislative history and its purpose which relates, according to section 23, to “the dwelling”, i.e. the person’s home for the time being, exclude such an approach.”

“True it is that an external platform lift will do nothing to improve the suitability of the Claimant’s kitchen or bathroom for a disabled person but that is in my judgment the wrong question on three counts. First and very obviously a platform lift is confined by its nature to the Claimant’s needs to access/exit her home because that is what brings the application within section 23; second because suitability is a housing test which may well be the correct test for selecting suitable accommodation but is not one which is to be found in section 24(3); third because this is the Claimant’s application for monies to do works for a narrowly defined purpose, not a request to the Defendant to do works to her home as might be the case under other legislation applied by the Defendant to the Claimant’s or her husband’s needs

Effectively, the judge stated that the overriding purpose of the legislation and grant system was to make dwellings suitable for their occupants, so the appropriateness of any DFG application should be referenced against the need it was designed to serve. In this case it was the need to access and exit her home.

Necessary and appropriate

The judge stated that platform lift was necessary and appropriate;

“it is common ground that the platform lift is necessary in the sense that a stair lift will not do the job (due to additional steps after the main run of steps). It also does not appear to be in dispute that a platform lift is “appropriate” in the Calderdale sense that it would permit the Claimant to enter and exit her property using her wheelchair.”

The Council had given numerous reasons why the DFG application failed the “necessary and appropriate to meet the needs of the disabled occupant” test, to which the judge did not agree with. The Council mainly argued that C’s maisonette would not be suitable in the long term for her;

“The assessment by (the Council) was directed at whether difficulties accessing the internal stair lift “may result in her current accommodation becoming increasingly unsuitable for her long-term needs”. In my judgment that is not a relevant consideration on the issue of “necessary and appropriate to meet the needs” of the Claimant in section 24(3)(a) given my conclusion on the needs being referred to, i.e. the needs to access and exit the home.”

“Section 24(3)(b) requires the Defendant to be satisfied “that it is reasonable and practicable to carry out the relevant works having regard to the age and condition of the dwelling”. Previously section 24(4) (now repealed) added to consideration of the age and condition of the dwelling whether it was fit for human habitation. Dyson J in ex p Mohammed cited above expressed the following view: “No doubt, the reason for these conditions was an appreciation of the fact that it was not a sensible use of resources to make a DFG to improve an old, dilapidated building …””

However, the judge pointed out that the “considerations taken into account by (the Council) do not relate to the age or condition of the dwelling but rather to the suitability of the dwelling for the Claimant’s care needs…. it cannot be said that the lack of suitability in various respects of a person’s home excludes such a person from access to a grant in order to facilitate the basic need of accessing/exiting the home.”

The judge concluded; “Finally, I return to the point which I described earlier as one of the main planks of the Defendant’s case. This is the point that the Claimant’s need to leave her home would be more suitably met by a move to wheelchair accessible accommodation. For reasons which will be apparent with regard to my conclusion that the application for the DFG for a council tenant must be considered on the same basis as an application from an owner occupier and that what is being considered is the need to access the dwelling which the applicant occupies as his/her home, in my judgment it is not lawful to refuse a DFG on the ground that the Claimant must move her home.


C sought orders compelling the Council to approve the DFG and quickly commission the work. However there was confusion as to the Council’s policy; C was supposed to commission the work in accordance with the grant. So, the judge issued an order to quash the decision, and have the Council reconsider its decision according to the law as laid out.


This decision lays to rest a longstanding moot point, in local government law, which may well be of relevance to the much more common question whether a council can expect a person to move to a house of its own choosing, in order to deliver cheaper or more cost effective social care. We have always thought that the answer would be No, applying public law principles, despite the discretion on the part of a council to say We believe that the needs could be met by pointing at this that or the other community based service so we will not be providing anything ourselves.

We think it’s markedly different where the only way of accessing this community based alternative would be for the client to spend money of their own on an long term ongoing paying for accommodation, when in fact the can point to the Care Act and say – “Here I am, living here, these are my apparent needs – please care plan now for meeting them.”

Gerald James v Hertsmere Borough Council Court of Appeal (Civil Division)

This case concerned the legality or otherwise of a contracted-out review decision for a district council’s housing authority, made under section 202 of the HA 1996.

Of more general applicability however, was the wider question of the scope of the jurisdiction of the county court whenever hearing homelessness appeals.

The facts of the case

In November 2017, the appellant, a Mr. James, applied to Hertsmere BC for accommodation on the basis that he was homeless. The authority made its inquiries under section 184 of the Housing Act and on the 29th January 2018 notified Mr. James that he was not regarded as being in priority need and was intentionally homeless.

This being a pre-Homelessness Reduction Act case, the council only had a duty to provide advice and assistance. Prior to the passing of the Homelessness Reduction Act on 5th April 2018, anyone who was found to be homeless, but not in priority need, was only owed the limited advice and assistance duty.  This was a duty to provide advice and assistance for someone to find their own accommodation, and in reality, this often amounted to no more than giving applicants a list of private landlords.

Since the passing of the HRA, an applicant is owed the prevention duty (threatened with homelessness within 56 days) or the prevention duty (homeless) which in turn, both require an a housing assessment and personalised housing plan to be completed, regardless of priority need.

On the 6th February 2018, Mr. James applied for a review of the decision that he was not in priority need pursuant to section 202 of the 1996 Act.

Where an authority carries out a statutory review it must be must be carried out within 56 days unless a longer period is agreed between the applicant and the reviewer: regulation 9 of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999, which was applicable in this case, and regulation 9 of its successor, the Homelessness (Review Procedure etc.) Regulations 2018.

The review took some 28 weeks to complete, and on the 24th August 2018 Mr. James received the outcome of the review which confirmed the original decision that he was not in priority need. On the 15th September 2018, Mr. James appealed that decision to the county court under section 204.

The authority in this case had contracted out its homelessness review functions to a private sector property management organisation. At the time of Mr James’s review 2 of the senior roles were vacant, which meant that responsibility for entering into a new contract travelled up the chain to the chief executive.  A much more junior official reached an agreement with the company to extend the contract to cover the period during which Mr James’ review decision was reached. 

The appellant argued that the reviewer had acted outside the framework of the Housing Act because its contract with the council had only been authorised for a period of 12 months, and this decision had actually been completed outside of this period.

The court gave this argument short shrift, stating that as long as the decision had been started within the contractual period it still had the legal authority to make the decision. The review decision was lawfully made because it was commissioned during the review period.

The jurisdiction of the county court in homelessness appeals

It is the wider issue in this case however, which is of interest to local authorities and advisers alike, that of the jurisdiction of the County Court when considering a point of law in a homelessness appeal.

The central issue was whether the jurisdiction of the county court was limited to considering a point of law arising from the review decision, or whether it had wider powers similar to those of the High Court on judicial review.

Lord Justice Peter Jackson, giving the leading judgement, reviewed the conflicting authorities on this issue.

In Nipa Begum v Tower Hamlets LBC Auld LJ took the clear view that

“a point of law” includes not only matters of legal interpretation but also the full range of issues which would otherwise be the subject of an application to the High Court for judicial review, such as procedural error and questions of vires, also of irrationality and inadequacy of reasons”.

However, in Panayiotou v Waltham Forest LBC, another case which involved a challenge to the authority’s contracting-out policy, Lewison LJ commented:

“The original right to apply to the Administrative Court for judicial review was transferred to the county court (under s204) because county courts were thought to have expertise in housing not administrative law generally. The right of appeal against a decision on a review is a right limited to a point of law arising from the review decision, whereas (in this case) the points raised are challenges to Haringey’s antecedent decision to contract out its functions.”

Jackson LJ concluded that normal statutory construction and the majority of the authorities pointed to the county court having jurisdiction not merely over points of law which could be described as “points of housing law” but also the full range of issues which would otherwise be the subject of an application to the High Court for judicial review. He also noted the practical advantages of this interpretation, such as the time and expense involved in applying for judicial review, and the splitting of grounds of appeal leading to duplication of court time and costs.

In my view, the correct interpretation of s. 204 Housing Act 1996 is that a point of law arises from a decision if it concerns or relates to the lawfulness of the decision. Both normal statutory construction and the preponderance of authority point to the county court having jurisdiction to hear appeals from s. 202 review decisions that is not limited to points of law that might broadly but imprecisely be described as “points of housing law” but extends to the full range of issues that would otherwise be the subject of an application to the High Court for judicial review. These include challenges on grounds of procedural error, the extent of legal powers (vires), irrationality, and inadequacy of reasons.” 

Relevance for advisers

Many practitioners will be well aware of the practical difficulties, in terms of time and expense, of applying for judicial review. Specialist housing advice and often the services of a barrister will be required, and it can be difficult to match up these services with individuals who often have multiple and complex needs, who may not have the necessary documentation for a legal aid claim necessary to fund this costly endeavour.

Writers have commented that local authorities are increasingly running arguments based on the third and fourth limbs of Bean LJ’s decision in the Adesotu case by:

  • Asserting that the ground of appeal does not ‘arise from the decision’ and
  • Relying on the ‘respondent’s notice point’ in Adesotu (questioning whether the issue had been raised at any stage before the review decision).

So, according to Nick Bano of Garden Court Chambers’ housing team, “applying James an appellant could challenge something that took place before the review process, whereas applying Adesotu s/he could not; applying James an appellant could challenge something that merely ‘concerns or relates to’ the review decision, whereas applying Adesotu s/he could only challenge the lawfulness of something in the decision itself.

On the second Adesotu point (the ‘respondent’s notice point’ – whether an appellant may rely on something that had not been raised before the review decision), the contrast between the two cases is even stronger.

In Adesotu Bean LJ upheld HHJ Luba QC’s decision that there is no jurisdiction to consider a point that had not been raised before the review decision was made.  In James, on the other hand, Peter Jackson LJ reminded us of what Sedley LJ had said in Nipa Begum: “The jurisdiction of the county court is at least as wide as that of a court of judicial review” (affirmed in Runa Begum).”

This decision is therefore welcome authority for the proposition that, relatively straightforward appeals in the county court are not limited to considering mistakes of legal interpretation in the review decision itself, but can also now be challenged on traditional public law grounds such as procedural error, irrationality, inadequacy of decisions and, as in this case, that the authority was acting outside its legal powers. is the link to the full judgment of the court

R (M) v London Borough of Newham [2020] EWHC 327 Admin

What was the case about?

The case concerned a family with 4 dependent children who had spent nearly 15 years in three bedroomed ‘temporary’ accommodation provided by the London Borough of Newham following the acceptance of a full homelessness duty in 2005. The family included a daughter who suffered from a number of disabilities necessitating specialist bathroom facilities, and the family had raised this, together with the need for larger accommodation, with Newham on a number of occasions.

In December 2017, Newham notified the family that the authority had secured a four bedroomed house for the family and that it regarded the offer as suitable. In the offer letter, Newham warned the family that if they did not accept the offer then their case would be closed subject to a review on suitability.

In view of the warning, the family accepted the offer, but maintained that it was not suitable because it did not provide and could not be adapted for the bariatric bathroom, disabled toilet and walk-in bath or shower access, all of which were required for the hygiene and safety of the disabled child.

The review request was accompanied by a paediatric occupational therapy report supporting the family’s view that the property was not suitable for their daughter’s needs.

In February 2018, the authority’s review officer concluded that, in the light of the report from the occupational therapist, the temporary accommodation offered to M was not suitable.

It was accepted that helping the daughter to mobilise was causing shoulder injury to the mother. However, no further offer of accommodation was forthcoming.

In September 2019, the family made an application for judicial review on the basis that the defendant local authority was in breach of its statutory duty, under section 193(2) of the Housing Act 1996, to provide suitable accommodation. The hearing was expedited but more than two years after the claimant and his family had moved in, they were still living at the alternative accommodation.

Newham made submissions on the basis that the duty to provide suitable accommodation was not subject to any particular timescale, and that they had taken sufficient steps to try to secure alternative accommodation, despite the failure to actually do so (in part they alleged due to a failure by the family to make appropriate bids – this was disputed).

Newham also argued that the accommodation could be considered “suitable” on a short-term basis even if accepted that it would not be reasonable to continue to occupy it on a long-term or permanent basis.

What did the court decide?

The court decided that Newham was in breach of their statutory duty and had been since the date of their decision letter in February 2018 when they had acknowledged that the property was unsuitable.

The case of Birmingham City Council v Ali & Ors [2009] UKHL 36 had confirmed that in cases where accommodation was unreasonable to continue to occupy, resulting in a decision of homelessness, it could, nevertheless, be found to be suitable for a short-period or on a temporary basis. The judge distinguished this present case however, as the reviewing officer’s decision had not considered whether the family was in fat homeless but whether or not the accommodation they had been placed in was suitable; the family’s accommodation could not be considered suitable given that the review decision had specifically considered this fact and had concluded that it was not.

Once the accommodation had been deemed unsuitable, then the local authority must be regarded as in breach of its statutory duty to secure suitable accommodation, with a short delay only permissible where an authority had concluded that the accommodation was suitable in the short-term. The duty was not to provide suitable accommodation within a reasonable time, where the authority had already accepted it was not suitable.

The courts have differed over the years as to whether there is a concept of a reasonable time in which to discharge the Part VII s193 duty, in the context of people living in unsuitable accommodation at the time and thus homeless albeit housed.

In R v Newham LBC ex parte Begum (1999) 32 HLR 808 Collins J said this:

“While I have considerable sympathy with the Council, I do not think that the qualifications which [the Council] submits are necessary can be read into the words of the statute. Parliament has not qualified the duty in any way: it could have done. However, the situation for the Council is not quite as desperate as might be thought. While the duty exists, no court will enforce it unreasonably.” (page 816)

  1. He added:

“Furthermore, whether or not accommodation is suitable may depend upon how long it is to be occupied and what is available. It may be reasonable to expect a family to put up with conditions for a few days which would be clearly unsuitable if they had to be tolerated for a number of weeks. But there is a line to be drawn below which the standard of accommodation cannot fall.” (page 816)

Collins J’s analysis of the law did not preclude the possibility that a period of time would elapse between the authority’s acceptance of the section 193(2) duty and the making available of alternative accommodation. But this was on the basis that the concept of suitability would, in appropriate cases, allow that the existing accommodation was “suitable” for a short period of time and that the authority therefore was not in breach.

The judge in this case said that even if there was a concept in legal terms of a reasonable period in which to provide properly suitable accommodation, because for instance the inappropriateness of the housing that led to the finding of homelessness was not so grave as to make it immediately suitable for a little while longer, this had been well exceeded in this case.

The difficulties for A and her family caused by the current accommodation significantly undermined her health and well-being, her dignity and her ability to lead a reasonably independent life at home. They also impacted on A’s family and on her mother, in particular. The evidence is that, for some time, these issues had needed to be addressed as a matter of urgency. There was no evidence that Newham had taken the family’s case seriously and had made all reasonable efforts to secure suitable accommodation.

A judge at an earlier pre-trial stage had ordered a witness statement from the council regarding the steps taken and the reason for the difficulties experienced. The judge at the trial thought it would have been reasonable for the court to expect a “procurement officer” who had been involved in the claimant’s case, to give evidence on behalf of the defendant which explained, in detail, the efforts which had been made on the claimant’s behalf and exhibited documents to support his evidence, for example from the claimant’s case file. The officer who provided a witness statement was called a ‘Local Space Manager’ and he mis-stated the young woman’s requirements and thus exaggerated the difficulties faced by the council. It was not clear what researches he had carried out, or what the sources of his information were, or how he was able to assess the bathroom facilities in properties he mentioned. The judge said “…it is not credible that, as he appears to imply, only five 4 bedroomed properties have been available for rental in the private sector in the last two years, even looking as far afield as Nottingham.” 

The claimant had sought a declaration to this effect together with a mandatory order requiring the defendant to provide him with suitable accommodation within a period of eight weeks. The court made a mandatory order requiring Newham to provide suitable accommodation within 12 weeks. The judge said that the council’s short-lived efforts that were made in May 2019 when judicial review was threatened and in December 2019 after proceedings were issued suggested to him that a mere declaration would not lead to a sustained and thoughtful effort to assist the claimant and his family.

Learning for advisers and points for the public and for councils

This case established that, where a review clearly states that accommodation is unsuitable, then that decision immediately puts a local authority in breach of its statutory duty to provide suitable accommodation under section 193(2) Housing Act 1996.

Such a decision cannot be read as meaning that that accommodation may be suitable in the short-term; immediate and comprehensive (to be realistic in difficult times, best endeavours) efforts should be made by the local authority to secure accommodation (in which case relief within judicial review proceedings may even be withheld in certain circumstances because all JR remedies are discretionary and no council will be ordered to do that which is genuinely impossible).

Advisers should be aware that, in an application for a mandatory order the courts may be willing to grant some relief to authorities. This is because the courts recognise the practical difficulties for authorities in sourcing scarce accommodation in the context of a housing crisis where immediate compliance might be impossible.

At CASCAIDr we think that this case may well help relatives of those seeking the provision of specialist housing for people waiting to come out of assessment and treatment units, or anyone coming out of mental hospital with s117 rights. We like the line of case management directions as to a witness statement as to the efforts made, and the negotiations attempted because we believe that when commissioners say that ‘there’s nowhere suitable’ what they really mean is “there’s nowhere suitable for the price that we are willing to pay” or that there’s “nowhere where we’ve commissioned the necessary support services where there’s a vacancy”. We think that that is a downgrading of a similar provision duty under social services and mental health legislation as the securing duty discussed in the case above, such that it is seen as a discretion, in the end, not a duty, at all, any longer.

Human rights underpin all social work and social care law – regardless of the Care Act, please note, or any suspension thereof – Goldsmith v Wandsworth LBC – [2004], Court of Appeal

Lest anyone think that there is no duty to give reasons for a care planning decision in the current crisis, they will be assisted by reminding themselves of the Goldsmith decision from 2004 – from even before the Care Act came in, and when care plans were not even statutory, please note.

Under the Care Act, there is no duty to give written reasons for a council’s belief in adequacy or suitability either, but the Courts have long implied that duty in the interests of fairness and accountability. Examples are the RBKC (Savva) case, Cambridge (K) (on budgets) and several others. The current guidance envisages councils ‘stating’ their reasons for refusing to budge any further on a final offer on a care plan, in para 10.86.

Goodness knows what Corona Guidance will say, if the emergency provisions are triggered. But the good news is that the suspension of s24 and s25, and the modification of s18 regarding meeting needs (which has been provided for by the Coronavirus Act 2020, should it become necessary because of staff shortages), is not a deathknell for people’s legal rights to due process under the public law of this country.

Public law – the duty to act rationally (meaning taking all relevant considerations into account and having an evidence base), lawfully, and fairly (meaning transparently) is not capable of being suspended.

The issue in the Goldsmith case was about rights to make representations to panel, and involvement in the decision making process regarding a care plan (in this case, regarding a setting in which to receive care, given the lady had been very settled in a residential care home before a fall).

Nobody is suggesting that people need to be piling into panel decisions in person, based on this case, please note (not that there will be time for panel decision, we are guessing). But the reason that s27(2)(b) has not been included in the list of sections ripe for suspension or modification is very probably this case: it illustrates the right of involvement and participation in relation to any significant decision that is to be made about a person, by a public body.

76. Against this background, I have to say that I do not agree with the judge’s finding that Linda Goldsmith had no right to attend the LCCP meeting on 8 July 2003. The judge gives no reason for that conclusion, apart from stating that he did not consider the Guidance entitled her to attend. The reason put forward by Wandsworth, namely that the LCCP was discussing “clinical” issues does not to my mind bear examination. Although we do not know the identity of everyone who was present, the LCCP is a joint health and social services panel. I very much doubt if most social workers or social work managers would welcome being described as clinicians. But in any event, if the LCCP was discussing the Appellant’s care needs, that was manifestly a matter on which Linda Goldsmith had a contribution to make. If the matters to be discussed were purely clinical, what was the materiality of her written representations?

87. Judicial review is about process, and in my judgment the process here has been manifestly defective. This analysis, in my judgment, is sufficient to dispose of the appeal [by Wandsworth from the decision below].

Article 8 of the European Convention on Human Rights

  • …However, the judge accepted a submission made on Wandsworth’s behalf that whilst Article 8 was engaged in relation to the Appellant’s right to respect for her private life, if the decision was otherwise lawful, Article 8 added nothing to the debate. That was because Wandsworth’s interference was both in accordance with the law and necessary in a democratic society to safeguard the Appellant’s physical and psychological integrity. Speaking for myself, I am unable to accept that submission when applied to the circumstances of this case.
  • It is trite law that in addition to being in accordance with the law and necessary in a democratic society for the protection of the Appellant’s health, any interference by the State with her right to respect for her private life must be proportionate. There is no evidence, in my judgment, that Wandsworth gave any consideration to the principle of proportionality.
  • This is particularly marked in the meeting on 6 October. I have already set out in paragraph 52 above what can only be regarded as Linda Goldsmith’s practical, albeit emotional, expression of the Appellant’s Article 8 rights. I have recorded Mr. Kelly’s response. It is apparent to me that at no point in the meeting is there any evidence that either Mr. Kelly or any other Wandsworth decision maker had addressed their minds either to Article 8 itself or to the proportionality of Wandsworth’s response.
  • These are not academic considerations. It is not in dispute that a change to a strange environment for a person of the Appellant’s frailty could have serious, if not fatal consequences. The proportionality of the response is, therefore, of the utmost importance. In my judgment it is not good enough for Wandsworth, after the institution of proceedings, to produce evidence that this was a factor in its mind when it made the decision (whenever that was). In my judgment, the court has to look at the decision at the time it was made and at the manner in which it was communicated to the person or persons affected by it. And in that process, I find a complete absence of any suggestion that Wandsworth had addressed the Appellant’s Article 8 rights.
  • It is, in my judgment, and for all the reasons I have already rehearsed at length, no answer to this point for Wandsworth to suggest that this was not the point of the meeting on 6 October, which was to discuss Dr. Cottee’s conclusions. Dr. Cottee was not the decision maker, Wandsworth was. It is unexceptionable for Dr. Cottee to express his professional opinion, but it is for Wandsworth to conduct the overall balancing exercise, which gives weight to Dr. Cottee’s opinion in the wider context of the Appellant’s needs and rights. The point was put to Mr. Kelly point blank by Linda Goldsmith at the meeting, and his answer, in my judgment, is clear.
  • I would therefore, for my part, quash Wandsworth’s decision that the Appellant either should not be returned to alternatively should be removed from Mary Court. I would direct Wandsworth to reconsider its position with an open mind and on all the material available at the date of the fresh decision. I would expect the process of decision making to be transparent and the reasons for its decision to be clearly articulated in writing.
  • The merits of the decision are not a matter for this court. Given the history of this case, however, I nonetheless express the hope that what is left of the Appellant’s life can be lived out with the maximum of dignity and the minimum of psychological harm.