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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> De Almeida, R (on the application of) v Royal Borough of Kensington and Chelsea  EWHC 1082 (Admin) (27 April 2012)
Cite as:  EWHC 1082 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
on the application of
ADALBERTO JESUS DE ALMEIDA
|- and –
|ROYAL BOROUGH OF KENSINGTON AND CHELSEA
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Ms S Davies (instructed by Royal Borough of Kensington and Chelsea) for the Defendant
Hearing dates: 7 November 2011 & 26 March 2012
Crown Copyright ©
Mrs Justice Lang:
The statutory scheme
"21(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing –
(a) residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them; …
(1A) A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely –
(a) because he is destitute; or
(b) because of the physical effects, or anticipated physical effects, of his being destitute.
(1B) Subsections (3) and (5) to (8) of section 95 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule 8 to that Act, apply for the purposes of subsection (1A) as they apply for the purposes of that section, but for the references in subsections (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local authority.
(8) … nothing in this section shall authorise or require a local authority to make any provision authorised or required to be made (whether by that or by any other authority) by or under any enactment not contained in this Part of this Act or authorised or required to be provided under the National Health Service Act 2006 …"
"Without prejudice to the generality of sub-paragraph (1), the Secretary of State hereby approves the making by local authorities of arrangements under section 21(1)(a) of the Act to provide accommodation to meet the needs of persons for –
the prevention of illness;
the care of those suffering from illness; and
the aftercare of those so suffering."
"5 Paragraph 1 applies to a person if he –
(a) has the nationality of an EEA State other than the United Kingdom"
"7 Paragraph 1 applies to a person if –
(a) he is in the United Kingdom in breach of the immigration laws within the meaning of section 11, and
(b) he is not an asylum-seeker."
"3. Paragraph 1 does not prevent the exercise of a power or the performance of a duty if, and to the extent that, its exercise or performance is necessary for the purpose of avoiding a breach of-
(a) a person's Convention rights, or
(b) a person's rights under the Community Treaties. "
"(a) A person is subject to immigration control for the purposes of the Asylum and Immigration Act 1996 if he requires leave to enter or remain in the United Kingdom (whether or not such leave has been given): s.13(2) of the 1996 Act.
(b) A person does not require leave to enter or remain if he is entitled to do so under the Immigration (European Economic Area) Regulations 2000 s.2(2). The regulations make detailed provision for entry to the United Kingdom by nationals of an EEC State and the terms on which they can reside in it.
(c) An EEA national has the right to be admitted to the United Kingdom on production of a valid passport or identity card (reg.12) and they reside in the United Kingdom without requiring leave to remain for as long as he remains a qualified person (reg.14). A qualified person is an EEA national who is in the United Kingdom for a defined purpose, i.e. generally, as a worker, a student, a self-employed person, a provider of services, a recipient of services, a self-sufficient person, a retired person, a student or a self-employed person who has ceased activity: regs.2, 5(1).
(d) An EEA national who is not a qualified person for the purpose of the Immigration (European Economic Area) Regulations 2000 requires leave to remain in the UK and accordingly is subject to immigration control when determining whether he is eligible for assistance under Part 7 of the Housing Act 1996"
Interpretation of s.21(1)(a) NAA 1948
"31. Mr Howell adopts the three conditions which I suggested in R. (Wahid) v Tower Hamlets London Borough Council  LGR 545 , para 30 and Lord Hoffmann found helpful in R (Westminster City Council v National Asylum Support Service  1 WLR 2956, para 26:
"first, the person must be in need of care and attention; secondly, the need must arise by reason of age, illness, disability or 'other circumstances' and, thirdly, the care and attention which is needed must not be available otherwise than by the provision of accommodation under section 21."
Mr Howell argues that there must be some meaningful content in the need for care and attention. He was at first disposed to argue that it must mean care and attention to physical needs, such as feeding, washing, toileting and the like, and not simply shopping, cooking, laundry and other home help type services. But he accepted that it had also to cater for people who did not need personal care of this sort but did need to be watched over to make sure that they did not do harm to themselves or others by what they did or failed to do. The essence, he argued, was that the person needed someone else to look after him because there were things that he could not do for himself. M does not need care and attention of this sort. He is perfectly capable of looking after himself. He needs his medication, but that is supplied by the National Health Service and under section 21(8) the local authority is not allowed to provide him with anything which is authorised or required to be provided under the 2006 Act. Medical treatment has always been provided for separately in the National Health Service legislation. The need for a fridge in which to keep his medication cannot be described as a need for care and attention.
32. My Lords, a test as strict as that proposed by Mr Howell might not even include Mrs Y-Ahmed, let alone Mrs O and Mr Bhikha. It might not include a great many people who have been accommodated in old people's homes over the years since 1948. Our ideas of when people need to be in residential care have changed a good deal since then. Much of the care which used to be provided in a residential setting can now be provided at home. Furthermore, section 26(1A) (as substituted by section 116 and paragraph 1 of Schedule 4 to the Care Standards Act 2000) requires that if arrangements are made under section 21(1)(a) for accommodation "together with nursing or personal care" for people who are or have been ill, people who have or have had a mental disorder, people who are disabled or infirm, or people who are or have been dependent on alcohol or drugs, then in effect the home must be registered under the Care Standards ACt 2000. Thus accommodation may be arranged under section 21(1)(a) without including either nursing or personal care. So the "care and attention" which is needed under section 21(1)(a) is a wider concept than "nursing or personal care". Section 21 accommodation may be provided for the purpose of preventing illness as well as caring for those who are ill.
33. But "care and attention" must mean something more than "accommodation". Section 21(1)(a) is not a general power to provide housing. That is dealt with by other legislation entirely, with its own criteria for eligibility. If a simple need for housing, with or without the means of subsistence, were within section 21(1)(a), there would have been no need for the original section 21(1)(b). Furthermore, every homeless person who did not qualify for housing under the Housing Act 1996 would be able to turn to the local social services authority instead. That was definitely not what Parliament intended in 1977. This view is consistent with R v Hammersmith and Fulham London Borough Council, Ex p M. 30 HLR 10, in which Lord Woolf MR emphasised, at p 20, that asylum seekers were not entitled merely because they lacked money or accommodation. I remain of the view which I expressed in R (Wahid) v Tower Hamlets London Borough Council  LGR 545, para 32, that the natural and ordinary meaning of the words "care and attention" in this context is "looking after". Looking after means doing something for the person being cared for which he cannot or should not be expected to do for himself: it might be household tasks which an old person can no longer perform or can only perform with great difficulty; it might be protection from risks which a mentally disabled person cannot perceive; it might be personal care, such as feeding, washing or toileting. This is not an exhaustive list. The provision of medical care is expressly excluded. Viewed in this light, I think it likely that all three of Mrs Y-Ahmed, Mrs O and Mr Bhikha needed some care and attention (as did Mr Wahid, but in his case it was available to him in his own home, over-crowded though it was). This definition draws a reasonable line between the "able-bodied" and the "infirm".
34. This construction is consistent with all the authorities, including R (Mani) v Lambeth London Borough Council  LGR 35. That case was argued on the assumption that the claimant did have a need for care and attention, but not a need which required the provision of residential accommodation. Mr Mani had one leg which was half the length of the other. He had difficulty walking and when in pain he could not undertake basic tasks such as bed-making, vacuum-cleaning and shopping. He did need some looking after, going beyond the mere provision of a home and the wherewithal to survive.
35 The only passage which might cast any doubt upon this approach is Lord Woolf's statement in Ex P M 30 HLR 10, 21, that the authorities could "anticipate the deterioration which would otherwise take place" and intervene before a person's health had been damaged. He did not, however, say that they could intervene before there was a need for care. There has to be some sensible flexibility here. Section 21(1)(a) requires that the persons " are in need of care and attention" so that the primary focus must be on present rather than future needs. But if there is a present need for some sort of care, then obviously the authorities must be empowered to intervene before it becomes a great deal worse. Section 21(1A) reflects this by referring to the anticipated physical effects of destitution. It was possible to meet the present needs that Mrs Y-Ahmed already had, for without that she would have needed a great deal more. It would be possible to meet the need for care of an HIV-positive person who is beginning to get sick before he becomes a great deal worse. But there must still be a need for some care and attention for section 21(1)(a) to apply at all."
"39. As Lady Hale has explained, the ultimate question arising in all these cases is: who ultimately is responsible for meeting the housing and subsistence needs of destitute people subject to immigration control (mostly but not exclusively asylum seekers)? Is it local authorities under section 21(1)(a) of the National Assistance Act 1948 or is it central government in the form of the National Asylum Support Service ("NASS"), now under section 95 of the Immigration and Asylum Act 1999 (or otherwise pursuant to the state's obligation not to breach article 3 of the European Convention on Human Rights: see R (Limbuela) v. Secretary of State for the Home Department  1 AC 396)?
40. Part of the answer was provided by the House in R (Westminster City Council) v National Asylum Support Service  1 WLR 2956: NASS is responsible for the "able-bodied destitute"; local authorities for the "infirm destitute". Given, however, that the asylum seeker there, Mrs Y-Ahmed, was agreed by all to be an "infirm destitute" with "a need for care and attention which has not arisen solely because she is destitute but also (and largely) because she is ill", it was unnecessary for the House to consider in depth either (i) what constitutes a need for care and attention within the meaning of section 21(1)(a) or (ii) whether any such need has arisen "solely … because he is destitute" (or because of the actual or anticipated physical effects of destitution) so as to fall within section 21(1A). I turn, therefore, to these two questions.
(i) What constitutes a need for care and attention such as (subject to section 21(1A)) to entitle a person to section 21 residential accommodation?
I agree with Lady Hale's analysis. A person must need looking after beyond merely the provision of a home and the wherewithal to survive-beyond, therefore, the needs able to be met by NASS for suitable accommodation and subsistence. The looking after required does not have to be for either nursing or personal care. It must, however, be of such a character as would be required even were the person wealthy. It is immaterial that this care and attention could be provided in the person's own home if he had one (as he would have if he were wealthy). All that is required is that the care and attention needed must not be available to him otherwise than by the provision of section 21 accommodation. In the case of someone subject to immigration control who is destitute, inevitably only the provisions of section 21 accommodation will enable his need for care and attention to be met. But that does not exclude him under section 21(1A): that provision only excludes those whose need for care and attention (not whose need for accommodation) has arisen solely because of destitution. As Lord Hoffmann said in R (Westminster City Council) v National Asylum Support Service  1 WLR 2956, para 32:
"The use of the word 'solely' makes it clear that only the able-bodied destitute are excluded from the powers and duties of section 21(1)(a). The infirm destitute remain within. Their need for care and attention arises because they are infirm as well as because they are destitute. They would need care and attention even if they were wealthy. They would not of course need accommodation, but that is not where section 21(1A) draws the line."
As Lady Hale explains, M (unlike the two claimants in R v Wandsworth London Borough Council, Ex p O  1 WLR 2539, Mrs Y-Ahmed in R (Westminster City Council) v National Asylum Support Service , and Mr Mani in the later case of R (Mani) v Lambeth London Borough Council  LGR 35) fails at this initial hurdle: M. needs no looking after beyond medical care which is provided by the NHS and thus excluded from consideration by section 21(8).
(ii) Should the person's need for care and attention be regarded as having arisen "solely because he is destitute"?
This question only arises once it is established that the person has a need to be looked after—a need beyond merely the provision of a home and the means of survival. If a person reaches that state purely as a result of sleeping rough and going without food, as envisaged in R v Hammersmith and Fulham London Borough Council, Ex p M (1997) 30 HLR 10, 19, then clearly the need for care and attention will have arisen solely from destitution. If, however, that state of need has been accelerated by some pre-existing disability or infirmity—not of itself sufficient to give rise to a need for care and attention but such as to cause a faster deterioration to that state and perhaps to make the need once it arises that much more acute—then for my part, consistently with the views I expressed in the earlier cases, I would not regard such a person as excluded under section 21(1A)."
"54. As a matter of ordinary language, while reformulation of a statutory expression can be dangerous, "are in need of" means much the same as "currently require". "Need" is a more flexible word than it might first appear. "In need of" plainly means more than merely "want" but it falls far short of "cannot survive without"...
55. As for the word "are", it seems to me that... the use of the present tense excludes the future, let alone the future conditional. It would seem wrong to extend a duty owed to a person who satisfies a statutory requirement to a person who currently does not satisfy the requirement simply because he will or may do so in the future. I should add that, as a matter of practicality, humanity and common sense, this cannot mean that a local authority is required to wait to act under section 21 until a person becomes seriously in need, however close and inevitable that serious need may be, and however much the authority reasonably wants to assist at once. The section must contemplate that a local authority can act, where it reasonably considers it right to do so, as soon as a person can be said to be in need of some care and attention, even to a relatively small degree."
"It is worth noting .. that the facts in the other cases referred to by Lady Hale at paragraph 33 .. suggest that the level of support provided by the local authority by way of care and attention does not have to attain any particular level of intensity. So does Lord Neuberger's observation in M v Slough BC at paragraph 65:
"...Section 21(1)(a) only applies to a person who is in present need of care and attention, albeit that a local authority may act under the section once satisfied that there is such a need, even if it is currently not very pressing, especially where the situation appears likely to deteriorate."
The Claimant's condition
"Mr Almeida is HIV positive with severe AIDS.....He has a virus which is resistant to all available antiretroviral agents. He is also hepatitis C co-infected. Due to his severe immuno- suppression he is at risk of severe opportunist infections and tumours. He has recurrent pseudomonas infection due to his poor immune system... He has also had several surgical operations for basal cell carcinoma of the skin. He also has anal HIV.
.....He has recently undergone a trial of treatment with two experimental agents for HIV... Unfortunately, despite an initial effect, this did not have any long lasting effect on his viral load, however there was some slight improvement in Mr Almeida's condition, and he is keen to continue, although I doubt this will have any clinical significance. Since commencing the trial indeed he has felt better, although there has been no change in his viral load, his CD4 count has risen slightly, but I do not think that this is important to him in prevention of toxicity. … I am not clear that Mr Almeida's prognosis will be any different if he has to stop the drug but certainly due to the fact that it is having a minimal effect on his CD4 count and viral load, although he does feel a great deal better and the psychological improvement from this is of great importance. There are no other forms of treatment available at the present time to Mr Almeida although as a tertiary care centre one would hope that if drugs do become available they would only be available from centres such as ours.
Mr Almeida is extremely unwell and I would not counsel him to travel back to Portugal at this time, due to his ill health and the necessity for expert care...."
"6 months without new antiviral agents however Dr Nelson did state that having not seen Mr Almeida for 2 months it was difficult to say".
"At the time of discharge he was extremely vulnerable and found it very difficult to manage his affairs due to physical weakness, illness, depression and medication side effect. He has improved somewhat and is now able to organise himself better and understand what he needs better."
"At least once every second week I am so weak that I am able to do little else but lie in bed and rest, and these periods usually last for a matter of days. My ability to undertake tasks such as shopping or attending appointments is usually severely compromised by my illness and leaves me weaken: on occasions I am unable to leave my room. Being vulnerable to infections and illness I often require emergency treatment in hospital and both before being admitted and after discharge, I am usually incapacitated in varying degrees."
"I am unable to attend to my daily living needs. In the hostel room where I am currently staying, there is a large pile of dirty clothes which I am unable to wash, as I do not have the strength to carry out this task. I am also unable to cook for myself. There is food available at the hostel, however it is fried food which when I have tried to eat makes me nauseous and sick. My health conditions meant that I require a dietary intake of highly nutritional and high calorie food. I also suffer from liver damage which means that I cannot digest nutritional drinks as my body cannot absorb the high calorie intake. The staff at the hostel vacuum my room, although this is not often, and they change the sheets on my bed approximately every 14 days. They provide no other assistance; as such I spend most of my time lying in bed as I am feeling weak and unable to get myself dressed. I have some friends who come to the hostel and they offer me help getting up and dressed.
The food that I am currently able to have is the fresh hot meals provided by the Riverhouse Trust. I can only attend the Riverhouse Trust approximately two times a week as I do not have the physical strength to travel there from the hostel most days."
The Defendant's assessments and decision
"Your client does not, in the Council's opinion, need "looking after" as defined by MP v. Slough as he is independent in all aspects of daily living and in those areas where he experiences some difficulty he has been able to identify solutions, so that the level of difficulty is not great. Your client has no identifiable eligible needs requiring care and attention provided by my authority. No other need for community care services was identified in the assessment, although there is plainly a need for medical attention and for accommodation. Neither medical attention nor accommodation is a relevant need for the purposes of s. 21 NAA.
Even if there were a need for care and attention otherwise available for the purposes of s.21 NAA, your client is ineligible for the same, as he is an EEA national and therefore falls within paragraph 5 of Schedule 3 to the National Immigration and Asylum Act 2002. The Council is prohibited from providing services under s.21 to an ineligible person, save where it is necessary to avoid a breach of human rights. It is the council's assessment that return to Portugal would not breach your client's human rights, and that its only obligation is therefore to provide support to return to Portugal – in practical terms this would entail a short period of accommodation while a passport is obtained and travel expenses if your client is unable to afford this. It is the Council's assessment that Portugal has a health service, including treatment of HIV/AIDS and a system of social welfare assistance which would protect your client's Article 3 ECHR rights and that, while there would be some interference with his Article 8 private life rights, given the time he has been in the UK, this would be both justified and proportionate in light of the fact that there are others without the option of returning to another country calling upon the local authority's scarce resources and in light of the fact that private life relationships can be established on return (as they have been in the UK) and/or maintained by means other than regular face to face contact. The Council takes into account in this assessment your client's limited life expectancy but also notes that his medical condition is presently stable and that he has outlived the 1 year life expectancy predicted in October 2010."
"HIV positive with severe AIDS ... he has a virus which is resistant to all available antiretroviral agents
Hepatitis C co-infected
Basal cell carcinoma of the skin ....he is due to have surgery in November 2011 to remove a growth in his right ear."
"recurrent pseudomonas infection due to his poor immune system – in the last year Mr Almedia has been admitted into hospital 5 times. In July 2011 he was admitted for 12 days with a diagnosis of pseudomonas chest infections and most recently in August 2011 he was admitted for 8 days for pseudomonas pneumonia.
depressive episodes with suicidal thoughts ..
recurrent basal cell carcinoma of the skin – Mr Almeida had a caracinoma removed from the right side of his forehead in 2010."
"Mr Almeida says his symptoms fluctuate
- Breathlessness – he says he stays in his room to focus on "slow breathing"
- Coughing particularly at night which keeps him awake
- Pain in his legs
- Loss of hearing and pain in his right ear – he reports his balance has been affected
- Loss of sensation on right side of his head
- Deteriorating gums/teeth
- Reduced appetite
- Low mood and motivation
- Sensitivity to extreme temperatures
- Poor/short term memory"
"Mr Almeida is able to wash, dress and self groom. He reports finding it difficult to shower and that he has fallen before most recently 3½ weeks ago. He reported sustaining no injury. He has in the past been recommended a shower chair by the hospital .. to reduce the risk of a recurrent fall. Mr Almeida reports that he only has a shower once a week when his friend Manuel is around to help him. He said the humid air impacts on his ability to breathe and he is anxious about falling again. Manuel confirmed that in the past he has supported Mr Almeida to take a shower but that he is not doing so currently. He said that since coming out of hospital in August 2011 Mr Almeida has been having a "good spell".
Mr Almeida says that he is using the toilet independently. … in the past a toilet raiser has been recommended by the hospital … to assist to push himself up from the toilet. However he made no reference to such difficulties in our discussions.
Mr Almeida is able to eat and drink independently. He has a fridge and kettle in his room. He reports having a reasonable appetite but often he lacks the physical and mental motivation to make himself something to eat.… he likes to eat soup from Sainsburys, often cold, fruit and bread and eats food brought to him by friends... he does not eat the breakfast and evening meal provided daily from the hostel."
"Ability to manage personal and other daily routines – FACS Level –Low
There is contradictory evidence collated in this assessment regarding Mr Almeida's ability to manage his personal and daily routine. Considered over the long term the differing reports are not necessarily mutually exclusive, rather they could reflect how Mr Almeida's condition fluctuates. However, I am currently of the view that Mr Almeida is managing his personal care and daily routines independently.
Health and safety including freedom from harm, abuse and neglect – FACS Level - Low
Mr Almeida is at risk of physical deterioration owing to his advanced multi-drug resistant HIV diagnosis. The resulting low immunity suggests Mr Almeida is vulnerable to acquiring a life threatening infection illness. In the past year, Mr Almeida has been admitted into hospital five times. None of the admissions have been the result of an emergency call out by the ambulance service. On each occasion the infection has been treated and his health successfully stabilised to allow him to be discharged within 14 days. Snr Occupational Therapist Esther McDonnell has confirmed that there has been no change in Mr Almeida's functional abilities requiring an updated Occupational Therapy assessment since she last assessed him in November 2010. He has outlived a prognosis of a year to live made by Professor Gazzard in October 2010. While Dr Nelson has provided an updated prognosis he acknowledged it is difficult to predict.
Risk of cross infection is increased by the number and frequency of people Mr Almeida is in contact with. The fact that he does not require support which involves direct physical contact with him reduces the risk...
Mr Almedia has sufficient insight into his physical and mental health needs to access services as and when required."
"In considering Mr Almeida's human rights I have taken account of the fact that Portugal is classed as a "safe state" to return to. Dr Nelson wrote in his letter dated August 2011 that "he would not counsel" Mr Almeida to travel back to Portugal at this time. He fails to determine on what basis he would not recommend he fly. The flight time from Heathrow to Lisbon is 3 hours. Mr Almeida coherently engaged in a meeting with me for 2 hours 20 minutes without any noticeable signs of stress. Portugal does have a welfare state and public health services. Mr Almeida would be able to access appropriate levels of medical treatment.
I am not able to verify Mr Almeida's account that his life would be in jeopardy from drug dealers. However account must be made for the fact that it has been 16 years since his involvement with the drug scene in Portugal. The fact that he no longer uses cocaine and heroin suggests that it would be unlikely that he would mix with the same people. In addition an International Narcotics Anonymous Meetings website confirms that similar support meetings are run in Portugal. Therefore there is available the support to maintain his abstinence. I therefore feel his return to Portugal would not breach Article 3 of the Human Rights Act 1998 and in doing so would avoid the states … to treat homelessness and destitution if he were to remain in the UK without support.
I do not think there would be a breach of Article 8 of the Human Rights Act 1998 if Mr Almeida returned to Portugal. While I acknowledge he has no extended family to turn to in Portugal, neither does he have family here. The network of friends he terms as "family" all stem from the Narcotic Anonymous meetings he attends. While it is acknowledged he has a couple of friends that have and continue to provide practical support as and when required, social and emotional support, in the main the emotional, social and psychological support appears to stem from the meetings themselves. Mr Almeida could find similar meetings in Portugal as detailed above. If there is any interference with Article 8 it is considered to be justified in the interests of residents of the borough who seek assistance from the council and who do not have the option to locate to another country. Mr Almeida should return as he would be a burden on the public purse if he remains. The council is on hand to support Mr Almeida renew his passport and to provide travel assistance to return to Portugal."
a) impaired sight and hearing;
b) reliance on his friends for practical help in shopping or attending medical appointments;
c) assistance with food preparation and practical tasks in the hostel when the Claimant feels unable to do these things for himself or needs support to do them;
d) difficulty getting in and out of the bath, requiring assistance;
e) standing while showering, requiring assistance;
f) difficulty getting up from the toilet, requiring assistance or toilet raiser adaption;
g) difficulty in climbing stairs when feeling weak or has limb pain;
h) difficulty in walking, requiring use of a stick.
The application of s.21(1)(a) in this case
a) Difficulty in showering while standing without assistance from friends or adapted seating, which cannot be provided in a communal bathroom.
b) Difficulty in getting in and out of the bath without assistance.
c) Difficulty in getting up from low surfaces such as the toilet. The adaption recommended by the occupational therapist cannot be fitted in a communal bathroom.
d) Difficulty in walking distances, and climbing stairs, because of limb pain, weakness/fatigue and loss of balance.
e) Difficulty in performing routine domestic tasks, requiring the assistance of friends and other services, because of weakness/fatigue; pain and loss of balance, e.g.i) laundry;ii) shopping;iii) meal preparation;iv) cleaning;v) changing bedding.
f) He has to be taken to and from medical appointments and hospital when he is too unwell to travel on his own.
g) He has an increased need for care during periods of acute illness i.e. prior to hospitalisation for secondary infections, and after discharge from hospital.
ECHR and the Human Rights Act 1998
"In the Human Rights Act 1998 Parliament not only enabled but required the Convention rights set out in Schedule 1 to the Act .. to be given effect as a matter of domestic law in this country. It did so (section 2) by requiring courts or tribunals determining a question which had arisen in connection with a Convention right to take into account of any relevant Strasbourg jurisprudence, by requiring legislation, where possible, to be read compatibly with Convention rights (section 3) and, most importantly, by declaring it unlawful (section 6) for a public authority to act in a way incompatible with a Convention right. Thus immigration officers, the appellate immigration authority and the courts, as public authorities (section 6(3), act unlawfully if they do not (save in specified circumstances) act compatibly with a person's Convention right....The object is to ensure that public authorities should act to avert or rectify any violation of a Convention right, with the result that such results would be effectively protected at home, thus (it was hoped) obviating or reducing the need for recourse to Strasbourg."
"Thirdly, an appeal to the Commission may turn upon issues which at no point lie within the exclusive province of the executive. A good example is the question, which arose in Chahal itself, as to whether deporting someone would infringe his rights under article 3 of the Convention because there was a substantial risk that he would suffer torture or inhuman or degrading treatment. The European jurisprudence makes it clear that whether deportation is in the interests of national security is irrelevant to rights under article 3. If there is a danger of torture, the Government must find some other way of dealing with a threat to national security. Whether a sufficient risk exists is a question of evaluation and prediction based on evidence. In answering such a question, the executive enjoys no constitutional prerogative."
"The question whether the effect of the State's treatment of an asylum-seeker is inhuman or degrading is a mixed question of fact and law. The element of law is complex because it depends on the meaning and effect of Article 3. Once the facts are known, the question of whether they bring the applicant actually or imminently within the protection of Article 3 is one which Mr Eadie accepts can be answered by the court — assuming that viable grounds of challenge have been shown — without deference to the initial decision-maker."
"29. ...the focus at Strasbourg is not and has never been on whether a challenged decision or action is the product of a defective decision-making process, but on whether, in the case under consideration, the applicant's Convention rights have been violated. ...This pragmatic approach is fully reflected in the 1998 Act. The unlawfulness proscribed by section 6(1) is acting in a way which is incompatible with a Convention right, not relying on a defective process of reasoning, and action may be brought under section 7(1) only by a person who is a victim of an unlawful act.
30. Secondly, it is clear that the court's approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting. The inadequacy of that approach was exposed in Smith and Grady v United Kingdom (1999) 29 EHRR 493, para 138, and the new approach required under the 1998 Act was described by Lord Steyn in R (Daly) v Secretary of State for the Home Department  2 AC 532, paras 25–28, in terms which have never to my knowledge been questioned. There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test adopted by the Court of Appeal in R. v Ministry of Defence, Ex p. Smith  QB 517, 554. The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time: Wilson v First County Trust Ltd (No. 2)  1 AC 816, paras 62–67. Proportionality must be judged objectively, by the court: R (Williamson) v Secretary of State for Education  2 AC 246, para 51."
"In domestic judicial review, the court is usually concerned with whether the decision-maker reached his decision in the right way rather than whether he got what the court might think to be the right answer. But article 9 is concerned with substance, not procedure. It confers no right to have a decision made in any particular way. What matters is the result: was the right to manifest a religious belief restricted in a way which is not justified under article 9(2)?"
"13. In the course of his justly-celebrated and much-quoted opinion in R (Daly) v Secretary of State for the Home Department  2 AC 532, paras 26–28, Lord Steyn pointed out that neither the traditional approach to judicial review formulated in Associated Provincial Picture Houses Ltd v Wednesbury Corpn.  1 KB 223 nor the heightened scrutiny approach adopted in R v Ministry of Defence, Ex p Smith  QB 517 had provided adequate protection of Convention rights, as held by the Strasbourg court in Smith and Grady v United Kingdom (1999) 29 EHRR 493. Having referred to a material difference between the Wednesbury and Smith approach on the one hand and the proportionality approach applicable where Convention rights are at stake on the other, he said, at para 28: "This does not mean that there has been a shift to merits review." This statement has, it seems, given rise to some misunderstanding. The policy attacked in Daly was held to be ultra vires the Prison Act 1952 (para 21) and also a breach of article 8. With both those conclusions Lord Steyn agreed: para 24. They depended on questions of pure legal principle, on which the House ruled. Ex p Smith was different. It raised a rationality challenge to the recruitment policy adopted by the Ministry of Defence which both the Divisional Court and the Court of Appeal felt themselves bound to dismiss. The point which, as we understand, Lord Steyn wished to make was that, although the Convention calls for a more exacting standard of review, it remains the case that the judge is not the primary decision-maker. It is not for him to decide what the recruitment policy for the armed forces should be. In proceedings under the Human Rights Act 1998, of course, the court would have to scrutinise the policy and any justification advanced for it to see whether there was sufficient justification for the discriminatory treatment."
"45. From these cases, it is clear that the following propositions are now well established in the jurisprudence of the European court:
(a) Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in the light of article 8, even if his right of occupation under domestic law has come to an end: McCann v United Kingdom 47 EHRR 913 , para 50; Cosic v Croatia 52 EHRR 1098 , para 22; Zehentner v Austria 52 EHRR 739 , para 59; Paulic v Croatia given 22 October 2009 , para 43; and Kay v United Kingdom  HLR 13, paras 73–74.
(b) A judicial procedure which is limited to addressing the proportionality of the measure through the medium of traditional judicial review (i e, one which does not permit the court to make its own assessment of the facts in an appropriate case) is inadequate as it is not appropriate for resolving sensitive factual issues: Connors v United Kingdom 40 EHRR 189 , para 92; McCann v United Kingdom 47 EHRR 913 , para 53; Kay v United Kingdom  HLR 13, paras 72–73....
73. In our judgment, once it is accepted that it is open to a demoted tenant to seek judicial review of a landlord's decision to bring and continue possession proceedings, then it inevitably follows that, as a generality, it is open to a tenant to challenge that decision on the ground that it would be disproportionate and therefore contrary to article 8 . Further, as we saw at paras 31 to 43 above, the European court jurisprudence requires the court considering such a challenge to have the power to make its own assessment of any relevant facts which are in dispute. We have already pointed out, at para 28 above, that Lord Scott and Lord Mance, in particular, reached this conclusion in Doherty v Birmingham City Council  AC 367, paras 68 and 138. The European court acknowledged this development in Kay v United Kingdom  HLR 123, para 73. In these circumstances we are satisfied that, wherever possible, the traditional review powers of the court should be expanded so as to permit it to carry out that exercise.
In summary: where it is required in order to give effect to an occupier's article 8 Convention rights, the court's powers of review can, in an appropriate case, extend to reconsidering for itself the facts found by a local authority, or indeed to considering facts which have arisen since the issue of proceedings, by hearing evidence and forming its own view."
Updating medical evidence
The position in Portugal
a) Assistance with obtaining a passport/travel document to enable the Claimant to travel.
b) Assistance to make initial appointments with Institute of Social Security prior to departure so that welfare benefits can be applied for.
c) Assistance to fund and complete the necessary forms for a Portuguese ID card.
d) Assistance to arrange and fund a flight to Portugal.
e) Assistance to fund temporary accommodation and living costs for up to four weeks (at an equivalent cost to what is being provided to him in the UK).
f) Provision of "a written transfer summary of his social and health care history" translated into Portuguese.
a) Although some benefits are theoretically available, they are difficult to obtain and require a lot of assessments, appointments and travel across Lisbon, which would be very difficult for the Claimant in his poor state of health. Mr Segurado described "the harsh reality of the cumbersome, bureaucratic nature of the Portuguese welfare system". Social services in Portugal are overwhelmed by thousands of people, particularly in difficult economic times, and so "[i]t is not as simple as applying for benefits and support, you need to fight and have the health to fight for them." Furthermore applications take a very long time to process and the level and quality of provision is poor.
b) The Claimant believes that it takes 3-4 months to determine an application for RSI and not merely 1-2 as stated by Ms Bull. New rules introduced in 2012 mean that many people have to wait. 4, 5 or even 6 months before their application is determined.
c) The assessment process will require the Claimant to walk to and from various organisations such as "social services, shelters, charities, hospitals, health clinics and benefits departments". He does not have the strength to do this.
d) A 50% travel concession may be available however the Government is proposing to remove it. Even were it to remain available the Claimant would have to fund the other 50%.
e) Even once their application has been determined, successful applicants still have to wait to receive the benefit, sometimes up to a year. The benefit is approximately £120 pcm. There is no guarantee that the Claimant will be eligible.
f) There is no equivalent to housing benefit. The Claimant would be referred to a homeless shelter, with dormitory accommodation, 30 people to a room. Emergencia Social is not available immediately – it takes time to be referred to a shelter. When the Claimant applied (18 years ago) it took 1-2 months of living on the streets before he could obtain a place in a shelter. Eventually he was provided with a place with thirty other people in it, most of whom had infections/illnesses like HIV and TB. Because of the Claimant's compromised immune system, he would be at severe risk of infection in such accommodation.
g) Some charities give free meals but demand is very high. Only the first 100 people or so receive any food which means queuing for a long time.
h) ABRACO does provide some support to HIV sufferers but it cannot provide food and shelter.
i) Thus, the four weeks accommodation and living costs offered by the Defendant is unlikely to be sufficient. The Claimant will find himself without food and/or shelter because of delays in the system for benefits and social services.
j) The Claimant would have to pay for non - HIV treatment and for all appointments and emergency admissions (up to 20 Euros each time) and although exemptions are available they have to be applied for each and every time medical attention is required and that too would involve many assessments/appointments etc.
k) It is very unclear whether he would receive any cancer treatment in Portugal considering his general ill-health and its high cost.
l) The Claimant has been with the same team of physicians at Chelsea and Westminster for three years. He does not believe that he would receive the same level of care in Portugal and at the very least the doctors and nurses there would have to familiarise themselves with him and his various conditions.
m) The experimental AIDS treatment the Claimant is currently receiving at Chelsea and Westminster would not be available in Portugal or indeed anywhere else in the world. It is being paid for by an American company whose contract is with the hospital and cannot be transferred.
n) There are Narcotics Anonymous groups in Portugal – but the Claimant does not feel he would be able to create bonds with new people in Portugal in the limited time he will have available.
"I am also very concerned to hear that it has been suggested that he returns to Portugal. In his vulnerable mental and physical state he would not be able to cope with that type of adjustment, he would most certainly harm himself. He has not specific support in Portugal and would experience a great deal of loss of those trusted and supportive relationships with health care and other services personnel here in London. It is imperative that he has access to appropriate social security benefits and appropriate housing here so that his end of life care can be managed by those professionals who know him well and that his social supports are accessible to him. He has established connection to the HIV medical team at St Mary's and myself and it is important that he has convenient access to the hospital for his out patient treatment (and likely inpatient treatment) which will require regular meetings with his consultant, the clinical nurse specialist and myself. Another important factor is that his main social supports/friends all live in inner West London and their output and accessibility are also very important for him at this time. Regarding accommodation needs it is important given his serious medical condition that he has a safe and self contained place to live. He is severely immuno-compromised (no CD4 cells) and at high risk for contracting infectious deceases from others. In addition given his addiction history (he has been clean for many years and attends Narcotics Anonymous regularly) it is important that he is not placed in a hostel where people are using narcotics."
"Adalberto is someone I have come to know on a deeply personal level over the past 18 months as a fellow recovering addict and member of Narcotics Anonymous. … Adalberto has built a close network of friends like myself who not only support him in his battle with HIV/AIDS but, also support him in his daily struggle to remain drug and alcohol free. This is particularly difficult when faced not only with the onset of a terminal illness such as HIV/AIDS, but, also with the issues surrounding shelter and sustenance. Adalberto has no support network back in Portugal. He, due to his past difficulties with drugs and alcohol, has only his past to go back to. The effect of what would essentially be a forced return of a sick man who battles courageously to remain drug free, in the face of such severe challenges he encounters on a daily basis, 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. All of Adalberto's friends are here in the UK. We are effectively his kith and kin, his support network that gives his life real meaning when faced with the huge issues he has."
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
"54. But the European Court has all along recognised that ill-treatment must attain a minimum level of severity if it is to fall within the scope of the expression "inhuman or degrading treatment or punishment": Ireland v United Kingdom (1978) 2 EHRR 25, 80, para 167; A v United Kingdom (1998) 27 EHRR 611, 629, para 20; V v United Kingdom (1999) 30 EHRR 121, para 71. In Pretty v United Kingdom 35 EHRR 1, 33, para 52, the court said: "As regards the types of 'treatment' which fall within the scope of article 3 of the Convention, the court's case law refers to 'ill-treatment' that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering. Where treatment humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of article 3. The suffering which flows from naturally occurring illness, physical or mental, may be covered by article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible. It has also said that the assessment of this minimum is relative, as it depends on all the circumstances of the case such as the nature and context of the treatment or punishment that is in issue. The fact is that it is impossible by a simple definition to embrace all human conditions that will engage article 3."
"49. It is true that this principle has so far been applied by the Court in contexts in which the risk to the individual of being subjected to any of the proscribed forms of treatment emanates from intentionally inflicted acts of the public authorities in the receiving country or from those of non-State bodies in that country when the authorities there are unable to afford him appropriate protection.
Aside from these situations and given the fundamental importance of Article 3 in the convention system, the Court must reserve to itself sufficient flexibility to address the application of that Article in other contexts which might arise. It is not therefore prevented from scrutinising an applicant's claim under Article 3 where the source of the risk of proscribed treatment in the receiving country stems from factors which cannot engage either directly or indirectly the responsibility of the public authorities of that country, or which, taken alone, do not in themselves infringe the standards of that Article. To limit the application of Article 3 in this manner would be to undermine the absolute character of its protection. In any such contexts, however, the Court must subject all the circumstances surrounding the case to a rigorous scrutiny, especially the applicant's personal situation in the expelling State.
50. Against this background the Court will determine whether there is a real risk that the applicant's removal would be contrary to the standards of Article 3 in view of his present medical condition. In so doing the Court will assess the risk in the light of the material before it at the time of its consideration of the case, including the most recent information on his state of health.
51. The Court notes that the applicant is in the advanced states of a terminal and incurable illness. At the date of the hearing, it was observed that there had been a marked decline in his condition and he had to be transferred to a hospital. His condition was giving rise to concern. The limited quality of life he now enjoys results from the availability of sophisticated treatment and medication in the United Kingdom and the care and kindness administered by a charitable organisation. He has been counselled on how to approach death and has formed bonds with his carers.
52. The abrupt withdrawal of these facilities will entail the most dramatic consequences for him. It is not disputed that his removal will hasten his death. There is a serious danger that the conditions of adversity which await him in St Kitts will further reduce his already limited life expectancy and subject him to acute mental and physical suffering. Any medical treatment which he might hope to receive there could not contend with the infections which he may possibly contract on account of his lack of shelter and of a proper diet as well as exposure to the health and sanitation problems which beset the population of St Kitts. While he may have a cousin in St Kitts no evidence has been adduced to show whether this person would be willing to or capable of attending to the needs of a terminally ill man. There is no evidence of any other form of moral or social support. Nor has it been shown whether the applicant would be guaranteed a bed in either of the hospitals on the island which, according to the Government, care for AIDS patients.
53. In view of these exceptional circumstances and bearing in mind the critical stage now reached in the applicant's fatal illness, the implementation of the decision to remove him to St Kitts would amount to inhuman treatment by the respondent State in violation of Article 3 .
The Court also notes in this respect that the respondent State has assumed responsibility for treating the applicant's condition since August 1994. He has become reliant on the medical and palliative care which he is at present receiving and is no doubt psychologically prepared for death in an environment which is both familiar and compassionate. Although it cannot be said that the conditions which would confront him in the receiving country are themselves a breach of the standards of Article 3 , his removal would expose him to a real risk of dying under most distressing circumstances and would thus amount to inhuman treatment.
Without calling into question the good faith of the undertaking given to the Court by the Government, it is to be noted that the above considerations must be seen as wider in scope than the question whether or not the applicant is fit to travel back to St Kitts.
54. Against this background the Court emphasises that aliens who have served their prison sentences and are subject to expulsion cannot in principle claim any entitlement to remain on the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance provided by the expelling State during their stay in prison.
However, in the very exceptional circumstances of this case and given the compelling humanitarian considerations at stake, it must be concluded that the implementation of the decision to remove the applicant would be a violation of Article 3."
"42. In summary, the Court observes that since D v United Kingdom it has consistently applied the following principles.....
The fact that the applicant's circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling. In the D case the very exceptional circumstances were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support.
43. The Court does not exclude that there may be other very exceptional cases where the humanitarian considerations are equally compelling. However, it considers that it should maintain the high threshold set in D v the United Kingdom and applied in its subsequent case-law, which it regards as correct in principle, given that in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-State bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country."
"...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."
"What was it then that made the case exceptional? It is to be found, I think, in the references to D's "present medical condition" (para 50) and to that fact that he was terminally ill (para 51: "the advanced states of a terminal and incurable illness"; para 52 "a terminally ill man".......). It was the fact that he was already terminally ill while still present in the territory of the expelling state that made his case exceptional."
"The critical question there was accordingly where and in what circumstances D should die rather than where he should live and be treated. D really did concern what was principally a negative obligation, not to deport D to an imminent, lonely and distressing end. Not so the more recent cases including the present one."
"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"In R (Razgar) v Secretary of State for the Home Department  2 AC 389, para 17, the House summarised ... the questions to be asked by an adjudicator hearing an appeal against removal on article 8 grounds. It said:
"In a case where removal is resisted in reliance on article 8, these questions are likely to be: (1) will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or.. family life? (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8? (3) If so, is such interference in accordance with the law? (4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms and others? (5) If so, is such interference proportionate to the legitimate public end sought to be achieved?"
In practice the fourth and fifth questions are usually, and unobjectionably taken together, but as expressed they reflect the approach of the Strasbourg court which is (see Boultif v Switzerland (2001) 33 EHRR 1179, para 46; Mokrani v France (2003) 40 EHRR 123, para 27; Sezen v The Netherlands (2006) 43 EHRR 621, para 41) that:
"decisions in this field, must, in so far as they may interfere with a right protected under article 8(1), be shown to be necessary in a democratic society, that is to say, justified by a pressing social need, and, in particular, proportionate to the legitimate aim pursued."
"must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage."
"..as Article 8 also protects the right to establish and develop relationships with other human beings and the outside world (see Pretty v The United Kingdom, no. 2346/02 § 61, ECHR 2002-III) and can sometimes embrace aspects of an individual's social identity ..... it must be accepted that the totality of social ties between settled migrants and the community in which they are living constitute part of the concept of "private life" within the meaning of Article 8. Regardless of the existence or otherwise of a "family life", therefore, the Court considers that the expulsion of a settled migrant constitutes interference with his or her right to respect for private life."
"the rights protected by Article 8 can be engaged by the foreseeable consequences for health of removal from the United Kingdom pursuant to an immigration decision, even where such removal does not violate Article 3, if the facts relied on by the applicant are sufficiently strong….It would seem plain that, as with medical treatment, so with welfare, an applicant could never hope to resist an expulsion decision without showing something very much more extreme than relative disadvantage as compared with the expelling state."
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.
Note 1 The relevant part of s.21(1)(a), as originally enacted, read “age, infirmity or any other circumstances”. [Back]
Note 1 The relevant part of s.21(1)(a), as originally enacted, read “age, infirmity or any other circumstances”. [Back]