Okil, R (on the application of) v London Borough of Southwark

MR JUSTICE UNDERHILL: This is an application for judicial review of a community care assessment carried out in relation to the claimant by the defendant, the London Borough of Southwark (to which I will refer as "the Council") and of the decision consequent on that assessment that the claimant does not qualify for the provision of residential accommodation under section 21(1) of the National Assistance Act 1948. I will return to the details of the claim in due course. The claimant has been represented by Ms Shu Shin Luh and the defendant by Mr Jon Holbrook, both of counsel. I am grateful to them both for their clear and cogent submissions. I am also grateful to whoever provided the well organised bundle of documents and bundle of authorities. The Home Secretary has been served as an interested party but has taken no part in the proceedings.

It will be convenient if, by way of preliminary, I set out at this stage the relevant terms of section 21 of the 1948 Act. It reads, so far as material, as follows:

It will also be convenient to note at this stage, for reasons which will become clear presently, that in the case of asylum seekers the Secretary of State is under an obligation to provide accommodation under part XI of the Immigration and Asylum Act 1989, which she does under what is still colloquially, though I believe now incorrectly, referred to as the National Asylum Support Service (or NASS for short). However, that obligation does not arise where the asylum seeker is entitled to accommodation under section 21: see R (on the application of Westminster City Council) v National Asylum Support Service [2002] 1 WLR 2596. I should also for completeness record, though no particular issue arises on it in these proceedings, that the origin of the obligation to carry out a community care assessment is section 47(1) of the National Health Service and Community Care Act 1990 and that, by the Community Care Assessment Directions 2004, local authorities carrying out such an assessment must consult the person to whom the assessment relates.

I turn to the factual background to the claim.

The claimant, who is aged 31, came to this country from Algeria in or about 2003. He had no leave to enter. In 2007 he was detained. He claimed asylum. His claim was refused and he did not appeal. He absconded. He was arrested in June 2010, when he was found trying to leave the country using a forged passport. He was sentenced for that offence to eight months in prison.

Following the expiry of his term in October 2010 the claimant was detained pending removal latterly at Harmondsworth. More than one attempt was made to remove him, but they were thwarted for various reasons. While in detention there were incidents of self-harm, particularly using razor blades. He was seen in detention by a doctor from the charity Medical Justice, Dr Goldwyn, and shortly afterwards by a consultant psychiatrist, Professor Katona, instructed by his solicitors, Wilson Solicitors LLP ("Wilsons"). Dr Goldwyn reported on 17 July 2011 and Professor Katona on 2 August. Both diagnosed mental illness, though their specific diagnoses differed, and said that detention was exacerbating the claimant's condition. Professor Katona's diagnosis was that the claimant was suffering from "a clear cut depressive illness", together with post traumatic stress disorder (PTSD). He said that his continuing and indefinite immigration detention was adversely affecting his mental health and leading to a high risk of suicide.

It appears that on the basis of that evidence Wilsons on 2 August submitted fresh representations to the Secretary of State in support of an application for leave to remain. No substantive response has been received to those representations and a recent letter put before me from the UK Border Agency suggests that the Secretary of State does not accept that the representations remain live. I will come back to that question in due course.

On 12 August 2010 an immigration judge granted the claimant bail. Accommodation was arranged for him by NASS at a hostel in East Dulwich, but following an alleged incident of violence committed by the claimant he was evicted the following day. The Council arranged accommodation at a bail hostel called Ripplemead in Peckham. This appears to have been on a temporary basis, while NASS found other accommodation, but when such other accommodation was arranged shortly afterwards in Plymouth the claimant refused to go. He wanted to remain in London, where he had always lived since coming to the UK, and where he had contacts in the Algerian community.

On 18 August 2011 Wilsons requested that the claimant be the subject of a community care assessment. Implicit, or at least pregnant, in that application was a submission that he should be provided with accommodation by the Council under section 21 because of his need for care and attention as a result of his mental ill health. If that occurred, the risk of his being "dispersed" to Plymouth or elsewhere by NASS would disappear. That is the effect of the Westminster case to which I have already referred and it reflects what is really at stake in this application.

Under the arrangements put in place by the Council, where there is a mental health element community care assessments are carried out by a team comprising both employees of the Council itself and employees of the local Mental Health NHS Trust, which is, in south Southwark, the South London and Maudsley NHS Foundation Trust (SLAM for short). The team is referred to as the Assessment and Liaison Team South Southwark and is based in Lordship Lane in East Dulwich. The request for an assessment was in fact made directly to the Assessment and Liaison Team by Mr Elliott of Wilsons, rather than writing to the Council. No doubt he knew the ropes in this respect.

The assessment of the claimant was assigned to an experienced community psychiatric nurse called Annie Williams. She made contact with the claimant on 19 August and saw him on 23, 24 and 30 August. She arranged for him to see one of the consultant psychiatrists on the team, Dr Jones, on 2 September. On the basis of his assessment, Dr Jones wrote to Wilsons on 13 September commenting on the reports of Dr Goldwyn and Professor Katona, both of which had been supplied with the original request for an assessment. I will return to that letter in due course. In summary, however, he questioned their diagnoses of severe mental illness and expressed the view that there was no useful treatment which the team could offer.

During the following weeks, while the assessment was still being completed, there were a number of other contacts between the claimant and the team. A particular issue between them was that the claimant had for very many years, apparently since before he left Algeria, been a habitual user of tranquillisers and he had had them prescribed to him while in detention. He was anxious for the prescription to be continued. The assessment and liaison team were prepared to prescribe at least some of the medication sought by him, but only on a gradually reducing basis, with a view to weaning him off the habitual use of the drugs in question. That was not acceptable to the claimant. He had on previous occasions already shown himself to be hostile and aggressive when things did not go his way, and following an incident on 12 October, when he is said to have assaulted a manager at the Lordship Lane office, he was banned from further contact with the team.

During the assessment process the Council funded the continuation of accommodation for the claimant, using its powers under section 47(5) of the 1948 Act. It was originally intended that he should move from Ripplemead but in the event it was more satisfactory to allow him to remain there.

I should also note that during the assessment period, the claimant was in frequent contact with an organisation called Project London, a health advocacy programme run by the charity Doctors of the World UK. His case worker there was Lydia Ottisova. She liaised on more than one occasion with the access team.

On 19 October 2011 Ms Williams produced a formal written community care assessment. She used a standard form entitled "Community Care Assessment - No Recourse to Public Funds". Her entries are full and thorough and show that she had approached her task conscientiously, though that is of course not conclusive of any of the legal issues that arise. The form does not seem to me particularly well designed and the relevant passages are distributed under a number of different headings. I can summarise them, so far as necessary, as follows.

After a first section, which merely set out personal details, section 2 required a summary of the claimant's "presenting problems, difficulties or concerns". This section was completed at very considerable length by Ms Williams on the basis of the meetings that she had had with the claimant. I need not set out any of the particular points contained within it. It referred in detail to his history of self-harming. It is worth noting that Ms Williams begins the section by recording that Wilsons had asked for an assessment to be undertaken "with the view that Mohammed has a severe and enduring mental illness and requesting that the mental health team identify his mental health and social needs". That is not an exact reproduction of the terms of the letter making the requests but it is correct inasmuch as the request was based explicitly on the reports of Dr Goldwyn and Professor Katona, which were enclosed with it. It is worth noting also that Ms Williams understood that the assessment required was of both the claimant's "mental health" and "social" needs.

The next heading in the form relates to "formal care/support currently received". Under that heading, Ms Williams refers briefly to the involvement of Ms Ottisova, who she described as having assisted the claimant to register with a GP and to obtain free health care. She also refers to contact with a charity called Detention Action, who had been supporting the claimant while he was detained and one of whose caseworkers was continuing to offer him support following his release. The caseworker told Ms Williams that she was not a trained professional and did not offer support for his mental health but was a friendly voice to talk and listen. She had told Ms Williams that her service would continue with the claimant until his situation was more settled, as she was worried about his vulnerability as he had no other support in the community.

The next section concerns the claimant's physical health. Under a subheading entitled "Current medication for physical health", Ms Williams sets out the position about the claimant's use of tranquillisers and his wish to be prescribed the particular tranquillisers and the particular dosage to which he was used. Indeed, she refers to a particular incident when she was showing him the drug card which he then took from her and amended so as to show the dose that he wanted to be prescribed. She observed "Dr Jones has provided a medical view that the drugs Mohammed was taking as evidenced by his drugs card does not indicate that Mohammed suffers from a psychotic illness or depression", and she refers to a letter by Dr Jones attached to the assessment.

There is then a separate section relating to mental health. Under the heading "Mental Health History", Ms Williams refers again to the claimant's history of self harming, based on the notes obtained from what is described as "Harmondsworth Medical Justice". I need not set those out in detail, but it is fair to note that Ms Williams' summary makes clear, without spelling it out, that the incidents of self harm were none of them serious and there appears to have been an element of exaggeration. In particular, she refers to an incident in which the claimant had to be seen at Hillingdon Hospital claiming that he had swallowed a razor blade, but that no bleeding was found and no treatment was given; and to a further incident in which he claimed to have swallowed seven razor blades but was refused hospital admission. Under the heading "Current Mental State", she records his own view on his mental well-being. I need not set out details here. Under the heading "Diagnosis", she refers to the reports and diagnoses by Dr Goldwyn and Professor Katona. She also says:

There is then a section "Activities of daily living", which I need not seek to summarise, save that it shows that the claimant was a very regular attender at the mosque.

There is then a section "Overall Impact of Current Needs". This reads as follows:

There is then a general heading "Social support and circumstances eg support and relationships, housing situation, home environment, finances". I need not set out the contents of that, which refer to his facilities for hygiene and for making food. Ms Williams does, however, say that:

After reference to the claimant's financial situation and accommodation history, of which I need not give details, there is then a heading "legal status". The first part of this section is concerned with setting out the claimant's immigration history, but there is then a further section which reads as follows:

There are two other points about those passages from the assessment which I ought to elucidate at this stage.

First is the letter of the 13 September to which I have already referred. This reads as follows:

Secondly, I should say something about the reference to a decision of "the local authority" dated 5 September, referred to in the final section of the assessment. The computer notes kept by Ms Williams record for that date:

The assessment was sent under cover of a letter from the Council's solicitor, Mr Morley, dated 20 October. The material parts read as follows:

That letter might perhaps be said to put the cart before the horse by referring firstly to NASS rather than to the outcome of the needs assessment. Nevertheless, the final sentence of the first of the two paragraphs which I have quoted makes it clear that the needs question had been addressed, and no point is taken on the way in which the letter is worded.

Following receipt of that letter, and, it seems, a further letter dated 28 October from the chairman of the NRPFP, which is referred to in correspondence but which I have not in fact seen, Wilsons on 24 November wrote to the Council challenging both the assessment and the decision not to continue to provide accommodation. The material parts of the letter reads as follows:

The Council agreed to a short extension to the provision of accommodation, but on 2 December it wrote reaffirming its earlier decision subject to a short final extension. The material parts of the letter read:

The present proceedings were commenced on 7 December 2011 and the claimant obtained interim relief requiring the Council to continue his accommodation. I should, for completeness, mention that in fact he had to leave Ripplemead shortly before Christmas on account of an incident of alleged violent behaviour and that shortly after Christmas he was arrested and remanded in custody. In the event, charges were not pursued. The claimant nevertheless remained in custody for a short time on the initiative of the UKBA, but on 7 March 2012 an immigration judge granted bail and on his release the Council was required again to offer him accommodation in accordance with the interim order and has in fact done so.

A good deal of evidence has been lodged in support of the claim. So far as the factual matters are concerned, I have sufficiently summarised the effect of the evidence.

As far as medical evidence, on 15 December 2011 Professor Katona made a full report on the claimant, having had a consultation with him on the previous day. He again diagnosed PTSD and a major depressive episode. He considered and rejected the possibility that the claimant might be feigning mental illness. He considered the views of Dr Jones, as appearing both from the community care assessment and the attached letter, and disagreed with the conclusion that the claimant was not suffering from a severe and enduring mental illness; but he said that even if the correct diagnosis were PTSD and/or borderline personality disorder that would itself represent a life long and disabling mental illness. He concluded at paragraph 13:

Dr Jones responded to that report in a report dated 10 January 2012. As regards diagnosis, he explained why he rejected the diagnosis of a depressive illness. Under the heading "need for future treatment" he said this:

Dr Jones repeated and to some extent developed those views in a witness statement dated 14 February. I should only take this into account to the extent that it gives reliable evidence of his contemporary views, but what he says in it is entirely consistent with the two letters to which I have referred and is helpful inasmuch as it is somewhat more explicitly directed to the issues which I have to consider. I will therefore refer in particular to paragraph 5, in which he says:

I should explain the reference at paragraph 13b to Dr Johns. Dr Johns is another consultant employed by the SLAM, who saw the claimant while he was in custody in February this year and produced a report. This did not, however, form any part of the assessment process.

The claimant has in turn put in a further report from Professor Katona, commenting on Dr Jones' statement, and also a witness statement from a Dr Hartree, a general practitioner working for the Helen Bamber Foundation and for Project London who saw the claimant on two occasions in March of this year. The difficulty about this material is that it was not before the Council, or the team, at the time that it made its assessment. It could nevertheless be relevant to the extent that it was suggested that Mr Jones' assessment of the relevant matters was unreasonable, and I have taken it into account to that extent. But, as will appear, the claimant's challenge does not focus on whether Dr Jones' diagnosis or views about treatment were unreasonable, which is the matter principally addressed in Professor Katona's latest statement. Dr Hartree's statement, which is very lengthy, though it is of valuable background, does not seem to me to contain material which I need to set out in detail here.

The decisions challenged in the claim form are identified as:

I will not attempt to summarise the pleaded grounds, which are, though admirably full, somewhat discursive, or the response in the grounds of resistance. The points made will adequately appear from my account of the submissions made before me. I should, however, record that one point taken in the grounds of resistance was that the claimant was disentitled to accommodation under section 21(1) because he was a failed asylum seeker and his case accordingly fell within the terms of paragraph 7 of schedule 3 to the Nationality, Immigration and Asylum Act 2002. That argument depended on whether he did indeed have a pending application for leave to remain. It is his case that he did, and indeed does, by virtue of the representations made by Wilsons in August 2011. UKBA's records appear to suggest otherwise, but it has, disappointingly, proved impossible for the purpose of this hearing to get to the bottom of what the claimant's immigration status really is. Counsel sensibly agreed at the start of the hearing that it should proceed on the basis that schedule 3 does not apply. If the claimant is successful in showing that he would otherwise be entitled to accommodation under section 21(1), there would then need to be a further hearing to resolve that remaining issue.

I accordingly turn to the substance of the claimant's challenge to the community care assessment and the consequent decision of the Council. As developed before me by Ms Luh, it can be summarised as follows. She contends that, on the facts known or reasonably available to the Council, the only reasonable conclusion to which it could have come was (a) that the claimant was in need of care and attention, other than medical care, within the meaning of section 21(1) (a), as explained in M v Slough, and, (b) that that need could only be met if he were supplied with residential accommodation. Mr Holbrook conceded that if element (a) were established he would not challenge element (b). (He also made it clear that, as far as he was concerned, I could treat the assessment of the liaison team, on whose conclusions the Council plainly acted, as being part of the Council; that is he was taking no point that the Council had acted lawfully on acting on the advice of the team, even if that advice could be shown to be flawed.)

The essential question is thus what material was available to the team relating to the claimant's need for care and attention, other than medical care, and what consideration they gave to that material. Ms Luh's case as to the former can be summarised as follows. There was ample material to show that the claimant was suffering serious mental ill health. Professor Katona had diagnosed depression and PTSD, but it was sufficient for her purpose to rely on Dr Jones' own conclusion, recorded in the letter of 13 September, and in the assessment. Whether that was characterised as PTSD or personality disorder, it was a form of mental ill health and clearly serious in view of the behaviour associated with it. In any event, quite apart from those conditions, the assessment revealed that the claimant had a problem with use of tranquillisers which was itself a form of mental ill health. Whether or not those conditions required immediate medical treatment -- which was, of course, as such immaterial for present purposes by reason of section 21(8) -- they unquestionably, she submitted, created a need for care and attention short of medical treatment; specifically, the only possible conclusion was that the claimant needed monitoring and emotional support. That was evident from the fact that he was throughout the period covered by the assessment in very regular contact with the team itself -- principally, but not only with Ms Williams -- which was not simply conducting an assessment, but also offering him care and support. It was also evident from the fact, apparent from the assessment and reinforced by the clinical notes, that the claimant was receiving such support from Ms Ottisova at Project London and from Detention Action. The case as so expressed is of course similar to that advanced by Wilsons in their letter of 24 November referred to above, although it is somewhat broader since it will have been noted that in that letter the care and attention said to have been required was limited specifically to the monitoring of the claimant's level of medication.

Ms Luh relied heavily in support of these submissions on the decision of the Court of Appeal in SL v Westminster City Council [2011] EWHC Civ 954, in which the court held that the services of a social worker, who had regular weekly meetings with the claimant, an Iranian refugee suffering from depression and PTSD, fell within section 21(1) (a). It is clear from the report that the meetings in question were in accordance with the recommendations of a care plan prepared by the responsible NHS trust on the claimant's discharge from a lengthy in-patient stay in hospital following a suicide attempt. Laws LJ, at paragraph 22 of the judgment, accepted the submission of counsel for the claimant that that support fell within the terms of Lady Hale's definition in M v Slough. He said:

Ms Luh submitted that it is evident from the language both of the assessment itself and of Dr Jones' letter lodged with it that the assessment and liaison team had given no consideration of the question whether the claimant needed support of that character, as he plainly did. They had regarded the determinative question as simply being whether he needed psychiatric treatment.

Clearly and cogently though those submissions were presented, I cannot accept them. I do accept that the focus of the assessment, both in the parts completed by Ms Williams and in the accompanying letter from Dr Jones, is primarily on the question of whether the claimant required treatment for his mental health. That is perhaps hardly surprising, given the focus of the initial referral by Wilsons and indeed the claimant's history generally. More to the point, however, it does not in my view mean that the assessment team had their eye on the wrong ball. Granted that any treatment as such would not constitute community care, the question whether the claimant suffered from a medical condition, however diagnosed, that required treatment was very closely associated with the question of whether he required care and attention within the meaning of section 21 and, if so, of what nature. The opinion of the team was that he required no such treatment. Ms Luh cannot and does not assert that that is a view to which the team was not entitled to come, albeit that Professor Katona disagrees with it, and in any event, as I already said, proving that the claimant needed medical treatment would not assist the claimant as such. The real point, however, is that the opinion formed by the team on those related issues of diagnosis and treatment, at least on the grounds on which they formed that opinion, carried with it the conclusion that he did not need any kind of "looking after" of the kind advanced by Ms Luh. It was the view of the team that the claimant was in fact adequately managing the practicalities of day-to-day life and that his outbursts of disruptive behaviour and his threats of self-harm -- which, however, they plainly did not judge to be grave -- were a response to his fundamentally unsatisfactory situation, namely the prospect of being returned to Algeria, and, more immediately, of being dispersed out of London. These were not features that could be addressed by the provision of some particular care or monitoring. That may only be implicit in the text of the assessment, but it is explicit in the Council's letter of 2 September and in Dr Jones' witness statement. I regard that judgment as rational and legitimate. The facts are clearly distinct from those in SL, where the "monitoring" in question was of a very different character, being required, as I have said, under a care plan made on the claimant's discharge from in-patient psychiatric care and needed in order to prevent a real risk of relapse. The support which the claimant was in fact receiving during this period from the team itself, and from Project London and Detention Action, does not advance the argument. The claimant was seeing the SLAM team primarily for the purpose of an assessment. It is true that he raised with them other issues, particularly in connection with his wish to continue his prescription of tranquillisers, but that does not mean that they were giving him, still less that he needed, care and attention of the kind contemplated by section 21. Likewise, while Project London and Detention Action were, as Ms Williams knew, providing support, that does not, and certainly did not necessarily, indicate a need for looking after of the relevant kind related to such mental health problems as the team believed that he had.

I should mention that Mr Holbrook referred me to the decision of the Court of Appeal in R (Nassery) v Brent London Borough Council [2011] PTSR 1639 as a example of a case where, on, he submitted, more extreme facts than those of SL, the court declined to find a need under section 21. But I do not myself rely on that authority as doing more than illustrating the very general proposition that all cases of this kind are fact sensitive.

I should make it clear that my conclusion is the same even if the focus is placed, as it was at least to some extent in Ms Luh's submissions (though not in the case as originally advanced) on needs said to be attributable to the claimant's alleged dependence on prescription tranquillisers. Insofar as the team were responsible over the relevant period for prescribing tranquillisers and for trying to effect a reduction in the claimant's usage of them and to cope with his reaction to that attempt, that plainly constituted medical care; and, as Mr Holbrook pointed out, when the team decided they could no longer deal with the claimant it was a matter which they simply passed over to his GP. There is no evidence that would support a conclusion that the team was bound to have identified a need for care and attention in relation to the claimant's use of tranquillisers.

In short, I find that the assessment and liaison team carried out a reasonable assessment which justified the conclusion that the claimant did not have a relevant need under section 21(1)(a). I must therefore dismiss this application.

My conclusion does not mean that I find that the claimant has no mental health or other problems. It means only that I find that the Council reached a proper conclusion that whatever problems he had were not such as to require the provision of care and attention of the relevant kind or therefore of residential accommodation. That means that his accommodation becomes again the responsibility of NASS. That is a responsibility which it has in the past shown itself entirely willing to shoulder and it is only the claimant's refusal to move to Plymouth that has prevented it from doing so. In that connection, I note that the view of the NRPFP, which no doubt has considerable practical experience in these matters, was that the claimant could make a case to NASS to be provided with accommodation in London because of his particular circumstances; but that is not something on which I am in a position to express a view.

Thank you.

MS LUH: My Lord, just, I thought, since I will be asking for the judgment to be transcribed, there are just a couple of minor factual errors that I thought needed to be corrected, if that's all right.

MR JUSTICE UNDERHILL: Yes, of course.

MS LUH: First is I think you referred to Dr Goldwyn as a man and he is a she, because I think you used "he" instead of "she".

MR JUSTICE UNDERHILL: If I did, that was certainly an error. I certainly knew she was a she and it was a slip of the tongue if I said anything --

MS LUH: I can quite appreciate that in a read out judgment.

Second of all, Dr Katona is in fact a Professor Katona, so if the judgment --

MR JUSTICE UNDERHILL: Well, I noticed I was inconsistent, but I will certainly accord him his full title when I called him doctor.

MS LUH: I'm grateful, and the third thing is you mentioned that claimant's charges in relation to assault, in relation to the evictions, was to Ripplemead, but in fact it was in relation to the subsequent short period that he was in another accommodation before he was remanded to prison. So that just is a factual issue.

MR JUSTICE UNDERHILL: Thank you. Again, I was certainly aware of that, but, if that's not how it came out, I'll change it.

MS LUH: And the fourth thing is the interim order in relation to 7 March, when he was released was not the original order from Mr Justice Holman, but a further order from Mrs Justice Lang, just for completeness sake. I'm sorry if I am being a bit pedantic.

MR JUSTICE UNDERHILL: No, I'm all for accuracy, Ms Luh, but so far these are not matters that concern me, but worry me, but I will of course put them right.

MS LUH: More importantly, my Lord, we would ask for permission to appeal your judgment, and this is just thinking off the hoof from the judgment.

In analysing it, so that it relates to analyse his needs of care and his needs, it's entirely and solely to do with his immigration status and its uncertainty, is to do the same thing that one would do in erroneously allocating all needs of care and attention to destitution where there's associated needs that go beyond that, and therefore he has an underlying agreed diagnoses of PTSD and depressive symptoms, although there is no diagnosis from the defendant in terms of depression, but there is clear observations about his distress and difficulties with coping. Those are needs that do not necessarily associate solely and limited to his immigration status and to say that, as Dr Jones does, and the defendant forwards its case to be, any needs that he has is entirely relegated to that, it's an error in the way it applies the need for care and attention. So that's the first issue.

The second issue is your reference to the monitoring and the medication and alluding it in any event being health needs, but a strict interpretation of that, of section 21(8) and the associated legislation that is referred to in that, does not permit that sort of interpretation, although it is true that, in SL v Westminster, the conclusion of monitoring arose from a care plan itself, in reality to exercise a power or a duty under NHS Act 2006, requires them to actually make a decision in relation to the illness and any sort of services and treatment associated with that illness. So it has to be founded on some illness which requires a service of facility.

In relation to the medication, there has not been found any illness in relation to addiction by the local authority. Therefore it can't actually be a service or a monitoring arising out of an illness which is something squarely within the health realm.

Second of all, in relation to his PTSD, where there's very clear evidence in Dr Jones that there's no -- he diagnosed him to maybe having a personality disorder, but the services in relation to the monitoring was not associated with that illness, and therefore in reading it as services in relation to that, to preclude those aspects, from the need for care and attention, would be erroneous and a fairly strict reading of the care and attention and an overly wide scope for subsection (8).

Thirdly, I note your Lordship noted and accepted that the approach of the community care assessment, and indeed Dr Jones' letter, both set it out from an approach for there is no severe and enduring mental illness and, although one might read into that that, implicit in that, there is a consideration of need for care and attention, but that would be the wrong reading, because the conclusion is very clear, it starts with he has no severe enduring illness, which requires him to be looked after. That is a very narrow scope of what the causation of need for care and attention to look after is, so that, in approaching it that way, you cannot read implicitly, in that they were considering something much wider than that, and that's precisely how this authority fell down in the same way as PB v Haringey, as well as in Pieretti(?), both of which were to referred to in my skeleton argument, as to the very focused and specific psychiatric and psychological need, although that indeed was something they thought about, but they thought about it in an even narrower way than even in those cases, because they were much more general psychiatric needs. Here there was a specific -- there is no diagnosis, therefore no associated need for care and attention, and to read, overly read, into what is not evident on the papers before you, would be erroneous as well.

So, for those brief reasons on this extemporary judgment, we would ask permission to appeal.

MR JUSTICE UNDERHILL: Thank you, Ms Luh.

No, I'm afraid you haven't persuaded me. You will need to apply for permission to the Court of Appeal.

MS LUH: I am grateful, my Lord. Yes, I do need one of those forms.

The second issue, my Lord, is in relation to what happens to the claimant next. My learned friend and I had a very brief chat about this in advance of your judgment. We would simply ask, given the time of day, and given it's the weekend coming up, that the interim order be extended for a few days, so that the arrangements can be made with the Secretary of State and the local authority to transfer him, because, in any event, he is someone who, on the face of it, is volatile and has had valid incidents, and we would say a seven day reasonable period would be the appropriate way, or even until the end of next week, so that the arrangements can be made and the decisions be made in relation to that.

Second of all, that would allow for representations also to be made in relation to keeping him in London, because it might be very well likely that he might be dispersed. So all of that takes a bit of time. We submit that it wouldn't be prejudicial to the defendant. They could in any event recoup -- say that this is now -- but we're keeping him there, and we can keep the money from --

MR JUSTICE UNDERHILL: Well, let me hear Mr Holbrook on that.

I'm quite attracted by that, Mr Holbrook, I must say.

MR HOLBROOK: Well, my Lord, and indeed there is some benefit to both parties in there being some certainty in knowing exactly when the order is made. I wouldn't oppose the claimant having an extension of the injunction for seven days, but no more than that, and I say that because NASS accommodation can be secured at very short notice. Often it needs to be.

MR JUSTICE UNDERHILL: Yes. Well, I have already said I will dismiss the application and I will discharge the injunction with effect from -- I will take advice from counsel on exact timing, but effectively I want the last night to be the Thursday night, so that he can be moved into new accommodation by whoever is going to do it on the Friday. That seems sensible, rather than making it happen on the weekend. But, what seems to me to be sensible will be to say from 9.00 am on the Friday.

MS LUH: I was going to suggest 9.00 am on the Friday, with the brackets "(including the last night being..)." I had a recent order to similar effect, and that --

MR JUSTICE UNDERHILL: That sounds fine. I mean, I don't actually know what day of the week that is, the Friday, but --

MS LUH: Friday is 27 April.

MR JUSTICE UNDERHILL: So the injunction is discharged with effect from 9.00 am on Friday 27.

MS LUH: I'm content with that.

I believe the last issue would be the issue of costs. No doubt my learned friend is going to be seeking costs in this case. Our submission is that this --

MR JUSTICE UNDERHILL: Well, you had better wait and see whether he is.

MS LUH: He has told me that is.

MR JUSTICE UNDERHILL: All right. I will take the application as made. Yes?

MS LUH: And we would simply suggest that this is a case which is appropriate for no order as to costs.

Although the general principle is that costs would follow the event, this is a case where late evidence in relation to the case notes were disclosed quite late in the day. They gave a much clearer picture of what actually was going on on the ground. It was necessary to deal with that. There were points in my learned friend's skeleton argument in relation to the law. He conceded a point that he had previously taken and that was something that we had to deal with and engage with. The dispute between the two experts were also issues that we had to deal with and engage with throughout the proceedings until we got to this point, where the issue in relation to whether or not it's a health need or otherwise can be fully argued.

We say that, in a case like this, with the complexities involved, it is a case which the parties had to come to court in order to resolve and no order as to costs would be appropriate in this case.

MR JUSTICE UNDERHILL: Thank you. No, I'm afraid I am going to make the usual order. It seems to me that this is a case where the starting point clearly should be, as Ms Luh concedes, that costs should follow the event. None of the matters to which she's referred seem to me to justify a departure from that. She refers, in particular, to the late disclosure. I don't know the rights and wrongs of that, but none of the factual matters to which that gave rise seem to me to cause any prejudice or any change of view on the part of the claimant that ought to justify any special order for costs. So I'm against you.

MS LUH: And I would simply seek the normal order with protection in relation to the publicly funded costs --

MR JUSTICE UNDERHILL: Yes. Well, that must follow and, I'm bound to say, makes the debate you've just had largely irrelevant.

MS LUH: I am grateful.

MR JUSTICE UNDERHILL: Well, I had better retain the papers, if I'm going to be asked -- sorry, forgive me, I've been sitting elsewhere for a while. I now can't quite remember what the rules are about transcripts.

MS LUH: Yes, that was the other thing that you've reminded of, which is that could we have an order for an expedited transcript, so that this issue -- no doubt this is not an issue that either party would want hanging over their heads if permission is going to be applied to the Court of Appeal.

MR JUSTICE UNDERHILL: Yes. Well, let's just think about that. I can't remember how it goes. The 21 days applies whether you have a transcript or not, is that right?

MS LUH: I'm just checking.

MR JUSTICE UNDERHILL: Do you know, Mr Holbrook? I think it does, but there's a procedure then for it to be stayed pending -- isn't that what happens?

MR HOLBROOK: Well, an application for permission to appeal can be made within 21 days without the transcript.

MR JUSTICE UNDERHILL: Yes, but I thought must be made, must it not?

MR HOLBROOK: Well, yes.

MR JUSTICE UNDERHILL: It must be made within 21 days, whether you have the transcript or not.

MR HOLBROOK: Yes.

MS LUH: The skeleton argument for those 14 days after, if it's not attached to the appeal grounds --

MR JUSTICE UNDERHILL: Don't worry about that, but there is certainly a provision, I can't remember what it is, for what happens if you haven't got a transcript in time. Basically the whole proceedings wait until that's happened.

MS LUH: The normal procedure for the Court of Appeal is we would contact the Court of Appeal saying we are waiting for transcript. The court lawyer then says they will put a note on the file to say that transcript is waiting. After a while, if they don't hear from us, they will contract my instructing solicitors to chase them --

MR JUSTICE UNDERHILL: Sorry, the only point -- I mean, it's not a pre-requisite for you to appeal to have the transcript, and you won't be prejudiced, because the application for permission will not be decided until the transcript is available.

MS LUH: No, and that is not the reason. Expedition is because, in our experience, with these transcripts, if there is no expedition directed, they often times, in some cases, in my recent experience, have taken two or three months --

MR JUSTICE UNDERHILL: Well, that would be intolerable, I quite accept.

The trouble is, we have to be careful. I'm certainly in the EAT and I believe here they charge more if you ask for expedition.

MS LUH: They do say ten to 15 days --

MR JUSTICE UNDERHILL: And I don't want to do it wantonly --

MS LUH: They do say 10 to 15 days normally, but I have never had a case where --

MR JUSTICE UNDERHILL: That may be because the judge sat on it.

MS LUH: No, we've chased and they say they haven't typed it up yet. Often times it's because the judge hasn't responded with the corrections, but --

MR JUSTICE UNDERHILL: Well, there's a point: I'm actually going away in the middle of May, so I think we need to get it back. I will say transcript to be supplied to the judge within 14 days. Does that meet your concern?

MS LUH: Yes. I am grateful, my Lord.

MR JUSTICE UNDERHILL: If there are cost consequences, so be it.

MS LUH: I'm most grateful, my Lord.