Unlawful to refuse support for Portuguese with AIDS – Nearly Legal

De Almeida, R (on the application of) v Royal Borough of Kensington and Chelsea [2012] EWHC 1082 (Admin) – Read judgment

This was a judicial review of RBK&C’s refusal to provide support under s.21 and s.29 National Assistance Act 1948 and indeed to carry out an assessment under s.47 of the National Health Service and Community Care Act 1990.

Mr De A is a Portuguese national. He lived in the UK from 1998 to 2001 and from 2008 to date. He worked during the first period and for a year after his return. Mr De A had contracted HIV and AIDS. His health deteriorated so that he was not able to work. His prognosis in October 2010 was that he had about a year to live. At the time of the first hearing in this case in November 2011, his prognosis was about 6 months.

Mr De A was evicted from his private accommodation. With the help of friends he was provided with food and accommodation in a hostel for a while, but this could not be sustained. Mr De A applied to RBK&C for assessment and assistance under the National Assistance Act 1948. His sole income was DLA, the DWP having decided he was ineligible for Income Support.

After a couple of assessments, RBK&C decided that he was not in need of care and assistance and in any event, he was ineligible by reason of para 5, Schedule 3 of National Asylum and Immigration Act 2002 as he “has the nationality of an EEA State other than the United Kingdom”.

Mr De A applied for judicial review.

ON the need for care and assistance RBK&C had found that Mr De A was, at the times of the assessments, able to look after himself and had no need for care and assistance. This despite medical reports and Mr De A’s own report being that he needed significant support with shopping, personal hygiene, laundry and meal preparation. IN the JR, RBK&C’s case was that

the evidence indicated that his needs fluctuated. As at the date of assessment, the Defendant [Mr De A] was able to live independently with minimal support, and therefore was not “in need of care and attention”. The fact that he might deteriorate at a later date did not trigger a duty under s.21(1)(a) at the present time.

The Court rejected this line of argument

65. In my judgment, the Defendant misdirected itself in the way it assessed the Claimant’s needs under s.21(1)(a). First, it is not a pre-requisite of eligibility under s.21(1)(a) that the person is incapable of performing a domestic task himself. Lady Hale gave the example of “household tasks which an old person ….can only perform with great difficulty”. In the Claimant’s case, it was sufficient that, because of his fragile condition, he reasonably required support with domestic tasks, such as shopping, cleaning, cooking etc.

66. Secondly, the nature of the Claimant’s illnesses meant that the level of his fatigue, weakness, pain and secondary infections fluctuated from time to time. It followed that his ability to look after himself also fluctuated, from day to day, from week to week and from month to month. This is not an unusual feature of long-term illnesses, and LAC 93 (10) paragraph 2(5) expressly approved the provision of accommodation for the purpose of caring for those who are ill. A fluctuating need does not necessarily take a person outside the scope of s.21(1)(a). In Mani for example, the claimant needed help with household tasks “on days when he is in pain” (at [2]), i.e. not all the time.

The principles in R (M) v Slough Borough Council [2008] UKHL 52 should be applied, both as to the threshold for s.21(1)(a), met “as soon as a person can be said to be in need of some care and attention, even to a relatively small degree” [Lord Neuberger in M] and considering current and prospective need:

Having regard to the principles set out in M in relation to current and prospective need (at [35], [55]), it will be a question of fact in each case whether a person’s condition is such that he should be treated as “in need of care and attention” even though the extent of his need for care and assistance fluctuates from time to time. For example, in R (Nassery) v Brent LBC [2011] EWCA Civ 539 the Court of Appeal upheld the Council’s assessment that, despite the claimant’s sporadic past episodes of mental disorder, he was not “in need of care and attention” at the time of its assessment. In this Claimant’s case, given the seriousness of his illnesses, his ongoing, debilitating physical symptoms, his frequent periods of acute illness requiring hospitalisation, and his very poor prognosis, I consider it was irrational for the Defendant to conclude that he was not “in need of care and assistance” when there was ample evidence that he had a continuing need for support in day-to-day living, albeit fluctuating in extent from time to time, depending upon his state of health.

On the issue of eligibility and human rights, it was common ground that Mr De A was ineligible for assistance under s.21(1)(a) NAA by reason of Schedule 3 to the National Asylum and Immigration Act 2002. The issue was how far it was necessary to provide assistance in order to avoid a breach of Mr De A’s convention rights, specifically Article 3 and Article 8.

RBK&C conceded that if a need for assistance was found then there would be a potential breach, following R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396. However, RBK&C maintained that such a breach could be averted by Mr De A’s return to Portugal, where he would be eligible for appropriate support services, relying on R (Kimani) v London Borough of Lambeth [2003] EWCA Civ 1159 and N v UK (2008) 47 EHRR 885.

RBK&C further argued that

in deciding the human rights issue, the court’s role was limited to determining “whether there is an error of law in the council’s human rights assessment on traditional judicial review principles” (skeleton argument, paragraph 5). It was for the Defendant to decide, under paragraph 3 of Schedule 3 to the NIAA 2002, whether the making of s.21(1)(a) arrangements was “necessary for the purpose of avoiding a breach of a person’s Convention rights”. The Court did not have the information required to make this judgment, nor was it entitled to substitute its judgment for that of the Defendant. It followed from this analysis that the issue had to be decided on the basis of the evidence available to the Defendant at the date it made its human rights assessment, in October 2011, not 6 months later.

The Court held that this was too restrictive an interpretation of the Court’s role:

As the Court is itself a public authority for the purposes of the Human Rights Act 1998, it is subject to the duty in s.6 not to act incompatibly with Convention rights. It must also ensure that other public authorities, such as the Defendant, do not act incompatibly with Convention rights. This is an essential part of the way in which the ECHR is enforced in domestic law.

Article 3 is an unqualified right. It was not proper that the Court should not defer to the judgement of the local authority, “if the Court is satisfied that the Defendant’s acts or omissions are exposing the Claimant to an imminent risk of suffering cruel, inhuman or degrading treatment, it must act to prevent such a breach of Article 3 from occurring”. And

When considering a qualified right, such as Article 8, the Court must consider the legitimate aims of the decision-maker and the proportionality of the interference with the right to family and private life. However, it should not adopt a traditional judicial review approach.

Huang v Secretary of State for the Home Department [2007] 2 A.C. 167 andPinnock adopted.

On the evidence, Mr De A’s physical and psychological condition, his experimental treatment and the presence of his support network in England all strongly suggested a considerable degree of suffering if her were to return to Portugal at this stage. The available services in Portugal, and the time it would take to receive them, were not comparable and would involve delay.

Although Portugal is an EU country and signatory to the ECHR, with a health and welfare system, it is too late for this impoverished Claimant to access the immediate support which he needs on his return, because of his weakened physical condition; his vulnerable mental state; the absence of any friends or family in Portugal to assist him; and the ‘cumbersome’ and slow assessment procedures in Portugal (for exemption from health care charges, eligibility for financial benefits, and any type of accommodation). The Defendant’s offer of financial support for 4 weeks is insufficient, as the evidence is that it will take much longer than that for him to obtain the accommodation and benefits he needs, and so there is, in my view, a real risk that the Claimant will end up sleeping rough on the streets. As M said; “[t]he effect of what would essentially be a forced return of a sick man …would be to condemn this man to a very likely relapse, a hastened death, and a lonely end to what has been a brave struggle to live with dignity.”

Following D v United Kingdom (1997) 24 EHRR (and BB v France (see N v UK at D68), the case was exceptional because Mr De A was at the end of his life. It was not simply a matter of the lack of availability of treatment to prolong life, as in N v UK App. No. 26565/05. The case fell within the exceptional class described by Lady Hale in N v Secretary of State for the Home Department[2005] 2 AC 296 [at 69]:

“…the test, in this sort of case, is whether the applicant’s illness has reached such a critical stage (i.e. he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity.”

Refusing to provide accommodation and support, but forcing Mr De A to return to Portugal would be a breach of Article 3, involving inhuman treatment.

Article 8 was also interfered with, but the interference was lawful under Schedule 3 to the NIAA 2002. The question was therefore whether the interference would be necessary and proportionate.

RBk&C argued that “it is exercising a legitimate aim, in the interests of “the economic well-being of the country” in seeking to minimise its expenditure on social services, and prioritising its scarce resources for the benefit of UK nationals”. R. (Clue) v Birmingham City Council [2011] 1 W.L.R. 99 in support.

Weighing against this was the likely limited time support would be required and the costs that RBK&C would incur in facilitating Mr De A’s move to Portugal. Any saving to the public purse would be minimal.

In addition, it was appropriate to weigh in the balance that Mr De A had entered the UK lawfully and worked here.

Held on Article 8:

In my judgment, the Claimant [Mr De A] is justified in submitting that any potential saving to the public purse will be minimal and does not reasonably justify a decision which will have such severe consequences for the Claimant. The Claimant’s terminal illness means that he faces an undignified and distressing end in Portugal, struggling to find any accommodation and means of support, and parted from his existing support network of friends and healthcare professionals.

Held overall:

a) the Defendant’s decision, of 27 October 2011, that the Claimant had no eligible needs requiring care and attention within the meaning of s.21 NAA 1948, was unlawful;

b) the Defendant’s decision, of 27 October 2011, that it was not necessary, within the meaning of paragraph 3 of Schedule 3 to the NAIA 2002, to make arrangements for the Claimant under s.21 NAA 1948 for the purpose of avoiding a breach of his Convention rights, was unlawful;

c) the Defendant’s refusal to make arrangements for the Claimant under s.21 NAA 1948 is incompatible with the Claimant’s rights under Article 3 and Article 8 of the ECHR, contrary to s.6(1) Human Rights Act 1998.

This post by NL first appeared on the Nearly Legal Blog and is reproduced here with permission and thanks.

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