Nassery, R (on the application of) v London Borough of Brent

The question for decision on this appeal is whether the judge was in error or not in refusing to set aside the decision of the respondent local authority, the London Borough of Brent (“Brent”), that the appellant, Mr Amir Nassery, is not entitled to support under section 21(1) of the National Assistance Act 1948 (as amended and now in force) (“the NAA”). Section 21(1) enables a local authority to provide accommodation for a person in need of “care and attention” for the purposes of that section, and I will refer to such accommodation as “supported accommodation”. Mr Nassery has been assessed as having a personality disorder, and suffers from mental illness, as I describe in more detail below. He has certain needs and the local authority had to assess how those needs should be addressed.

Section 21 of the NAA provides so far as material:

“21  Duty of local authorities to provide accommodation

(1)

Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing—

(a)

residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them; [and …

(b)

. . .

(1A)     A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely—

(a)

because he is destitute; or…

In making any such arrangements a local authority shall have regard to the welfare of all persons for whom accommodation is provided, and in particular to the need for providing accommodation of different descriptions suited to different descriptions of such persons as are mentioned in the last foregoing subsection.

. . .

… 

References in this Act to accommodation provided under this Part thereof shall be construed as references to accommodation provided in accordance with this and the five next following sections, and as including references to board and other services, amenities and requisites provided in connection with the accommodation except where in the opinion of the authority managing the premises their provision is unnecessary.

…” 

The emphasis in section 21(1) is on the need for services. Thus, in R (Westminster City Council) v National Asylum Support Service [2002] 1 WLR 2956 at [32], Lord Hoffmann observed that the obligation was owed to the wealthy as well as the poor.

Supported accommodation can be of many different kinds, but what Mr Nassery seeks in this case is accommodation with regular visits by a social worker with whom he could discuss the day-to-day problems that he has. At the start of these proceedings he was homeless, which no doubt did not assist his mental health problems, but his immigration status has recently been clarified by the grant of indefinite leave to remain. Brent is now bound to consider any application made by him as a homeless person, but no such application has yet been made and Brent may not accept the full housing duty applies to him. As his case is that that sort of accommodation does not meet his needs this court has permitted him to continue with his appeal.

Section 21(1) should be read with Department of Health Circular (93) 10 issued for the purposes of section 29(1) of the NAA. This enables a local authority with the approval of the Secretary of State to make arrangements for promoting the welfare of persons for persons ordinarily resident in the area of that authority to which this section applies. Those persons include persons aged 18 or over who suffer from mental disorder of any description. Section 29(1) does not, however, entail the provision of accommodation. Under paragraph 2 of the appendix to this circular, the Secretary of State, giving approvals and directions under section 29 of the NAA,

“approves the making by local authorities of arrangements under section 29 (1) of the Act for all persons to whom that subsection applies and directs local authorities to make arrangements under section 29 (1) of the Act in relation to persons who are ordinarily resident in the area for all or any of the following purposes –

(a)

to provide a social work service and such advice and support as may be needed for people in their own homes or elsewhere;

(b)

…”

Needs assessments are very important in this context, and no doubt require considerable experience and care to complete. Brent has carried out an assessment of Mr Nassery’s needs under section 47 of the Community Care Act 1990 (“the 1990 Act”). There were several strands involved in that process. I will refer to this in more detail below but I now set out for completeness the statutory requirement for this:

“47  Assessment of needs for community care services

(1)

Subject to subsections (5) and (6) below, where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority—

(a)

shall carry out an assessment of his needs for those services; and

(b)

having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services….”

By virtue of section 47(8), the definition of “community care services” in section 46 of the 1990 Act applies, and such services include services that a local authority may provide under section 21(1) of the NAA.

Mr Nassery, is an Iranian national who has claimed asylum here. He is 28 years old. He has some physical problems with his leg which he says occurred during torture in Iran. No reliance is placed in these proceedings on problems associated with his physical health.

Mr Nassery suffers from mental health problems. He has been diagnosed as having an emotionally unstable personality disorder or an adjustment disorder with predominant disturbances of emotions. He has a history of self-harm and also (to a much lesser extent) of harming others. He has engaged in a range of behaviour including: dousing himself in petrol, drinking petrol, storing petrol in his room, self-harming by cutting himself, taking pills in an attempt to commit suicide, and pouring petrol on himself and sitting on train tracks outside Euston station. He has twice been detained under section 2 of the Mental Health Act 1983 as being a danger to himself and others. Recently there have been fewer attempts at self-harm but Mr Nassery has assaulted his girlfriend on two more recent occasions.

On 25 March 2008, Mr Nassery’s claim for asylum was turned down, and on 23 May 2008 his appeal against that decision was dismissed. On 21 October 2008 he was referred by the Refugee Council to the respondent, London Borough Council (“Brent”) as a person in need of care and attention, in part because his mental health problems prevented him from caring for himself and led to a lack of motivation in dealing with daily tasks. Brent assessed Mr Nassery and by letter dated 23 October 2008 rejected that need on the grounds that was no evidence he needed help with daily tasks. Mr Nassery’s solicitor criticised that decision and as a result Brent retook the decision on 10 December 2008 but did not alter their conclusion.

In January 2009, Mr Nassery called an ambulance, saying his mind was telling him to kill himself. He then took an overdose of psychiatric medication. He was hospitalised. However on 6 January 2009, he was discharged and went home and he then started to self-harm himself with scissors. He returned to hospital. On 26 January 2009 he made a claim for asylum. On 4 March 2009, Mr Nassery told his solicitor that, if his asylum claim failed, and he was detained for deportation, he would commit suicide. On 17 April 2009, Dr Hopkins of the Medical Foundation for the Care of Victims of Torture reported that Mr Nassery suffered from nightmares, had a chronic low mood, and a long-standing suicidal ideation, and had tried to kill himself on over 12 occasions. Dr Hopkins therefore thought that Mr Nassery was depressed and was suffering from post-traumatic stress disorder.

On 21 April 2009, Mr Nassery was admitted to hospital after an overdose. He absconded, saying he was going home to pour petrol over himself. Petrol was later removed from his room. The same thing happened on 22 April 2009, when he had also cut his arm. On 22 April 2009, he was admitted to a psychiatric hospital. On 27 April 2009, he was assessed by a social worker and brought out razorblades from his jacket pocket. He said that if he were threatened with deportation he would use petrol. He was detained under the Mental Health Act 1983 but on 5 May 2009 he was discharged.

Subsequently, on 18 May 2009, he poured petrol over himself and called the emergency services. On their arrival he had a lighter in his hand. He was admitted to a psychiatric hospital again. On 25 May 2009, he absconded and went to Euston station where he poured petrol on himself and stood on the tracks, threatening to commit suicide. He may also have been drinking petrol. This is the only occasion when Mr Nassery did not call for help when he was feeling suicidal. On his return to hospital he said he wanted to be given a social worker, someone he could talk to. He was given the provisional diagnosis of personality disorder. He was discharged on 14 June 2009.

In August 2009, two consultant psychiatrists reported on Mr Nassery at length. Dr Kishore’s diagnosis was that he had an adjustment disorder or post-traumatic stress disorder, rather than a personality disorder, and was at medium risk of self-harm or suicide, with a risk of unintended suicide. He recommended support or counselling through the psychology services or, if not, counselling at primary care level. Dr Amin was the consultant for Mr Nassery during his hospital admissions. He considered that Mr Nassery had an emotionally unstable personality disorder characterised by disharmonious relations with others. He added that Mr Naasery did not need psychiatric services but could benefit from a supportive counselling or psychotherapy. although he recognised that Mr Nassery might not engage in this.

Dr Amin states, among other things, that a person with an emotionally unstable personality disorder tends to act impulsively without consideration of the consequences. There may be little ability to plan ahead and possibly outbursts of intense anger. The prognosis for someone with a personality disorder is usually poor. Dr Kishore noted that Mr Nassery appeared to have little insight into his mental illness.

Brent decided that Mr Nassery was not in need of care and attention in the light of his deteriorating mental condition. It decided in September 2009 that he was able to perform all his daily living tasks. His need for psychological intervention was a medical need. He had thoughts of self-harm but none of the reports indicated that supervision would prevent such incidents.

This decision did not advance matters and Mr Nassery’s claim was amended to include a challenge in it. It was contended that at important times when there is a build-up of tension and crisis that he needed to speak to someone to avoid suicide attempts.

Brent performed a detailed assessment of Mr Nassery’s needs on 30 June 2010, and that assessment had several strands to it. Mr Coxall, a social worker and member of Brent’s Primary Care Team, carried out the Needs Assessment Report. The highlights of his report were (1) that no current difficulties, over and above ongoing medical care, lack of access to funds and immigration status in the United Kingdom, could be identified; (2) when Mr Coxall asked Mr Nassery what help he needed, he identified the need for help in making appointments and asked to be given £10,000. Subsequently he said that he was capable of making his own appointments; (3) in the assessment of mental health, the report records that Mr Nassery’s cuts had fully healed, and that the impression was "of a young man who was exhibiting no outward signs of mental illness but who had been under a lot of stress and has poor coping strategies when dealing with things such as deportation and perilous financial situation.”; (4) Mr Nassery’s GP agreed that he should be referred back to his care and that he could provide supportive counselling services; and (5) if those services were not suitable, Brent could make a referral for psychotherapy. The assessment concludes:

“Given his level of independence, it is unlikely that he will gain benefits from a mental health social worker. Furthermore, his expectations are high and he has consistently expressed dissatisfaction at doctors and other health professionals involved in his care. Supportive counselling may be appropriate and can be accessed via his GP…. I am satisfied that he does not need looking after as there is no essential task which he is unable to do for himself without great difficulty. In the areas in which he experiences difficulty, it is minor, and he has been able to resolve such difficulty as he encounters adapting and problem-solving… The client repeatedly asserted his ability to look after himself and to seek help when needed, he has an appropriate level of insight and perception of when help is needed and the ability to act appropriately in seeking it. For example, he is compliant without supervision with his medical regime…”

The Occupational Therapy Report confirmed that he had no physical needs for assistance in his home. The Risk Screening Tool identified a risk of self-harm. The Risk of Self-Harm assessment identified a risk of death by misadventure but no risk to others and it noted that Mr Nassery would seek help if needed. The Risk Management Plan noted that he was remorseful about the assault on his girlfriend and noted again that he would seek help when needed.

By letter dated 8 July 2010, from Barbara Harrison of Brent Social Services, Brent maintained its decision that Mr Nassery was not in need of care and attention for the purposes of section 21 of the NAA. The letter said:

“Physical health issues

Mr Nassery was assessed in relation to his abilities to perform activities of daily living by both Mr Coxall and Ms Blake, the Occupation Therapist (“OT”). Both concluded that he did not experience any great difficulty in any aspect of essential living activities.

…

Mental Health Issues

Dr Amin and Dr Kishore have expressed different opinions as to diagnosis. Dr Kishore’s conclusion is [that] of an adjustment disorder with longer than usual reactions. Dr Amin is of the opinion that Mr Nassery suffers from a Personality Disorder.

Dr Amin has given the opinion that Mr Nassery “does not need and will not benefit from the involvement of mental health services such as a mental health social worker or psychiatric nurse or psychiatrist” [report of 18.8.2009].

It is noted that Mr Nassery was admitted to hospital under s 2 Mental Health Act 1983 and discharged in June 2009 and that the hospital admission was precipitated by attempts at self harm.

The council is satisfied that there have been no further attempts at self-harm in the last year and that Mr Nassery is compliant with his medication regime. This was confirmed by Mr Nassery himself and his GP. Mr Nassery confirmed that he does not need prompting to take medication. His GP has confirmed that Mr Nassery always collect his medication, and he reports compliance (apart from an occasional lapse as a result of forgetfulness) with taking it. The suggestion of counselling made when Mr Nursery was discharged from hospital last year remains available, either via his GP or hospital psychiatric services, although to date Mr Nassery has not taken up that opportunity

Mr Nassery also demonstrated clear ability to perceive the risks of ill-health associated with non-compliance with his medication. He demonstrated in the course of assessment clear understanding of the need for compliance and is able to achieve this independently. He has been consistently compliant both with medication and attending appointments as confirmed by his GP. He also understood that his use of illegal drugs might have affected his mental health. Mr Nassery has in the past been able to obtain medical assistance when needed. Three occasions when help was sought by Mr Nassery are set out in Dr White’s letter to Dr Kishore dated 26.5.09. On a further occasion, on 20.5.09, while Mr Nassery was in hospital he telephoned Ms Harrison of the council’s social services department saying that if she would not help him then he had a pair of scissors and he was cutting himself (when staff checked on the Claimant he was quite calm and denied having any scissors).

The issue of Mr Nassery’s ability to perceive the need to seek help was explored in the course of assessment, and he confirmed that in a crisis or if considering self-harm he would call an ambulance and/or go to A & E as he has in the past. He is clearly able to do this. His insight into his mental health is demonstrated by the fact that by compliance with medication he has remained well for a year now, without any incidents of self-harm reported, to the extent that he has been able to establish a relationship with his girlfriend and to obtain employment.

It is relevant that during this period Mr Nassery has not been provided (and has not requested) any service from the Council other than accommodation and subsistence support.

Mr Nassery plainly has a need for accommodation and subsistence support and a need for medication and medical support (possibly counselling). Neither a need for accommodation or a need for medication amount to a relevant need for care and attention the purposes of s.21 of the National Assistance Act 1948.

It therefore remains the council’s view, in light of the most recent assessments and updated information, that Mr Nassery is not entitled to support under section 21 National Assistance Act as he does not have any need for “looking after”.”

It is common ground that this decision makes it unnecessary to challenge the earlier ones.

On 30 January 2009 Mr Nassery applied for judicial review of the local authority’s refusal to provide him with accommodation under section 21(1) of the NAA on the ground that he needed the assistance of a social worker to help him access medical facilities, and also to help him with cooking as he had lapses in concentration.

In those proceedings, Mr Paul Heron, Mr Nassery’s solicitor, filed a witness statement on 28 April 2009. In the course of this statement, he said:

“8.

While I have no medical qualifications, and can only comment on my dealings with Mr Nassery, it has been clear to me, that from early January 2009 onwards as it appears there has been a deterioration in Mr Nassery’s mental health. Mr Nassery does not have friends or family and London or support other than me. Increasingly I began to receive frequent phone calls from various agencies, the Refugee Council, the Medical Foundation and the British Red Cross to whom Mr Nassery had provided my details. This was due, I believe, to the fact that Mr Nassery was becoming increasingly anxious and desperate. I also believe that it reflects his attempt to obtain help because his mental-health has significantly worsened since 2008.

9.

On 4 March 2009, as a result of my concerns, I met with Mr Nassery in order to update him on his case. Mr Nassery… stated that “If I am arrested I can sort everything out.” He then proceeded to open the back of his mobile phone and there was a razor blade I asked him why he kept it there, Mr Nassery did not reply, but gestured to me to show that he would cut his wrists and his throat.

10.

Due to the fact that social services have made it clear that they have no intention of assisting the client, and in the absence of any involvement from other statutory or voluntary agencies, I have made a conscious effort to see Mr Nassery twice a week. Whilst I accept that it is not the role of a solicitor to play this role, I have felt it essential because I have been so concerned that he would kill himself. Since qualifying as a solicitor I have never felt the need to adopt such a role. I also add that as this role is outside my work as a solicitor, I am not billing in respect of these meetings….”

In a further witness statement dated 7 February 2011, Mr Heron confirms that Mr Nassery’s anxiety and threats of self-harm continue. He states:

“It is essential that Mr Nassery be provided with assistance from social services. He requires supervision, care and attention or I fear that [Mr Nassery] will seriously injure himself or some other persons.”

Mr Nassery has also recently filed a witness statement explaining that he hears voices and that he recently assaulted his girlfriend.

HHJ Robinson, sitting as a deputy judge of the High Court of Justice, Queens Bench Division, by order dated 30 July 2010 dismissed Mr Nassery’s claim for judicial review. She rejected the argument that Brent had failed to take proper account of Mr Nassery’s underlying health problems or the risk which they pose for the future. With respect to the statement in the decision letter that the council was satisfied there had been no further attempts at self harm in the last year, which took no account of attempts at self harm in an incident around Christmas 2009, the judge rejected criticism on the grounds that Brent was unaware of that incident. The judge also rejected criticism of the questions posed by the authority. The judge held that there was no evidence that the claimant had had any contact with medical services since the report of Dr Amin and Dr Kishore apart from his with his own GP. Brent had spoken with Mr Nassery himself about his mental health. The judge held that the enquiries fell within the ambit of discretion properly open to Brent.

With respect to Mr Nassery’s underlying mental health problems, and the assault on his girlfriend, the judge noted that Brent’s risk assessment included a risk management plan that specifically referred to the assault by Mr Nassery on his girlfriend as a risk. The judge held that this was an isolated incident and that she did not consider that Brent was under any obligation to deal with this matter in any more detail.

With respect to a submission by counsel for Mr Nassery that Brent failed to have regard to the need to avoid the risk of self harm, rather than what Mr Nassery would do if he were to self harm, the judge noted that Mr Nassery had said that he would seek out help if was feeling suicidal. In addition, the decision letter referred to his compliance within medication and his understanding of the benefits of it. In those circumstances the judge considered that Brent could not be said to have failed to have proper regard to the prevention and management of risk as well as short-term basis management.

The judge held that Brent was entitled to conclude that the need to speak to someone for support did not mean that Mr Nassery was in need of care and attention, rather counselling or psychotherapy, which Ms Bretherton accepted were medical services. She also noted that the appellant had an opportunity to access further medical services through his GP and that that was the appropriate channel through which to do so. She did not consider there was much more assistance a social worker and could provide. In those circumstances Brent was entitled rationally to conclude that Mr Nassery did not need care and attention for the purposes of section 21 of the NAA. In addition, the judge was not satisfied that there was any diminution in Mr Nassery’s ability to cook (a matter not raised on this appeal).

The leading authority on section 21(1) of the NAA is R (M) v Slough BC [2008] 1 WLR 1808. It concerns the meaning of the words “in need of care and attention which is not otherwise available to [him]” in section 21(1).

The appellant was a Zimbabwean national who had gained entry into the UK but overstayed his leave. He was discovered to be HIV-positive. He needed medication which had to be refrigerated but as he did not have a home he did not have a refrigerator. He had to take his medication and see his medical practitioner every three months but his health was good and he did not need any kind of care. His application under section 21(1) failed because he was not in need of care and attention by virtue of his need for accommodation with a refrigerator.

The leading speech was given by Lady Hale. I do not propose to summarise the aspects of her speech that are not immediately relevant. At paragraph 32 she made valuable points about the changing views as to the need for supported accommodation and also about what under section 21(1) of the NAA the support might comprise:

“[32]…Our ideas of when people need to be in residential care have changed a good deal since then. Much of the care which used to be provided in a residential setting can now be provided at home. Furthermore, s 26(1A) requires that if arrangements are made under s 21(1)(a) for accommodation 'together with nursing or personal care' for people who are or have been ill, people who have or have had a mental disorder, people who are disabled or infirm, or people who are or have been dependent on alcohol or drugs, then in effect the home must be registered under the Care Standards Act 2000. Thus accommodation may be arranged under s 21(1)(a) without including either nursing or personal care. So the 'care and attention' which is needed under s 21(1)(a) is a wider concept than 'nursing or personal care'. Section 21 accommodation may be provided for the purpose of preventing illness as well as caring for those who are ill.

[33] But 'care and attention' must mean something more than 'accommodation'. Section 21(1)(a) is not a general power to provide housing. That is dealt with by other legislation entirely, with its own criteria for eligibility. ”

Lady Hale went on to consider further what was meant by “care and attention”:

“I remain of the view which I expressed in Wahid's case (at [32]) that the natural and ordinary meaning of the words 'care and attention' in this context is 'looking after'. Looking after means doing something for the person being cared for which he cannot or should not be expected to do for himself: it might be household tasks which an old person can no longer perform or can only perform with great difficulty; it might be protection from risks which a mentally disabled person cannot perceive; it might be personal care, such as feeding, washing or toileting. This is not an exhaustive list. The provision of medical care is expressly excluded. Viewed in this light, I think it likely that all three of Mrs Y-Ahmed, Mrs O and Mr Bhikha needed some care and attention (as did Mr Wahid but in his case it was available to him in his own home, overcrowded though it was). This definition draws a reasonable line between the 'able bodied' and the 'infirm'.”

Lady Hale considered that her interpretation was in accordance with the authorities save for a passage in a speech of Lord Woolf. This passage dealt with the important question of how section 21(1) deals with the case of a person who is not presently ill, but is in the early stages of coming into the category where he will need care and attention:

“[35] The only passage which might cast any doubt upon this approach is Lord Woolf's statement in Ex p M, that the authorities could 'anticipate the deterioration which would otherwise take place' and intervene before a person's health had been damaged. He did not, however, say that they could intervene before there was a need for care. There has to be some sensible flexibility here. Section 21(1)(a) requires that the persons 'are in need of care and attention' so that the primary focus must be on present rather than future needs. But if there is a present need for some sort of care, then obviously the authorities must be empowered to intervene before it becomes a great deal worse. Section 21(1A) reflects this by referring to the anticipated physical effects of destitution. It was possible to meet the present needs that Mrs Y-Ahmed already had, for without that she would have needed a great deal more. It would be possible to meet the need for care of an HIV-positive person who is beginning to get sick before he becomes a great deal worse. But there must still be a need for some care and attention for s 21(1)(a) to apply at all.”

Lady Hale states that “there has to be some flexibility here”, but there always has to be a need for some care and attention within the meaning of section 21(1). This point was taken up by Lord Neuberger who came to the same answer but using different language:

“[55]…It would seem wrong to extend a duty owed to a person who satisfies a statutory requirement to a person who currently does not satisfy the requirement simply because he will or may do so in the future. I should add that, as a matter of practicality, humanity and common sense, this cannot mean that a local authority is required to wait to act under s 21 until a person becomes seriously in need, however close and inevitable that serious need may be, and however much the authority reasonably wants to assist at once. The section must contemplate that a local authority can act, where it reasonably considers it right to do so, as soon as a person can be said to be in need of some care and attention, even to a relatively small degree.”

All the members of the Appellate Committee of the House of Lords agreed with Lady Hale. Both the passages last cited emphasise that there must be a need for care and attention at the time of the provision of the supported accommodation, though in the case of a progressive illness, or physical or mental state which is liable to deteriorate without care, it can be a small-scale need at the outset. In the course of his speech Lord Neuberger held a person had to be in need of care and attention before section 21(1) could be invoked but that in the case of a progressive illness it would be possible for the authority to provide accommodation for a person who was to some degree in need of care and attention, in anticipation of the illness deteriorating.

On this appeal, Mr Nassery seeks to set aside the judge’s dismissal of his claim for judicial review of the decision that he did not need care and attention pursuant to section 21 of the NAA. In his grounds of appeal, he complains that the judge was wrong to isolate his most recent behaviour from the history of the case. He contends that the judge found that a duty under section 21 of the NAA arose if the condition giving rise to a need of care and attention persisted, even though more extreme aspects of the symptoms manifested sporadically. The judge was wrong to reject the argument that Brent had failed to apply the test in Slough by focusing upon the extent to which Mr Nassery had sought help from self-harming, as opposed to whether he needed to be looked after and prevent harm, given the foreseeable risk of such harm. The judge ought also to have found that Brent had reached an irrational conclusion in not accepting that the appellant was a person needing care and attention.

Miss Kerry Bretherton, for Mr Nassery, submits in her skeleton argument filed before the hearing of the appeal that the question is how a local authority should approach the case of someone said to be in need of care and attention when he has an ongoing mental health condition that gives rise to sporadic bizarre behaviour in the future, causing risk to himself and others. I will call this “the paradigm situation”. She submits that Brent adopted the wrong approach and failed to make a proper assessment of Mr Nassery’s mental illness because it concentrated on his current state, instead of looking at the pattern of his past behaviour. It should have taken account of the symptoms that only manifested themselves occasionally. She submits that Brent did not take proper account of the episode when he assaulted his girlfriend, but, as I have said above, this incident was taken into account in the Risk Management Plan. Either Brent applied the wrong approach or its conclusion was perverse.

Miss Siân Davies, for Brent, submits that Brent adopted the correct approach to the paradigm situation. Lady Hale in Slough held that section 21 of the NAA was not engaged unless there was a current need to be “looked after”. It is not enough that a person might at some future date need to be looked after. Such persons are looked after under section 47 of the 1990 Act. There is no special category of those with mental illness. The same test applies.

Pausing there, Miss Davies is in my judgment correct to make the point that section 21(1) addresses current need but both Lady Hale and Lord Neuberger accepted that there could be a situation where it was clear that a person was in the early stages of what would be likely to develop into much more serious illness, some flexibility was allowed provided that at all times there was indeed a need for care and attention. The same must apply to both physical and mental illness.

In this case, at the time of his assessment, Mr Nassery’s condition appeared to be under control. Accordingly, it could not be said that he was in present need of care and attention. I have set out the assessment in some detail above and it is noticeable how Mr Nassery accepts that he can manage his current condition and how he does not ask for help. The assessment does not suggest that Brent should not have accepted his view on this: on the contrary, the conclusion of the assessment, of which I have set out an extract above, stated that he had an appropriate level of insight and perception of when help is needed and the ability to act appropriately in seeking it.

Moreover, an authority can, in my judgment, where there is more than one course that is capable of meeting a client’s need, permit the client, if he is able to do so, to choose between them. That approach gives the most respect to the client as an individual, and respect for the individual should surely be encouraged. It is quite clear that Mr Nassery chose a situation where he would have to be responsible for obtaining help if he felt an episode of what Miss Bretherton calls bizarre behaviour approaching. Brent was clearly sufficiently confident that he could do this to permit him to do so. Miss Bretherton criticised the assessment on the basis that it was not put to Mr Nassery that he was no longer at risk because of his medication, but I do not consider that that is a fair criticism to make because it is for those performing the assessment to determine what the risk was, and the chances of its maturing. The risk was of death by misadventure but on the basis of the condition of Mr Nassery at the date of the assessment Brent did not consider that this was likely to happen for the reasons set out in extract from the conclusion set out above. Brent was entitled to reach that conclusion, which cannot be said to be perverse.

In those circumstances, the judge was in my judgment correct in the conclusion that she reached. To provide assistance under section 21(1) of the NAA on the basis of Brent’s assessment would have been to provide assistance to a person who might in due course need it, and it is clear from Slough that this would be outside section 21(1). I do not consider that Brent can be said to have adopted the wrong approach to illness that manifested itself in episodes. First, I agree with Miss Davies that section 21(1) makes no distinction in the approach to be adopted to physical and mental illness: it is not open to us under section 21 to approach the paradigm situation, as I have called it above, in any special way. Secondly, on the assessment, Mr Nassery’s personality disorder does not bring him within the sort of exceptional case of increasing need contemplated by Lady Hale and Lord Neuberger in Slough. The assessment of him was of a person able to access the necessary care if an emergency arose. He did not therefore have a current need for care and attention. In other words, an ongoing state of illness need not necessarily translate into an ongoing need: it depends on the circumstances of the case.

On Miss Bretherton’s submission, Brent wrongly focused on the extent to which Mr Nassery had sought help after self-harm rather than on the prevention of such harm, but, as I see it, Brent did focus to a significant extent on assessing his ability to seek help if he felt that he needed it, and this would naturally include a need before any incident occurred.

Orally, Miss Bretherton puts Mr Nassery’s case in what (according to my note) she accepted was a different way from heretofore, namely that, as indicated in the evidence of Mr Heron, Mr Nassery has a need for someone to talk to on a very regular basis. She submits that he is “obsessed” with speaking to someone about the most basic decisions in life, and that he has become so anxious about basic issues that he is unable to function.

The time that Mr Heron gives to helping Mr Nassery with his problems is wholly commendable as an act of common humanity and friendship. The care that Mr Heron provides goes well beyond what is normally required of a solicitor, and must be burdensome to Mr Heron as he no doubt has other demands on his professional time. His willingness to spare time to listen to Mr Nassery’s problems is wholly admirable.

In my judgment, the need now identified was not one that was put forward to Brent as highly as Miss Bretherton put it in her oral submissions. None of the answers given by Mr Nassery suggest this level of need. In my judgment, there is no basis for holding that the decision which was taken on the basis of this assessment should be set aside: the very fact that Mr Nassery was said to have employment would suggest that the high level of anxiety to which Miss Bretherton refers simply did not exist at the time of the assessment.

The right course is to ask Brent for a new decision addressing the new need. It is for Brent to assess the seriousness of this need and to propose appropriate options for dealing with it. One option might be counselling to enable Mr Nassery manage the anxieties that he has, and to increase his independence.

Miss Bretherton submits that section 21(1) of the NAA does not require that the care and attention be provided to a person through the accommodation provided to him, but it is unnecessary to express a view on this point as it cannot assist Mr Nassery. It is accepted by Brent that the availability of accommodation under the homelessness legislation is irrelevant.

In the circumstances for the reasons given above, I would dismiss this appeal.

I agree.

I also agree.