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Cite as: [2012] EWHC 1082 (Admin)

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Neutral Citation Number: [2012] EWHC 1082 (Admin)
Case No: CO/2911/2010


Royal Courts of Justice
Strand, London, WC2A 2LL

B e f o r e :


on the application of

- and –



(Transcript of the Handed Down Judgment of
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Mr J Burton (instructed by Duncan Lewis & Co) for the Claimant
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:


  1. The Claimant, who is a Portuguese national and resident in the UK, seeks judicial review of the Defendant's decision that he is not entitled to accommodation and support pursuant to s. 21 National Assistance Act 1948, despite his terminal illness. The Claimant contends that the refusal to provide accommodation and support will result in a breach of Articles 3 and 8 of the European Convention on Human Rights ('ECHR').
  2. The Claimant issued his claim on 2 March 2010, at that stage seeking judicial review of the refusal to conduct a community care assessment under s. 47 of the National Health Service and Community Care Act 1990 ('NHSCCA' 1990) and to consider if there was a duty to provide accommodation and care services under ss. 21 and 29 NAA 1948.
  3. The Claimant also sought urgent interim relief as he was due to be made homeless with effect from 2 March 2010. The Court made an interim order on 2 March 2010, requiring the Defendant to provide accommodation and support until the determination of the judicial review or further order.
  4. The Defendant completed an assessment on 11 March 2010, concluding that the Claimant was not entitled to accommodation or services under the NAA 1948.
  5. Permission to apply for judicial review was granted on 5 July 2010, and the Defendant's application to discharge the interim order was refused.
  6. Attempts to re-assess the Claimant were delayed because he was undergoing hospital treatment for an infection. On 27 January 2011, the Defendant sent the Claimant a copy of a 'needs assessment' dated 22 December 2010, recording that the Claimant's needs were 'low'.
  7. The substantive hearing was listed for 7 November 2011. On 27 October 2011, the Defendant sent a decision letter, based on an assessment dated 26 October 2011, stating that the Claimant did not have eligible needs requiring care and attention from the Defendant. Even if such needs did exist, he was ineligible for services under s.21 NAA 1948, as he was an EEA national coming within paragraph 5 of Schedule 3 to the National Immigration and Asylum Act 2002. Any breach of his Convention rights could be averted by his return to his home country of Portugal. Although the move would constitute an interference with his private life under Article 8, it would nonetheless be a justified and proportionate decision by the Defendant, in the light of the other demands on its scarce resources.
  8. At the beginning of the hearing I granted the Claimant permission to amend his Claim Form and his Statement of Facts and Grounds so that the challenge was in relation to the most recent assessment and decision by the Defendant. This course was not opposed by the Defendant. However, the short interval between the latest decision and the hearing meant that the parties had not had time to prepare fully for the revised challenge. In particular, mid-way through the hearing, it became apparent that the dispute between the parties as to the facilities available in Portugal could not be resolved without evidence. This issue was central to the Defendant's argument that any potential breach of human rights arising from the withdrawal of accommodation and support could be averted if the Claimant returned to Portugal. The hearing was therefore adjourned to enable both parties to adduce further evidence.
  9. The statutory scheme

  10. Section 47 National Health Service and Community Care Act 1990 requires a local authority to conduct an assessment of needs and to make a decision on the provision of services following that assessment.
  11. S.21 National Assistance Act 1948 ('NAA 1948) provides:
  12. "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 …"
  13. By section 22, a local authority is entitled to make charges for accommodation.
  14. The Secretary of State made directions pursuant to s.21(1) in LAC 93(10)) directing local authorities to make arrangements under section 21(1)(a) NAA 1948 for those who are eligible. Local authorities are under a duty to comply with the directions, and thus to make such arrangements.
  15. The term 'illness' in s.21 is not defined. Notably, it is not restricted to those with substantial disabling illness, in contrast to s.29 NAA 1948.
  16. LAC 93(10), paragraph 2(5) provides:
  17. "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."
  18. The criterion of 'illness' was inserted into s.21 by the National Health Service and Community Care Act 1990.[1] Prior to 1990, a parallel social services accommodation obligation existed under the National Health Service Act 1977 Schedule 8 paragraph 2. According to Clements & Thompson: Community Care and the Law, 4th ed. 2007, p.199, it was generally used to provide accommodation for people (mostly under pensionable age) who were able to live more independently than those accommodated under section 21, but who nevertheless required some degree of care and support.
  19. Schedule 3 to the National Asylum and Immigration Act 2002 provides in paragraph 1 that a person to whom that paragraph applies shall not be eligible for support or assistance under section 21 or 29 of the National Assistance Act 1948. Paragraph 5 describes the "Second class of ineligible person: citizen of other EEA State". It reads:
  20. "5 Paragraph 1 applies to a person if he –
    (a) has the nationality of an EEA State other than the United Kingdom"
  21. Paragraph 7 describes the "Fourth class of ineligible person: person unlawfully in United Kingdom". It reads:
  22. "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."
  23. Schedule 3 provides:
  24. "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. "
  25. The position of citizens of EU countries was explained by the Court of Appeal in Abdi v Barnet LBC [2006] EWCA (Civ) 383:
  26. "(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"
  27. It was common ground before me that, although the Claimant had entered the UK lawfully and was entitled to reside without requiring leave to remain for as long as he was either working, seeking work or was self-sufficient, he ceased to be a qualified person once he became so ill that he was unable to work and no longer had funds available to be self-sufficient. Therefore technically he fell within the Fourth class of ineligible person that is a person unlawfully in the United Kingdom. However, since the Defendant made its decision on the basis that he fell within the Second class of ineligible person (a citizen of another EEA State) it was agreed that I should proceed to consider the case on that basis.
  28. Interpretation of s.21(1)(a) NAA 1948

  29. The case of R (M) v Slough Borough Council [2008] UKHL 52, [2008] 1 WLR 1808, is the leading authority on the scope of s.21(1)(a) NAA 1948. Lady Hale's analysis, which was agreed by the other Lords of Appeal, is set out below:
  30. "31. Mr Howell adopts the three conditions which I suggested in R. (Wahid) v Tower Hamlets London Borough Council [2002] LGR 545 , para 30 and Lord Hoffmann found helpful in R (Westminster City Council v National Asylum Support Service [2002] 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 [2002] 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 [2004] 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."
  31. Lord Brown explained the extent of the responsibility of local authorities for those subject to immigration control:
  32. "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 [2006] 1 AC 396)?
    40. Part of the answer was provided by the House in R (Westminster City Council) v National Asylum Support Service [2002] 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 [2002] 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 [2000] 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 [2004] 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)."
  33. Lord Neuberger said, at [50], that it was common ground that the term 'residential accommodation' extended not merely to premises to live in, but also the care and attention needed. S.21(5) states that references to accommodation are to be construed as extending to "board and other services, amenities and requisites provided in connection with the accommodation...". As Hale LJ said in R(Wahid) v Tower Hamlets London Borough Council [2002] EWCA Civ 287, residential accommodation "is simply the means whereby the necessary care and attention can be made available if otherwise it will not".
  34. Interpreting the words "are in need of care and attention" in s.21, Lord Neuberger said, at [54] – [55]:
  35. "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."
  36. In SL v Westminster City Council [2011] EWCA Civ 954, Laws LJ observed that Lady Hale's approach to the expression "care and attention" within s.21(1)(a) had "commanded general acceptance". He added, at [21]:
  37. "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 history

  38. The Claimant is a Portuguese national, aged about 49, who resided in the UK from 1998 to 2001/2 and from 2008 until the present time. He worked during his first period in the UK. From 2001-8 he lived in Spain.
  39. The Claimant has not lived in Portugal for 16 years. He believes his father is still alive and residing in Portugal but he has not seen him for 34 years. He has two children but has never had a meaningful relationship with them and has not seen them in decades.
  40. During his time in Spain the Claimant retained links with friends in England. He returned in 2008 in order to pursue a romantic relationship which ended about one year later. The Claimant then moved to London in order to obtain work.
  41. Prior to his first visit to the UK in 1998, he had abused drugs and contracted HIV and Hepatitis C. In 2009, he became ill and was admitted to hospital. Since that time his health has seriously deteriorated – he now suffers from skin cancer and depression in addition to AIDS and Hepatitis C. He has had frequent admissions to hospital. In October 2010, the prognosis was that he had about 1 year to live. As at the date of the first hearing in November 2011, his life expectancy was about 6 months.
  42. Once the Claimant became too ill to work, he was evicted from his private rented accommodation because he could no longer afford to pay the rent. He supported himself until his funds ran out. His friends then supported him by providing food and accommodation. He moved into a hostel, Bowden Court in Ladbroke Grove, where he continues to reside. It is a 400 room hostel with shared bathroom facilities, and provision of breakfast and dinner. There are no cooking facilities. A friend, Mr Manuel Amarai, initially paid for his hostel accommodation but he could not afford to do so indefinitely. The Claimant then applied for assistance from the Defendant.
  43. The Claimant's condition

  44. Dr Mackie, consultant physician at St Mary's Hospital, London stated, in a report dated 25 March 2010, that he had advanced HIV infection and his immune system was seriously compromised. He had a multi-drug resistant HIV virus. This means that he was at extremely high risk of life-threatening illnesses and infections, and to reduce the risk of such occurrences, he should be housed in a clean and warm environment ideally with access to private toilet and kitchen facilities. She said the Claimant was "often too weak to cook for himself and would benefit from a delivered meal service".
  45. Dr Nelson, Consultant Physician at Chelsea and Westminster Hospital, wrote on 11 August 2011 stating:
  46. "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...."
  47. In the Defendant's assessment dated 17 October 2011, Dr Nelson was reported to have given the following prognosis:
  48. "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".
  49. Professor Gazzard advised, in a letter dated 8 October 2010, that his team had referred the Claimant to the palliative care team as his life expectancy was believed to be "less than a year".
  50. The Claimant has been prescribed a large number of medications (listed in the Defendant's assessment report dated 17 October 2011). He is also required to use a breathing machine which administers oxygen and antibiotics 3 times a day.
  51. Mr Frize, Clinical Psychologist at St Mary's Hospital, advised, in a letter dated 25h March 2010, that the Claimant had a long history of depression and was very vulnerable. Mr Frize was very concerned about his suicide risk and advised that he needed mental health support to manage his chronic mood problems which the psychiatry department at St Mary's Hospital could provide.
  52. Mr Frize's letter dated 10 February 2010 followed a recent admission to St Mary's Hospital. He described his condition upon discharge from hospital, and his gradual improvement:
  53. "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."
  54. The Claimant was assessed by Ms McDonnell, senior occupational therapist, on 8 November 2010. His impairments were listed as advanced multi-drug resistant HIV; pain; fluctuating fatigue; weight loss and decreased balance. This affected his ability to shower whilst standing, get up from low surfaces such as the toilet and to mobilise over long distances. He was at ongoing risk of infection due to his poor immune system and at risk of falls due to poor standing balance. She advised that he needed a range of disability aids for everyday functions, particularly washing and toileting.
  55. A physiotherapy assessment carried out on 16 November 2010 identified problems with balance and mobility and a high risk of falling.
  56. The Claimant gave a statement to his then solicitors on 23 February 2010, stating:
  57. "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."
  58. In his witness statement, dated 17 October 2011, the Claimant described his living arrangements:
  59. "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."
  60. Mr Manuel Amarai wrote stating that he was a close friend of the Claimant. They had met at a Narcotics Anonymous meeting and been in contact regularly since then. Mr Amaral said that when he has time (about once a week) he helped the Claimant with bathing and shaving, laundry and cleaning (the room needs to be cleaned regularly because he vomits during the night and is not capable of cleaning it up). In Mr Amaral's view, the Claimant needed such help much more frequently than Mr Amaral was able to provide. Mr Amaral and other friends regularly have to drive the Claimant to meetings as he is too ill or weak to take public transport. He confirmed that the Claimant sometimes has good periods, but they only last for 3 to 4 days.
  61. The Defendant's assessments and decision

  62. In its decision letter dated 27 October 2011 the Defendant stated:
  63. "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."
  64. The Defendant's decision was based upon the second needs assessment of the Claimant which commenced on 17 October 2011. As well as interviewing the Claimant on several occasions, the social worker reviewed the medical evidence and had discussions with the housing manager at the hostel, Mr Amarai, the Claimant's friend, and Mr Khan who was the Claimant's advocate from the Riverhouse Trust.
  65. In the assessment, the Claimant's diagnosis was described as follows:
  66. "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."
  67. Dr Nelson's prognosis of a life expectancy of about 6 months from October 2011 was recorded.
  68. The section headed 'Health background' set out the following history:
  69. "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."
  70. The assessment recorded the following symptoms:
  71. "Mr Almeida says his symptoms fluctuate
  72. Under the heading 'Impact', the social worker recorded the Claimant's recurrent depression and poor motivation; his reduced short term memory; poor concentration and his fluctuating ability to manage day to day living tasks. She described how at a meeting with him he looked dishevelled and unshaven and was wearing his pyjamas under his clothes. On another occasion when the social worker bumped into him a few days later he was clean shaven and well presented with clean clothes and well dressed.
  73. Under the heading 'Personal care', the social worker reported as follows:
  74. "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."
  75. The assessment considered the 'Practical care' which the Claimant received. The Claimant confirmed that cleaners came into his room to clean but that he tidied the room himself. He said he needed help with laundry and shopping. His friend Manuel helped him. The housing manager, Miss Ferrante, confirmed that she saw the Claimant coming into the hostel carrying shopping. The Claimant sometimes drives to the supermarket.
  76. The social worker assessed the Claimant's mobility. He was able to walk indoors unaided and used a walking stick outside as required. Miss Ferrante reported that she had seen the Claimant walking in and out of the hostel daily without a walking aid. The Claimant sometimes had difficulty with stairs. He could not walk long distances. He leased a mini cooper via the motability car scheme. The Claimant said he spent most of his time in his room. The house manager Miss Ferrante disagreed saying that she saw the Claimant going out independently on a daily basis.
  77. The Claimant is in receipt of Disability Living Allowance, both the high rate of care and mobility. He has opted to use the mobility component to lease a car. His high rate care weekly allowance of £73.60 is paid directly into his account. He uses the money to pay for petrol, toiletries, clothes and put credit on his mobile phone. The DWP has decided that he is not eligible to apply for Income Support or Housing Benefit.
  78. Under the heading 'Risk factors', the social worker considered factors under four headings:
  79. "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."

  80. Finally, under the heading 'Human Rights issues', the social worker concluded:
  81. "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."
  82. The Defendant also carried out a Needs Assessment in March 2010, and a further Needs Assessment on 22 December 2010. The December 2010 assessment described the Claimant's ill-health, and recorded that it resulted in fluctuating fatigue and weakness; aches and pains, a lot of pain in his legs; diarrhoea from his medication; disorientation and depression. The assessment identified the following difficulties and needs:
  83. 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

  84. In my judgment, the Defendant failed properly to apply the criteria in s.21(1)(a) NAA 1948, as interpreted and explained by the House of Lords in M, when considering its obligations towards the Claimant. The sparse reasons given in the decision letter of 27 October 2011 were that "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."
  85. On examining the basis for this conclusion, the undisputed evidence confirmed that he was seriously ill with a range of debilitating symptoms. He was suffering from terminal HIV/AIDS, hepatitis C and skin cancer resulting in the following symptoms: frequent chest infections requiring admission to hospital; fatigue and weakness; general aches and pains as well as severe pain in his legs; diarrhoea from his medication; loss of balance; disorientation; impaired hearing and pain in his right ear; deteriorating gums/teeth; breathlessness; coughing; reduced appetite and nausea; poor short term memory; disorientation; suicidal thoughts and depression.
  86. As a result of these symptoms, the evidence demonstrated that he had difficulties in looking after himself in the following respects:
  87. 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.

  88. I have excluded from this list the medical care and psychiatric support he is receiving from the NHS, in accordance with M, per Lady Hale, at [33].
  89. The nature of the assistance which the Claimant required potentially fell within the scope of s.21(1)(a). As Lady Hale explained, at [33], the phrase "in need of care and attention" means "looking after" in a broad sense and it is not limited to nursing or personal care. It may include, for example, household tasks and shopping, illustrated in cases such as R (Mani) v Lambeth London Borough Council [2004] LGR 35, where the Claimant had one leg shorter than the other, and although mobile, he needed help with bed-making, hoovering and carrying heavy shopping.
  90. Applying the principles established in M, it appears that the Defendant applied too high a threshold when deciding that the Claimant was not "in need of care and attention". Lord Neuberger said that the criteria in s.21(1)(a) were met "as soon as a person can be said to be in need of some care and attention, even to a relatively small degree" (at [54]). The threshold of need was relatively low: '"in need of" means more than merely "want" but it falls far short of "cannot survive without"' (at [55]). As Laws LJ said in SL, "the subsection does not envisage any particular intensity of support in order to constitute care and attention". In my judgment, the Claimant's need for care and attention clearly passed this threshold, and the Defendant acted irrationally in failing to acknowledge this.
  91. In the assessment report, the social worker referred several times to evidence which suggested that the Claimant's condition and needs were not as serious as he claimed. For example, the Claimant said he had rarely been out over the past month but the House Manager reported that he went out on a daily basis independently. At a meeting on 17 October he was unkempt and coughing; on 19 October he had shaved and was well-presented. The Claimant said his friend Manual helped him with shopping but, on the day of the social worker's visit, the Claimant was making his own way by car to Sainsbury's supermarket.
  92. During the hearing I asked the Defendant's Counsel, Ms Davies, whether it was the Defendant's case that the Claimant's evidence was false and/or that he was exaggerating his difficulties. Ms Davies stated unequivocally that the Defendant did not contend that the Claimant's evidence was false or exaggerated. However, she submitted, the evidence indicated that his needs fluctuated. As at the date of assessment, the Defendant 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.
  93. 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.
  94. 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.
  95. 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.
  96. Finally, I accept the Claimant's submission that the use in the assessment of the FACS (Fair Access to Care Services) risk criteria was not appropriate for assessing whether the Claimant was eligible under s.21(1)(a). FACS criteria are prescribed for use by authorities when deciding on the provision of discretionary community care services. The risks arising from a service user's needs are assessed as Critical, Substantial, Moderate or Low. Typically an authority will fund risks assessed as Critical, and sometimes Substantial, but not Moderate or Low. The FACS criteria are not intended to be used to assess whether the authority has a duty to make arrangements under s.21(1)(a). I have taken into account the guidance in McDonald v RB Kensington and Chelsea [2011] UKSC 33 that assessments should be construed in a practical way. However, the social worker's failure to distinguish between the tests to be applied in respect of mandatory and discretionary services, and to apply the appropriate test for s.21(1)(a) at assessment stage, meant that the Defendant's decision was made, in part, on the basis of a flawed assessment.
  97. ECHR and the Human Rights Act 1998

  98. It was common ground that the Claimant was ineligible for support or assistance under s.21(1)(a) NAA 1948 by virtue of Schedule 3 to the National Asylum and Immigration Act 2002 ("NIAA 2002"), save insofar as it was necessary to provide such support or assistance for the purposes of avoiding a breach of the Claimant's Convention rights.
  99. The Defendant accepted at the hearing that, if (contrary to its submission) the Claimant was "in need of care and attention" under s.21(1)(a) NAA 1948, there would be a potential breach of his Convention rights if it refused to make arrangements for him under s.21(1)(a) NAA 1948. This concession was properly made in the light of the guidance on Article 3 given by the House of Lords in R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396 , per Lord Bingham at [7], [8], [9] and per Lord Hope at [54].
  100. However, the Defendant went on to submit that a breach of the Claimant's human rights could be averted if he returned to his native country, Portugal, where he would be eligible for appropriate support services. The Defendant relied on R (Kimani) v London Borough of Lambeth [2003] EWCA Civ 1159 and N v UK (2008) 47 EHRR 885 in support of this proposition.
  101. The Claimant contended that, in the particular circumstances of this case, a return to Portugal would result in a breach of Article 3 and Article 8 ECHR.
  102. The Defendant submitted 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 Defendant relied upon the authorities of M v Islington LBC [2004] EWCA Civ 235 and Clue v Birmingham CC [2010] EWCA Civ 460; however, these cases did not provide much assistance on the role of the Court when considering alleged breaches of Convention rights.
  103. I accept the Claimant's submission that the Defendant's analysis of the Court's role is too restrictive. 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. Lord Bingham said in Huang v. Secretary of State for the Home Department [2007] 1 AC 167, at [8]:
  104. "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."
  105. Article 3 is an unqualified right. The Claimant submits that, 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. To that extent, the Court should not defer to the judgment of the Defendant.
  106. The Claimant's submission is well-supported by authority, and in my judgment, is correct. In Secretary of State for the Home Department v Rehman [2003] 1 AC 153, Lord Hoffmann said, at [54]:
  107. "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."
  108. In R (T) v The Secretary of State for the Home Department [2003] EWCA Civ 1285, Kennedy LJ said, at [77]:
  109. "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."
  110. 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.
  111. In R. (SB) v Governors of Denbigh High School [2007] 1 AC 100 Lord Bingham explained the role of the court, at [29] – [30]:
  112. "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 [2001] 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 [1996] 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) [2004] 1 AC 816, paras 62–67. Proportionality must be judged objectively, by the court: R (Williamson) v Secretary of State for Education [2005] 2 AC 246, para 51."
  113. Lord Hoffmann added at [68]:
  114. "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)?"
  115. During the hearing before me, there was some debate as to the meaning of the phrase "[t]here is no shift to a merits review", in Lord Bingham's speech in Denbigh. Its true meaning was clarified by Lord Bingham in Huang v Secretary of State for the Home Department [2007] 2 AC 167, at [13]:
  116. "13. In the course of his justly-celebrated and much-quoted opinion in R (Daly) v Secretary of State for the Home Department [2001] 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. [1948] 1 KB 223 nor the heightened scrutiny approach adopted in R v Ministry of Defence, Ex p Smith [1996] 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."
  117. Finally, the Claimant relied upon the following passages in the judgment of Lord Neuberger in Manchester City Council v Pinnock [2011] 2 A.C. 10:
  118. "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 [2011] 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 [2011] 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 [2009] AC 367, paras 68 and 138. The European court acknowledged this development in Kay v United Kingdom [2011] 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."
  119. Although the relevant court in Pinnock was the County Court, the Claimant submits that, by analogy, the Administrative Court must have a similar power as the sole court with power to review whether or not the Defendant's decision will result in a breach of the Claimant's Article 3 and Article 8 rights.
  120. The Claimant particularly relies upon the confirmation by the Supreme Court that, as part of its review, the Court may consider facts which have arisen since the issue of proceedings. This develops the approach of Lord Bingham in Denbigh where he said, at [30], "The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time". It also accords with the approach taken by the ECtHR in D v UK (1997) 24 EHRR, at [50]: "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".
  121. In the light of these authorities, I cannot accede to the Defendant's submission that the role of the Court is limited to a review of the Defendant's decision in October 2011 on traditional judicial review grounds. I also accept the Claimant's submission that the Court is entitled to take into account evidence relating to the Claimant's current medical condition, post-dating the Defendant's decision of October 2011.
  122. Updating medical evidence

  123. The passing of time since the date of the assessment means that his life expectancy is even shorter than it was at that time. The most recent prognosis was 6 months to live, given by Dr Nelson in October 2011.
  124. In his witness statement dated 1 February 2012, the Claimant said he had been admitted to hospital in November 2011 and January 2012 because he had contracted infections. He is having more difficulty with breathing and has had to be admitted to hospital to ease the coughing and pain. Dr Russ Hargreaves, Macmillan Cancer Manager at Chelsea and Westminster Hospital, wrote on 19 January 2012 saying that he has two types of cancer (Kaposi Sarcoma and Basal Cell Carcinoma) and that, in view of his deteriorating condition, he should not leave the UK. Ms E. Andrews, a Macmillan Specialist Nurse in Cancer at the Chelsea and Westminster Hospital, wrote on 30 January 2012 confirming that he was being treated with radiotherapy for cancer, following surgical removal of a tumour from his ear on 18 November 2011.
  125. The position in Portugal

  126. The Defendant's case was that the Claimant's human rights would not be breached by a return to Portugal, as it is an EU country and a signatory to the ECHR, with adequate health and welfare schemes.
  127. Ms L. Bull, the social worker who carried out the October 2011 assessment on behalf of the Defendant, provided a witness statement setting out information obtained as a result of research at the Portuguese Consulate and Portuguese Government websites. She also consulted her colleague Carla Espirito –Santo, a Portuguese national who previously worked as a social worker in Portugal.
  128. A non-contributory welfare benefit named RSI is available in Portugal which is similar to Income Support – it is paid monthly and is subject to the acceptance of a care plan which is produced after an assessment of needs.
  129. RSI is not paid immediately but is backdated. Although Ms Espirito –Santo could not give a precise time-frame she estimated that a decision would take approximately 1-2 months. Depending on the assessment RSI might include sums for rent and medication.
  130. Social services provision is provided in Lisbon by SCML – services include homecare, residential placement and financial assistance (one off payments or monthly). Social canteens are also available. SCML can also provide free medication.
  131. Social services are available subject to assessment and are provided to those who are economically and socially vulnerable.
  132. "Emergencia social" is emergency social services which depending on a applicant's vulnerability can result in the emergency provision of shelter and food.
  133. Social services do provide services which are specific to people with HIV. This can include residential care. This is subject to individual assessment.
  134. Again, whilst Ms Bull states that the Claimant would be entitled to be referred for social services, including emergency social services, she does not state that the Claimant would be entitled to social services
  135. A public healthcare system does exist in Portugal. The Claimant would have to register in a Health Centre and this would give him access to a GP. As he does not have a "permanent address" he could obtain a temporary registration. The GP would refer the Claimant to other medical services. The Claimant's medical records would have to be translated into Portuguese.
  136. There is an Accident & Emergency service available to persons registered with a Health Centre. Palliative and continuing care services are available and a fast track service is available.
  137. Although services, including appointments and examinations, incur charges the Claimant would be exempt as he does not have financial resources. Most of the medication and services for HIV sufferers is free if it is provided at hospital.
  138. Social housing would not be available but hostel accommodation would be provided by "Emergencia Social". There is a potential availability of residential care or payments towards his rent from SCML.
  139. An NGO called ABRACO provides targeted support with people who have HIV and are rough sleeping. Narcotics anonymous meetings are available in Lisbon.
  140. Ms Bull accepted that the Defendant would have to give the Claimant practical assistance to enable him to move to Portugal, and the Defendant's proposals are listed below:
  141. 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.

  142. The Claimant's evidence in response was based on his own previous experience and that of a witness, Mr H. Segurado, a Portuguese citizen, as well as research by his solicitor. It is summarised below:
  143. 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.

  144. Mr Frize, Clinical Psychologist at St Mary's Hospital, said in his letter dated 25 March 2010:
  145. "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."
  146. Mr Frize reiterated these points in a more recent letter dated 2 December 2011, and advised that such a move would lead to a severe depression with a high risk of suicide.
  147. The loss of the Claimant's support network at the River House Trust, Narcotics Anonymous, and among his close group of friends, is a primary concern. His friends provide practical as well as emotional support to him. Many of them wrote letters to the court. One example is the letter from M:
  148. "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."

    Article 3

  149. Article 3 provides:
  150. "No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
  151. In R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396 the House of Lords gave guidance, in the context of support for asylum seekers, on the circumstances in which a breach of Article 3 ECHR might arise. The Claimant relied in particular upon the underlined passages in the speech of Lord Hope, at [54]:
  152. "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."

  153. The Claimant submits that his case "is now squarely in the territory of D v. United Kingdom (1997) 24 EHRR (and BB v. France (see N v. UK at D68) in that he is in the final stages of his life and the real question is whether it would be cruel, inhuman or degrading to force him to die alone in Portugal without the benefit of his support network in the UK, made up of his "treating personnel" and friends, and in circumstances where he would not be able to access the unlicensed drugs he is receiving in the UK and where it is doubtful he would be able to access the appropriate treatment for his cancer. This is to say nothing about his ability to travel, which even in August 2011 Dr Nelson counselled against."
  154. In D the applicant, a native of St Kitts, had never lived in the UK but was caught with a substantial amount of cocaine on his arrival at Heathrow. He pleaded guilty to importation and was sentenced to 6 years imprisonment. Upon his release three years later he was detained pending deportation. Whilst in prison he was diagnosed with HIV and sought to resist deportation as a result. His immune system was severally compromised.
  155. In June 1996 D's life expectancy was said to be 8-12 months. He was however still being treated with drugs [15]. At the time of hearing in February 1997 his prognosis was uncertain but his counsel stated that his life was drawing to a close "as the experts had predicted" [21]. D's CD4 count was below 10 and he suffered from continuing chest infections, malaise, skin rashes and weight loss. Limited hospital care was available in St Kitts. D had no family or friends there that would care for him. No social provision would be available.
  156. The ECtHR concluded that to deport D would constitute a breach of Article 3. The judgment of the court stated:
  157. "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."
  158. In BB v. France (as summarised in N v. UK para 35 at D68) the applicant's HIV had reached an advanced stage, requiring repeated hospital stays, but had stabilised as a result of antiretroviral treatment which he claimed would not be available to him in his home country, the Democratic Republic of the Congo. The Commission concluded that it would be violation of Article 3 to deport him, holding that "To expect him to confront his illness alone, without any support from family members, was likely to make it impossible for him to maintain human dignity as the disease ran its course." The case was referred to the Court but a settlement was reached before the hearing.
  159. The Defendant submitted that the Claimant's case is not exceptional in the same way as D or BB. It relies upon the judgment of the Grand Chamber in N v UK App. No. 26565/05 which decided that the removal of the applicant, who was HIV positive, to Uganda, where she would not be able to receive life-saving medical treatment, was not a breach of Article 3. In its judgment, at [42], it set out the principles to be drawn from the case- law:
  160. "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."
  161. In this case, the Claimant is threatened with the loss of accommodation and support, not with removal. Although this distinguishes his case from N and D, the parties are agreed that the general principles in those cases are applicable here. In an Article 3 case, the focus is on the effect on the applicant of the move to another country, rather than the reason or justification for the move.
  162. In my judgment, applying the test set out in N, the Claimant's case is 'exceptional' because he is at the end of his life. Based on the medical opinion, his life expectancy is very limited, and he could die at any time. He has advanced and untreatable HIV/AIDS, hepatitis C and cancer and he is being hospitalised on a monthly/bi-monthly basis.
  163. 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."
  164. In my judgment, this case falls within the exceptional class described by Lady Hale in N v Secretary of State for the Home Department [2005] 2 AC 296, at [69]:
  165. "...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."
  166. Lord Hope explained the test applied by the ECtHR in D at [36]:
  167. "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."
  168. Lord Brown said of D at [94]:
  169. "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."
  170. As stated in Macdonald: Immigration Law and Practice (8th ed., 2010), at 8.53, the conclusion of the House of Lords was that "[t]he breach of Article 3 in D's case did not lie in the denial of treatment which would ensure his long-term survival there (there wasn't any at the time), but on the denial of the opportunity to die in dignity, in a caring environment. This was what was exceptional in D's case.."
  171. In my judgment, the potential breach of Article 3 in the Claimant's case is, as in D's case, that it would be "inhuman treatment" to send him to an undignified and distressing end in Portugal, facing delay and difficulty in obtaining accommodation and benefits, and parted from his existing support network of friends and healthcare professionals.
  172. Article 8

  173. Article 8 provides:
  174. "(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."

  175. The principles to be applied are well-established. In EB (Kosovo) v. The Secretary of State for the Home Department [2009] 1 AC 1159, at [7] Lord Bingham said:
  176. "In R (Razgar) v Secretary of State for the Home Department [2004] 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."
  177. In Razgar Lord Bingham explained, at [20], that the judgment on proportionality:
  178. "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."
  179. In Uner v The Netherlands (2007) 45 EHRR 14, the Grand Chamber of the ECtHR said at [59]:
  180. " 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."
  181. Applying these principles, I am satisfied on the evidence that the Claimant has established a 'private life' in the UK, consisting of a close-knit and supportive group of friends, as well as support from the River House Trust (an HIV charity) and Narcotics Anonymous.
  182. The Claimant also relies upon the detriment to the Claimant's physical and mental well-being if he has to return to Portugal, pointing out that in D v UK the applicant also claimed that his Article 8 rights would be breached by deportation, but the ECtHR did not decide the point.
  183. It is well-established that 'private life' under Article 8 covers the physical and psychological integrity of the person. In Razgar, the House of Lords reviewed the authorities, in particular, Bensaid v UK (2001) 33 EHRR 205, and held, per Lord Bingham at [10]:
  184. "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."
  185. The Claimant also relies upon the judgment of the ECtHR in Pretty v UK 35 EHRR 1, the ECtHR holding that the right to respect for private life includes the way in which a person chooses to die, as well as live. Pretty was, of course, dealing with a very different issue, and I have not found it of assistance in this case.
  186. For the reasons set out in paragraphs 115 to 121 above, I consider it inevitable that the refusal to provide accommodation and support in the UK, thus forcing the Claimant to return to Portugal, will 'interfere' with the Claimant's physical and psychological integrity, within the meaning of Article 8.
  187. However, such interference is in accordance with the law, as set out in Schedule 3 to the NIAA 2002.
  188. The Defendant submits, and I accept, 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.
  189. In R. (Clue) v Birmingham City Council [2011] 1 WLR 99, the Court of Appeal held, at [73], that, where there was no outstanding application for leave to remain, a local authority was entitled to have regard to the calls of others on its budget in deciding whether an interference would be justified and proportionate.
  190. The issue is whether such interference is "necessary in a democratic society", that is to say, justified by a pressing social need, and, in particular, proportionate to the legitimate public end sought to be achieved.
  191. The financial burden of supporting the Claimant is the justification for the interference with his private life. However, the Claimant has a limited life expectancy and so the cost to the public purse is not open-ended. The cost of supporting him in the UK has to be weighed against the costs which will be incurred if the Defendant pursues its preferred option of repatriation to Portugal.
  192. The Defendant accepts that, if it decides to withdraws support in the UK, it must incur the expense of obtaining a passport and Portuguese ID card for the Claimant; translate his medical records; fund his travel; use its staff resources to assist him in making appointments with welfare authorities in Lisbon; and fund temporary accommodation and living expenses for up to 4 weeks, at the same rate as in the UK. His departure cannot be immediate and the Defendant will continue to pay the cost of supporting him in the UK until his passport and ID card are obtained. By then he may be hospitalised and too ill to travel.
  193. In my judgment, the Claimant 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.
  194. It is appropriate to weigh in the balance the fact that the Claimant entered the UK lawfully and has worked here (see JA (Ivory Coast) & Anor v Secretary of State for the Home Department [2009] EWCA Civ 1353, per Sedley LJ at [21],[22], distinguishing the claimants' cases from N v UK and D v UK, on the basis that they were lawful entrants). He has spent a significant time here and prior to becoming seriously ill he did not rely on public resources for his welfare.
  195. In its decision letter, the Defendant relied upon the fact that the Claimant could maintain his private life relationships from Portugal e.g. by electronic means of communication. In its assessment, the social worker referred to the possibility that he would be able to develop new friendships through Narcotics Anonymous in Portugal. These are valid points, but they do not address the problem of depriving a very sick man of his support network, which currently provides him with practical day-to-day help, as well as emotional support.
  196. In my judgment, for the reasons set out above, the Defendant has failed to discharge the burden of proving that its decision is "necessary in a democratic society", that is to say, justified by a pressing social need, and proportionate to its legitimate aim. I find, therefore, that the consequence of its decision (if implemented) will be a breach of Article 8.
  197. Conclusions

  198. In summary, my conclusions are:
  199. 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]

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