R (WG) v Local Authority A [2010] EWHC 2608 (Admin)

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Judicial review of failure to assess under s47 NHSCCA 1990. Claim stayed for three months, during which the local authority was to carry out the assessment and the claimant was to provide her identity to the court.

Related judgments

R (WG) v Leicester City Council [2011] EWHC 189 (Admin)

Judgment (Crown Copyright)

CO/6675/2010

Neutral Citation Number: [2010] EWHC 2608 (Admin)Not on Bailii!

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Friday, 24 September 2010

B e f o r e:

MR JUSTICE CRANSTON

Between:

THE QUEEN ON THE APPLICATION OF WG

Claimant

v

LOCAL AUTHORITY A

Defendant

Computer‑Aided Transcript of the Stenograph Notes of

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A Merrill Communications Company

165 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

Mr Z Nabi appeared on behalf of the Claimant

Mr A Sharland appeared on behalf of the Defendant

J U D G M E N T

(As Approved by the Court)

Crown copyright©

1.MR JUSTICE CRANSTON: This is an application for permission to apply for judicial review which was lodged in June 2010. On 6 September the Deputy Judge, Miss Monaghan QC, directed that an oral hearing be conducted to consider the case. There had been earlier orders dating back to June where there was a request for urgent consideration. As a result Mr Justice Stadlen granted interim relief, directing that the council should provide the claimant with temporary accommodation until the determination of the judicial review but directing her to file an application for judicial review. Subsequent orders included an order by Mr Justice Mitting and Mr Justice Wilkie. The firm of Steel & Shamash came on the record in July 2010. It filed amended grounds on behalf of the claimant.

2.Today Steel & Shamash made an application to come off the record, which I have granted. Mr Nabi, instructed by them, came to court this morning but informed me that he could not act on behalf of the claimant given the breakdown of relations between his instructing solicitors and her. Nonetheless, acting in the traditions of the Bar, Mr Nabi has made submissions, which I have found helpful. I am grateful to him for his assistance.

3.The background is this. The claimant, who wishes to remain anonymous, seeks to challenge what is said to be a decision of the council not to assess her and not to provide her with accommodation or services. She appears to suffer from a serious health issue, including, it is said, post traumatic stress disorder. I am not able to make any assessment of her capacity. Neither is there any evidence before the court as to her up‑to‑date medical condition. There is a report from a doctor in 2007, subsequently supplemented in 2008, which sets out, inter alia, the fact that she suffers from post traumatic stress disorder. However, she has not agreed to have any medical assessment since that time. Indeed relations between that doctor and her have subsequently seems to have broken down.

4.The essence of the claim advanced before me on the papers is that the council have failed to provide an assessment under Section 47 (1) of the National Health Service and Community Care Act 1990. That requires that a local authority should provide or arrange for the provision of community care services to persons where it appears to them that those persons are in need of such services. The local authority must carry out an assessment of a person's needs and, having regard to the results of the assessment, must then decide whether the needs call for the provision by them of services. The fact that the person is unco‑operative and not willing to engage is itself no reason for an authority not to carry out its obligations. Mr Justice Munby made that clear in R (on Application of J) v Caerphilly Local Borough Council [2005] EWHC 286 Admin, a decision under a different legislative provision but nonetheless helpful in this case. The fact is that the council has been willing to undertake an assessment pursuant to Section 47 of the Act. On its account, which seems established by the lengthy chronology provided to me, the council have attempted to provide an assessment but the claimant has failed to engage.

5.After attempts by the council to conduct the assessment over a period in June 2010, when the claimant was represented by previous solicitors, it appeared that agreement had been reached as to a way forward. That way forward is set out in a letter dated 26 May 2010 between Fisher Meredith, the claimant's then solicitors, and the council. That letter set out a two‑stage process in which the council was to provide certain assurances, for example, assisting with provision of an advocate to the claimant, and then stage 2, involving an assessment by the council of the claimant's needs. Unfortunately notwithstanding the action of the council to implement their side of the agreement, the claimant refused to engage. Consequently no assessment has been undertaken.

6.It seems to me that we have now reached a point where a line has to be drawn. The claimant has engaged at least half a dozen firms of solicitors over the last three years, some of which has involved public expenditure by the Legal Services Commission. The involvement of solicitors and the need for the council to react to that has involved the expenditure of considerable public expense. At one point the claimant's application for homelessness assistance reached the Court of Appeal: [2009] EWCA Civ 192B.

7.All of this involves the expenditure of public money. It seems to me that the claimant is suffering from health problems, but there are other demands on public expenditure by people who have equivalent, or even greater, needs. That is why, in my view, this application needs to be brought to fruition as soon as possible. On that basis I propose to make an order which will be incorporated in the judgment. In essence, it requires that the council will continue to provide accommodation and basic assistance to the claimant for the next three months until around Christmas/New Year time. In addition, the council will conduct an assessment under Section 47 of the Act. That assessment will turn very much on the extent to which the claimant co‑operates with the council in the undertaking of the assessment.

8.This claim will be adjourned for three months, the matter to be reserved to me, so that that assessment can be undertaken. The claimant must understand that the outcome of the assessment will turn to a considerable extent on the extent to which she co‑operates with the council's officials. No doubt it would assist if she were prepared to be medically assessed. As I have indicated, the last assessment I had before me is from 2007 and 2008. The council really needs more up‑to‑date information on her condition than is provided by those earlier assessments.

9.There is also an application before me for the appointment of the Official Solicitor as her representative. The Official Solicitor wrote to the court yesterday and said that unless the court made a finding or declaration that the claimant lacks capacity, there would have to be clear medical evidence before it could conduct further proceedings. There is no clear medical evidence about the up‑to‑date medical condition of the claimant, let alone her capacity. There is no way that I can make a decision about the claimant's capacity. On that basis, coupled with the fact that the claimant herself claims that she has capacity and does not wish the Official Solicitor to represent her, I dismiss that application which was advanced on her behalf by her then solicitors.

10.In conclusion, I would very much hope that the claimant is prepared to engage with the council so that it can make an up‑to‑date assessment. I stay the proceedings on the basis that I have already indicated. It also seems to me that the matter cannot continue beyond the three‑month period unless the claimant is prepared to disclose her name to the court. It seems to me that there is a basic principle that claimants and defendants must reveal their true identify to the court even though that can be anonymised, as it frequently is in this jurisdiction.

11.MR SHARLAND: I understand you are going to send a copy of the judgment to the claimant personally because she has requested as much. Could we also ask for a copy to be sent to Leicester at the same time? It would be useful to have a copy. Given that a transcript is to be produced, it is not much extra cost to send it to us.

12.MR NABI: May I request that a copy be sent to my solicitors for the sake of completeness?

13.MR JUSTICE CRANSTON: Yes. I order that a copy of the judgment be produced at public expense. We will send it to the claimant, the defendant and her former solicitors.

14.MR NABI: The order that you have made, could that be e.mailed or sent to my clerk and my friend's clerks as well? You are considering referring the file to the Official Solicitor. It was mentioned during the course of the hearing.

15.MR JUSTICE CRANSTON: That is right, yes.

16.MR NABI: I do not think that is recorded anywhere in your judgment.

17.MR JUSTICE CRANSTON: Can we put that in the order?

18.MR NABI: Yes.

External links

Possible Bailii link (not there when last checked, but it might have appeared since 0700 this morning!)

Judgment on ICLR website

Nearly Legal Blog, 'Not telling you...' (1/11/10)