Denial of social care support to persons subject to immigration control, and human rights

October 23rd, 2019 by Jonathan Auburn

The Administrative Court has revisited the issue of the denial of social care support to persons subject to immigration control, and the line between local authority social care support under the Care Act 2014, and accommodation and support provided by the Home Office. R (Shehab Aburas) v London Borough of Southwark [2019] EWHC 2754 (Admin) concerned an apparently stateless 58 year old Palestinian who came to the United Kingdom from Kuwait, arriving in 1996. Mt Aburas had mental health issues and had been diagnosed with bi-polar disorder and depression. He was a failed asylum-seeker without regular immigration status. Southwark determined that he was in the category ‘no recourse to public funds’ as a ‘person subject to immigration control’ for the purposes of section 21 of the Care Act 2014. He was present in the United Kingdom as a ‘person in breach of immigration control’ for the purposes of Schedule 3 paragraphs 1 and 7(1)(a) to the Nationality Immigration and Asylum Act 2002. He faced barriers to a proposed removal to Kuwait.

Southwark determined that support was available from the Home Office, and that this provided the answer to any human rights issue arising from the denial of local government support. Southwark’s assessment stated: “The council believes that Mr Aburas is able to make representation to Asylum Support for support with accommodation and subsistence … This would meet his current needs around accommodation and subsistence.”

The Claimant accepted that this would be the legally legitimate answer, if this case were solely about accommodation and subsistence needs and about protection from destitution. The Claimant contended that was not a sufficient answer because Mr Aburas (a) has a ‘looked-after need’ for social worker support (b) whose effective delivery requires accommodation (c) the denial of which has such serious consequences as to breach his Convention rights.

Michael Fordham QC, sitting as a Deputy Judge, dismissed the claim. He reviewed the authorities, including R (M) v Slough Borough Council [2008] UKHL 52 [2008] 1 WLR 1808, R (GS) v Camden London Borough Council [2016] EWHC 1762 (Admin) [2017] PTSR 140; R (AR) v London Borough of Hammersmith and Fulham [2018] EWHC 3453 (Admin), and R (Bernard) v Enfield London Borough Council [2002] EWHC 2282 (Admin) [2003] HLR 27.

The Judge held that Southwark could lawfully conclude that the issues as to homelessness, destitution and subsistence did not constitute a ‘looked-after need’ under the Care Act; and that they were matters for the Home Secretary, and the system of Asylum Support. The ‘looked-after needs’ identified on Mr Aburas’s behalf were the need of social worker support in order to take medication (and in order to access food, in turn to be able to take medication), and the need of accommodation so that this social worker support could effectively be provided.

The Judge held that the evidence did not establish that Mr Aburas needed the support of a social worker to prompt him to take his medication, or to prompt him to eat so as to take his medication. Nor did the evidence establish that Mr Aburas needs accommodation in order to have the support of a social worker. Nor did it establish that missing taking the medication gives rise to serious suffering. Overall, the Judge held that the evidence did not establish that there was an imminent prospect of serious suffering caused or materially aggravated by the refusal to provide supported accommodation.

The Judge concluded at paragraph 21 that: “… the highest it can be put is that … Mr Aburas may be facing circumstances of destitution and need of support and subsistence, depending on what other support is available to him, and especially with the onset of winter. These are matters for the Home Secretary and Asylum Support, as Southwark has consistently pointed out. What the evidence does not support is the conclusion that there is a ‘looked-after need’ for social worker support, requiring the provision of accommodation, the refusal of which is a breach of Mr Aburas’s Convention rights. On an objective assessment, the evidence does not establish that there is an imminent prospect of serious suffering caused or materially aggravated by the refusal to provide accommodation so as to secure the support of a social worker. The evidence does not establish that the claimant has a need of social worker support – nor of accommodation to deliver that support – so as to take his medication, nor access and consume food so as to be able to do take his medication. Nor does it establish that the refusal of social worker support (with accommodation) does, in these ways, deny him a basic necessity of life”.

The Judge also made three useful further comments.
– First, that it may not be the end point of a human rights assessments to conclude that a person has no eligible social care needs. Southwark’s form apparently was not structured for the input of information relating to human rights considerations beyond the identification of eligible social care needs.
– Second, the Court considered and rejected an alternative argument based on section 1 of the Localism Act 2011.
– Third, separate considerations may arise where a destitute person who is subject to immigration control within section 21 of the Care Act 2014 is neither (a) an asylum-seeker (covered by section 95 of the National Assistance Act 1999) nor (b) a failed asylum-seeker (covered by section 4 of the same Act). The parties differed as to whether local government or the Home Secretary had responsibility in such cases. The Judge declined to rule on the point, as it was not necessary to do so.

Jonathan Auburn
ja@11kbw.com

 

Minister’s update on the introduction of Liberty Protection Safeguards

June 14th, 2019 by Jonathan Auburn

In a letter to Parliament, the Minister of State for Care Caroline Dinenage has given the following update on the forthcoming introduction of Liberty Protection Safeguards: Read more »

 

Tort duties for discharge of social care responsibilities

June 10th, 2019 by James Goudie QC

The appeal to the Supreme Court in Poole Borough Council v GN (2019) UKSC 25, in which Judgment was given on 6 June 2019, was concerned with whether a local authority was liable for what was alleged to have been its negligent failure to exercise its social services functions so as to protect children from harm caused by third parties.  The principal question of law raised was whether a local authority, or its employees, may owe a common law duty of care to children affected by the manner in which the authority exercises, or fails to exercise those functions, and, if so, in what circumstances.

The Claimants sought damages for personal injuries suffered while they were children living in the area of the Council. They maintain that the injuries were suffered as a result of the Council’s negligent failure to exercise its powers under the Children Act 1989 (“the 1989 Act”) so as to protect them from harm at the hands of third parties. Read more »

 

Government scraps plans for cap on care costs

May 17th, 2019 by Hannah Slarks

In response to a Parliamentary question from Caroline Lucas, the Government has confirmed that it has abandoned plans to introduce a cap on the costs of care. The costs cap was the most radical of the reforms introduced with the Care Act 2014. After several years in the long grass, the plan is now in the bin. Instead, we are promised that the social care Green Paper will cover “an element of risk pooling in the system, which will help to protect people from the highest costs”.

Hannah Slarks

 

New deprivation of liberty legislation – 11 things you need to know

May 17th, 2019 by Hannah Slarks

Yesterday (16 May 2019) royal assent was given to the Mental Capacity (Amendment) Act 2019. This amends the Mental Capacity Act 2005 (“MCA”). The amendments introduce the new Liberty Protection Safeguards. The Act is designed to reduce the strain on the deprivation of liberty safeguards system since Cheshire West.

This blog does not cover the Court of Protection in detail. However, the new regime will loom large for all practitioners in community care.  Always eager to help, the team at 11KBW offers you 11 key things that you need to know about it: Read more »

 

Sharing information about vulnerable people

May 13th, 2019 by Hannah Slarks

M, R (on the application of) v The Chief Constable of Sussex Police & Anor [2019] EWHC 975

In the community care context, services providers and public authorities constantly handle information concerning their vulnerable clients. This case – concerning a police force’s sharing of information – is a cautionary tale. Read more »

 

Imminent Green Paper on social care is promised

May 8th, 2019 by Hannah Slarks

A House of Commons library briefing paper says that a Green Paper on social care in England is “expected”.

In July 2015, the Government decided to postpone the introduction of a cap on lifetime social care charges. Read more »

 

Age assessments: short form assessments in obvious cases

April 12th, 2019 by Jonathan Auburn

Age dispute cases are, and probably always will be, highly contentious areas of the Administrative Court’s work. It is not uncommon for a young person to arrive from abroad with no documentation and stating they are 15, 16 or 17 years old, and then for social workers to look at the person and be convinced they are in their mid or late twenties. Read more »

 

11KBW Community Care, Health & COP-DOLS Conference – LONDON & MANCHESTER

January 24th, 2019 by Claire Halas

11KBW invites you to their Community Care, Health and COP-DOLS Conference on 14 May 2019 in London or 18 June 2019 in Manchester.

The Community Care seminars will be held from 10.00am – 1.00pm
The COP/DOLS & Health seminars will be held from 2.00pm – 3.40pm.
People are welcome to sign up for either or both groups of seminars.

Feedback from last year’s Community Care seminar was extremely positive, including these comments: “Fantastic“, “Informative and worthwhile” & “Excellent, well organised and good conference materials“.

The sessions will be directed at updates on recent developments in the law in these areas.

Topics in the Community Care seminars will include –

  • Key developments in Community Care
  • Recent issues in ordinary residence
  • Funding disputes between local authorities and CCGs
  • Local authority recovery of care home fees

Topics in the COP/DOL & Health seminars will include –

  • Key developments in mental capacity
  • The DOLS Bill before Parliament – “Liberty Protection Safeguards”
  • Health issues in the COP

Both sessions will be intermediate-level, aimed at people with some knowledge or experience in these areas. They are not intended to provide basic or introductory-level training. Click here for the conference programme. Read more »

 

Supreme Court explains the scope of section 20 Children Act powers

July 19th, 2018 by Jonathan Auburn

The Supreme Court in Williams v Hackney London Borough Council has provided clarification of the scope of local authority powers under section 20 of the Children Act 1989 to provide accommodation for a child. The Court has set out Read more »