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Cite as: [2012] EWHC 1202 (Admin)

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Neutral Citation Number: [2012] EWHC 1202 (Admin)


Royal Courts of Justice
London WC2A 2LL
20 April 2012

B e f o r e :




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Ms Shu Shin Luh (instructed by Wilson Solicitors) appeared on behalf of the Claimant
Mr Jon Holbrook (instructed by the London Borough of Southwark) appeared on behalf of the Defendant



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  1. MR JUSTICE UNDERHILL: This is an application for judicial review of a community care assessment carried out in relation to the claimant by the defendant, the London Borough of Southwark (to which I will refer as "the Council") and of the decision consequent on that assessment that the claimant does not qualify for the provision of residential accommodation under section 21(1) of the National Assistance Act 1948. I will return to the details of the claim in due course. The claimant has been represented by Ms Shu Shin Luh and the defendant by Mr Jon Holbrook, both of counsel. I am grateful to them both for their clear and cogent submissions. I am also grateful to whoever provided the well organised bundle of documents and bundle of authorities. The Home Secretary has been served as an interested party but has taken no part in the proceedings.
  2. It will be convenient if, by way of preliminary, I set out at this stage the relevant terms of section 21 of the 1948 Act. It reads, so far as material, as follows:
  3. "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."

    The meaning of the phrase "care and attention" in that context is authoritively explained in the speech of Lady Hale in R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808. She says, at paragraphs 32 to 33, pages 1819 to 1820:

    "32. ... 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. ... 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..."

    Lady Hale's reference to the provision of medical care being expressly excluded is a reference to subsection (8) of section 21, which reads:

    "... 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 or the National Health Service (Wales) Act 2006."

    The effect of that provision was analysed by the Court of Appeal in R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213 at paragraph 29, page 232, but I need not set that out for present purposes.

  4. It will also be convenient to note at this stage, for reasons which will become clear presently, that in the case of asylum seekers the Secretary of State is under an obligation to provide accommodation under part XI of the Immigration and Asylum Act 1989, which she does under what is still colloquially, though I believe now incorrectly, referred to as the National Asylum Support Service (or NASS for short). However, that obligation does not arise where the asylum seeker is entitled to accommodation under section 21: see R (on the application of Westminster City Council) v National Asylum Support Service [2002] 1 WLR 2596. I should also for completeness record, though no particular issue arises on it in these proceedings, that the origin of the obligation to carry out a community care assessment is section 47(1) of the National Health Service and Community Care Act 1990 and that, by the Community Care Assessment Directions 2004, local authorities carrying out such an assessment must consult the person to whom the assessment relates.
  5. I turn to the factual background to the claim.
  6. The claimant, who is aged 31, came to this country from Algeria in or about 2003. He had no leave to enter. In 2007 he was detained. He claimed asylum. His claim was refused and he did not appeal. He absconded. He was arrested in June 2010, when he was found trying to leave the country using a forged passport. He was sentenced for that offence to eight months in prison.
  7. Following the expiry of his term in October 2010 the claimant was detained pending removal latterly at Harmondsworth. More than one attempt was made to remove him, but they were thwarted for various reasons. While in detention there were incidents of self-harm, particularly using razor blades. He was seen in detention by a doctor from the charity Medical Justice, Dr Goldwyn, and shortly afterwards by a consultant psychiatrist, Professor Katona, instructed by his solicitors, Wilson Solicitors LLP ("Wilsons"). Dr Goldwyn reported on 17 July 2011 and Professor Katona on 2 August. Both diagnosed mental illness, though their specific diagnoses differed, and said that detention was exacerbating the claimant's condition. Professor Katona's diagnosis was that the claimant was suffering from "a clear cut depressive illness", together with post traumatic stress disorder (PTSD). He said that his continuing and indefinite immigration detention was adversely affecting his mental health and leading to a high risk of suicide.
  8. It appears that on the basis of that evidence Wilsons on 2 August submitted fresh representations to the Secretary of State in support of an application for leave to remain. No substantive response has been received to those representations and a recent letter put before me from the UK Border Agency suggests that the Secretary of State does not accept that the representations remain live. I will come back to that question in due course.
  9. On 12 August 2010 an immigration judge granted the claimant bail. Accommodation was arranged for him by NASS at a hostel in East Dulwich, but following an alleged incident of violence committed by the claimant he was evicted the following day. The Council arranged accommodation at a bail hostel called Ripplemead in Peckham. This appears to have been on a temporary basis, while NASS found other accommodation, but when such other accommodation was arranged shortly afterwards in Plymouth the claimant refused to go. He wanted to remain in London, where he had always lived since coming to the UK, and where he had contacts in the Algerian community.
  10. On 18 August 2011 Wilsons requested that the claimant be the subject of a community care assessment. Implicit, or at least pregnant, in that application was a submission that he should be provided with accommodation by the Council under section 21 because of his need for care and attention as a result of his mental ill health. If that occurred, the risk of his being "dispersed" to Plymouth or elsewhere by NASS would disappear. That is the effect of the Westminster case to which I have already referred and it reflects what is really at stake in this application.
  11. Under the arrangements put in place by the Council, where there is a mental health element community care assessments are carried out by a team comprising both employees of the Council itself and employees of the local Mental Health NHS Trust, which is, in south Southwark, the South London and Maudsley NHS Foundation Trust (SLAM for short). The team is referred to as the Assessment and Liaison Team South Southwark and is based in Lordship Lane in East Dulwich. The request for an assessment was in fact made directly to the Assessment and Liaison Team by Mr Elliott of Wilsons, rather than writing to the Council. No doubt he knew the ropes in this respect.
  12. The assessment of the claimant was assigned to an experienced community psychiatric nurse called Annie Williams. She made contact with the claimant on 19 August and saw him on 23, 24 and 30 August. She arranged for him to see one of the consultant psychiatrists on the team, Dr Jones, on 2 September. On the basis of his assessment, Dr Jones wrote to Wilsons on 13 September commenting on the reports of Dr Goldwyn and Professor Katona, both of which had been supplied with the original request for an assessment. I will return to that letter in due course. In summary, however, he questioned their diagnoses of severe mental illness and expressed the view that there was no useful treatment which the team could offer.
  13. During the following weeks, while the assessment was still being completed, there were a number of other contacts between the claimant and the team. A particular issue between them was that the claimant had for very many years, apparently since before he left Algeria, been a habitual user of tranquillisers and he had had them prescribed to him while in detention. He was anxious for the prescription to be continued. The assessment and liaison team were prepared to prescribe at least some of the medication sought by him, but only on a gradually reducing basis, with a view to weaning him off the habitual use of the drugs in question. That was not acceptable to the claimant. He had on previous occasions already shown himself to be hostile and aggressive when things did not go his way, and following an incident on 12 October, when he is said to have assaulted a manager at the Lordship Lane office, he was banned from further contact with the team.
  14. During the assessment process the Council funded the continuation of accommodation for the claimant, using its powers under section 47(5) of the 1948 Act. It was originally intended that he should move from Ripplemead but in the event it was more satisfactory to allow him to remain there.
  15. I should also note that during the assessment period, the claimant was in frequent contact with an organisation called Project London, a health advocacy programme run by the charity Doctors of the World UK. His case worker there was Lydia Ottisova. She liaised on more than one occasion with the access team.
  16. On 19 October 2011 Ms Williams produced a formal written community care assessment. She used a standard form entitled "Community Care Assessment - No Recourse to Public Funds". Her entries are full and thorough and show that she had approached her task conscientiously, though that is of course not conclusive of any of the legal issues that arise. The form does not seem to me particularly well designed and the relevant passages are distributed under a number of different headings. I can summarise them, so far as necessary, as follows.
  17. After a first section, which merely set out personal details, section 2 required a summary of the claimant's "presenting problems, difficulties or concerns". This section was completed at very considerable length by Ms Williams on the basis of the meetings that she had had with the claimant. I need not set out any of the particular points contained within it. It referred in detail to his history of self-harming. It is worth noting that Ms Williams begins the section by recording that Wilsons had asked for an assessment to be undertaken "with the view that Mohammed has a severe and enduring mental illness and requesting that the mental health team identify his mental health and social needs". That is not an exact reproduction of the terms of the letter making the requests but it is correct inasmuch as the request was based explicitly on the reports of Dr Goldwyn and Professor Katona, which were enclosed with it. It is worth noting also that Ms Williams understood that the assessment required was of both the claimant's "mental health" and "social" needs.
  18. The next heading in the form relates to "formal care/support currently received". Under that heading, Ms Williams refers briefly to the involvement of Ms Ottisova, who she described as having assisted the claimant to register with a GP and to obtain free health care. She also refers to contact with a charity called Detention Action, who had been supporting the claimant while he was detained and one of whose caseworkers was continuing to offer him support following his release. The caseworker told Ms Williams that she was not a trained professional and did not offer support for his mental health but was a friendly voice to talk and listen. She had told Ms Williams that her service would continue with the claimant until his situation was more settled, as she was worried about his vulnerability as he had no other support in the community.
  19. The next section concerns the claimant's physical health. Under a subheading entitled "Current medication for physical health", Ms Williams sets out the position about the claimant's use of tranquillisers and his wish to be prescribed the particular tranquillisers and the particular dosage to which he was used. Indeed, she refers to a particular incident when she was showing him the drug card which he then took from her and amended so as to show the dose that he wanted to be prescribed. She observed "Dr Jones has provided a medical view that the drugs Mohammed was taking as evidenced by his drugs card does not indicate that Mohammed suffers from a psychotic illness or depression", and she refers to a letter by Dr Jones attached to the assessment.
  20. There is then a separate section relating to mental health. Under the heading "Mental Health History", Ms Williams refers again to the claimant's history of self harming, based on the notes obtained from what is described as "Harmondsworth Medical Justice". I need not set those out in detail, but it is fair to note that Ms Williams' summary makes clear, without spelling it out, that the incidents of self harm were none of them serious and there appears to have been an element of exaggeration. In particular, she refers to an incident in which the claimant had to be seen at Hillingdon Hospital claiming that he had swallowed a razor blade, but that no bleeding was found and no treatment was given; and to a further incident in which he claimed to have swallowed seven razor blades but was refused hospital admission. Under the heading "Current Mental State", she records his own view on his mental well-being. I need not set out details here. Under the heading "Diagnosis", she refers to the reports and diagnoses by Dr Goldwyn and Professor Katona. She also says:
  21. "Dr Hugh Jones saw Mohammed on 2/11/11 [it is common ground that that should be 2/9/11] at the community health team who has given a diagnosis of - personality disorder with PTSD."

    Under the heading "current treatment", she refers again to the problem with the prescription of tranquillisers and Dr Jones' intention that the dosage should be reduced and in that connection she notes that "I would continue to review Mohammed", though she adds that she was now unable to continue to do that, owing to the aggressive and violent outbursts which had led to him being barred from the premises, "and this role is now being passed on to his GP".

  22. There is then a section "Activities of daily living", which I need not seek to summarise, save that it shows that the claimant was a very regular attender at the mosque.
  23. There is then a section "Overall Impact of Current Needs". This reads as follows:
  24. "Mohammed's main concern is that he wants medication, in particular Diazepam and Clonazepam. This is demonstrated with Mohammed's reaction to defacing his drugs card when presented with it by me. He states that these will help him to get better along with other support. Mohammed's issues are related to his immigration situation in that he does not want to be deported back to Algeria and the thought of this does cause him some distress. The Home Office have made several attempts to deport Mohammed after fully considering his asylum application and appear to be in discussions with Algeria to remove him.
    He would like to be granted indefinite leave to remain in the UK and would like permanent accommodation and to remain living in London to be near an Algerian community and to be able to attend the mosque.
    I feel Mohammed could benefit from therapy for his PTSD and he states he would interested in this and it is something that can be considered once a decision is made by the Home Office about his immigration status."

    The next heading is "Brief Risk Screen". Under the heading "risk of harm to self", Ms Williams has written:

    "Reports he feels suicidal when he is angry. These thoughts may occur 1-2 times a week when he thinks about what happened to him in Algeria and the way he was treated in the detention centre. He states that if he has to return to Algeria he will attempt to harm himself again or kill himself."

    There is then the question "Does the person need to be watched over to prevent a risk to self or others?", to which Ms Williams has simply put "no".

  25. There is then a general heading "Social support and circumstances eg support and relationships, housing situation, home environment, finances". I need not set out the contents of that, which refer to his facilities for hygiene and for making food. Ms Williams does, however, say that:
  26. "He is praying 5 times a day, attends the mosque to pray or he will pray wherever he may be at the time. He reports because he is not eating until sunset he feels tired and is sleeping a lot. Mohammed has explained that the Algerian community and his community at the Mosque have previously supported him to a large extent. He has been provided accommodation, food and other supports throughout his time in the UK."
  27. After reference to the claimant's financial situation and accommodation history, of which I need not give details, there is then a heading "legal status". The first part of this section is concerned with setting out the claimant's immigration history, but there is then a further section which reads as follows:
  28. "Mohammed reports he was offered support from National Asylum Seekers but he refused to accept this as the Home Office informed him that they would move him 6 hours outside of London. He says he does not want to live somewhere eg Leeds as his friends are in London and there are Mosques in London that he attends but if NASS find him somewhere to live in London he will accept their support. This is evidence that there are current supports for Mohammed in the London area and he is not destitute and contrary to Mohammed's report that he has had no support in the past 18 months.
    Dr Hugh Jones does not support the view of Dr Chairman Gold that Mohammed has a severe and enduring mental illness and he does not present with psychotic symptoms or have a diagnosis of schizophrenia.
    Dr Jones also does not support Professor Katona's view that Mohammed has a diagnosis of severe depression.
    Dr Jones has diagnosed Mohammed with a personality disorder, with PTSD and a co-dependency on Valium (tranquilisers).
    Dr Jones has included a letter to support his views and this is attached to the assessment.
    On 5th September this matter was considered by the Local Authority and it was decided that Mohammed does not fit the criteria to be watched over and looked after in that he does not have a severe and enduring mental illness. Mohammed has indicated that he has a support network who is able to support his living needs whilst this request to have his asylum claim reviewed is considered.
    His solicitor has made further representations to the UKBA regarding the asylum application. However there is no evidence that this is being treated as a new application. The solicitors have not provided any response from the UKBA. Without a current application the Local Authority is prohibited from providing public funds as he is an 'ineligible' person. I have assessed that there is community support available for Mohammed to avoid him becoming homeless. It is accepted that to remain in the UK homeless may breach Mohammed's article 3 rights; However this breach can be avoided with his return to Algeria. The UKBA and the Local Authority are satisfied that to do so would not breach Mohammed's human rights. Indeed, Mohammed's failure to comply with the reporting conditions confirms that there are no such article 3 grounds as in the Authority's opinion a person with a potentially valid claim would bring it to the attention of officials at the earliest opportunity.
    If the referral has been accepted as an application by the UKBA Mohammed is able to apply to NASS for support, including accommodation. There can be a recommendation to place Mohammed in London so he can be near a large Algerian community, although there are likely to be Algerian communities around the country."

    The assessment does not provide for anything in the nature of a conclusion. However, that final passage appears broadly to summarise Ms Wilsons views on the question whether the claimant has a need for community care.

  29. There are two other points about those passages from the assessment which I ought to elucidate at this stage.
  30. First is the letter of the 13 September to which I have already referred. This reads as follows:
  31. "Dear sir/madam,
    This man is a current client of your practice. He awaits a final decision on his application for asylum from Algeria. Our service was asked to assess him in view of concerns that he may have a severe mental illness and that further detention may be detrimental to his mental health.
    Previous reports by Dr Charmain Goldwyn give a range of diagnoses not all of which are recognised in standard diagnostic classification schemes. Professor Katona gives a diagnosis of severe depression and possible post traumatic stress disorder. He also states this man is unfit to fly or perhaps even for continued detention.
    As Professor Katona accepts, assessment of Mr Oukil is difficult. He presents in a highly aroused state and is preoccupied with his concerns about possible deportation to Algeria or more immediately dispersal from London as part of the asylum process. He told me on a number of occasions that were either of these to be attempted he would self harm. He expected me to fully support him in his wish to remain with mental health services and became angry at attempts on my part to more fully assess his mental state.
    On direct questioning he did say quite openly that the most helpful treatment he could receive would be to be granted fully asylum in the UK.
    On the basis of my assessment I can state the following.
    1. In contrast to the view of Dr Goldwyn I do not believe he has a psychotic illness. He states that previously he experienced voices and was treated with Clonazepam. Clonazepam is not a treatment for psychosis but is rather an acute sedative (similar to valium).
    2. He does present with acute distress, but it would be very difficult to form the view he had a severe depressive illness. He made it clear to me that his mood would improve rapidly were he to be granted asylum.
    3. He does present with great difficulty in coping with stress and a history that suggests this may be a stable feature of his character. It may be more helpful to view his current distress as reflecting an underlying abnormal personality structure and that as a result of this he is coping very poorly with his admittedly difficult life circumstances.
    4. For now there is no useful treatment that our team can offer to this man. The crucial decision that is required is a clear view about his asylum status. This is one that must rest with the UK Government and depends on matters beyond my expertise namely his history of torture and his potential safety if returned to Algeria. It will not be possible to offer any useful treatment for his mental health until that has been settled. Indeed it may be that further contact with our mental health team may only serve to further delay the decision about his asylum status. It may be hoped that treatment by our team may improve his mood to make it easier to decide about his status. It is my view that his mental state will not improve significantly whilst his asylum status is undecided.
    5. Once this is decided it may be that treatment could be considered although treatment would be available outside the UK.
    6. It is not my view he is unfit to fly. He has stated he will try and self harm if forced to return to Algeria and that is something that needs to be taken seriously by the UK authorities if that decision is taken. However this is really an issue for how his deportation is handled and not a reason of itself to reverse any such decision. It is the case that continued detention is harmful to his mental health. However that again is not a reason to rush the legal process to the point where unsound judgements are made."
  32. Secondly, I should say something about the reference to a decision of "the local authority" dated 5 September, referred to in the final section of the assessment. The computer notes kept by Ms Williams record for that date:
  33. "10.45 hours attending NRPFP [I interpose to say that that means the No Recourse to Public Funds Panel] - they do not agree to fund Mohammed as he does not fit the criteria to be watched over or looked after. He is also had NASS before and they feel his solicitor could argue with NASS that he is placed in London to be close to an Algerian community.[sic]"

    There is no evidence from Ms Williams or anyone else to explain or amplify that the entry. In the absence of any such evidence, I must infer that what is recorded is a decision by the Council not to provide the claimant with accommodation under section 21 of the 1948 Act. That is how it was understood by Ms Williams and she indeed so notified the claimant on 7 September. It is not suggested by Ms Luh that the taking of the decision at that stage, or in that way, was itself procedurally unlawful: it can reasonably be inferred that the panel was acquainted with Ms Williams' views on the basis of her assessment to date and, importantly, the views expressed by Dr Jones. But in any event that decision can only have been provisional since the claimant had a right to see and comment on his assessment and Ms Williams proceeded with the completion of the written assessment form for precisely that reason and the Council continued to provide accommodation.

  34. The assessment was sent under cover of a letter from the Council's solicitor, Mr Morley, dated 20 October. The material parts read as follows:
  35. "The Local Authority has completed its comprehensive care assessment of your client and I enclose this for your information. The assessment concludes that your client is suitable for continuing support from National Asylum Support Services. This is on the basis that your client is claiming Article 3 ECHR as part of his application. There are no apparent Article 8 claims being made by your client. Furthermore, the assessment concludes there your client has no need which is not otherwise available than by the Local Authority.
    In light of this, your client has been given 28 days notice of his support being ceased by the Local Authority. This notice period is provided to enable your client to take advice from yourselves and further, to make relevant applications to NASS for support."
  36. That letter might perhaps be said to put the cart before the horse by referring firstly to NASS rather than to the outcome of the needs assessment. Nevertheless, the final sentence of the first of the two paragraphs which I have quoted makes it clear that the needs question had been addressed, and no point is taken on the way in which the letter is worded.
  37. Following receipt of that letter, and, it seems, a further letter dated 28 October from the chairman of the NRPFP, which is referred to in correspondence but which I have not in fact seen, Wilsons on 24 November wrote to the Council challenging both the assessment and the decision not to continue to provide accommodation. The material parts of the letter reads as follows:
  38. "We still believe that our client is in need of care and attention which cannot be provided without accommodation. We are prepared to challenge the cessation of support by judicial review but hope that this can be avoided.
    The community care assessment concluded that Mr Okil does not have a need for care and attention which is not otherwise available than being provided by the local authority. The assessment contends that Mr Okil can access accommodation via the National Asylum Support Service ('NASS') and relies on the letter from Dr Jones of the Community Mental Health Team to say that no other services are necessary for Mr Okil as matters currently stand.
    In our view, it is difficult to reconcile the conclusion of the Southwark assessment with the facts which are recorded in the assessment.
    It is clear from the assessment that Mr Okil requires regularly monitoring in respect of his medication level. He appears not to have much of an understanding as to what medication is suitable for his mental health difficulties and has an apparent fixation on clonazepam. As is suggested by the assessment, Mr Okil's medication level and mental health require monitoring and review. The only reason it appears not to have been reviewed and monitored is because the assessor has deemed it unsafe for the assessor to carry out reviews and monitoring as Mr Okil is prone to agitated and violent outbursts.
    Mr Okil's need for monitoring and regular review of his medication because he lacks insight into his mental health difficulties suggests in our view that he may be in need of care and attention.
    In M v Slough with the recent Court of Appeal judgment in SL v Westminster CC [2011] EWCA Civ 954 where it was held that the regular review and monitoring of a mentally unwell asylum seeker was not only for the purpose of regulating his medication but also for the purpose of monitoring his mental health to prevent a relapse/deterioration in his mental state. To this extent, it was held by the Court of Appeal that what the Appellant in SL required met the test set down by Lady Hale in M v Slough ie that the monitoring of the mental state was something which someone else had to provide for the Appellant in SL.
    In the present case, the monitoring set out in the assessment appears to be limited to the monitoring of Mr Okil's medication level. However the assessment suggests that Mr Okil lacks insight into his mental health state as evident from his apparent lack of understanding of his medication needs. Furthermore, the assessment appears also to suggest that Mr Okil requires monitoring in respect of his mental health state but that this cannot be done as his violent behaviour puts those who support him at risk. This rather suggest (i) a need for monitoring beyond medication needs; (ii) that he has a high need for such monitoring rather than no need at all for monitoring.
    If you require further information, please do not hesitate to contact us."
  39. The Council agreed to a short extension to the provision of accommodation, but on 2 December it wrote reaffirming its earlier decision subject to a short final extension. The material parts of the letter read:
  40. "The Local Authority has sought the view of Dr Jones and his view is set out in the letter enclosed. Dr Jones' view has not altered and he maintains that Mr Oukil has no mental health diagnosis. Professor Katona assessed Mr Oukil in August 2011 and any update of this view could have been completed in view of the papers and the assessment of Dr Jones.
    Your response has failed to acknowledge Mr Oukil's refusal of NASS support on the grounds that he has friends and support in London available to him. The Local Authority has undertaken its own assessment of your client which has included that assessment by Dr Jones. It would be misdirected to propose that the Local Authority has relied solely on the view of Dr Jones.
    Mr Oukil has received adequate care and support other than by the Local Authority since the Local Authority assessment was concluded. This is echoed by the comments of Dr Jones'. It is therefore not accepted, as suggested in your letter, that Mr Oukil requires regular monitoring by the Local Authority of his medication level and mental health.
    On the basis of recent and medical assessment the Local Authority is of the view that Mr Oukil does not have a mental health diagnosis. It is therefore illogical to suggest that the Local Authority is required to regularly review him in order to, in part, monitor his mental health. Mr Oukil is able bodied and has recently proven capable of regulating his medication through prescription from his GP. This is particularly a medical need.
    The Local Authority has fully assessed Mr Oukil ensuring that he was fully involved. Mr Oukil has presented to professional social workers and the assessment was rationally concluded. Mr Oukil has been provided with a copy of the assessment setting out the basis for the Local Authority decision. The Local Authority reliance on its assessment remains following a reconsideration of the case."

    The letter from Dr Jones referred to is also dated 2 December and reads as follows:

    "Mr Oukil was first seen by our service in August 2011 and last seen on 12th October 2011. During this time he was assessed by the team, including myself who met him on the 2nd September. We have reviewed this decision on 1st December and maintain a clear view that he does not have a severe mental illness that warrants specialist treatment with specialist mental health services.
    He presented requested accommodation and for a supply of sedative medication. This medication was prescribed to him in a detention centre. It is not a recognised specific treatment of any mental illness. He was on an inappropriately high dose of this and our service cautiously reduced this in a careful manner. If his social circumstances had not been so unstable we would have reduced this further.
    We maintain that the assessment of Mr Oukil's diagnosis is clear and have taken account of the view of Professor Katona.
    Mr Oukil has not presented to emergency services in crisis since being provided accommodation. He has presented both to our service and to primary care making aggressive requests for extra medication. When these have not been met he has resorted to verbal threats, and on one occasion physical violence, towards a member of staff.
    The physical violence towards one of our team led to us discussing if it was reasonable to discharge him from our team. As there is no clear evidence he has a mental illness it was felt an appropriate clinical decision to do this. We have continued to fund his accommodation although housing support would be available from another agency."
  41. The present proceedings were commenced on 7 December 2011 and the claimant obtained interim relief requiring the Council to continue his accommodation. I should, for completeness, mention that in fact he had to leave Ripplemead shortly before Christmas on account of an incident of alleged violent behaviour and that shortly after Christmas he was arrested and remanded in custody. In the event, charges were not pursued. The claimant nevertheless remained in custody for a short time on the initiative of the UKBA, but on 7 March 2012 an immigration judge granted bail and on his release the Council was required again to offer him accommodation in accordance with the interim order and has in fact done so.
  42. A good deal of evidence has been lodged in support of the claim. So far as the factual matters are concerned, I have sufficiently summarised the effect of the evidence.
  43. As far as medical evidence, on 15 December 2011 Professor Katona made a full report on the claimant, having had a consultation with him on the previous day. He again diagnosed PTSD and a major depressive episode. He considered and rejected the possibility that the claimant might be feigning mental illness. He considered the views of Dr Jones, as appearing both from the community care assessment and the attached letter, and disagreed with the conclusion that the claimant was not suffering from a severe and enduring mental illness; but he said that even if the correct diagnosis were PTSD and/or borderline personality disorder that would itself represent a life long and disabling mental illness. He concluded at paragraph 13:
  44. "a. In my view Mr Okil has very severe mental health problems. He is extremely distressed and his behaviour is very disturbed. In my opinion the most disturbing features of his presentation (his episodes of aggression) are themselves strongly supportive of the diagnosis of complex PTSD and indicators of the intensity of his suffering.
    B. In my opinion Mr Okil needs very long term highly specialised psychotherapy as well as long term medication with antidepressants and antipsychotics. This will only [be] possible if he has stable accommodation with good access for this therapy.
    C. Mr Okil's disturbed behaviour since his release from detention (episodes of which caused him to be arrested and to be taken off his GP's list) indicated that he is currently not able to live independently and needs close supervision. In my opinion he would benefit from intensive support from a community mental health crisis or home treatment team.
    D. In the light of this it seems clear that Mr Okil desperately needs to be 'looked after' because of the complexity of his mental health needs as well as his vulnerability and that he is therefore in need of 'care and attention' as well as appropriate accommodation."

    It should be observed that the principal need identified by Professor Katona is "long term highly specialised psychotherapy" supported by appropriate medication, but that he also believes that he would benefit from intensive support from a community mental health crisis or home treatment team.

  45. Dr Jones responded to that report in a report dated 10 January 2012. As regards diagnosis, he explained why he rejected the diagnosis of a depressive illness. Under the heading "need for future treatment" he said this:
  46. "4.1 I would challenge the view presented in Professor Katona's report that Mr Oukil requires immediate specialised treatment. There is ample clinical evidence and experience that such treatment should only be started once the life and social situation of the individual is sufficiently stable. This is clearly not the case at present for Mr Oukil. Indeed were such treatment to be started currently it may only increase his current distress and disturbed behaviour.
    4.2 Mr Oukil could agree to have at least a trial of standard antidepressants although there are no grounds to enforce treatment if he does not agree to this. In the absence of any major change in his social situation I would not however expect such treatment to produce a major improvement in his mental condition. This treatment could be started in any environment and does not require ongoing contact with a specialist mental health team.
    4.3 I would not agree that Mr Oukil requires intensive community support from a community team of even a crisis home treatment team. Such teams can have a role in helping individuals to manage practical aspects of their daily life or to reduce the risk of inpatient admission. However there is no evidence that he is not managing the practical aspects of his life and there is no evidence that inpatient admission is required for Mr Oukil or that his condition will significantly deteriorate if medication is not started immediately.
    4.4 The clear evidence is that his disturbed behaviour occurs in specific situations, notably at times when he perceives that his own needs are not being met promptly This has included physical assault on a team leader at our team, threats to harm made at other medical and support staff, and a recent assault of a resident in a hostel. There is no evidence that community team input would reduce this. These events also provided evidence that Mr Oukil has a low tolerance to frustration when his perceived needs are not met and in the aftermath of each incident he has displayed a clear lack of remorse or guilt over these actions and a marked tendency to blame others for these incidents. These are all typical personality traits for an individual with a cluster B personality subtype. I do not think they can be merely attributed to symptoms in the interpersonal symptom cluster of PTSD.
    4.5 It is an open question whether he will even require any treatment if his social situation was more stable. The evidence from his own account was that from 2003-2007 he lived in the UK and functioned at a relatively good level within a social support network and working) and without any contact with mental health services. The reasonable assumption is that he had a relatively low level of symptoms at this time. Such a history is not compatible with the view suggested by Professor Katona that Mr Oukil has a severe and enduring mental illness. Indeed the clear history that he did not require any specialist intervention in 2003 argues strongly against the view he had severe complex PTSD as this is a condition that would not be expected to become less severe in such a straightforward manner.
    4.6 I would argue that the failure to arrive at a clear decision about his asylum status is the key factor in accounting for his current mental and behaviour symptoms. It is of course a legal decision as to whether it is appropriate to proceed with deportation. His history is such that he has probably experienced childhood trauma (although there is no independent corroboration of his history of torture). However it has previously been the case that his symptoms have reduced to a low level (between 2003 and 2007) without any specialist treatment. It is thus reasonable to expect that his symptoms may again reduce if his social situation can be made more stable.
    4.7 I hope in the interests of his health that his asylum case can be settled as soon as possible. It is very sad to witness the behaviour disturbance shown by Mr Oukil that the delay in resolving this matter is directly contributing towards."
  47. Dr Jones repeated and to some extent developed those views in a witness statement dated 14 February. I should only take this into account to the extent that it gives reliable evidence of his contemporary views, but what he says in it is entirely consistent with the two letters to which I have referred and is helpful inasmuch as it is somewhat more explicitly directed to the issues which I have to consider. I will therefore refer in particular to paragraph 5, in which he says:
  48. "The claimant's circumstances are not such as to warrant monitoring or care coordination. This is usually provided to those who cannot manage without it in the community, ie for those with a lower ability to function than the Claimant. Furthermore, the Claimant does not want treatment other than tranquillisers, which he has specifically requested. When the Claimant was trailed on the anti depressants in August 2011 he voluntarily chose not to use them stating that he did not wish to take them."

    In paragraph 2 he accepts that the claimant has behavioural problems and says that whether these are described as being a borderline personality disorder or a complex form of PTSD does not matter for the purposes of his current treatment. He continues:

    "The Claimant's fundamental problems with related to his lack of immigration status and the threat that he may be deported."

    At paragraphs 13 to 14, he says this:

    "The Claimant's behaviour is characterised as impulsive and indicates a low tolerance to frustrations that he experiences. This has become his habitual way of relating to others. His errant behaviour is not randomly directed: it is goal directed and used as a way of seeking outcomes that he wants. The Claimant's bad behaviour is directed at particular people and for particular reasons. This behaviour is more akin to anti-social behaviour than to something that has a mental health cause or root. This behaviour has been characteristic of the Claimant since he was first referred to our services in August 2011, which seems to have been in response to the fact that he was going to be dispersed by the government out of London. For example:
    A. In my letter to the Claimant's solicitors of 13 September 2011 I noted how the Claimant was 'preoccupied with his concerns about possible deportation to Algeria or more immediately dispersal from London as part of the asylum process. He told me on a number of occasions that were either of these to be attempted he would self harm. He expected me to fully support him in his wish to remain with mental health services and became angry at attempts on my part to more fully assess his mental state.
    B. In his letter of 31 January 2012 (exhibit HJ1) Dr Johns notes how the Claimant said he was refusing to eat in response to being refused medication in liquid as opposed to tablet form.
    C. Between these two examples are numerous examples of the Claimant engaging in violent and anti-social behaviour that have been prompted by his inability to get what he wants.
    Self-harming behaviour
    14. Individuals may self-harm for a number of reasons. In the Claimants' case it is my opinion that he does it for two reasons. First, he probably self-harms as a means of controlling stress, rather than with an intent to commit suicide. His scars, for example, are not in places that would suggest an intention to commit suicide. Indeed he has never damaged himself in a serious way and his scars are superficial. Secondly, he probably self-harms, or at least threatens to self-harm, as part of his goal directed behaviour. The accounts of how the Claimant has actually swallowed razor blades, on one occasion he says he swallowed seven, all come from the Claimant and although he says that he was once x-rayed in hospital it is doubtful that he actually swallowed razor blades because of the absence of medical records supporting such a conclusion."
  49. I should explain the reference at paragraph 13b to Dr Johns. Dr Johns is another consultant employed by the SLAM, who saw the claimant while he was in custody in February this year and produced a report. This did not, however, form any part of the assessment process.
  50. The claimant has in turn put in a further report from Professor Katona, commenting on Dr Jones' statement, and also a witness statement from a Dr Hartree, a general practitioner working for the Helen Bamber Foundation and for Project London who saw the claimant on two occasions in March of this year. The difficulty about this material is that it was not before the Council, or the team, at the time that it made its assessment. It could nevertheless be relevant to the extent that it was suggested that Mr Jones' assessment of the relevant matters was unreasonable, and I have taken it into account to that extent. But, as will appear, the claimant's challenge does not focus on whether Dr Jones' diagnosis or views about treatment were unreasonable, which is the matter principally addressed in Professor Katona's latest statement. Dr Hartree's statement, which is very lengthy, though it is of valuable background, does not seem to me to contain material which I need to set out in detail here.
  51. The decisions challenged in the claim form are identified as:
  52. "i) failure to carry out a lawful and rational community care assessment;
    Ii) refusal to provide accommodation and support pursuant to s21 NAA 1948;
    Iii) refusal to provide community care services in accordance with the Claimant's needs associated with his mental health difficulties and depression,"

    The dates being specified as 20 October 2011 (being the date that the letter containing the original assessment was sent to Wilsons) and 2 December (being the date of the Council's subsequent reaffirmation of its decision).

  53. I will not attempt to summarise the pleaded grounds, which are, though admirably full, somewhat discursive, or the response in the grounds of resistance. The points made will adequately appear from my account of the submissions made before me. I should, however, record that one point taken in the grounds of resistance was that the claimant was disentitled to accommodation under section 21(1) because he was a failed asylum seeker and his case accordingly fell within the terms of paragraph 7 of schedule 3 to the Nationality, Immigration and Asylum Act 2002. That argument depended on whether he did indeed have a pending application for leave to remain. It is his case that he did, and indeed does, by virtue of the representations made by Wilsons in August 2011. UKBA's records appear to suggest otherwise, but it has, disappointingly, proved impossible for the purpose of this hearing to get to the bottom of what the claimant's immigration status really is. Counsel sensibly agreed at the start of the hearing that it should proceed on the basis that schedule 3 does not apply. If the claimant is successful in showing that he would otherwise be entitled to accommodation under section 21(1), there would then need to be a further hearing to resolve that remaining issue.
  54. I accordingly turn to the substance of the claimant's challenge to the community care assessment and the consequent decision of the Council. As developed before me by Ms Luh, it can be summarised as follows. She contends that, on the facts known or reasonably available to the Council, the only reasonable conclusion to which it could have come was (a) that the claimant was in need of care and attention, other than medical care, within the meaning of section 21(1) (a), as explained in M v Slough, and, (b) that that need could only be met if he were supplied with residential accommodation. Mr Holbrook conceded that if element (a) were established he would not challenge element (b). (He also made it clear that, as far as he was concerned, I could treat the assessment of the liaison team, on whose conclusions the Council plainly acted, as being part of the Council; that is he was taking no point that the Council had acted lawfully on acting on the advice of the team, even if that advice could be shown to be flawed.)
  55. The essential question is thus what material was available to the team relating to the claimant's need for care and attention, other than medical care, and what consideration they gave to that material. Ms Luh's case as to the former can be summarised as follows. There was ample material to show that the claimant was suffering serious mental ill health. Professor Katona had diagnosed depression and PTSD, but it was sufficient for her purpose to rely on Dr Jones' own conclusion, recorded in the letter of 13 September, and in the assessment. Whether that was characterised as PTSD or personality disorder, it was a form of mental ill health and clearly serious in view of the behaviour associated with it. In any event, quite apart from those conditions, the assessment revealed that the claimant had a problem with use of tranquillisers which was itself a form of mental ill health. Whether or not those conditions required immediate medical treatment -- which was, of course, as such immaterial for present purposes by reason of section 21(8) -- they unquestionably, she submitted, created a need for care and attention short of medical treatment; specifically, the only possible conclusion was that the claimant needed monitoring and emotional support. That was evident from the fact that he was throughout the period covered by the assessment in very regular contact with the team itself -- principally, but not only with Ms Williams -- which was not simply conducting an assessment, but also offering him care and support. It was also evident from the fact, apparent from the assessment and reinforced by the clinical notes, that the claimant was receiving such support from Ms Ottisova at Project London and from Detention Action. The case as so expressed is of course similar to that advanced by Wilsons in their letter of 24 November referred to above, although it is somewhat broader since it will have been noted that in that letter the care and attention said to have been required was limited specifically to the monitoring of the claimant's level of medication.
  56. Ms Luh relied heavily in support of these submissions on the decision of the Court of Appeal in SL v Westminster City Council [2011] EWHC Civ 954, in which the court held that the services of a social worker, who had regular weekly meetings with the claimant, an Iranian refugee suffering from depression and PTSD, fell within section 21(1) (a). It is clear from the report that the meetings in question were in accordance with the recommendations of a care plan prepared by the responsible NHS trust on the claimant's discharge from a lengthy in-patient stay in hospital following a suicide attempt. Laws LJ, at paragraph 22 of the judgment, accepted the submission of counsel for the claimant that that support fell within the terms of Lady Hale's definition in M v Slough. He said:
  57. "As [counsel for claimant] submitted, Mr Wyman [that is the social worker in question] is doing something for the appellant which he cannot do for himself: he is monitoring his mental state so as to avoid if possible a relapse or deterioration. He is doing it, no doubt, principally through their weekly meetings; but also by means of the arrangements for contact (or the renewal of contact) with the two counselling groups, and with the 'befriender'. It is to be noted that care and attention within the subsection is not limited to acts done by the local authority's employees or agents. And I have already made it clear that the subsection does not envisage any particular intensity of support in order to constitute care and attention."
  58. Ms Luh submitted that it is evident from the language both of the assessment itself and of Dr Jones' letter lodged with it that the assessment and liaison team had given no consideration of the question whether the claimant needed support of that character, as he plainly did. They had regarded the determinative question as simply being whether he needed psychiatric treatment.
  59. Clearly and cogently though those submissions were presented, I cannot accept them. I do accept that the focus of the assessment, both in the parts completed by Ms Williams and in the accompanying letter from Dr Jones, is primarily on the question of whether the claimant required treatment for his mental health. That is perhaps hardly surprising, given the focus of the initial referral by Wilsons and indeed the claimant's history generally. More to the point, however, it does not in my view mean that the assessment team had their eye on the wrong ball. Granted that any treatment as such would not constitute community care, the question whether the claimant suffered from a medical condition, however diagnosed, that required treatment was very closely associated with the question of whether he required care and attention within the meaning of section 21 and, if so, of what nature. The opinion of the team was that he required no such treatment. Ms Luh cannot and does not assert that that is a view to which the team was not entitled to come, albeit that Professor Katona disagrees with it, and in any event, as I already said, proving that the claimant needed medical treatment would not assist the claimant as such. The real point, however, is that the opinion formed by the team on those related issues of diagnosis and treatment, at least on the grounds on which they formed that opinion, carried with it the conclusion that he did not need any kind of "looking after" of the kind advanced by Ms Luh. It was the view of the team that the claimant was in fact adequately managing the practicalities of day-to-day life and that his outbursts of disruptive behaviour and his threats of self-harm -- which, however, they plainly did not judge to be grave -- were a response to his fundamentally unsatisfactory situation, namely the prospect of being returned to Algeria, and, more immediately, of being dispersed out of London. These were not features that could be addressed by the provision of some particular care or monitoring. That may only be implicit in the text of the assessment, but it is explicit in the Council's letter of 2 September and in Dr Jones' witness statement. I regard that judgment as rational and legitimate. The facts are clearly distinct from those in SL, where the "monitoring" in question was of a very different character, being required, as I have said, under a care plan made on the claimant's discharge from in-patient psychiatric care and needed in order to prevent a real risk of relapse. The support which the claimant was in fact receiving during this period from the team itself, and from Project London and Detention Action, does not advance the argument. The claimant was seeing the SLAM team primarily for the purpose of an assessment. It is true that he raised with them other issues, particularly in connection with his wish to continue his prescription of tranquillisers, but that does not mean that they were giving him, still less that he needed, care and attention of the kind contemplated by section 21. Likewise, while Project London and Detention Action were, as Ms Williams knew, providing support, that does not, and certainly did not necessarily, indicate a need for looking after of the relevant kind related to such mental health problems as the team believed that he had.
  60. I should mention that Mr Holbrook referred me to the decision of the Court of Appeal in R (Nassery) v Brent London Borough Council [2011] PTSR 1639 as a example of a case where, on, he submitted, more extreme facts than those of SL, the court declined to find a need under section 21. But I do not myself rely on that authority as doing more than illustrating the very general proposition that all cases of this kind are fact sensitive.
  61. I should make it clear that my conclusion is the same even if the focus is placed, as it was at least to some extent in Ms Luh's submissions (though not in the case as originally advanced) on needs said to be attributable to the claimant's alleged dependence on prescription tranquillisers. Insofar as the team were responsible over the relevant period for prescribing tranquillisers and for trying to effect a reduction in the claimant's usage of them and to cope with his reaction to that attempt, that plainly constituted medical care; and, as Mr Holbrook pointed out, when the team decided they could no longer deal with the claimant it was a matter which they simply passed over to his GP. There is no evidence that would support a conclusion that the team was bound to have identified a need for care and attention in relation to the claimant's use of tranquillisers.
  62. In short, I find that the assessment and liaison team carried out a reasonable assessment which justified the conclusion that the claimant did not have a relevant need under section 21(1)(a). I must therefore dismiss this application.
  63. My conclusion does not mean that I find that the claimant has no mental health or other problems. It means only that I find that the Council reached a proper conclusion that whatever problems he had were not such as to require the provision of care and attention of the relevant kind or therefore of residential accommodation. That means that his accommodation becomes again the responsibility of NASS. That is a responsibility which it has in the past shown itself entirely willing to shoulder and it is only the claimant's refusal to move to Plymouth that has prevented it from doing so. In that connection, I note that the view of the NRPFP, which no doubt has considerable practical experience in these matters, was that the claimant could make a case to NASS to be provided with accommodation in London because of his particular circumstances; but that is not something on which I am in a position to express a view.
  64. Thank you.
  65. MS LUH: My Lord, just, I thought, since I will be asking for the judgment to be transcribed, there are just a couple of minor factual errors that I thought needed to be corrected, if that's all right.
  66. MR JUSTICE UNDERHILL: Yes, of course.
  67. MS LUH: First is I think you referred to Dr Goldwyn as a man and he is a she, because I think you used "he" instead of "she".
  68. MR JUSTICE UNDERHILL: If I did, that was certainly an error. I certainly knew she was a she and it was a slip of the tongue if I said anything --
  69. MS LUH: I can quite appreciate that in a read out judgment.
  70. Second of all, Dr Katona is in fact a Professor Katona, so if the judgment --
  71. MR JUSTICE UNDERHILL: Well, I noticed I was inconsistent, but I will certainly accord him his full title when I called him doctor.
  72. MS LUH: I'm grateful, and the third thing is you mentioned that claimant's charges in relation to assault, in relation to the evictions, was to Ripplemead, but in fact it was in relation to the subsequent short period that he was in another accommodation before he was remanded to prison. So that just is a factual issue.
  73. MR JUSTICE UNDERHILL: Thank you. Again, I was certainly aware of that, but, if that's not how it came out, I'll change it.
  74. MS LUH: And the fourth thing is the interim order in relation to 7 March, when he was released was not the original order from Mr Justice Holman, but a further order from Mrs Justice Lang, just for completeness sake. I'm sorry if I am being a bit pedantic.
  75. MR JUSTICE UNDERHILL: No, I'm all for accuracy, Ms Luh, but so far these are not matters that concern me, but worry me, but I will of course put them right.
  76. MS LUH: More importantly, my Lord, we would ask for permission to appeal your judgment, and this is just thinking off the hoof from the judgment.
  77. In analysing it, so that it relates to analyse his needs of care and his needs, it's entirely and solely to do with his immigration status and its uncertainty, is to do the same thing that one would do in erroneously allocating all needs of care and attention to destitution where there's associated needs that go beyond that, and therefore he has an underlying agreed diagnoses of PTSD and depressive symptoms, although there is no diagnosis from the defendant in terms of depression, but there is clear observations about his distress and difficulties with coping. Those are needs that do not necessarily associate solely and limited to his immigration status and to say that, as Dr Jones does, and the defendant forwards its case to be, any needs that he has is entirely relegated to that, it's an error in the way it applies the need for care and attention. So that's the first issue.
  78. The second issue is your reference to the monitoring and the medication and alluding it in any event being health needs, but a strict interpretation of that, of section 21(8) and the associated legislation that is referred to in that, does not permit that sort of interpretation, although it is true that, in SL v Westminster, the conclusion of monitoring arose from a care plan itself, in reality to exercise a power or a duty under NHS Act 2006, requires them to actually make a decision in relation to the illness and any sort of services and treatment associated with that illness. So it has to be founded on some illness which requires a service of facility.
  79. In relation to the medication, there has not been found any illness in relation to addiction by the local authority. Therefore it can't actually be a service or a monitoring arising out of an illness which is something squarely within the health realm.
  80. Second of all, in relation to his PTSD, where there's very clear evidence in Dr Jones that there's no -- he diagnosed him to maybe having a personality disorder, but the services in relation to the monitoring was not associated with that illness, and therefore in reading it as services in relation to that, to preclude those aspects, from the need for care and attention, would be erroneous and a fairly strict reading of the care and attention and an overly wide scope for subsection (8).
  81. Thirdly, I note your Lordship noted and accepted that the approach of the community care assessment, and indeed Dr Jones' letter, both set it out from an approach for there is no severe and enduring mental illness and, although one might read into that that, implicit in that, there is a consideration of need for care and attention, but that would be the wrong reading, because the conclusion is very clear, it starts with he has no severe enduring illness, which requires him to be looked after. That is a very narrow scope of what the causation of need for care and attention to look after is, so that, in approaching it that way, you cannot read implicitly, in that they were considering something much wider than that, and that's precisely how this authority fell down in the same way as PB v Haringey, as well as in Pieretti(?), both of which were to referred to in my skeleton argument, as to the very focused and specific psychiatric and psychological need, although that indeed was something they thought about, but they thought about it in an even narrower way than even in those cases, because they were much more general psychiatric needs. Here there was a specific -- there is no diagnosis, therefore no associated need for care and attention, and to read, overly read, into what is not evident on the papers before you, would be erroneous as well.
  82. So, for those brief reasons on this extemporary judgment, we would ask permission to appeal.
  83. MR JUSTICE UNDERHILL: Thank you, Ms Luh.
  84. No, I'm afraid you haven't persuaded me. You will need to apply for permission to the Court of Appeal.
  85. MS LUH: I am grateful, my Lord. Yes, I do need one of those forms.
  86. The second issue, my Lord, is in relation to what happens to the claimant next. My learned friend and I had a very brief chat about this in advance of your judgment. We would simply ask, given the time of day, and given it's the weekend coming up, that the interim order be extended for a few days, so that the arrangements can be made with the Secretary of State and the local authority to transfer him, because, in any event, he is someone who, on the face of it, is volatile and has had valid incidents, and we would say a seven day reasonable period would be the appropriate way, or even until the end of next week, so that the arrangements can be made and the decisions be made in relation to that.
  87. Second of all, that would allow for representations also to be made in relation to keeping him in London, because it might be very well likely that he might be dispersed. So all of that takes a bit of time. We submit that it wouldn't be prejudicial to the defendant. They could in any event recoup -- say that this is now -- but we're keeping him there, and we can keep the money from --
  88. MR JUSTICE UNDERHILL: Well, let me hear Mr Holbrook on that.
  89. I'm quite attracted by that, Mr Holbrook, I must say.
  90. MR HOLBROOK: Well, my Lord, and indeed there is some benefit to both parties in there being some certainty in knowing exactly when the order is made. I wouldn't oppose the claimant having an extension of the injunction for seven days, but no more than that, and I say that because NASS accommodation can be secured at very short notice. Often it needs to be.
  91. MR JUSTICE UNDERHILL: Yes. Well, I have already said I will dismiss the application and I will discharge the injunction with effect from -- I will take advice from counsel on exact timing, but effectively I want the last night to be the Thursday night, so that he can be moved into new accommodation by whoever is going to do it on the Friday. That seems sensible, rather than making it happen on the weekend. But, what seems to me to be sensible will be to say from 9.00 am on the Friday.
  92. MS LUH: I was going to suggest 9.00 am on the Friday, with the brackets "(including the last night being..)." I had a recent order to similar effect, and that --
  93. MR JUSTICE UNDERHILL: That sounds fine. I mean, I don't actually know what day of the week that is, the Friday, but --
  94. MS LUH: Friday is 27 April.
  95. MR JUSTICE UNDERHILL: So the injunction is discharged with effect from 9.00 am on Friday 27.
  96. MS LUH: I'm content with that.
  97. I believe the last issue would be the issue of costs. No doubt my learned friend is going to be seeking costs in this case. Our submission is that this --
  98. MR JUSTICE UNDERHILL: Well, you had better wait and see whether he is.
  99. MS LUH: He has told me that is.
  100. MR JUSTICE UNDERHILL: All right. I will take the application as made. Yes?
  101. MS LUH: And we would simply suggest that this is a case which is appropriate for no order as to costs.
  102. Although the general principle is that costs would follow the event, this is a case where late evidence in relation to the case notes were disclosed quite late in the day. They gave a much clearer picture of what actually was going on on the ground. It was necessary to deal with that. There were points in my learned friend's skeleton argument in relation to the law. He conceded a point that he had previously taken and that was something that we had to deal with and engage with. The dispute between the two experts were also issues that we had to deal with and engage with throughout the proceedings until we got to this point, where the issue in relation to whether or not it's a health need or otherwise can be fully argued.
  103. We say that, in a case like this, with the complexities involved, it is a case which the parties had to come to court in order to resolve and no order as to costs would be appropriate in this case.
  104. MR JUSTICE UNDERHILL: Thank you. No, I'm afraid I am going to make the usual order. It seems to me that this is a case where the starting point clearly should be, as Ms Luh concedes, that costs should follow the event. None of the matters to which she's referred seem to me to justify a departure from that. She refers, in particular, to the late disclosure. I don't know the rights and wrongs of that, but none of the factual matters to which that gave rise seem to me to cause any prejudice or any change of view on the part of the claimant that ought to justify any special order for costs. So I'm against you.
  105. MS LUH: And I would simply seek the normal order with protection in relation to the publicly funded costs --
  106. MR JUSTICE UNDERHILL: Yes. Well, that must follow and, I'm bound to say, makes the debate you've just had largely irrelevant.
  107. MS LUH: I am grateful.
  108. MR JUSTICE UNDERHILL: Well, I had better retain the papers, if I'm going to be asked -- sorry, forgive me, I've been sitting elsewhere for a while. I now can't quite remember what the rules are about transcripts.
  109. MS LUH: Yes, that was the other thing that you've reminded of, which is that could we have an order for an expedited transcript, so that this issue -- no doubt this is not an issue that either party would want hanging over their heads if permission is going to be applied to the Court of Appeal.
  110. MR JUSTICE UNDERHILL: Yes. Well, let's just think about that. I can't remember how it goes. The 21 days applies whether you have a transcript or not, is that right?
  111. MS LUH: I'm just checking.
  112. MR JUSTICE UNDERHILL: Do you know, Mr Holbrook? I think it does, but there's a procedure then for it to be stayed pending -- isn't that what happens?
  113. MR HOLBROOK: Well, an application for permission to appeal can be made within 21 days without the transcript.
  114. MR JUSTICE UNDERHILL: Yes, but I thought must be made, must it not?
  115. MR HOLBROOK: Well, yes.
  116. MR JUSTICE UNDERHILL: It must be made within 21 days, whether you have the transcript or not.
  117. MR HOLBROOK: Yes.
  118. MS LUH: The skeleton argument for those 14 days after, if it's not attached to the appeal grounds --
  119. MR JUSTICE UNDERHILL: Don't worry about that, but there is certainly a provision, I can't remember what it is, for what happens if you haven't got a transcript in time. Basically the whole proceedings wait until that's happened.
  120. MS LUH: The normal procedure for the Court of Appeal is we would contact the Court of Appeal saying we are waiting for transcript. The court lawyer then says they will put a note on the file to say that transcript is waiting. After a while, if they don't hear from us, they will contract my instructing solicitors to chase them --
  121. MR JUSTICE UNDERHILL: Sorry, the only point -- I mean, it's not a pre-requisite for you to appeal to have the transcript, and you won't be prejudiced, because the application for permission will not be decided until the transcript is available.
  122. MS LUH: No, and that is not the reason. Expedition is because, in our experience, with these transcripts, if there is no expedition directed, they often times, in some cases, in my recent experience, have taken two or three months --
  123. MR JUSTICE UNDERHILL: Well, that would be intolerable, I quite accept.
  124. The trouble is, we have to be careful. I'm certainly in the EAT and I believe here they charge more if you ask for expedition.
  125. MS LUH: They do say ten to 15 days --
  126. MR JUSTICE UNDERHILL: And I don't want to do it wantonly --
  127. MS LUH: They do say 10 to 15 days normally, but I have never had a case where --
  128. MR JUSTICE UNDERHILL: That may be because the judge sat on it.
  129. MS LUH: No, we've chased and they say they haven't typed it up yet. Often times it's because the judge hasn't responded with the corrections, but --
  130. MR JUSTICE UNDERHILL: Well, there's a point: I'm actually going away in the middle of May, so I think we need to get it back. I will say transcript to be supplied to the judge within 14 days. Does that meet your concern?
  131. MS LUH: Yes. I am grateful, my Lord.
  132. MR JUSTICE UNDERHILL: If there are cost consequences, so be it.
  133. MS LUH: I'm most grateful, my Lord.

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