BLZ, R (on the application of) v Secretary of State for the Home Department

This case is about Home Office planning for the allocation of suitable Home Office Bail Accommodation (“HOBA”) and for a “Safe-Release” from an immigration removal centre (“IRC”), all in the context of a foreign national offender (“FNO”). The case features potential care and support needs, statutory human rights and equality rights. HOBA is governed by Sch 10 §9 to the Immigration Act 2016. Safe-Release from an IRC is governed by a Detention Services Order called DSO 08/2016. Care and support needs are governed by the Care Act 2014; statutory human rights by the Human Rights Act 1998 (“HRA”); and equality rights by the Equality Act 2010 (“EA”). I will survey the legal landscape in Part II: §§5-33 below.

Everything really stems from an order made on 29.6.23 by Judge Cox at the First-Tier Tribunal (“FTT”). Judge Cox granted “immigration bail in principle” (2016 Act Sch 10 §1(3)). He imposed a residence condition: that the Claimant “must reside at an address arranged by the SSHD under her statutory powers” (ie. the powers in Sch 10 §9 to provide HOBA). The commencement of a grant of immigration bail may be made conditional on specified arrangements being in place “to ensure that the person is able to comply with the bail conditions” (Sch 10 §3(8)) and so the residence condition specified that the grant of bail “will not commence until such address has been provided or made available”. I will summarise the factual context in Part III: §§34-59 below.

This judgment is one of a pair. I heard two linked claims for judicial review, brought by the Claimant and arising out of the same background facts. This first claim is against the SSHD. My judgment in the second claim, against Leeds City Council (“LCC”), is BLZ No.2 [2025] EWHC 154 (Admin). The substantive hearing was not a model. A ‘vacation’ listing of 3 days was originally secured by the parties, intended by them to deal fully with both claims. That proved significantly overambitious. The issue of anonymising local authorities alone occupied much of the single pre-reading day and the morning of Day 1. The factual and legal subject-matter which the parties had chosen to raise needed proper ventilation, explanation and testing at the oral hearing. Further hearing days had to be found within the Court’s calendar. A full hearing week in term time was found and allocated, but was lost at short notice due to unforeseeable illness of a key team member. The parties were agreed that I should deliberate and rule on BLZ No.1 only after the conclusion of the hearing in BLZ No.2 (on 29.11.24), having considered all the evidence and arguments, including written submissions (up to 16.12.24). I am grateful for the assistance I received. When I refer to Lead Counsel I include their teams of solicitors and barristers. Numbering in square brackets within quotations is mine. I will analyse the issues in Part IV: §§60-89 below.

The Issues identified by the parties in this claim came to this:

If you are in the UK as a person who is subject to immigration control, there are three ways in which your accommodation can be provided by the Home Office. One is where you are being detained in an IRC. Immigration detention powers can also apply in a prison, but prisons are the Ministry of Justice’s responsibility. In IRCs there are arrangements to protect vulnerable individuals. DSO 01/2022 addresses self-harm and suicide prevention. DSO 08/2016 addresses management of AARs (adults at risk), with three AAR “levels” applied by the Home Office in weighing the evidence of risk and harm. By reg. 12 of SI 2012/2996, the provision of specified healthcare services in IRCs is the responsibility of the NHS authorities known as “Healthcare”.

If you are a vulnerable person being released from an IRC, DSO 08/2016 addresses the planning of your Safe-Release, including (§63) in light of your potential care and support needs. Here are §§62-64:

If you are being released from an IRC into Home Office accommodation, your Safe-Release is being planned and so is your accommodation placement. On Day 4 (6.9.24) the SSHD provided a witness statement (“Kingham 3”) exhibiting a Standing Operating Procedure on Vulnerable Adult Release (the “VARSOP”). Drafted to support DSO 08/2016, the VARSOP describes a “collective responsibility”, shared by “caseworking teams”, “to ensure the safe release of any vulnerable adult from immigration detention”, with contingency plans giving consideration to sourcing accommodation for individuals with additional mobility needs, explaining why a release from detention may become complex, including physical health conditions or disabilities, mental health issues, social care and self-care issues. The VARSOP includes this:

The VARSOP lists “routes to identifying vulnerabilities” including detention reviews; AAR levels; ATLAS physical and mental health alerts; representations from legal representatives; and medical information including medical reports. Along similar lines, Jonathan Kingham – the Assistant Director of the Asylum Support Litigation Team at the Home Office – told the Court this in his first witness statement “Kingham 1” (15.3.24):

This is the second relevant way in which – as a person subject of immigration control – you can be in accommodation for which the Home Office is responsible. Asylum support is provision for asylum-seekers (pursuant to s.95 of the Immigration and Asylum Act 1999) and failed asylum-seekers (pursuant to s.4(2) of the 1999 Act). As well as accommodation, asylum support includes “subsistence” payments pursuant to these statutory powers. There is an implied statutory duty to provide asylum support accommodation within a reasonable period of time: see R (DMA) v SSHD [2020] EWHC 3416 (Admin) [2021] 1 WLR 2374 at §178. An application for asylum support is made on a form called ASF1, to which Kingham 1 referred (§8 above at [1]). Asylum support accommodation is arranged with providers who have AASCs (asylum accommodation and support contracts) with the Home Office. AASCs contain detailed provisions about the nature and adequacy of accommodation and the responsibilities of providers, including making appropriate referrals in relevant circumstances to appropriate public authorities. There is “initial” accommodation and “dispersal” accommodation. The allocation of the accommodation in the individual case is handled by a Home Office caseworker who issues ITPs (instructions to providers). There is published Home Office policy guidance: the Allocation of Asylum Accommodation Policy (27.3.24) addresses suitability and preferences; the Healthcare Needs and Pregnancy Dispersal Policy (1.2.16) is about asylum support accommodation for those with health care needs or who are pregnant or who are new mothers; Asylum Seekers with Care Needs (3.8.18) is about asylum support accommodation for those with a disability or who have care and support needs; Asylum Support, Section 4 Policy and Process (28.6.22) is about s.4(2) cases.

An FNO can – provided they are an asylum-seeker (s.95) or a failed asylum-seeker (s.4(2)) – be allocated asylum support accommodation. The Home Office caseworkers who handle FNO cases are from a special team called FNORC (the Foreign National Offenders Returns Command). The allocation of suitable asylum support accommodation is handled by the FNORC Accommodation Team or FNORCAT, which I will call “the CAT”. This is “the FNORCAT caseworker” described in Kingham 1 (§8 above). The Safe-Release of a FNO from an IRC is handled by a caseworker within the FNORC “Detained Team”, which I will call “the CDT”. The CAT or CDT caseworker is also known as the caseowner.

An FNO being released from an IRC and allocated Home Office accommodation may have needs which require protection. But so may the public. The criminal justice context is important. There may be ongoing licence conditions, ongoing supervision by a probation officer, conditions or registrations. There are police public protection units (PPUs) with public protection officers (PPOs). Public protection needs may be reflected in the terms of an ITP which the CAT caseworker issues. This is why Kingham 1 refers to “the police” informing the CAT of specific accommodation requirements (§8 above at [3]).

The 1999 Act s.95(3) describes the situation where an individual does not have “adequate accommodation or any means of obtaining it” and/or “cannot meet” their “other essential living needs”. This concept is important in the asylum support system. I will call it “Statutory-Destitution” and will distinguish it from what I will call “Limbuela-Suffering” (§14 below). These are shorthand labels. For asylum support, Statutory-Destitution operates as a sufficient eligibility precondition for an asylum-seeker (by 1999 Act s.95(1) read with SI 2005/7 reg.5) and as a necessary eligibility precondition for a failed asylum-seeker (by SI 2005/930 reg.3).

There are three recognised legal standards regarding the adequacy of asylum support accommodation (and subsistence). I am putting to one side any further standard arising from Adherence to policy guidance and the EA (§§32, 23 below). The first standard is sufficiency to avoid a breach of the individual’s Convention rights. The fact that accommodation is necessary to avoid a breach of Convention rights is also an eligibility criterion for s.4(2) failed asylum-seekers (see SI 2005/930 reg.3(2)(e)). Convention rights include Article 3, which brings in the duty to protect against Limbuela-Suffering: §14 below. The second standard is sufficiency to eliminate Statutory-Destitution having regard to an individual’s needs. For an asylum-seeker, this is explicit: asylum support is described as “providing accommodation … adequate for the needs of the supported person” (see s.96(1)(a)), taking account of their “individual circumstances” (see SI 2000/704 reg.13), and having regard to the particular needs of vulnerable persons including those with disabilities (see SI 2005/7 reg.4). These statutory provisions are drafted so as to recognise an evaluative judgment by the SSHD. But evaluative judgments must be exercised reasonably. That produces a legal obligation on the SSHD to provide accommodation (and subsistence) which has been reasonably assessed as adequate in eliminating Statutory-Destitution having regard to individual needs. The third standard is sufficiency to ensure a standard of living objectively adequate for the health of the individual and capable of ensuring their subsistence, taking account of the special situation of vulnerable persons such as disabled people. This is an EU-derived duty. It involves an objective standard which the judicial review court has a responsibility to delineate and enforce. When put alongside the second legal standard it therefore produces a “twin-track” test: see R (SA) v SSHD [2023] EWHC 1787 (Admin) at §8. Here is an illustration showing all three of these standards in action. In R (NB) v SSHD [2021] EWHC 1489 (Admin) [2021] 4 WLR 92, Linden J considered asylum support accommodation for vulnerable asylum-seekers in former military barracks. He found the accommodation breached the second and third standards, but not the first. The accommodation was not reasonably assessed as adequate and it did not meet the EU-derived objective standard (§171). It did not, however, breach Convention rights, whether by reference to the Article 2 right to life (§245), Article 3 inhuman or degrading treatment (§268) or Article 8 respect for private and family life (§278).

Article 3 requires that asylum support accommodation and subsistence be provided where there is “an imminent prospect of serious suffering through denial of food, shelter or the most basic necessities”: DMA at §21. This is protection against Limbuela-Suffering, derived from R (Limbuela) v SSHD [2005] UKHL 66 [2006] 1 AC 396 (§27 below), as an application of the Article 3 Severity-Threshold (§26 below). Limbuela-Suffering is more severe than Statutory-Destitution: see R (DXK) v SSHD [2024] EWHC 579 (Admin) [2024] 4 WLR 46 at §72.

I have shown that potential care and support needs feature in policy guidance on Safe-Release: DSO 08/2016 and the VARSOP (§§6, 7 above). I have also shown that the VARSOP refers to NAAU and accommodation (§7 above at [3]). Potential care and support needs also feature in the policy guidance Asylum Seekers with Care Needs, in the chapter on “Assessing and Meeting Care Needs”, which includes this:

This is the third relevant way – as a person subject to immigration control – that you can be in accommodation for which the Home Office is responsible. Immigration bail, pursuant to 2016 Act Sch 10 §1, is a single category of conditional liberty. It subsumed three categories, previously found in s.4(1) of the 1999 Act, one of which was called temporary admission. It applies to asylum-seekers, failed asylum-seekers and FNOs, including where they are being released from an IRC. This means asylum support accommodation is itself a form of “bail” accommodation. HOBA is governed by Sch 10 §9 to the 2016 Act, headed “powers of the Secretary of State to enable person to meet bail conditions”. Sch 10 §9(1)-(3) are as follows:

Eligibility for HOBA is addressed in the policy guidance Immigration Bail Interim Guidance. This sets out the three types of cases where there are the statutorily-required exceptional circumstances (Sch 10 §9(2)) which “normally” justify providing HOBA. These are: (i) SIAC Cases; (ii) Harm Cases; and (iii) Article 3 Cases. SIAC cases are not relevant for present purposes. Harm Cases are addressing public protection needs (§11 above). Article 3 Cases are preventing Limbuela-Suffering (§14 above). Here is how the Immigration Bail Interim Guidance describes Harm Cases and Article 3 Cases:

It is common ground that the same three legal standards of adequacy apply to HOBA as apply to asylum support accommodation (§13 above). The first standard is straightforwardly required for HOBA by the HRA: see R (Humnyntskyi) v SSHD [2020] EWHC 1912 (Admin) [2021] 1 WLR 320 at §§14-15. Mr Holborn derives the applicability to HOBA of the second and third standards from the public law duty of Adherence (§32 below) in light of the SSHD’s Stated Equivalence Policy (§19 below). Ms Harrison KC derives them from the correct interpretation of the 2016 Act Sch 10 §9, or alternatively from the public law duty to act reasonably. I think the SSHD is right to accept that all three standards apply. As to the derivation, I think it suffices that it would be unreasonable – being beyond the range of reasonable responses – for the SSHD to fail to meet those standards, given the Stated Equivalence Policy.

The SSHD’s clearly stated policy position involves a commitment to the same approach in HOBA cases as is applied to asylum support accommodation, so far as concerns Safe-Release planning and accommodation-allocation planning, including so far as concerns potential care and support needs. That is what the Court was repeatedly told. For example, the SSHD’s pleaded defence (28.3.24) said that:

I have described how potential care and support needs feature in policy guidance on Safe-Release planning and asylum support planning: DSO 08/2016; the VARSOP; and Asylum Seekers with Care Needs (§§6-7, 15 above). I have described the Stated Equivalence Policy (§19 above). Something conspicuously absent in the present case has been any policy guidance or other documented arrangement on how potential care and support feature in HOBA planning. This gap is a first striking feature of the case.

Care and support needs are governed by the Care Act 2014, together with associated regulations and the Care and Support Statutory Guidance issued pursuant to s.78 of the 2014 Act. I discuss the 2014 Act in more detail in BLZ No.2 at §§5-6, 18-21. The meeting of eligible care and support needs is the statutory responsibility of a local authority in whose area an individual is either ordinarily resident or is present but of no settled residence (2014 Act s.18). Care and support is a broad concept to reflect individual wellbeing and autonomy. Local authorities have duties to conduct needs assessments (s.9), make eligibility decisions (s.13), and meet needs (s.18) through care and support plans (s.24). Whether there is a local authority duty to conduct a needs assessment depends on a threshold question (s.9(1)): whether it appears to the local authority that the individual may have needs for care and support. Care and support duties are distinct from local authority housing duties. They apply, for an individual subject to immigration control and excluded from benefits, provided that the care and support needs do not arise “solely” from Statutory-Destitution or its effects (2014 Act s.21). Provision to meet care and support needs may be “care and support at home” (s.8(1)(b)). Or it may be “accommodation in a care home or in premises of some other type” (s.8(1)(a)). BLZ No.2 at §§25, 41-45 addresses when care and support needs require 2014 Act accommodation provided by a local authority. Here is an illustration, which shows how local authority care and support duties can arise where an individual is in Home Office asylum support accommodation. In R (TMX) v Croydon LBC [2024] EWHC 129 (Admin), DHCJ Alan Bates decided that, by failing to step in to provide suitable accommodation for an asylum-seeker with accommodation-related care and support needs, a local authority had breached its 2014 Act duties (§§92-93), as well as violating Article 3 (§158) and Article 8 rights (§167). In that case the claimant, his wife and two children had been allocated asylum support accommodation in a hostel from June 2022 (see §13). The local authority had provided personal care visits as ‘homecare’ from December 2022 (see §33). The local authority’s breach of its 2014 Act duties in not providing suitable accommodation arose from November 2022 onwards (§§32, 93); and it was found to have violated the claimant’s Article 3 and Article 8 rights from April 2023 onwards (see §§144, 168-169). As to the Article 3 violation, see §26 below.

In the context of Safe-Release planning, asylum support planning and HOBA planning, it matters that there should be appropriate liaison by Home Office caseworkers with local authorities, and referrals to local authorities, in relation to potential care and support needs. That is for two reasons. First, it ensures that suitable local authority “care and support at home” (s.8(1)(b)) is promptly provided, within the asylum support accommodation or HOBA which the Home Office is providing. Second, it ensures that local authority “accommodation in a care home or in premises of some other type” (s.8(1)(a)) is promptly provided, instead of asylum support accommodation or HOBA which the Home Office would be providing, so that the individual is “accommodated under the provisions of the Care Act 2014”, as described in the Immigration Bail Interim Guidance (§17 above), and as should have happened from November 2022 in TMX (§21 above).

Equality duties are imposed by the EA on all public authorities, including the SSHD and local authorities. Three equality duties are relied on in the present claim against the SSHD. Each relates to “disability”, which means a physical or mental impairment which has a substantial and long-term adverse effect on the individual’s ability to carry out normal day to day activities (EA s.6). First, the duty to avoid “unjustified unfavourable treatment”. It is unlawful discrimination for a public authority, except as a proportionate means of achieving a legitimate aim, to treat a disabled person unfavourably because of something arising in consequence of their disability, unless the disability was unknown and could not be expected to be known: see EA s.15. Second, the “reasonable adjustments” duty. It is unlawful discrimination for a public authority to fail to take reasonable steps to avoid a substantial disadvantage at which a disabled person (in comparison with persons who are not disabled) is put by a provision, criterion or practice: see EA ss.20(3), 21, 29(7). Third, the PSED (public sector equality duty). It is unlawful for a public authority to fail, in the exercise of its functions, to have due regard to the need (among other things) to eliminate discrimination and advance equality of opportunity between persons who share the protected characteristic of disability and persons who do not: see EA s.149. This includes having due regard to the need to remove or minimise disadvantages suffered by persons who share the protected characteristic of disability that are connected to that characteristic and take steps (including, in particular, steps to take account of disabled persons’ disabilities) to meet the needs of persons who share that relevant protected characteristic that are different from the needs of persons who do not.

An illustration in which all three of these duties featured is DMA. That was a case about asylum support accommodation for 5 failed asylum-seekers (1999 Act s.4). One of the claimants was AA, whose needs related to mobility, medical dietary needs, and access to a clinic providing kidney dialysis (§258). AA’s disability (§38) needed self-catering accommodation in London on the ground floor or with a lift (§282). The Home Office had taken 10 months to resolve the situation (§§39-47), a period of huge delay and ineffectiveness (§264). Robin Knowles J described the first EA duty (the unjustified unfavourable treatment duty pursuant to s.15) and found unfavourable treatment: see §§249 and 267. He described the second EA duty (the reasonable adjustments duty pursuant to ss.20(3), 21 and 29(7)) and found a failure to make reasonable adjustments by the lack of monitoring and the lack of an effective system for prioritising claims: see §§251-253 and 290-291. The “practice” was providing s.4 asylum support accommodation to failed asylum-seekers (§273). He then described the third EA duty (the PSED pursuant to s.149) and found a breach by reason of the failure to monitor the provision of asylum support accommodation to individuals who have a disability: see §§254 and 325.

Duties are imposed on all public authorities by the HRA, by which public authorities are statutorily prohibited from violating Convention rights (HRA s.6) and the legislation by which they act is interpreted compatibly with Convention rights (HRA s.3). These are statutory human rights duties (common law rights have not featured in the present case). To understand how these HRA duties work, it is necessary to identify a number of components: see §§26-31 below.

Article 3 (protection from inhuman and degrading treatment) involves a minimum level of severity, which I will call the “Severity-Threshold”. Whether it is met depends on all relevant circumstances of the case, such as the nature, context and manner of the treatment, its duration, its physical or mental effects, and the sex, age and state of health of the individual: see Humnyntskyi at §202. It may be met by actual bodily injury or intense physical or mental suffering; or treatment which humiliates or debases an individual or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance; or treatment exacerbating or risking exacerbating the suffering which flows from naturally occurring physical or mental illness: see Limbuela at §54. It is what informed Limbuela-Suffering (§14 above): see Limbuela at §§7, 59. Here are three illustrations relating to the Article 3 Severity-Threshold. First, in Humnyntskyi the denial of HOBA violated Article 3 where it left the claimant street homeless for 10 months, unable to wash clothes and totally reliant on food handouts (see §§204-205, 209). Secondly, in NB the conditions in the former military barracks asylum support accommodation did not violate Article 3. Thirdly, in TMX the local authority failure to step in with 2014 Act accommodation violated Article 3, 10 months into a 17-month period (§§142, 144), in which an asylum-seeker with the onset of multiple sclerosis was in a small hotel room, which severely affected practically all of his basic daily activities, was too small for his wheelchair, leaving him unable to go outdoors, get out of bed or walk short, use the toilet or shower or go into the bathroom to wash his face or brush his teeth, with the shame and indignity of having to use the toilet and receive intimate personal care, all in a bedroom shared with his teenage daughter (see §§9-14, 123-125). These circumstances also constituted a violation of Article 8 (see TMX §167).

A public authority acts incompatibly with Article 3 if it inflicts inhuman or degrading “treatment” on a person. But Article 3 has important protective dimensions too. Sometimes, the Courts distinguish between “negative” obligations (not to inflict harm) and “positive” obligations (to protect against harm). The Home Office denial of HOBA in Humnyntskyi and in the local authority denial of 2014 Act accommodation from November 2022 in TMX could be seen as examples of state-inflicted Article 3 harm; or they could be seen as failures to protect. With Article 2 (the right to life) and Article 3 (torture, inhuman and degrading treatment and punishment), it is important not to adopt a “wait and see” approach. We can trace this back to Limbuela, a case which decided three things. First, that the effects of a state measure excluding an asylum seeker from asylum support was “treatment” for Article 3 purposes (see §§6, 56). Second, that the relevant Severity-Threshold was serious suffering through denial of food, shelter or the most basic necessities (see §§7, 59): Limbuela-Suffering. Third, that the Article 3 obligation did not operate on a “wait and see” basis. That was because “avoiding a breach of a person’s Convention rights” (in s.55(5)(a) of the Nationality Immigration and Asylum Act 2002) reflected an Article 3 duty to protect the asylum-seeker at the point of the “imminent prospect” of that serious suffering (see §§8, 62). Articles 2 and 3 entail obligations to step in preventively and protectively.

The cases of Munjaz and W – discussed in A and BF – concern a distinct species of HRA-based unlawfulness of a policy, instruction or practice because it exposes those affected to an unlawful risk to life (Article 2) or an unlawful risk of torture or inhuman or degrading treatment or punishment (Article 3).

It is unlawful under the HRA for a relevant public authority to fail to put in place appropriate legal and administrative “systems” for protecting lives (Article 2) and safeguarding against inhuman or degrading treatment (Article 3): see ASY v Home Office [2024] EWCA Civ 373 at §86. This is called the Systems Duty. It means having in place effective criminal law and effective arrangements for its enforcement. But at a so-called “lower-level”, it extends to a duty to have administrative or regulatory arrangements, in particular where a public authority undertakes, organises or authorises dangerous activities, or has a sufficient control or responsibility. Where it arises, such a lower-level duty is to take proportionate administrative measures reducing risk to a reasonable minimum: see R (MG) v SSHD [2022] EWHC 1847 (Admin) [2023] 1 WLR 284 at §6; R (CSM) v SSHD [2021] EWHC 2175 (Admin) [2021] 4 WLR 110 at §§71-73; and R (SAG) v SSHD [2024] EWHC 2984 (Admin) at §§96, 102. MG was a case about the Article 2/3 duty of state investigation, after a knife attack by a resident in asylum support accommodation. There, Johnson J held that that context and those circumstances did not trigger any duty of investigation, because there was no arguable Systems Duty owed to non-vulnerable individuals in asylum accommodation (§§56, 59). CSM was a case about a IRC detainee with HIV, whose antiretroviral meds were interrupted, meaning there was a risk of severe infections and death and developing resistance to the meds (§§93-96). There, Bourne J found a breach of the Article 3 Systems Duty (§99). ASY was the Article 3 sequel to W (§28(3) above). It was about the lack of promptness in the operation of arrangements governed by immigration rules and policy guidance for lifting NRPF conditions (§§25-27, 94 and 97). Informed by the Limbuela Article 3 duty, the Court of Appeal in ASY identified a lower-level Article 3 Systems Duty (§§86-87, 95) to adopt administrative measures to prevent individuals from falling into Limbuela-Suffering. ASY has its own sequel in SAG, which found a breach by the SSHD of the Systems Duty by failing to have a suitable system to reduce to a reasonable minimum the risk of inhuman and degrading treatment through delay in making NRPF decisions.

It is unlawful under the HRA for a relevant public authority to fail to use its powers to take reasonably-expected measures to protect an individual from a real and immediate risk of death or inhuman or degrading treatment about which the public authority knows or ought to know: see MG §7; ASY §81. This is called the Operational Duty. Here are three illustrations. In Rabone v Pennine Care NHS Trust [2012] UKSC 2 [2012] 2 AC 72, the Supreme Court decided – in the context of a voluntary psychiatric patient who committed suicide on a home visit – that the NHS Trust had owed and breached the Article 2 Operational Duty. In CSM the interruption in the antiretrovirals constituted a breach of the Article 3 Operational Duty (§117). In NB the fire risk at the military barracks breached two of the standards as to legally adequate asylum support accommodation (§170), but it did not breach the Article 2 Operational Duty (§245).

Arrangements for public authority accommodation can violate Article 8, as a disproportionate interference with private or family life. An illustration of such a violation was the conduct of the local authority in TMX: see §21 above. That case explains (at §§148, 156, 159) that a private life violation would need a culpable interference to a high degree with the individual’s physical and psychological integrity, with a particular emphasis on privacy; while family life focuses on whether members of a family are prevented from sharing family life together. Article 8 can include notions of “quality of life”: Pretty v UK (2002) 35 EHRR 1 §65. Article 8 protects the right to physical and psychological integrity which may be infringed if the claimant is unable, for example, to access a toilet or washing facilities at home for a prolonged period or if their private and family life is grossly undermined by having to look after a family member because they do not have such access: see R (McDonagh) v Enfield LBC [2018] EWHC 1287 (Admin) [2018] HLR 43 at §68. An earlier illustration is R (Bernard) v Enfield LBC [2002] EWHC 2282 [2003] HRLR 4. The claimant, with her husband and 6 children, was in local authority accommodation assessed by social services as unsuitable for her care and assistance needs, triggering a statutory duty to provide suitably adapted accommodation under s.21 of the National Assistance Act 1948 (§§10, 16). The claimant could not use her wheelchair in the property and was confined to the family’s living room (§6). The circumstances were (§20): that she was doubly incontinent, frequently defecated or urinated before her husband could get her to the toilet; that the persistent need to clean carpets, clothes and bedclothes, with twice-daily visits to the laundrette, had left the family impoverished and unable to meet the rent; that her role in bringing up the children was greatly limited, because she could not access the upper part of the house at all and struggled to leave the living room, a room in which she had no privacy. The Article 3 Severity-Threshold was not crossed (§28), but there was an Article 8 violation in the local authority’s 20 month failure to act on its own assessments have “showed a singular lack of respect for the claimants’ private and family life”, having “condemned the claimants to living conditions which made it virtually impossible for them to have any meaningful private or family life for the purposes of Art 8” (§34).

A public authority decision-maker must follow relevant policy guidance unless there is good reason for not doing so: see R (Lumba) v SSHD [2011] UKSC 12 [2012] 1 AC 245 at §26. I am calling this public law duty “Adherence”, as a shorthand label. An illustration of claim invoking the Adherence duty in the context of asylum support accommodation is DXK. In that case, a failed asylum-seeker provided with asylum support accommodation claimed that she should have been accommodated, not in “initial” accommodation (a hotel), but in urgent “dispersal” accommodation because of her needs as a 7-month old pregnant woman. Her Adherence-breach claim (see §36) relied on the terms of the Healthcare Needs and Pregnancy Dispersal Policy (§§36-38, 42). The Court recorded that “caseworkers must have regard to the guidance and must follow it unless good reasons are given not to do so” (§36). This part of the claim was discontinued as academic, following the claimant’s transfer to dispersal accommodation (§3). The Adherence duty is the basis for the SSHD’s acceptance of the three standards of legal adequacy of HOBA: see §18 above. One way to look at the Adherence duty is that policy guidance may give rise to a legitimate expectation that the public authority will exercise its power to confer a particular substantive benefit, in which case the judicial review court will give effect to the legitimate expectation unless the authority can show that departure from the policy guidance is justified as a proportionate way of promoting some countervailing public interest: see A at §3.

A public authority may be under a duty to issue policy guidance. The duty may be a direct or indirect statutory duty or it may arise as a freestanding public law obligation. An example of a direct statutory duty is the Care and Support Statutory Guidance issued pursuant to s.78 of the 2014 Act. HRA statutory duties to act compatibly with Convention rights may indirectly mean that – absent a set of rules – policy guidance is needed for reasons of ‘prescription’: to ensure that interferences with Convention rights are “prescribed by” law, or “lawful”, or “in accordance with” the law (see A §53; BF at §§52-53; and R (Northumbrian Water Ltd) v Water Services Regulation Authority [2024] EWCA Civ 842 at §61). In BF it was contemplated that a duty to have policy guidance may arise from s.55 of the Borders Citizenship and Immigration Act 2009 (see BF at §59). Policy guidance may – absent a set of rules – be needed to discharge the Systems Duty (§29 above), or the EA reasonable adjustments duty (§23 above). All of these would be statutory duties. Under some conditions, the holder of a discretionary power may be required both to formulate a policy and publish it: see A at §3. There may be an obligation to promulgate a policy to explain how a general statutory discretion might be exercised, though the same is not true of a explaining a clear statutory rule: see BF at §64. The rule of law may call for a transparent statement by the executive of the circumstances in which broad statutory criteria will be exercised: see Lumba at §34. There is no general common law duty to have policy guidance in every case where a statute creates a discretionary power: see A §53. In Northumbrian Water it was common ground in that case that public law reasonableness could give rise to a duty to have policy guidance (§57) and it was recognised that another possible source of a duty was whether its absence led to any unfairness (§67). Mr Holborn and Ms Harrison KC were agreed that what Northumbrian Water decided was (a) that no common law duty to have criteria in policy guidance arose in the context of a power to make exceptions regarding emergency interruptions in the context of leviable charges and (b) that identifying a breach of such a duty would not in any event have been a basis for quashing the decision under challenge.

Asylum Seekers with Care Needs is policy guidance applicable to asylum support decision-making, addressing potential care and support needs, liaison and referrals to local authorities (see §15 above). Kingham 1 (15.3.24) told the Court that Asylum Seekers with Care Needs was policy guidance which would apply in the cases of those being given asylum support accommodation. That makes it directly applicable whenever – in the case of an FNO who is also an asylum-seeker or failed asylum-seeker – a CAT caseworker is dealing with Safe-Release or a CDT caseworker is dealing with asylum support accommodation. What about the case of an FNO who is neither an asylum-seeker nor a failed asylum-seeker, where the same CAT caseworker is dealing with Safe-Release or the same CDT caseworker is dealing with HOBA? There is a Stated Equivalence Policy (§19 above). Kingham 3 on Day 4 (6.9.24) told the Court, based on a “personal discussion” between Mr Kingham and the Executive Officer of the CAT “Litigation Team”, that “they” consider that Asylum Seekers with Care Needs “applies to them and they would apply it to Schedule 10 claims, as they would for their s.95 1999 Act claims”. There the evidence stood, including when the case reconvened and was adjourned part-heard after Day 5 (12.9.24). Then came “Salisbury 1” (30.9.24), a witness statement of Jackie Salisbury, the Acting Senior Executive Officer and Operations Manager for FNORC Decision Making Teams. Salisbury 1 told the Court that FNORC “did not consider” Asylum Seekers with Care Needs in HOBA cases, because the individuals concerned are not asylum-seekers. This means the Court was told, by different people at different times, that different emanations of FNORC have different understandings as to the applicability of Asylum Seekers with Care Needs. The SSHD adduced no evidence that CAT or CDT caseworkers apply Asylum Seekers with Care Needs or its substance in HOBA cases, or have been trained to do so.

DSO 08/2016 (§6 above) is policy guidance about CDT caseworkers (“the caseowner”) dealing with Safe-Release from IRCs, addressing expedited multi-disciplinary meetings, potential care and support needs, and anticipatory local authority needs assessments. There was no mention of DSO 08/2016 in Kingham 1 (15.3.24); nor in Kingham 2 (8.8.24). Kingham 3 (6.9.24) told the Court it had “now come to my attention” that “the correct course of action” is for the CDT caseworker – within “Team 6” – to contact a local authority to arrange a needs assessment in line with DSO 08/2016, which Kingham 3 exhibited. Kingham 3 said it was correcting, as inaccurate, Mr Kingham’s previous evidence that it was IRC Healthcare who “FNORC staff” regarded as being “responsible” for contacting local authorities. There the evidence stood, including at Day 5 (12.9.24). Then came Salisbury 1 (30.9.24). Ms Salisbury told the Court that CDT caseworkers “do not use” DSO 08/2016, because they regard it as being an instruction to staff “within” an IRC; that CDT caseworker training does not cover any discussion of DSO 08/2016, nor any aspect of Safe-Release of a vulnerable person or AAR (adult at risk). Ms Salisbury also told the Court that “Team 6” had been disbanded in March 2024, 6 months before Kingham 3. That means the Court has been told three different things about contacting local authorities. (i) It is left to IRC Healthcare. (ii) It is done by the CDT caseworker. (iii) It is left to IRC staff. The SSHD adduced no evidence that CAT or CDT caseworkers apply DSO 08/2016 or its substance in HOBA cases, or have been trained to do so.

VARSOP (§7 above) is internal policy guidance about DSO 08/2016, addressing multi-disciplinary meetings, potential care and support needs, and anticipatory local authority needs assessments; emphasising the responsibility of caseworkers to ensure the Safe-Release of any vulnerable adult, contingency plans giving consideration to sourcing accommodation for individuals with additional mobility needs, and a routing system for vulnerabilities to be notified to those dealing with asylum support accommodation; describing the importance of physical health conditions or disabilities, mental health issues, social care and self-care issues; listing routes to identifying vulnerabilities. There was no mention of the VARSOP in Kingham 1 (15.3.24) nor in Kingham 2 (8.8.24). The VARSOP was then disclosed by being exhibited to Kingham 3 for Day 4 (6.9.24). Kingham 3 told the Court that the VARSOP “has been in operation since around 2022” and “explains how” the CDT – within the “Detained safeguarding team” – is “meant to put DSO 08/2016 into action”. There the evidence stood, including at Day 5 (12.9.24). Then came Salisbury 1 (30.9.24) which told the Court that FNORC Casework “were not aware of” the VARSOP; that they “only became aware of [it] as a result of” this litigation; that CDT caseworkers were not aware of the VARSOP; that the “Returns Enforcement and Detention” teams “have evidence of the VARSOP being shared with FNORC … managers on 6 January 2022”; but that Ms Salisbury and FNORC “do not have any record” of that sharing of the VARSOP having taken place. All of this was in the context of Salisbury 1 stating that DSO 08/2016 – which the VARSOP supports – is itself regarded as being only for staff “within” an IRC. That position was notwithstanding that: the stated purpose of the VARSOP is “to assist caseowners” in identifying required steps in problematic cases of releasing vulnerable individuals; and that the VARSOP refers to the “caseowner” throughout, including as being “the lead”. That means the Court has been told different things by different people at different times about the VARSOP. The SSHD adduced no evidence that CAT or CDT caseworkers apply the VARSOP or its substance in HOBA cases, or have been trained to do so.

This evidential picture about policy guidance is a second striking feature of the case. There are three relevant policy guidance documents. They address ways in which Safe-Release and Home Office accommodation decision-making should be undertaken by caseworkers, addressing needs and vulnerabilities, considering potential care and support needs, with multi-disciplinary liaison and appropriate local authority referral. There is no evidence that CAT or CDT caseworkers apply any of these or their substance in HOBA cases. Nor that they have been trained to do so. Salisbury 1 tells the Court that CDT caseworkers are not “trained in arranging a Local Authority needs assessment in respect of a vulnerable individual”; that the only training about AARs is about “managing them in detention”; that CAT and CDT caseworkers are not given any “mechanism” for making a local authority referral, have no training “relevant to and key to making such referrals” and being untrained are “not aware of any potential expectation” as to local authority needs assessment. I was not reassured by something put forward as a “line from Arwyn”, originally given to the Court orally by Mr Holborn (6.9.24) to supplement Kingham 3; and then later repeated within Salisbury 1 (30.9.24). Arwyn Williams is part of the CAT Litigation. I was told: “If it becomes apparent that there was a need for care and support, [the CAT] would take steps to liaise with the [CDT] caseworking team [who] would liaise with a local authority”. This does not fit with the evidence about referrals being left to IRC Healthcare, or being left to IRC staff. It is not a statement about what “does” happen, but a “line” about what “would” happen. In the context of this case, this has a vagueness which undermines the extent to which it can be of assistance: cf. R (Gardner) v SSHSC [2022] EWHC 967 (Admin) [2022] PTSR 1338 at §258. It sits alongside other statements. I cannot be confident that the evidence reached any reliable, or even any settled, landing point. Given the gaps and oscillations in the evidence, given the disavowal of policy guidance, given the accepted complete absence of training, and given the absence of any concrete evidence relating to this case or any case, I am unable to take any reassurance from Arwyn’s line about what “would” happen.

The Claimant’s individual case was dealt with by a CAT caseworker (Leah Dempster-Johnston) as to the HOBA planning; and by a CDT caseworker (Farahat Hussain) as to Safe-Release planning. On the evidence, the caseworkers and caseworking teams did not consider or use any of the published or internal policy guidance regarding potential care and support needs. I have high level witness statements, sometimes contradicting each other. I do have a lot of contemporaneous documents from which I can piece together a picture of sorts. But there are many gaps and nobody who actually dealt with this case has filled them. The SSHD adduced no witness statement evidence from anyone who was directly involved in any planning or decision-making. I have seen no contemporaneous internal records of any decision-maker’s notes, or reasons for actions, or matters that were considered. This is what Ms Harrison KC’s written reply (15.10.24) described as a “critical deficit” in evidence. It is a third striking feature of the case.

The Claimant is aged 34 and is an FNO. He came to the UK 18 years ago from Malawi, aged 15. After successive periods of leave to remain, he received indefinite leave to remain (ILR) on 15.3.09, as the adult dependant of one of his three UK-based sisters. Following a 2012 criminal conviction aged 21, by reason of which he became an FNO, he was notified on 12.8.13 of his liability to deportation. He made human rights representations against deportation, but these were rejected by the SSHD and on appeal by the FTT (25.9.14). The Upper Tribunal (UT) refused his application for permission to appeal on 3.2.15. ILR was revoked and a deportation order made (17.2.15) and served (12.5.15). No deportation took place. Following 2018 criminal convictions aged 27/28, and after then serving the custodial element of a sentence of imprisonment, the Claimant was placed in immigration detention from 11.9.20. He was granted immigration bail in principle by the FTT on 30.4.21 and then released on 21.6.21 to HOBA. He was transferred to another HOBA house (Cheveral Avenue in Coventry) on 26.8.21, and then another (Bodmin Road in Leeds) on 10.3.22. After being recalled to prison on 7.3.23, he was detained under immigration powers from 17.3.23. He applied (15.3.23) to revoke the deportation order on human rights grounds. That application was refused by the SSHD on 26.9.23 with an in-country appeal to the FTT. The Claimant is pursuing that right of appeal. Judge Cox at the FTT granted immigration bail in principle (29.6.23) and the Claimant was released on 3.8.23 to HOBA: first, a shared house (Willow Lane in Huddlesfield); then a transfer on 20.9.23 to a shared house (Rokeby Gardens in Leeds); and then on 22.12.23 (“the Hotel” in the area of the “Second Local Authority”).

The Claimant’s 2012 conviction related to three sexual offences committed in August 2011 aged 21. The victim was a female child aged 13. The overall sentence imposed by the crown court was 3 years 4 months imprisonment. An SOPO (sexual offences prevention order) was made, which in March 2015 became an SHPO (sexual harm prevention order), and the Claimant was placed in the Sex Offender Register. From prison, the Claimant was transferred to St Mary’s psychiatric hospital on 3.7.12, pursuant to ss.47 and 49 of the Mental Health Act 1983. After completing the custodial element on 17.1.14 he remained at St Mary’s, first pursuant to statutory powers to 23.7.14; and then as a voluntary patient to 4.8.14; after which he was in the community and subject to a licence until 17.9.15. The Claimant’s 2018 convictions aged 27/28 related to breach of the SHPO and a sexual offence. The victim of the sexual offence was a female child aged 14. The overall sentence imposed by the crown court was 5 years imprisonment. The Claimant was transferred to detention under immigration powers after completing the custodial element on 11.9.20, then released on immigration bail on 21.6.21. He remained subject to licence conditions until 15.3.23. As to a suspected SHPO breach for which he was recalled on 7.3.23 and detained to 17.3.23, no further action was taken. Prior to that recall he was seen by PPO Natasha Harrison, who saw him again at Willow Lane, a week before he “returned to Leeds”. Since 15.3.23 there have been no extant licence conditions and no offender manager who could veto HOBA. The police view – which was advisory – was that Willow Lane was unsuitable given its ‘red light’ vicinity. The SHPO continues in effect. The Claimant remains on the Sex Offender Register. All of which is why the sisters’ homes – where there are children – are not suitable bail addresses; why the Claimant was assessed as a “Harm Case” for HOBA (§17 above), as well as an Article 3 Case; why the CAT caseworker was liaising with the police; and why PPUs and PPOs were involved in relation to the allocation of HOBA.

After his 25 months at St Mary’s psychiatric hospital from 3.7.12 to 4.8.14, the Claimant spent 6 weeks in a mental health rehabilitation home called Aspect House. He was then in 18-bed “supported” housing known as Murray Lodge from 12.9.14, for more than a year. A statutory definition of “supported” means accommodation adapted in some way for the individual’s care needs (SI 2014/2828 reg.5). The FTT appeal judgment (25.9.14) described Murray Lodge as “largely unsupported”. From at least May 2016, the Claimant was at Langley Trust “self-contained” accommodation. From 20.4.18 he was back in prison, first on remand (from 20.4.18); then serving sentences (from 10.10.18); then under immigration detention powers (from 11.9.20). I was given no description of the HOBA to which he was transferred on 21.6.21. He had an upstairs room at the Cheveral Avenue HOBA for the 7 months from 26.8.21 to 20.3.22. The HOBA at Bodmin Road in Leeds, during the 12 months from 10.3.22 to 7.3.23, was a four-bedroom house of multiple occupancy. The Claimant lived in Room 2, located up one flight of stairs with a bathroom and two toilets located on the same floor. He was at Leeds Prison after his recall on 7.3.23 and remained there under immigration detention powers from 17.3.23. The Claimant’s room at Bodmin Road was kept open to him for 3 months from 7.3.23 before being withdrawn on 8.6.23. He was moved on 24.7.23 to Brook House IRC near Gatwick airport. When his solicitors on 30.6.23 made his BAIL 409 application for HOBA, their covering letter addressed his mental health and health conditions and addressed his “property requirements”. The HOBA at Willow Lane in Huddlesfield, during the 6 weeks from 3.8.23 to 20.9.23 was another house of multiple occupancy. The Claimant lived in Room 3 up a flight of stairs with no handrail (§53 below). At the HOBA at Rokeby Gardens in Leeds, for the 3 months from 20.9.23 to 22.12.23, the Claimant had a ground floor bedroom. He had access to the outside, and to a ground floor kitchen and bathroom, but only by passing a stepped hallway of which was a stairway down to a shared lounge in the basement (§54 below). The Hotel from 22.12.23 onwards is used as “initial” asylum support accommodation for single adult male asylum-seekers. It is fully catered. The Claimant’s room has handrails in the bathroom, a walk-in shower and shower seat; and there are no stairs or other hazards. A witness statement of Simon Gallop (13.2.24) – the Home Office Senior Executive Officer Service Delivery Manager for the region – told the Court that the Hotel is being “provided on a temporary basis”.

Planning for HOBA and asylum support accommodation is secured by a caseworker issuing an ITP. In the case of an FNO the caseworker is within the CAT. The wording of the ITP identifies the nature of the accommodation being sought, gives a date for the provider to come up with a proposal and another date for it to be delivered. After Judge Cox’s FTT grant of bail on 29.6.23, a sequence of 9 ITPs (ITP1 to ITP9) were issued by Leah Dempster-Johnston as the CAT caseworker, in the period 4.7.23 to 4.9.23. ITP1 on 4.7.23 included this public-protection information: “level 2 – male only – single room shared facilities – sex offence” and “no female [housemate] – HMPPS [Prison and Probation Service] to check address”. ITP2 on 25.7.23 also included reference to “severe mental health” (as did ITP3 to ITP8) and to “history of self-harm” (as did ITP3 to ITP6). ITP7 on 1.9.23 added (as did ITP8 and ITP9) “ground floor or lifted” and “walk in shower” as well as “low crime area” and “not in a red-light district”. It was ITP3 on 2.8.23 which led to the provision of Willow Lane. It was IPT9 on 4.9.23 which led to the provision of Rokeby Gardens.

The SSHD accepts that, at all material times, the Claimant had both a physical and mental “disability” (EA s.6). The parties’ agreed Case Summary refers to the Claimant’s mental impairments and psychiatric conditions; his cognitive and communication difficulties; his physical impairments, neurological condition, epilepsy and neuropathy. A series of five witness statements filed on behalf of the SSHD each expressly record as “accepted” that the Claimant has “complex and specific challenging needs” and accept that his “vulnerability” is “particularly serious”. ITP2 on 25.7.23 referred to the Claimant’s “severe mental health” and “history of self-harm”. ITP7 on 1.9.23 referred to HOBA “ground floor or lifted” and with a “walk in shower”. In what follows, I will focus on those sources which were available to the SSHD, having regard to the identified routes for identifying vulnerabilities (§8 above).

The Claimant’s application (15.3.23) to revoke the deportation order on human rights grounds, which included a request not to be detained under immigration powers, enclosed a report dated 22.12.22 by Dr Vicky Hoggard (clinical psychologist). A solicitors’ letter (1.6.23) enclosed a letter dated 5.5.23 from Dr Agam Jung (Consultant Neurologist) referring to neurocysticercosis, symptomatic epilepsy and ongoing seizures. Dr Hoggard wrote a second report (7.6.23) and both Hoggard reports were supplied with, and references in, the BAIL 409 Form covering letter (30.6.23). Dr Hoggard described the Claimant’s “longstanding mental health problems of depression, self-harm and organic psychosis”, a “long history of self-harm, suicidal and suicidal attempts” and “visual and auditory hallucinations”. Judge Cox’s reasons (30.6.23) referred to Dr Hoggard’s “conclusions” and the “mental health issues” which the Claimant’s continued detention in the IRC was likely to exacerbate.

The Home Office’s FTT Bail Summary (29.6.23) was provided with the BAIL 409 Form covering letter (30.6.23). In the Bail Summary the Home Office referred to Dr Hoggard’s assessment; to the Claimant’s time (2 years to 22.7.14) in the psychiatric hospital (St Mary’s) due to mental health issues; to an October 2020 report which had recorded a history of low mood and self-harm leading to overdoses and cutting of his wrists; and to the assessment as at 16.5.23 of the Claimant as AAR Level 2. It made references to a “medical issue”, described by the Claimant in October 2017 as “brain injury” and “pig disease”; and to a consultant neurologist’s report dated 13.3.23. It referred to a mental health medical update (17.4.23) from Healthcare at HMP Leeds, in response to a “healthcare questionnaire” (14.3.23) “to establish his current care needs and any medical treatment he may be currently receiving and if there are any known changes that may affect the AAR level”. The mental health update said that the Claimant was last seen by the mental health team on 8.3.23 as part of an Assessment Care in Custody and Teamwork (ACCT) review, following his posing an increased risk to himself; that having been discharged by the team he was then on 9.3.23 subject to an incident of self-harm, making cuts to his right arm using a razor blade; that he was assessed again on 11.4.23 following concerns raised about his presenting with bizarre behaviour; that he had a history of low mood and psychosis, a documented history of suicide attempts and self-harm incidents and reported having thoughts of self-harm when he is under stress. Subsequent medical records at Leeds Prison include reference to ACCTs due to “deliberate self-harm” involving hurting himself with glass, with worsening auditory hallucinations, suicidal thoughts and intermittent confusion, including eating food from waste bins (on 26/27.4.23), evidence which prompted an observation by Constable J (on 2.6.23) that the Claimant’s “vulnerability” seemed “particularly serious”; and multiple superficial cuts to the right side of his neck with a razor blade on 4.6.23. The Home Office Bail Summary also referred to a detailed description of a physical health update from Healthcare at HMP Leeds (10.5.23), which said: that the Claimant did not have a brain injury; that he was currently undergoing investigations for neurocysticercosis; that he was awaiting an outpatient’s appointment for an MRI; that he had had this condition for many years; that neurocysticercosis is when dormant tape worm eggs remain on the brain and causes epilepsy which is difficult to treat; that he had been under Neurology for a number of years and had treatment to kill the eggs in 2012; that this treatment can cause changes in behaviour and severe epileptic reactions; and that in his last review with Neurology in 2022 he had no active eggs however recent blood tests indicate some changes which requires further exploration.

The medical records included further materials. A report dated 16.1.14 of Professor Peter Chiodini (Consultant Parasitologist) described recurrent seizures as being the result of numerous lesions on the brain and that, following if the treatment proved to have successfully killed all the parasites, “the mainstay” of “future medical care” would be to “make sure that he does not suffer further convulsions”. Another letter from Dr Jung dated 30.5.22 referred to the history of seizures and identified as appropriate the MRI scan. There were records relating to two MRI brain scans on August 2022 and February 2023. The Claimant’s medical records at HMP Leeds included reference on 30.4.23 the Claimant’s “history of seizures” and an episode of confusion where he had “nearly fallen to the floor” when his cellmate was with him, and when he was taken by ambulance to A&E. The hospital discharge summary on 30.4.23 described the history of neurocysticercosis and seizures. Those records at HMP Leeds, post-dating the Healthcare update, describe how on 6.6.23 the Claimant’s cellmate had witnessed him “collapsing suddenly”, when Healthcare attended he was lying on the floor of his cell where he remained unresponsive for 15-20 minutes, being again taken by ambulance to A&E.

The Claimant’s BAIL 409 application (30.6.23) was accompanied by the Hoggard reports and the Home Office Bail Summary. The solicitors’ covering letter described the urgency of accommodation given Dr Hoggard’s recent assessment, the Claimant’s symptoms of psychosis and severe vulnerabilities; his depression and organic psychosis; his complex history of self-harm and frequent self-harming both in the community and detention. It also referred to the Claimant’s neurocysticercosis, epilepsy and neurological condition – alongside a severe cognitive condition – which made him especially dependant on the support of his Leeds-based sister to meet his day-to-day needs. These materials were referred by the CAT caseworker to the Psychiatric Adviser to Home Office caseworkers (Dr James Wilson); there was no referral to a non-psychiatric medical adviser. In emails dated 18.7.23 and 21.7.23, headed “medical advice to the Home Office”, Dr Wilson addressed the Claimant’s “housing needs” in the context of the “issues” of “depression/ psychotic disorder”.

While the Claimant was at Bodmin Road (from 10.3.22) his probation officer had made a referral to LCC, leading to telephone contact with the Claimant and his sister (on 12.7.22 and 14.7.22) and an October 2022 referral to the community mental health team. There was another referral to LCC (9.1.23), by the community mental health team itself, with further contact between LCC and the Claimant’s sister. No needs assessment was completed and the Claimant was recalled and detained from 7.3.23. There was no liaison with, or referral to, LCC or any other local authority at or after the time of the FTT grant of bail on 29.6.23, after transfer to Brook House on 24.7.23 or prior to the release on 3.8.23 to Willow Lane. A referral to Kirklees Council was made by the PPO (PC Richard Thorp) on 8.8.23, in line with Asylum Seekers with Care Needs (§15 above at [1][iii]), and an assessment was conducted by SW Wilson on 11.8.23. SW Wilson wrote an email on 11.8.23 to the Claimant’s solicitors, which PPO Thorp sent to the CAT caseworker on 14.8.23. SW Wilson wrote up her a needs assessment, care plan and human rights assessment on 22.8.24. A care plan was implemented from 25.8.23 involving twice daily visits from carers to provide care and support with medication, hygiene and nutrition. SW Wilson’s recommendation of electronic monitoring as seizure-support (Telecare) was not implemented at Willow Lane. Telecare is a Falls Device (see BLZ No.2 at §10): an alarm which can be activated by hand when experiencing the onset of a seizure, or which activates automatically in the case of a fall, where unresponsiveness to a follow-up call triggers a 999 ambulance alert. Ahead of the Claimant’s transfer to Rokeby Gardens on 20.9.23, an anticipatory referral was made by Kirklees Council to LCC on 18.9.23. LCC conducted needs assessments on 23.10.23 (“the Fasisi Assessment”), 10.11.23 (“the Peters Assessment”) and 8.12.23 (“the Peters Review”). From 25.9.23 until the Claimant’s hospitalisation on 6.10.23, there was at Rokeby Gardens a replicatory package of the same support as at Willow Lane. From 27.10.23 until 22.12.23 – except when the Claimant was in hospital – what was in place was a package of care visits four times a day by a pair of carers to Rokeby Gardens. During this time, from 30.11.23, there was the provision of Telecare. The idea of handrails in the bathroom was not implemented at Rokeby Gardens because that proved to be inappropriate for a house in multiple occupation. Ahead of transfer to the Hotel, an anticipatory referral was made by LCC to the Second Local Authority, who conducted an initial needs assessment with a proposed package of care and support on 14.12.23. This reduced the care package to Telecare and twice-daily care visits (15 minutes each morning and evening) by a pair of carers. There has been no challenge to the legality of the actions of Kirklees or the Second Local Authority. BLZ No.2 deals with the challenge to LCC’s actions.

While serving his first prison sentence, the Claimant was in a psychiatric hospital (St Mary’s) for two years from 3.7.12 to 4.8.14. It was recorded that prison staff were “unable to manage his epilepsy safely” and that he was vulnerable in a prison setting. While serving his second prison sentence, the Claimant was admitted to hospital from 29.2.20 to 7.3.20 and underwent surgery. This was following a seizure. He described experiencing body shakes in bed and standing up attempting to reach the call bell. He had serious burns to his arm and face from lying in contact with a hot pipe in his cell (“burning due to seizure”). During his 7 weeks at Willow Lane from 3.8.23 to 20.9.23 the Claimant had three overnight hospital admissions: one following a possible overdose on 16.8.23, two after seizures on 22.8.23 and 28.8.23. During his 3 months at Rokeby Gardens from 20.9.23 to 22.12.23 the Claimant was admitted for hospital stays 5 times, for a total of 36 days, after seizures. That was on 6.10.23 for 21 days, 7.11.23 overnight, 16.11.23 for 7 days, 26.11.23 for 6 days and 8.12.23 overnight. The 21-day admission for 6.10.23 followed an incident involving “loss of consciousness”; the ambulance service recorded that the Claimant’s carers called the ambulance after they “came into patient property and found patient to be laid supine on the floor” and were “unable to wake patient”. The ambulance service report for the 7-day admission on 16.11.23 refers to a seizure, says the Claimant “woke up on the floor” and records a “3cm laceration to [left] temple with small haematoma”. Since being transferred to the Hotel on 22.12.23 the Claimant he has been admitted for stays in hospital following seizures at least four times: 6.3.24 for 13 days, 19.4.24 for 3 days, 13.5.24 for 8 days and 7.6.24 for 5 days. Since 3.8.23 there have been many additional hospital visits with same-day discharges.

After pre-action letters dated 5.4.23 and 4.5.23, the Claimant’s lawyers commenced a first judicial review claim (2.6.23) challenging the lawfulness of his immigration detention. By an Order on 2.6.23, Constable J granted expedition and anonymity. After Judge Cox’s grant of bail (29.6.23), a High Court hearing for interim relief in the detention claim was vacated and an Order was made on 4.7.23, by consent, by DHCJ Clive Sheldon KC, as he then was. It recorded the SSHD “agreeing to provide accommodation within 21 days … pursuant to Sch 10 [to the 2016 Act], absent special circumstances”, reflecting a HOBA decision by the SSHD to exercise Sch 10 §9 powers. The issues about the lawfulness of immigration detention were subsequently transferred to the King’s Bench Division (KBD). After further pre-action letters on 15.8.23 and 22.8.23, a second judicial review claim was commenced on 25.8.23, challenging the SSHD’s actions regarding HOBA and release planning. That is the claim with which I am dealing. By an Order on 5.9.23, Bourne J gave directions and granted anonymity. Hearings of the Claimant’s application for interim relief – seeking an order for transfer from Willow Lane – were listed for 5.9.23 and 12.9.23 but were vacated by consent. At a relisted hearing on 20.9.23 an Order was made, by consent, recording that the SSHD would transfer the Claimant to new premises (ie. Rokeby Gardens) by midnight on 20.9.23. In light of the position with stairs at Rokeby Gardens, the application for interim relief was restored. There were then hearings before DHCJ Robert Palmer KC on 26.10.23; and DHCJ Dan Kolinsky KC on 14.11.23 and 28.11.23. A series of rulings, interim relief orders and costs orders were made. Judge Palmer’s judgment was published as [2023] EWHC 2757 (Admin). Amended Judicial Review Grounds were filed, with permission of the Court. After further pre-action letters on 19.10.23, 2.11.23 and 22.11.23, a third judicial review claim was commenced on 13.12.23, challenging LCC’s actions (BLZ No.2). At a hearing on 19.12.23, Eyre J made directions.

By reason of the litigation position, there were High Court Orders which required the SSHD to take specified actions by specified dates. The SSHD accepts that the Claimant’s continued accommodation at Rokeby Gardens, during the 47 days from 6.11.23 to 22.12.23, was unlawful by reason of being in breach of an Order which had been made on 26.10.23 by DHCJ Palmer. I will make a declaration to record that unlawfulness. Ms Harrison KC’s written reply (15.10.24) refers to a linked concession of a breach of the reasonable adjustments duty from 6.11.23 to 22.12.23 but I did not understand that to be conceded. I will address it (§69 below).

After the Claimant was released to Willow Lane (3.8.23), PPO Thorp went to see him there (8.8.23). What PPO Thorp found led him to issue a PPN (public protection notice) for a multi-agency response, including a referral to Kirklees Council. A PPN is an information-sharing document shared with partner agencies to inform a multi-agency response, in the context of safeguarding concerns. SW Wilson attended and began her care and support needs assessment. She wrote an email, the contents of which PPO Thorp sent to the CAT caseworker on 15.8.23, 12 days after the Claimant’s release. SW Wilson’s email said “I do not feel that the current accommodation is suitable for [the Claimant]’s needs” and “I believe [he] would be better suited to support living accommodation”. It included a number of points, which included points about: [i] seizure-support; [ii] stairs; and [iii] meds (§§77-84 below). This is taken from SW Wilson’s email (11.8.23). The insertions of [i], [ii] and [iii] are mine.

At the HOBA at Willow Lane in Huddlesfield, during the 6 weeks from 3.8.23 to 20.9.23, the Claimant lived in Room 3 up a flight of stairs with no handrail. SW Wilson’s email (11.8.23) said: “The steps up to his bedroom are steep and poorly lit with no hand rail to steady himself”. Just over 3 weeks after being transferred to Willow Lane, the Claimant was admitted to hospital overnight on 28.8.23. It was in that context that the ITPs from 1.9.23 were issued, requesting alternative accommodation with “ground floor or lifted/ walk in shower”. Mr Holborn argued that a material factual dispute arose in relation to events on 28.8.23 which requires resolution at a KBD trial with oral evidence and cross-examination. I am unable to accept that submission. I find, on the contemporaneous documentary evidence, that on 28.8.23 the Claimant fell down the stairs at Willow Lane following a seizure. Ms Harrison KC’s chronology recorded that the Claimant was admitted to Huddlesfield Royal Infirmary overnight on 28.8.23 “having seizured and fallen down a full flight of stairs” at Willow Lane. Mr Holborn agreed, except that he baulked at “a full flight of”, saying that the Claimant may not have been at the top when he fell. The discharge letter, which records that on examination the Claimant had “left chest” pain and tenderness, says:

Recognising that the stairs had made Willow Lane unsafe and unsuitable, the SSHD issued revised ITPs from 1.9.23 and moved the Claimant to “ground floor accommodation” at the shared house at Rokeby Gardens in Leeds on 20.9.23. During his 21-day hospital stay from 6.10.23 to 27.10.23, concerns as to the safety of Rokeby Gardens led to a LCC-devised care plan which LCC’s social workers called “confined living”. The Claimant was eventually moved from Rokeby Gardens on 22.12.23. That was 56 days after his discharge from hospital to “confined living” on 27.10.23. It was also 46 days after the SSHD’s admitted breach of a Court-imposed deadline of 6.11.23. The position is as follows:

Mr Holborn argued that there was a factual dispute justifying transfer for full KBD trial with oral evidence and cross-examination. It concerned Ms Harrison KC’s claim that, as at 18.10.23, the Claimant was “medically fit for discharge but remain[ed] in hospital as [his] present accommodation and support [were] unsafe for discharge purposes according to [the] discharge coordinator and Hospital OT who [were] in favour of supported living but [that he] could not remain indefinitely due to risk of infection”. The Claimant’s witness statement evidence included this:

Mr Holborn argued that there was another factual dispute justifying transfer for full KBD trial with oral evidence and cross-examination. It concerned the origin of the “confined living” arrangements at Rokeby Gardens from 27.10.23. Mr Holborn says there was a misdescription by the Claimant to SOT Dickinson on 23.10.23, stating wrongly that he had to “climb the stairs to access the kitchen and bathroom”, which means “confined living” was about ensuring that “he would not have to use the stairs (for bathroom visits)”. These quotations are taken from the Fasisi Assessment (23.10.23), written by SW Fasisi of LCC’s Hospital Complex Team. In my judgment there is no issue warranting oral evidence and cross-examination, still less transfer for a full KBD trial. I find as a fact that the “confined living” arrangements at Rokeby Gardens from 27.10.23 were not based on any misdescription or misappreciation about the Claimant needing to “climb” a staircase to visit a kitchen or bathroom. I have arrived at that finding for the following reasons. (1) The email exchange with SOT Dickinson (18.10.23) had spoken, accurately, of “the presence of stairs” and “the single step drop outside” his room, rather than climbing stairs. (2) There was no misdescription to Dr O’Cofaigh, whose letter of 12.10.23 spoke of “stairs to access the sitting room” and earlier in the Fasisi Assessment (23.10.23) it is recorded that the Claimant had said, correctly, that use of the stairs would be “to access the living area which he rarely does”. (3) The arrangements at Rokeby Gardens were the subject of the Peters Assessment (10.11.23), in which SW Peters and SSW Wood visited Rokeby Gardens, saw the configuration for themselves, and recorded the recommended arrangements which they did not think were based on any misappreciation and which they supported (see §57 below). (4) LCC – who was the public authority directly involved – does not support Mr Holborn’s suggested misdescription or misappreciation; nor does it support oral evidence or transfer for trial. (5) This was a new point, raised for the first time during the substantive hearing, as a submission about documents, unsupported by any witness statement.

What came to be described as “confined living” was this recommendation for “one room living” in the Fasisi Assessment (23.10.23):

The Claimant’s witness statement evidence includes the following:

Mr Harrison KC and Mr Lawson each submitted that I should make findings of fact, on the documentary evidence. I will do so. I decline Mr Holborn’s invitation to direct oral evidence or transfer for KBD trial. There is a wealth of documentary evidence presented in BLZ No.1 and BLZ No.2. I have received detailed written and oral submissions from Ms Harrison KC, Mr Holborn and Mr Lawson. I have had much fuller evidence, and submissions about that evidence, than was or could be presented to the judges who dealt with the interim relief hearings. I have considered the position afresh. Based on all the evidence which has been adduced, I find the facts to be as follows:

This was Prior Question (A):

This was Prior Question (B):

This was Prior Question (C):

This is Issue (1):

In my judgment, the SSHD was right to accept unlawfulness on this part of the case, and I can therefore make a declaration. Here is why. The law on when there is a duty to have policy guidance is at §33 above. The starting point is the public law duty to act reasonably. The threshold of unreasonableness is a high one, allowing generous room for latitude. But potential care and support needs matter, as is recognised in Asylum Seekers with Care Needs, DSO 08/2016 and the VARSOP; as well as PSI 03/2016. The Stated Equivalence Policy is plainly both lawful and significant. But it cannot be effective unless someone within the decision-making arrangements has been given the function of considering potential care and support needs and local authority referrals. Where individuals are in immigration detention, the SSHD has a special responsibility for them; and clear routes of access to information about them (§8 above). The SSHD organises HOBA and the locality is a matter for consideration by the SSHD. The 2014 Act includes important statutory protections, which Parliament intended to be effective. True, Parliament could have imposed on the SSHD a statutory threshold question (cf. 2014 Act s.9(1)) or a notification duty (cf. 2014 Act s.37). But Parliament enacts legislation against a backcloth where public authorities have basic public law duties. There are clear reasons why local authority referrals matter (§22 above). No reasonable justification has been identified for the failure to have clear arrangements, in the context of release from an IRC. The SSHD has, at different times and in different ways, relied on Asylum Seekers with Care Needs, DSO 08/2016 and the VARSOP. The evidential picture is striking (see §§34-37 above). In all the circumstances, I agree that the failure to have arrangements in place for the discharge of the function of considering potential care and support needs and local authority referrals was unlawful. It was outside the range of reasonable responses open to the SSHD. The claim for judicial review succeeds on this part of the case. This means that on Issue (1) the Claimant succeeds.

There are three important further points on this part of the case. First, I cannot agree with Ms Harrison KC that the legal duty to have policy guidance is about the SSHD having criteria “for the exercise of the power” to provide HOBA; or about the law requiring a transparent statement of policy as to the circumstances for exercising the power (Lumba at §34). The criteria – whose publication in policy guidance was recognised as necessary to meet the minimum standards of fairness in Humnyntskyi at §270(2) – are the three types of cases for providing HOBA, already identified in the Immigration Bail Interim Guidance: see §17 above. Second, I agree with Mr Holborn that the unlawfulness lies in the vacuum, not in a particular method of filling it. Clear and effective instructions could discharge the duty, though I have been unable to think of any good reason why the fact and content of such an instruction could go unpublished and unknown. In that context, it is important to record that the concerns exposed in this case relate to vulnerabilities more broadly, and not simply to potential care and support needs and anticipatory liaison with local authorities. The SSHD’s pleaded defence (28.3.24) rightly recognised this broader focus, it this way (emphasis added):

These are Issues (5a) and (5b):

Ms Harrison KC submitted, in essence, as follows. First, on Issue (5a), there has been a clear breach of EA s.149, in particular because of the absence of any system or arrangement for collecting and monitoring data. The SSHD has a September 2020 Equality Statement, but it relates only to asylum support. The SSHD has a track record of recorded breaches of the EA, seen in the context of asylum support in DMA and DXK. The equivalent legal duties apply to HOBA and the position is reinforced by the Stated Equivalence Policy. This is the same breach as in DMA at §325 and in DXK §§154-157. Second, on Issue (5b), in light of the failure to collect and monitor data, there has also been a breach of the reasonable adjustments duty, so far as concerns the planning of Safe-Release and the planning of the provision of HOBA. The duty to make reasonable adjustments includes the duty to make anticipatory adjustments for a class of people: R (VC) v SSHD [2018] EWCA Civ 57 [2018] 1 WLR 4781 at §157. The SSHD cannot discharge the onus (EA s.136) of showing compliance with this duty: see VC at §171. There is the same breach as was found in DMA at §§290-291. The same unlawful gap or vacuum as is seen in Issue (1) – in relation to potential care and support needs, liaison and local authority referrals – places people with disabilities at a substantial disadvantage and constitutes an unlawful failure to make reasonable adjustments for them.

Both issues were contested by the SSHD throughout the litigation and 5 days of oral argument. Kingham 1 (15.3.24) told the Court that Mr Kingham was unaware of any formal system in place for monitoring the provision of HOBA for disabled FNOs. Mr Holborn was arguing that an Equality Statement relating to asylum support, together with the Stated Equivalence Policy, combined to discharge the s.149 EA duty; and that the reasonable adjustments duty gave rise to no policy or systemic question, given the Stated Equivalence Policy and in circumstances where the pool of accommodation is the same as used for asylum support. On Day 6 (15.10.24), Mr Holborn made the following concession in open court. The SSHD now accepted that the EA s.149 duty had been breached by reason of the failure to collect and monitor data relating to HOBA decision-making and FNOs with disabilities; because in law there needed to be some sort of system of monitoring. A subsequent letter from GLD (27.11.24) told the Court that: (1) the SSHD had decided to extend, as soon as reasonably practicable, a proposed new system for monitoring the equality impacts of s.95 asylum support accommodation following mandatory orders in DXK to all FNOs including those in receipt of HOBA; and (2) the SSHD would conduct an Equality Impact Assessment in respect of the provision of HOBA, which would include consideration of the duty to make reasonable adjustments to the release planning process and/or the process for sourcing and providing HOBA for disabled people with complex or high-level needs. As I observed in open court on Day 2 of BLZ (No.2) (28.11.24), no breach of the reasonable adjustments duty had been accepted. That remained the position. In follow up submissions in writing as to remedy, Mr Holborn took a pleading point: that the issue of monitoring had been introduced only in the Claimant’s skeleton argument. But the monitoring point was squarely in the amended judicial review grounds (11.12.23) and was an agreed issue. Mr Holborn proposed an order declaring that the claim succeed on Issue (5A), recording in recitals what was agreed by the SSHD in GLD’s letter (27.11.24). Ms Harrison KC said that there should be declaration of breach and that the extension of the DXK monitoring system and conduct of the Equality Impact Assessment should be embodied in mandatory orders, as in DXK itself at §174. I agree. She also said that the Court should lay down a 3 month deadline for the Equality Impact Assessment. I disagree. I propose to use the SSHD’s phrase – “as soon as reasonably practicable” – in both orders. But I will also include a liberty to apply to set a deadline in respect of both aspects, in light of the striking history of the absence of monitoring seen in DMA and DXK, so that if matters drag on without any explanation and justification, remedies can be revisited.

The SSHD was right, in my judgment, to accept a breach of the EA at a systemic level, but in my judgment the unlawfulness extends to the reasonable adjustments duty as well. Here is why. The law is at §§23-24 above.

Issue (2a) is:

Ms Harrison KC submitted in essence as follows. HOBA at the Hotel is unlawful as a breach of the Adherence duty (§32 above). By accommodating the Claimant other than in “Level 3” dispersal accommodation there has been a departure, without identified good reason, from paragraph [4] within this passage in the Immigration Bail Interim Guidance (emphasis added):

I am unable to accept those submissions. The law as to the Adherence duty is discussed at §32 above. I do not accept that “will require Level 3 accommodation” in [4], objectively interpreted, is setting out a policy criterion entitling a FNO, if being given HOBA on the basis of Harm, to “Level 3 accommodation”. Even if I am wrong about that, I would not accept that there is no identifiable good reason for departure in the present case given the failed attempts to provide level 3 accommodation and given that this case was assessed to be an exceptional case within [3a][iv] where initial accommodation at the Hotel – with its step-free access – was suitable for the Claimant as an FNO meeting the exceptional criteria for HOBA.

Issues (2b) and (3a) are:

The SSHD was right, in my judgment, to accept that these failures were unlawful; and I envisage making a declaration to that effect. The importance of anticipatory consideration of potential care and support needs has been seen in the context of Issue (1). The context includes the express provision in DSO 08/2016 at §§62-63 (§6 above) which, in my judgment, necessarily requires that a caseworker must address their mind to the question of potential care and support needs, the question of a multi-disciplinary meeting and the question of an anticipatory referral for a needs assessment. That is how the writer of the VARSOP saw it (§7 above). There is the striking Home Office evidence about these policy guidance documents, and about lack of training (§§34-37 above) and the finding I have made of an unlawful vacuum (§§63-65 above). The CAT and CDT caseworkers had access to information about the Claimant, his vulnerability and his disabilities. The FTT grant of bail was on 29.6.23. Dr Wilson as Home Office medical adviser had twice advised the CAT caseworker on 18.7.23 and 21.7.23 about the Claimant’s needs for “supported” accommodation. It was known and acknowledged that the Home Office did not have access to HOBA which was “supported accommodation”. Willow Lane was an identified candidate from 28.7.23, which put Kirklees in the frame in respect of potential care and support needs, just as it put local front-line agencies in the frame as to public protection needs. There was liaison with the public protection agencies, but not with Kirklees, until PPO Thorp’s PPN raised the alert on 8.8.23. Prior to Kirklees being in the frame, there could have been liaison with the local authority for the IRC. There could have been the multi-disciplinary meeting. But no action was taken. No evidence has been adduced that the caseworkers responsible for allocation of HOBA (the CAT caseworker) and Safe-Release planning (the CDT caseworker) thought about potential care and support needs or a multi-disciplinary meeting or an anticipatory referral. I find that they did not do so, and that they had no identified good reason for not doing so. The absence of evidence about the individual decision-making at the relevant time itself supports this adverse inference of fact: see VC at §§28, 68. It being necessarily implicit in DSO 08/2016 §§62-63 that caseworkers will think about potential care and support needs, about expedited multi-disciplinary meetings and about anticipatory local authority referral, the unjustified failure to think about those things was an Adherence breach. On the facts and in the circumstances of the present case, it was unreasonable – as being outside the range of reasonable responses – not to action either an expedited multi-disciplinary meeting or an anticipatory referral for a local authority care and support needs assessment; or even to consider doing so. This means that on Issues (2b) and (3a) the Claimant succeeds.

There are two further points. First, I do not accept Ms Harrison KC’s additional characterisation, that these failures were breaches of statutory duties under Sch 10 §9 to the IA 2016 to provide suitable HOBA, or breaches of the three standards of legally adequate HOBA (§§13, 18 above). They were failures to engage with other agencies; and to think about the implications of potential care and support needs, in respect of which it is local authorities who owe statutory duties. Second, I am unable to accept the SSHD’s pleaded position that no “material” unlawfulness took place and that any unlawfulness would “highly likely” have made no practical difference to outcome for the Claimant. Had there been an expedited multi-disciplinary meeting or consideration of potential care needs, there may not have been a local authority referral until Willow Lane was confirmed on 2.8.23; and there may not have been a social worker visit until after the Claimant’s arrival on 3.8.23. But it would be speculation to characterise as highly likely that the arrangements would in substance have been no different for the Claimant. In my judgment, the arrangements for and at release and transfer may very well have been materially different if the SSHD’s legal duties had been discharged. The unlawful failures were, in my judgment, material public law errors. This materiality will come into clear focus when I consider arguments about further breaches of the law: §§78, 80 below.

Issues (3b), (4c), (4d), (4e), (5b) and (5c) are six different ways in which Ms Harrison KC says there was further unlawfulness in the Claimant’s individual case:

The first distinct feature prefaces the six questions (§76 above) with this:

I accept that medication-planning provides a relevant and powerful illustration as to why it is important that potential care and support needs are addressed in conjunction with Safe-Release to HOBA. This supports and reinforces my finding on materiality at §75 above. Support in relation to taking medication can be an eligible care and support need, which it can be a local authority’s duty to identify and meet. The Kirklees care plan (from 25.8.23) included carer visits to the Claimant at Willow Lane to provide this kind of care and support. This issue may well have been addressed in a multi-disciplinary meeting to plan for the Claimant’s Safe-Release. It may well have been addressed in a needs assessment after an anticipatory referral. I am unable, however, to accept that the way in which medication was provided to the Claimant was a breach of any of the six duties invoked. Here is why:

The second distinct feature prefaces the six questions (§76 above) with this:

I accept that seizure-support provides a relevant and powerful illustration why it is important that potential care and support needs are addressed in conjunction with planning for Safe-Release and HOBA allocation. This supports and reinforces my finding of materiality at §75 above. Seizure-support can be an eligible care and support need, triggering a 2014 Act duty of the local authority. The Wilson Assessment (22.8.23) recommended a Falls Device (§48 above) and one was later provided by LCC (from 3.11.23) at Rokeby Gardens. Issues relating to seizure-support may well have been addressed in a multi-disciplinary meeting to plan for the Claimant’s Safe-Release. They may well have been addressed in a needs assessment after an anticipatory referral. I am unable, however, to accept that the way in which medication was provided to the Claimant was a breach of any of the six duties invoked. Here is why. The SSHD had access to information about the ongoing seizures experienced by the Claimant, for example as described by Dr Jung (5.5.23). These were not, however, a new development. The Claimant had not been in “supported” accommodation because of any need for seizure-support, in the period prior to his recall. He had been in the HOBA provided by the SSHD at Cheveral Avenue in Coventry for 7 months from 26.8.21; then the HOBA at Bodmin Road in Leeds for 12 months from 10.3.22. That was 19 months in shared houses provided by the SSHD. Dr Wilson’s advice about “supported” accommodation was referable to the Claimant’s mental health, not to seizure-support. When the Claimant’s solicitors made the BAIL 409 application for HOBA, the covering letter (30.6.24) referred to the Claimant’s health issues and described his property requirements “self-contained accommodation as has previously been provided by [the SSHD]” near to Leeds given the role of the Claimant’s sister in relation to his “day-to-day needs”. There is subsequent evidence about appropriate assistance through seizure-support, whose legal relevance is in reinforcing the points about potential care and support needs and liaison. In fact. from as early as 15.8.23, the SSHD’s CAT caseworker was made aware that Kirklees – as the local authority with 2014 Act duties – was addressing its mind to assistive technology as seizure-support. That is because, although the Claimant can sometimes sense the onset of a seizure and make a 999 call, that is not always the case. In fact, the incident on 22.8.23 was one where – without seizure-support – the ambulance had been called but the Claimant was unconscious by the time of the paramedics’ arrival, so that they had to force entry. The issues relating to seizure-support cannot – in the circumstances I have described – constitute a breach of any of these further duties owed by the SSHD in providing HOBA. It follows that on this aspect of the case the Claimant fails.

The third distinct feature prefaces the six questions (§76 above) with this:

Ms Harrison KC submitted in essence as follows. It was known to the SSHD that the Claimant’s health conditions meant he regularly experienced seizures. That was reinforced by the frequent hospitalisations following release from the IRC. The SSHD belatedly accepted that stairs at Willow Lane posed a significant risk of injury. That is why the Claimant was transferred from Willow Lane to Rokeby Gardens on 20.9.23. The SSHD’s pleaded defence accepts that Willow Lane proved “unsuitable” for the Claimant by reason of the stairs. Rokeby Gardens was no better, but worse, because of the staircase outside the Claimant’s bedroom, which was why the Claimant was in “confined living” at Rokeby Gardens after his hospital discharge on 27.10.23 for two months until 22.12.23. None of this is about care and support needs and local authority duties. It is squarely a matter of safe and suitable HOBA.

In my judgment, the correct analysis in law is as follows. I start with Willow Lane:

I turn to Rokeby Gardens:

Finally, Issues (4a) and (4b) are:

I have been unable to accept these statutory human rights submissions. The relevant law is at §§28-29 above. I accept that Ms Harrison KC has shown that the SSHD’s system for Home Office release accommodation for FNOs creates a real risk of delay in 2014 Act care and support needs being met by local authorities. I accept that Ms Harrison KC has shown that the SSHD has failed to put in place effective systems and arrangements to prevent foreseeable risks of delay in 2014 Act care and support needs being met by local authorities. I accept that the facts of the present case – and the MJ/BID case studies – are properly illustrative of the importance of a system which proactively considers potential care and support needs. But I cannot accept that the systems for Safe-Release planning and HOBA planning violate Article 2 or 3. It cannot be said that there is an Article 2/3 duty to convene an anticipatory multi-disciplinary meeting, or to make a local authority referral, in a case of potential care and support needs. Although there is a statutory duty of notification (2014 Act s.37), it cannot be said that there is an Article 2/3 duty to notify a local authority that a person with known care and support needs is moving to their area. I accept that a situation where care and support needs are unmet could cross the Article 3 Severity-Threshold, as was the position after 10 months in TMX (§§21, 26 above). But I am unable to equate care and support needs, and the risk in delay in meeting them, with a real risk to life or of inhuman or degrading treatment meeting the Article 3 Severity-Threshold. It is not said of the system for HOBA that it is a system which fails to protect against Limbuela-Suffering, as did the denial of HOBA on the facts in Humnyntskyi where the individual was left street homeless for 10 months, unable to wash clothes and totally reliant on food handouts (§26 above); and as did the system in ASY and SAG (§29 above). I accept that the use of dangerous accommodation could, on the facts of an individual case, engage the right to life, remembering that this threshold was not crossed in the context of the former military barracks in NB, notwithstanding the fire risks (§30 above). Putting all of this another way, the Article 2/3 principles are not a legal underpinning for the conclusion in the Claimant’s favour on Issue (1): see §65 above.

There is a footnote. I was not able to understand from the evidence filed in this case why it is that the SSHD’s systems are insistent on considering a candidate property “one at a time”, from a single provider, rather than there being a menu of currently available properties. There is no evidence before me that a single candidate property, when put forward for consideration, is placed on “hold” so that it cannot be canvassed for other individuals. It seems obvious that safe and suitable accommodation in complex cases could more effectively and speedily be considered if multiple providers were putting forward lists of multiple candidate properties for consideration. I record this unanswered concern. But given the very secondary way in which it featured in the present case, as one of many points of detail alongside a long list of agreed issues, that is sufficient. It can, if appropriate, be squarely ventilated and examined in a future case.

In this claim (BLZ No.1) I have found in the Claimant’s favour as follows. First, the SSHD acted unlawfully from 6.11.23 to 22.12.23 by breaching a Court Order (§51 above). Second, the SSHD acted unlawfully in failing to have in a place a written policy or instruction (a) helping decision-makers to identify when a person has or may have eligible care and support needs under the 2014 Act and (b) requiring decision-makers to refer such persons to a local authority for a needs assessment under the 2014 Act prior to or following their release from detention to HOBA (§§63-65 above). Third, the SSHD acted unlawfully, having made decisions to provide HOBA under Sch 10 §9 to the 2016 Act, in failing to monitor the provision of that accommodation to individuals who have a disability, in consequence of which the SSHD has failed (a) to have due regard to the need to eliminate discrimination and to the need to advance equality of opportunity between persons who share the protected characteristic of disability and persons who do not share it and (b) to make reasonable adjustments pursuant to EA ss.20 and 29 to the release planning process and the process for sourcing and providing HOBA for disabled people with complex or high-level needs (§§66-69 above). Fourth, the SSHD acted unreasonably and failed to apply the published policy guidance document DSO 08/2016 in the Claimant’s case, in failing (a) to consider the need for and make the necessary arrangements for referral to a local authority for assessment under the 2014 Act prior to or following the release of the Claimant from detention to HOBA and (b) to convene an expedited multi-disciplinary meeting to plan for the Claimant’s Safe-Release from detention or arrange a local authority assessment of the Claimant’s 2014 Act needs (§§73-75 above). Fifth, so far as presence of stairs at Rokeby Gardens is concerned, from 6.11.23 to 22.12,23 the SSHD: (a) acted unlawfully in breach of the duties under Sch 10 §9 to the IA 2016 and unreasonably in failing to provide the Claimant safe and suitable HOBA; (b) breached EA ss.20 and 29 by failing to make reasonable adjustments in sourcing and providing HOBA for the Claimant as a disabled person; and (c) discriminated against the Claimant by failing to provide him with suitable accommodation as a consequence of his disability in breach of s.15 of the EA (§§81, 84(2) above).

In this claim, I have found in the SSHD’s favour as follows. First, the SSHD did not fail to apply the published policy guidance document Immigration Bail Interim Guidance, by failing to provide the Claimant with “Level 3” accommodation within the meaning of that policy (§§70-72 above). Second, so far as medication-planning, seizure-support and the presence of stairs at Willow Lane are concerned, the SSHD did not: (a) act unlawfully in breach of the duties under Sch 10 §9 to the IA 2016 or unreasonably in failing to provide safe and suitable HOBA; or (b) breach EA ss.20 and 29 by failing to make reasonable adjustments in sourcing and providing HOBA for the Claimant as a disabled person; or (c) discriminate against the Claimant by failing to provide him with suitable accommodation as a consequence of his disability in breach of s.15 of the EA (§§77-84 above). Third, the SSHD did not in any respect: (a) breach the Operational Duty owed to the Claimant under Articles 2 and/or 3 ECHR, because she knew or ought to have known of a real and immediate risk to life and/or serious injury and/or serious harm, and failed to take reasonable measures within the scope of her powers which might have been expected to avoid that risk; or (b) breach the Claimant’s substantive Article 3 rights; or (c) breach the Claimant’s Article 8 ECHR rights; nor (d) breach Articles 2 and/or 3 ECHR by a system for the provision of release accommodation which was unlawful as creating a real risk of a breach of fundamental rights; nor (e) breach the Systems Duty under Articles 2 and/or 3 ECHR, by failing to put in place effective systems and arrangements to prevent foreseeable risks to life and/or serious injury and/or serious harm to mental and/or physical health (§§65, 78, 80, 83(4), 84(3), 85-87 above).

In the light of the contents of this judgment, circulated in draft, the parties were agreed that I should order as follows, as I do. A recital to the Order records the parties agreeing that the provisions as to costs at §§(5)-(8) of the Order are in addition to the existing costs orders in this claim dated 20.09.23, 30.10.23, 14.11.23 and 5.12.23. The Order is:

There was no application to me from the SSHD for permission to appeal. I refuse the Claimant’s application for permission to appeal. Three grounds of appeal were identified: (1) error in the application of the Munjaz principle and the Article 2/3 Systems Duty; (2) error in failing to apply the relevant test regarding the lower-level Systems Duty; and (3) error in holding that the SSHD had not breached the Operational Duty. My summary of the law is at §§25-30 above, the correctness of which is accepted in the application for permission to appeal. All three grounds are squarely concerned with application of the law, in light of all the points and evidence in the case. I have been unable to see a viable legal point with a real prospect of success on appeal (CPR 52.6(1)(a)) and I do not see this as a “compelling reasons” case (CPR 52.6(1)(b)).