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

THE DEPUTY JUDGE: This is an application for judicial review to quash a number of decisions of the defendant that the claimant does not have a need for care and attention pursuant to section 1 of the National Assistance Act 1948 ("the 1948 Act") and section 47 of the National Health Service and Community Care Act 1990 ("the 1990 Act").

Although these proceedings have had a chequered history, the essence of the claim is simple. The claimant alleges that the defendant's decisions that he does not need care and attention are flawed because they failed to have regard to, or give good reasons for, rejecting evidence that the claimant needs looking after because of the continued risk of self-harm or violence arising out of mental health problems. A subsidiary issue is also raised about his ability to cook.

In December 2006 the claimant, who comes from Iran and was born on 16 September 1982, arrived in the United Kingdom and claimed asylum. He has some physical problems associated with having broken his leg, which he says occurred during torture in Iran. The severity of these has varied over time, and there was a period in late 2009 after an operation when the claimant was provided with care and attention at home while he recovered. No reliance is presently placed in these proceedings on problems associated with his physical health.

In 2007, while living in Plymouth, he began experiencing mental health problems. On 27 May 2007 his GP reported that he had been diagnosed with anxiety, depression and post-traumatic stress disorder, and he had recently attended Accident & Emergency for suicidal thoughts. By 6 November 2007, he had responded well to talking therapy, his moods and symptoms had improved and he no longer had suicidal thoughts.

On 25 March 2008, his claim for asylum was turned down, and on 23 May 2008 his appeal against that decision was dismissed. In the latter half of 2008 the claimant's leg injury caused increasing problems. On 21 October 2008 he was referred by the Refugee Council to the defendant as being a person in need of care and attention, in part because his mental health problems prevented him from caring for himself and often lead to a lack of motivation in dealing with daily tasks.

The defendant assessed him, and by a letter dated 23 October, rejected that need on the grounds that there was no evidence he needed help with daily tasks.

On 4 December 2008 the claimant's solicitor wrote to the defendant criticising that decision, as a result of which the defendant re-took the decision on 10 December 2008. The defendant confirmed that, in its judgment, the claimant did not need care and attention on the grounds that he was able to perform household tasks and attend appointments, and neither his physical or mental health issues gave rise to a need for looking after.

On 12 December the claimant started these proceedings, and on the same day Beatson J granted interim relief, as a result of which the claimant has been provided with accommodation and subsistence since that time.

Permission was refused on the papers and an oral hearing sought. Before that came on, the claimant's mental health deteriorated and on 5 May the oral permission application was adjourned so that the defendant could reconsider whether the claimant needed care and attention in the light of the new circumstances.

On 2 January 2009 the claimant had called an ambulance, saying his mind was telling him to kill himself. He then took an overdose of his psychiatric medication. He was taken to hospital and kept overnight. On 6 January an interview with one of the defendant's social workers did not go well and he went home very upset, where he called an ambulance. He then started to cut his arm with scissors. In hospital his arm was bandaged.

On 26 January 2009 he made a further claim for asylum. On 4 March 2009 the claimant told his solicitor that if his asylum claim failed and he were detained for deportation, he would commit suicide using a razor blade in the back of his mobile phone, which he showed to his solicitor. The solicitor states he was making a conscious effort to see the claimant regularly so that he had someone to talk to.

On 17 April 2009 Dr Hopkins of the Medical Foundation for the Care of Victims of Torture reported that the claimant suffers from nightmares, has a chronic low mood, a longstanding suicidal ideation and has tried to kill himself on over 12 occasions, cutting himself and a number of overdoses (though these are not particularised and it is not clear whether this information was provided by the claimant or from others). He acts on impulse when he feels angry and upset. Dr Hopkins assessed the claimant as mild to moderately depressed, had good insight and as suffering from post-traumatic stress disorder. He described the claimant as "a vulnerable man who finds it considerably difficult to fend for himself", and that on impulse he might commit suicide.

On 20 April 2009 the claimant told his solicitor he was upset and was talking about pouring petrol over himself that he kept in his room. The medical records indicate that, on 21 April, he was admitted to hospital after an overdose, and absconded before he could be transferred to a psychiatric hospital, saying he was going home to pour petrol over himself. Petrol was later removed from his room. The same thing happened on 22 April, when he also cut his arm.

On 23 April he was admitted to a psychiatric hospital. He told staff he hears voices telling him to kill himself. On 27 April he was assessed by a social worker and pulled a razor blade from his jacket pocket. He said if he were threatened with deportation he would use petrol. The social worker recommended he be admitted under section 2 of the Mental Health Act 1983, and I was informed by counsel that he was so detained. On 5 May he was discharged.

On 18 May the claimant poured petrol on himself and called the emergency services. On their arrived he had a lighter in his hand. He was admitted to a psychiatric hospital again under section 2. On admission he smelt of petrol and said that voices were telling him to kill himself. He also complained about the doctors.

On 20 May he phoned the community team from the ward and alleged he was cutting himself with scissors, but the nurse found him calm and he denied having scissors. On 24 May he made some superficial cuts to his arm. On 25 May he absconded and went to Euston Station, where he poured petrol on himself and sat on the tracks, threatening to commit suicide. It is also suggested he may have drunk petrol as well. This is the only occasion when the claimant did not call for help when he was feeling suicidal, but it appears the circumstances were such he would inevitably be seen.

On his return to hospital, he said he wanted to be given a social worker, someone he could talk to. On 4 June a Mental Health Tribunal refused to discharge him. He told the Tribunal he wanted to see a social worker two to three times a week to have someone to talk to, and that he had made 15 to 18 suicide attempts since coming to the United Kingdom. The decision records that, on 29 May and 1 June, he cut and attempted to cut himself respectively. He had a provisional diagnosis of personality disorder.

On 14 June he was discharged. In August 2009 two consultant psychiatrists reported on the claimant at length. Dr Kishore examined the claimant on 4 and 24 July. His report states that the claimant's attitude towards mental health services is ambivalent. He wants support, but does not feel the services are of much use. The claimant told him he had burnt himself three times with cigarettes since his discharge from hospital, but denied any thoughts of suicide. Dr Kishore considered that the claimant had extremely limited insight into the nature of his mental health problems, his behaviour and the need for the sort of treatment and support he needs. The claimant did not think he had a mental illness, but recognises his behaviour is not normal and he is emotionally disturbed.

Dr Kishore thought that he had adjustment disorder and post-traumatic stress disorder, rather than a personality disorder. The claimant is a medium risk of self-harm/suicide and there is a possibility of unintended suicide. He recommended support/counselling through psychology services or, if not, counselling at primary care level.

Dr Amin was the claimant's consultant during his hospital admissions. He considered the claimant had emotionally unstable personality disorder characterised by disharmonious relations with others, impulsivity, poor ability to plan ahead, behaviour explosions, chronic feelings of emptiness and suicidal ideation. As a result he has poor relationships with professionals, who he blames for his predicament. The prognosis was poor and threats of deportation would reinforce ideas of abandonment, may lead to further emotional crisis and threats of self-harm or suicide, although that is usually as a way of seeking attention. He concluded that the claimant does not need psychiatric services, but may benefit from supportive counselling or psychotherapy, although the claimant may not engage with it.

The defendant's decision as to whether the claimant needed care attention in the light of his deteriorating mental health is dated 2 September 2009. The defendant considered that the claimant was physically able to perform all his daily living tasks. His need for psychological intervention was a medical need. He sought assistance when he had thoughts of self-harm, and none of the reports indicated that supervision would prevent such incidents.

The claimant was not content with that decision and amended the claim to include a challenge to it. In a third witness statement dated 24 September 2009, the claimant stated that "at important times when there is a build-up of tension and crisis, I need to speak to someone to avoid suicide attempts".

Relevant to the present grounds, the decision dated 2 September states the claimant confirmed he is able to cook, although he usually gets takeaways. The amended grounds challenged that on the basis the defendant should have investigated further.

On 3 November 2009 permission was granted, Neil Garnham QC (sitting as a Deputy High Court Judge) stating it was arguable that the claimant required care and attention as "protection from risks which a mentally disabled person cannot conceive".

More recently, in the light of the forthcoming substantive hearing, the defendant has reassessed the claimant's needs, and on 8 July 2010 took a further decision that he is not currently in need of care and attention. By agreement, the claim was amended to include a challenge to that decision, and I gave permission for that decision to be challenged so that all matters could be considered together. I will deal with this reassessment in more detail later.

It was agreed that this latest decision overtook the earlier ones, and that this judgment need not deal with the lawfulness of the previous decisions.

Section 21 of the 1948 Act provides, so far as relevant:

By virtue of section 21(8) there is no power or duty to make any provision which is authorised by other legislation. This includes, in particular, any provision which may be made by the NHS.

Section 47 of the 1990 Act provides, again so far as relevant:

It is common ground that the correct approach towards these provisions and the issue which arises in this case is set out in R(M) v Slough Borough Council [2008] 1 WLR 1808. The speech of Lady Hale sets out in some detail the history of the legislation and the division of responsibility over time between various agencies for different types of assistance. A need for care and attention may arise even though a person is wealthy and has their own home. The question is whether the person requires care and attention which is not otherwise available to them (paragraphs 14 and 15).

In paragraph 21, Lady Hale points out that:

She draws attention to R(Westminster City Council) v National Asylum Support Service [2002] 1 WLR 2956 and Lord Hoffmann's distinction between the able-bodied destitute and the infirm destitute, ie a person who needs care and attention partly because they are destitute and partly because they are old, ill or disabled qualifies under section 21(1A) because their need for care attention does not arise solely out of destitution.

Lady Hale refers in paragraph 31 to the three conditions in R(Wahid) v Tower Hamlets London Borough Council [2002] LGR 545 para 30, and which Lord Hoffmann found helpful in the Westminster case at paragraph 26:

In paragraph 33 Lady Hale states that section 21(1)(a) is not a general power to provide housing, and asylum seekers are not entitled merely because they lack money or accommodation. She continues:

In paragraph 35 Lady Hale emphasises that section 21(1)(a) focuses on present rather than future needs, but if there is a present need for some sort of care, authorities must be empowered to intervene before it becomes a great deal worse.

Miss Kerry Bretherton, on behalf of the claimant, submitted that the defendant's recent needs assessment and decision were flawed because (1) they concentrated on whether there were recent instances of self-harm and failed to have proper regard to the claimant's underlying mental health problems; (2) failed to address the need for intervention to avoid the risk of self-harm, rather than looking at what the claimant did when he self-harmed; and (3) made a number of factual errors.

In her written submissions she relied upon the claimant's need for a social worker as someone to talk to, whereas in her oral submissions she concentrated on the claimant's need for a social worker to help him to access assistance from other agencies.

As for cooking, she submitted the claimant was physically capable, but the defendant had failed to engage with the impact which his mental health problems had on whether he did cook.

In response, Miss Sian Davies, on behalf of the defendant, submitted that (1) the defendant had proper regard to the claimant's long-term mental health problems, but rightly concentrated, as it was required to do by section 21(1)(a) of the 1948 Act, on the current situation; (2) the defendant had considered both whether the claimant needed looking after to avoid the risk of self-harm, as well as his ability to deal with his attempts to self-harm when they arose; and (3) the claimant had taken into account all of the information which was available to it, and had made proper enquiries pursuant to its duty under section 47(1) of the 1990 Act. She submitted that if the defendant had a need for someone to talk to, that was counselling, which is a medical service, and that the defendant had properly addressed the question as to whether the claimant needed help accessing medical services. She also submitted that there was no evidence before the defendant that the claimant needed help cooking.

I start by reminding himself that decisions as to whether a person needs care and attention for the purposes of section 21(1A) of the 1948 Act are for the relevant authority. They involve expert assessment by experienced social workers, and it is not for the court to substitute its own judgment for theirs. The court can only interfere if a decision is unlawful on public law grounds.

The defendant's latest decision was informed by a needs assessment, an occupational therapy assessment and a risk assessment. The needs assessment was carried out over several days and addressed a great many issues. Early on, the needs assessment deals with "the service user's views of current difficulties". The claimant is recorded as saying he needs help to contact other help when he needs it, eg accessing his GP, and that he needs money - £10,000 is specified. It is noted that the claimant did not state he needed someone to help with cooking.

Miss Bretherton pointed out that the request for money was unrealistic and supported the view that the claimant was not able adequately to express his own needs, as recorded in the medical reports. When I asked to be taken to those parts of the reports which supported that submission, I was referred to the passage set out in paragraph 18 above, that he has limited insight into the sort of support he needs.

In my view, the context of that report makes it clear that it applies to support for his mental health needs, not to more mundane daily activities such as cooking.

The section of the needs assessment which deals with mental health issues is lengthy. It summarises the history of the claimant's problems, starting when he was living in Plymouth, and including the serious incidents in 2009 and his admissions to hospital. Further, the decision letter dated 8 July 2001 refers to Dr Amin and Dr Kishore's reports in terms which make it clear that the author has read both, as well as to the claimant's admission to hospital and attempts at self-harm. Therefore, it cannot be said that the patient's mental health history was not taken into account, at least in general terms.

Miss Bretherton submitted that the history of self-harm is not reflected in the decision letter. However, there is no obligation to refer to every material consideration in the decision letter, only to give reasons for conclusions reached on the principal important controversial issues: see for example South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953 at paragraph 36.

The claimant's mental health history was not in dispute. It is clear from the third page of the decision letter that the author had digested the reports of Drs Arman and Kishore, and in particular their conclusions, which include Dr Amin's conclusions that the prognosis is poor, and the continued risk to which both doctors refer of self-harm and suicide attempts as a response to stress.

Further, the needs assessment records that the claimant has been under a lot of stress, including in relation to his immigration status and has poor coping strategies. The needs assessment also refers in section 8 to the claimant's new claim for asylum. So the defendant was well aware that the stress to which the claimant was subject was ongoing.

In my judgment, it cannot be said that the defendant has failed to take proper account of the claimant's underlying mental health problems or the risk they pose for the future.

Miss Bretherton also submitted that the decision letter wrongly states that "the Council is satisfied that there have been no further attempts at self-harm in the last year". On 29 June and 16 July 2010 the claimant made two further witness statements in which he refers to an incident of self-harm around Christmas 2009 (paragraphs 20 and 5 respectively). It is quite clear from the needs assessment and decision letter that the defendant was unaware of this, so it cannot be said to have failed to have regard to it (I was informed that the witness statement dated 29 June was not sent to the defendant until 14 July).

It was submitted that the defendant's duty under section 47(1) of the 1990 Act to carry out an assessment of the claimant's needs imposed an obligation to ask him directly: "When was the last time you self-harmed?" and that, in the light of his history, this was a blindingly obvious question. Both counsel agreed that, in dealing with this issue, I should be guided by the judgment of the Court of Appeal in R v Royal Borough of Kensington and Chelsea ex parte Bayani [1990] 2 HLR 406 at page 409. Briefly, it is a matter for the authority to be satisfied as to the scope of its enquiries, and the court can only interfere if no reasonable authority could have been satisfied with the enquiries made.

There was no evidence that the claimant had had any contact with medical services since the report of Drs Amin and Kishore, apart from with his GP. The defendant's officers asked the claimant about his mental health, whether he was suicidal, and they looked at the cuts on his arms with him: "all of which were old wounds that had fully healed". There was ample opportunity for the claimant to have mentioned the self-harm which occurred six months earlier, and nothing to put the defendant's officer on enquiry that anything untoward had occurred in the previous 12 months. They also spoke to the claimant's GP about him.

I accept the submission of Miss Davies that the enquiries made fell within the ambit of discretion properly open to the defendant.

Finally on the question of the claimant's underlying mental health problems, it was submitted that the defendant had failed to have regard to the fact that the claimant had recently assaulted his girlfriend twice, which is not referred to in the needs assessment or decision letter. The second assault is said to have occurred on 10 July, two days after the decision letter, so there is no question of the defendant having failed to take into account a material consideration in this respect. It is common ground that the claimant told the defendant's officers about the first incident, when it is said that he pushed his girlfriend over, she banged her head and lost consciousness.

The defendant's risk assessment includes a risk management plan, which specifically refers to the assault on his girlfriend as a risk factor, and that the claimant is regretful of it, as well as the opportunity for counselling to address that risk. The decision letter clearly took the risk assessment into account.

Further, as there was no history of violence towards others and the assault on the girlfriend was, on the face it, an isolated incident, I do not consider the defendant was under any obligation to deal with this matter in any more detail.

Overall, Miss Bretherton submitted that the defendant had taken inadequate account of what she described as a recurring pattern, and that the issue was when, not if, the claimant's extreme behaviour would recur. However, I accept Miss Davies' submission that the defendant was rightly addressing whether the claimant is now in need of care and attention, albeit in the context of the implications of his mental health history, which was fully taken into account for the reasons I have already given. In my judgment, the defendant was entitled rationally to conclude that the ongoing risk of future harm did not justify a present need for care and attention.

I turn now to the submission that the defendant failed to have regard to the need to avoid the risk of self-harm, rather than what the claimant would do if he self-harmed. The mental health section of the needs assessment records that the claimant said that if he was feeling suicidal, which he was not at present, he would tell someone, and that "he would certainly seek out help if he was feeling suicidal". It goes on to deal with the claimant's medication and notes that the claimant said he had no problems taking it.

Section 7 states:

Section 10(ii) of the needs assessment is headed, "Relapse prevention and getting help when it is needed". This states: "When asked what he would do in a crisis or if he was considering self-harming, he cited calling an ambulance as well as going to A&E."

Section 10(iii), "Summary of assessed health and social care needs" states: "When asked what he needed from us, he said he needed help when he was in trouble, such as when the voices were bad, but said he could seek help from medical services when he needed, for example if he was suicidal".

The needs assessment referred to the availability of supported counselling which can be accessed through the claimant's GP at any time, and later says:

The risk assessment deals with the risk of self-harm, the claimant's ability to manage the risk and help he needs to manage it, including monitoring of his mental health by his GP and the opportunity for supportive counselling.

The decision letter refers to the claimant's compliance with medication, his awareness of the benefits of his medication, his ability to perceive the need for help, as well as the fact that he has accessed medical assistance in the past when he has needed it.

In my judgment, the defendant cannot be said to have failed to have proper regard to the prevention and management of risk, as well as short-term crisis management. In doing so, it relied not only on what the claimant said, but also on speaking to his GP, and on the marked improvement in the claimant's mental well-being over the previous 12 months.

I have already dealt with the main argument that the defendant made factual errors. It was also said that the decision letter states on the last page that the claimant has not been provided with any service from the Council beyond accommodation and subsistence, whereas he was provided with care at home after his leg operation in late 2009.

In my judgment, there is nothing in this point. Ever since September 2009 this challenge has focused exclusively on the claimant's needs arising out of his mental, not physical, ill health. It is hardly surprising if the fact that the claimant had help for a short period after a leg operation was not at the forefront of the mind of the author of the decision letter.

The defendant was entitled to conclude that the need to speak to someone for support ("he feels he has received no help or support, nothing") is not a need for care and attention, rather for counselling or psychotherapy, which Miss Bretherton accepted were medical services. She appeared to recognise that as this point, though not abandoned, was not pursued in oral argument.

As to whether the claimant needs a social worker to help him access medical and other services, the needs assessment and decision letter explore his ability to access services. They note he is seeing his GP, taking medication and has asserted his need for medical assistance in the past when he has needed it. Miss Bretherton pointed to the claimant's lack of insight as to the help he needs in Dr Kishore's report, and submitted that he needed help accessing medical services. However, I note that paragraph 4 of the claimant's fifth witness statement states that he speaks to his GP every two to three weeks on average. His GP tried to refer him to mental health services, but the claimant thinks they do not listen. The claimant has had and continues to have ample opportunity to access further medical services through his GP, the appropriate channel through which to do so. It is difficult to know what more assistance a social worker could provide.

In my judgment, the defendant was entitled rationally to conclude that the claimant did not need care and attention in this respect for the purposes of section 21(1)(a) of the 1948 Act. In this context it must be borne in mind that the test in Slough is a high one: a person must need help with activities that they cannot carry out themselves or only with great difficulty.

On the question of cooking, Miss Bretherton submitted that the defendant was aware this was an issue since September 2009 and had failed to deal with the claimant's difficulties in this respect. She submitted that his mental health problems means he lacks the motivation to cook. No explanation was forthcoming as to why, if this is correct, it does not affect his other daily tasks. There was no suggestion that he needed help with anything else.

The difficulty with this point is that the needs assessment records that the claimant said he was able to cook, that he did in fact cook and "it was easy", and the occupational therapy assessment recorded the claimant as saying he was able to use a cooker and sharp implements and shares the cooking with his girlfriend. In his recent witness statements the claimant alleges, "Whilst I am able to cook I do not have the motivation, and I could not concentrate to prepare my own food" (fourth statement, para 27), that he told the social worker this (fourth statement, para 36), that he told the occupational therapist, "I do not cook as I do not trust myself" (fourth statement, para 40) and "I have repeatedly told them I do not cook because the voices interfere with what I am doing" (fifth statement, para 16).

None of these assertions has ever been made before. They give different reasons for the alleged difficulty cooking, and they are not supported by the needs or occupational assessments. Moreover, page 6 of the occupational therapy assessment states:

In my judgment, there was no evidence before the defendant that the claimant's mental health problems had any impact upon his ability to cook, and the defendant was entitled to conclude that he did not need help in this respect.

For all these reasons this challenge fails.

MISS BRETHERTON: My Lady, as indicated previously, my learned friend and I have agreed the consequential costs order, which should be that the claimant pays the defendant's costs, however the detailed assessment to be adjourned generally pursuant to section 11 of the Access to Justice Act and the legal aid regulations. That is not the precise wording, but I think it is close enough.

THE DEPUTY JUDGE: Yes. Thank you very much for having agreed this in advance. I will make that order.

MISS BRETHERTON: Thank you. There is one further matter, which is that I am going to ask my Lady to consider an application for permission to appeal.

THE DEPUTY JUDGE: Right. Is there anything you want to say?

MISS BRETHERTON: Yes, my Lady. I will deal with it very briefly because obviously you have heard very full argument. I do not make any application in respect of the issues to do with the cooking and the physical side of things. The issue in relation to the permission to appeal is the issue as to whether someone with a continuing medical condition that is merely manifesting itself less seriously is a person in need of care and attention, and it is my submission that that is an issue on which there is no authority and the Court of Appeal have simply not considered what was meant by Baroness Hale's observations in her speech in the case of M v Slough. In those circumstances, I say that, in relation to that point, permission ought to be granted.

With regard to my second point, and I only make two points, I would say that -- it is a linked point -- that with regard to the history, the extreme history of this case, that the local authority erred in law in isolating the decision to the more recent factors, and that the recording of the history simply did not show a proper consideration or application of the test in M.

My Lady, those are the points, and given how recently you have heard very full submissions, I do not think you would be assisted by me developing them.

THE DEPUTY JUDGE: No, thank you. Permission to appeal is refused. In my judgment, I applied well-established principles to the facts of the case, and it does not seem to me there is any point of particular interest involved or that there is a reasonable prospect of success. So I am afraid, if you want to pursue the matter, you will have to renew through the Court of Appeal.

MISS BRETHERTON: Thank you, my Lady.

MISS DAVIES: May I ask formally for the order of interim relief to be discharged?

THE DEPUTY JUDGE: Yes, I will do that. It is entirely a matter for the authority what it does now, but it will no doubt bear in mind what happened when it gave Mr Nassery about three hours' notice to leave the accommodation in December 2008.

MISS DAVIES: The parties have discussed this previously, my Lady, and the local authority has agreed that it will give 28 days' notice of the cessation of accommodation. That period has been selected because it represents approximately the period that it takes the UK Borders Agency to consider an application for support under the 1999 Immigration and Asylum Act.

THE DEPUTY JUDGE: That seems very sensible.

MISS BRETHERTON: May I just say that I am very grateful to my learned friend for taking a sensible view in relation to that matter.

THE DEPUTY JUDGE: Thank you both for your assistance.