R (Baisden) v Leicester City Council  EWHC 3219 (Admin)
Section 117 and accommodation. [Summary required.]
Neutral Citation Number:  EWHC 3219 (Admin)Not on Bailii!
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
(Birmingham Administrative Court)
1 April 2011
MR JUSTICE BLAKE
THE QUEEN ON THE APPLICATION OF GARY BAISDEN
LEICESTER CITY COUNCIL
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Ms Luh appeared on behalf of the Claimant
Mr Sharland appeared on behalf of the Defendant
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1. MR JUSTICE BLAKE: This is an application for judicial review of assessments made by the defendant council, communicated on 11 February 2011, of the Inter Agency Care Programme Approach Assessment to the claimant's needs ("ICPAA").
2. There is a substantive history to this case. It is probably sufficient to pick up the history in the spring of 2009. At that stage the claimant was an adult male, normally resident in the area of the defendant council, who had already been admitted for treatment under the Mental Health Act by reason of his mental health to which further reference will be made. He was at that stage living in accommodation provided to him by the defendant, but possession proceedings were commenced because of his anti‑social behaviour, causing harassment or alarm or a nuisance to adjoining occupiers.
3. The case came before the Leicester County Court and the judge was concerned as to whether the claimant had mental capacity to participate in those proceedings given what appeared to be his mental state. Those proceedings were adjourned, but as a result, perhaps of observations made by Her Honour Judge Hampton, they were never pursued. The claimant was moved to further accommodation in August 2009, 65 Ethel Road, Leicester. It seems that this accommodation is quite close to accommodation where elderly residents live.
4. By October 2009 fresh possession proceedings in respect of those premises had been started. I understand that they are based upon a schedule of alleged acts of nuisance to adjoining occupiers since he moved into the premises and other relevant matters for the County Court.
5. Those possession proceedings were adjourned for a time whilst authority was sought for the appointment of the Official Solicitor as authorised litigator to represent the claimant's interests. A certificate of suitability of a litigation friend was issued in favour of the Community Law Partnership on 2 March 2011. But much earlier, on 10 March 2010, a certificate of capacity to conduct proceedings had been issued by the then treating psychiatrist, Dr Fallow, who indicated his opinion as to the essential source of the present problem
6. " the person concerned has the following impairment or a disturbance of a function of the mind or brain, schizophrenia, substance misuse"
7. and he concludes the certificate
8. "longstanding mental health problems and drug use".
9. In the summer of 2010 the claimant was represented by different solicitors; it seems Howell and Co acting for Community Legal Advice, Leicester.The importance of psychiatric assessment of the claimant's behaviour was apparently recognised because in June 2010 solicitors for the claimant and the defendant council jointly instructed Dr Fallow to assist with a sequence of questions that had materiality for the future of the possession proceedings.
10. There were 29 questions in all, it is not necessary to summarise them, but they include the question "From what, if any, mental health condition do you consider Mr Baisden to suffer at present?", question 14, "Might there be other reasons for Mr Baisden's misconduct?" and question 13, "To what extent is misconduct the product of Mr Baisden's mental health condition?" And there was a sequence of related questions, including whether he has capacity to understand the conditions of his sentencing and is capable of abiding by them.
11. Dr Fallow responded to this joint instruction on 8 July. He recorded that Mr Baisden was diagnosed as suffering from a paranoid schizophrenic illness and also substance abuse which in his case mainly involves amphetamines and occasional cannabis.
12. He had earlier recited as accurate the history of Mr Baisden's psychiatric treatment contained in an earlier ICPAA prepared in April 2010, but added that he had had three relatively brief admissions to hospital from 6 to 20 May, 21 May to 1 June and 16 to 24 June. He did not specify the legal regime behind those admissions, though it transpires that they were section 2 and section 3 of the Mental Health Act: once for assessment, twice for treatment.
13. He gives his assessment that many of the symptoms of Mr Baisden's illness can present with acute intoxication with amphetamine, psychotic symptoms secondary to drug intoxication, usually resolved fairly quickly, usually within a week but sometimes within a matter of hours. He is prescribed medication, which is an anti‑psychotic preparation, and he has been seen on a number of years and is seen by staff of the City Assertive Outreach Team each week. When he is with that team he has been largely compliant with his prescribed medication. He described the up and downs of his health and drug use.
14. But the substance of the balance of the report at paragraphs 12 and 13, is to this effect:
- "12. It is unlikely that the underlying schizophrenic illness played a significant role in reported misconduct prior to becoming non‑concordant in November 2009.
13. Most of the reported misconduct is likely to be related to intoxication with amphetamines rather than a functional psychosis such as schizophrenia. The reason for believing this is probably the case is, firstly, the reports of noise and disturbance occurred during the periods he was concordant. Secondly, recently admissions where he has been brought in for an assessment of bizarre behaviour or reported disturbance he has settled within a period of several days up to a week. Thirdly, reports from those who know him well in the Outreach service, as well as the observations of mine, is that there is a marked difference in his behaviour between when he appears under the influence of drugs and when he is not."
15. Further questions were posed to the doctor on 9 August by Howell and Co, asking follow‑ups to some of the information he had provided. The doctor was away for a period but responded on 31 August 2010, when, amongst the answers that he gives, one finds 2(b):
- "I am not aware of Mr Baisden's mental health having a significant (word missing) on his ability to self‑determine or manage, mitigate stop his substance abuse.
- 3(e) It is not always easy to differentiate between underlying cause or factors but usually symptoms resolving very quickly or without treatment is one indication and in truth Gary is usually fairly candid about his drug misuse if questioned when not under the influence."
And so on.
16. At 24(d), in answer to questions about suitable accommodation, he says:
"He needs to stop the drugs. I am not sure if the critical element is really
the living environment _per se_. At the present time the main goal is to try and reduce the chances of relapsing with schizophrenia, secondly, if opportunity presents itself intervene with the substance misuse or refer him on to those who can help him and, thirdly, damage limitation and support his daily living
functioning as best we can."
17. That was the end of the psychiatric expert's assessments. The matter appears then to have gone into abeyance for a couple of months until October 2010 when the present solicitors acting for the claimant came on the scene. I understand that they had available to them the previous correspondence and reports of the doctor, and, indeed, from this morning it appears that counsel presently acting for the claimant had also acted in connection with the possession proceedings in the earlier part of 2010 and the summer of 2010, and may, indeed, have been the source of the questions that were posed in the follow‑up letter from Howell and Co.
18. Despite that, the solicitors did not apparently have a complete medical record of Mr Baisden and they only came into possession of that in December when the basis for his admission under the Mental Health Act would have become crystal clear.
19. On 21 October a pre‑action protocol letter was written to the local authority, alleging that because of his hospitalisation on a number of occasions during 2010 and the fact that he was mentally ill he was a person to whom a duty was owed under section 21 of the National Assistance Act 1948 and proceedings were threatened if that duty was not acknowledged.
20. There was a prompt response to that letter before action on 29 October. The existence of such a duty was denied and considerable quotation was made from Dr Fallow's report and emphasis was placed in the context of the suggestion of a causal nexus by reason of the claimant's schizophrenia and need for care and attention. But there was a proposal that a fresh ICPAA be undertaken and on that basis no further litigation developed.
21. On 16 December 2010 the present solicitors also indicated:
"Given that there were two admissions in 2010 under section 3 of the Mental
Health Act, it is clear that section 117 of the Mental Health Act applies in this case. There is a clear need for the assessment of and provision of effective aftercare services. This arose on Mr Baisden's discharge from hospital. It would appear that effective aftercare services may well not have
been in place given that there were readmissions in such a short time scale."
22. On 9 February the ICPAA was provided. This acknowledges the existence of a duty under section 117 but not a duty to provide accommodation to the claimant essentially because the view is taken that his drug taking is the cause of his anti‑social behaviour that threatens his accommodation and his ability to look after himself and he has independent capacity if he decides not to take drugs. Various references along those lines are made in section 11 of the report, and section 12, dealing with accommodation and environment, concludes:
"Whilst it is right to say that Gary falls under section 117 Aftercare regime,
it is not accepted that this requires the relevant Health and Social Care agencies to provide him with accommodation. Both aspects of Gary's required Aftercare regime that relate to his mental health needs do not call for the provision of bare housing at all. His mental disorder has no bearing on his ability to have his accommodation needs properly met through ordinary housing by the Housing Authority. It is Gary's use of illicit drugs that places at risk his tenure, not his mental health needs. The Aftercare package properly identifies the need for support from the Assertive Outreach Team to assist Gary to maintain a stable living environment ... but this is entirely different to a need for the provision of bare housing/accommodation under that regime. [The case of Mwanza is cited]. The need for bare housing has been properly
considered under section 21 ..."
23. The assessment conclusions at section 50 are to similar effect.
24. It was also concluded by this stage that his eligibility assessments were substantial rather than critical, as they had been assessed the previous year, in April 2010.
25. For completeness, at the same time a City Assertive Outreach Service report, dated January 2010, was also provided. Under the section on accommodation and action it is said:
"In the event that Gary's behaviour is viewed as anti‑social placing his tenancy
at risk, City AO staff to undertake an assessment of his mental health to ascertain his possible behaviour is associated with (inaudible) and a relapse in
his mental health, or as a result of illicit substance usage."
26. The service of that decision then elicited the present application for judicial review that was lodged on 1 March.
27. Although there is a lengthy narrative in the grounds, the essential case that is put is that: (1) the defendant has failed to produce a lawful assessment of the claimant's needs under section 117 of the Mental Health Act; (2) the similarity with the 2010 report, with the exception of the downgrading of the assessment from substantial to critical, suggests that no proper assessment has been made; (3) the conclusions that it was his voluntary drug taking rather than schizophrenia that was the cause of his social and accommodation needs was perverse in the light of his lack of capacity and his previous admissions to hospital for paranoid schizophrenia and mental and behavioural disturbances due to poly‑substance abuse.
28. It is suggested that there the separation of drug misuse and mental disturbances associated with that and paranoid schizophrenia is wholly perverse and a complete misunderstanding of the underlying mental disorder affecting the claimant's aftercare needs fundamentally infected the defendant's assessment and the care planning process.
29. What is missing from those grounds is any engagement with or response to the assessment of the consultant psychiatrist, Dr Fallow, whose views were known to the claimant's team, both solicitors and counsel, and had been, as I understand it, for some months before. Indeed, it appears that Dr Fallow's reports were not placed before the judge in the bundle that was lodged for this judicial review claim and only a close reading of the materials might have elicited the fact that there was a cross‑reference to that report in the reply before claim of 29 October that was in the bundle at page 41.
30. The case came before Beatson J without notice on an urgent application because at the same time the defendant council had decided to restore the possession proceedings and they were due to be heard as a matter of days before the Leicester County Court. Beatson J, reading the papers that were before him, directed that the possession proceedings be stayed and that the defendant do not take any steps to repossess the flat at Ethel Road, Leicester, where the claimant is currently residing, but abridged time for an AOS and directed an oral hearing of the application for permission. This is the oral hearing of the application for permission.
31. The defendant's response to the AOS is a simple one. The duty under section 117 of the Mental Health Act is acknowledged. That duty includes 117(2):
"It shall be the duty of the Primary Care Trust or Local Health Board and of the
local social services authority to provide, in co‑operation with relevant voluntary agencies, after‑care services for any person to whom this section applies until such time as the Primary Care Trust or Local Health Board and the local social services authority are satisfied that the person concerned is no longer in need of such services; but they shall not be so satisfied in the case
of a community patient while he remains such a patient."
32. However, the content of the duty, and in particular the contention that there was a content to provide accommodation, is disputed.
33. The learning indicates that accommodation can in certain circumstances come within after‑care services that one of the responsible agencies has a duty to provide. Equally the present state of the learning suggests that the duty to provide accommodation is likely to arise where it is accommodation plus rather than bare accommodation that is needed and where that need for accommodation is a consequence of his mental condition rather than any other factors which fall outside that mental condition.
34. If the mental condition does not require specialised accommodation with elements of support, then the duty to provide bare accommodation is under section 21 of the National Assistance Act. In any event, in respect of both duties the defendant says that the assessment of the consultant psychiatrist is that it is his voluntary drug taking that is the cause of his predicaments rather than his underlying schizophrenia that can respond to medication. Therefore what he needs to do is to stop taking drugs and to co‑operate with his Outreach team in that respect, at which point he will be able, if he so chooses, to manage independent living, look after himself, abide by the conditions of his tenancy and not be a nuisance with his neighbours.
35. The claimant says that once it is recognised that drug dependency can itself be with a mental illness, and was one cause of his admission in June as a mental illness, then it is not open to the consultant as a matter of expert assessment or the defendant as the local authority to consider his drug taking as a voluntary act distinct from mental incapacity.
36. That seems to be the central issue behind this challenge. In my judgment, on the face of the totality of the medical information, including the expert assessment of Dr Fallow, it was open to the defendant to conclude to place weight upon that assessment and therefore conclude that there was an extent to which the amphetamine taking was voluntary and not itself a mental illness, even though it was an associated condition that caused his admission. If that is right, then there can be no substance to the claimant's assertion that the assessment was perverse or that the ICPAA assessment of February 2011 was not a lawful one.
37. I well appreciate that drug dependency can itself in certain circumstances be recognised as a mental illness, and it may not be easy to distinguish between a drug dependency as a mental disorder and simply a factor outside the Mental Health Act as simply drug taking if it is assessed to be. But precisely in those matters that any lay person, including this authority, would need to be guided, and is entitled to be guided, by the expert assessment of a consultant psychiatrist.
38. I find it incomprehensible that the claimant's legal team did not engage with the consultant psychiatrist and seek to explore why his conclusion was reached and maintained, notwithstanding the basis for the section 3 admissions under the Mental Health Act 1983 in the summer of 2010. Even if it be the case that they were not aware that those were compulsory admissions for treatment until the medical record was obtained in December, there would still have been time to have raised that case with him before making assertions under section 117, when they were well aware of the use that the defendant authority was making of Dr Fallow's assessment in response to a different but similar duty under section 21 of the National Assistance Act.
39. That, in my judgment, has been the core problem in the claimant's submissions in this case. I have read with care the skeleton argument which seeks to attack the consultant's report as being inconsistent with the treating practitioner who admitted the claimant in the first place, but that bare attack, and the assertion that once one is admitted for treatment partly because of a disorder identified as relating to the amphetamine taking then it is not open for any other view to emerge and not open to the council to put any weight upon the expert opinions of the consultant, seems to me to be simply impossible to sustain.
40. I therefore conclude that the challenge that is brought to the assessment on the basis of section 117(2) is not arguable. This application is refused. Therefore, the stay on proceedings which was obtained should also be discharged.
41. This, is not a conclusion that one reaches with any sense of satisfaction as to how this claimant will be treated in the future. It is possible that the County Court, when the possession proceedings will be restored, will make a possession order against him and doubtless the psychiatric assessment will play a role whether it is reasonable to do so. It is possible that after a period of interim housing, or whilst he applies as homeless, as he may be entitled to do, he may find for one reason or another that no housing duties are owed to him under that legislation. He may find that, despite the assistance of his community psychiatric nurse and Outreach Team, he will be disadvantaged in obtaining a private tenancy with his present state of vulnerability, albeit the psychiatric assessment as to the dominant reason for that vulnerability is already made clear. But I must recognise that this court can only deal with a challenge that is made before it and cannot speculate too far into the future, but doubtless all those who have some degree of responsibility for this claimant's future care will need to be alive to the problem that he must not be allowed to fall between all gaps of supervision and assessment because that may present dangers not only to him if he were to do so. But for the reasons I have given, and despite the sustained submissions of Miss Liu to the contrary, I conclude that this is not a case in which I can grant permission. This application is dismissed.
42. MR JUSTICE BLAKE: Now, are there any consequential matters you want me to deal with?
43. MR SHARLAND: My Lord, there are no consequential applications. The claimant is legally aided so we can't get costs from the Service Commission at the High Court. We will not get any costs from the claimant. The third option is what is colloquially as a wasted cost orders against the claimant's lawyers, but given the likely cost of pursuing that application, it is usually a two‑stage process and we require hearings and so forth, and given that this case only got to the permission stage, we reluctantly make no further application, my Lord. Obviously your Lordship has his own discretion but that is our position. Unless I can assist you any further.
44. MR JUSTICE BLAKE: No. Thank you.
45. MS LIU: Nothing, my Lord, other than public detailed assessment, the usual order relating to ‑‑ because he is publicly aided and under the regulations you just need publicly funds subject to a detailed assessment.
46. MR JUSTICE BLAKE: Quite. Should I refuse you that because of what appears to me to be a very serious error of professional judgment in not disclosing those reports to this court?
47. MS LUh: Well, my Lord, all I can point you to is what has been said by the claimant's solicitors in their witness statement as to the reasons why they were concerned about the reliance of Dr Fallow's report and they were very clear in that respect at supplemental bundle May 18. Paragraph 4, my Lord.
48. MR JUSTICE BLAKE: Let me just reread that. (Pause). Yes, I have read that. I appreciate that is what is the effect of your skeleton argument. The fact that you did not rely on it, or you did not think that report conclusive, may well be a matter for your judgment, but that does not excuse you of the obligation to place it before the court, given its role in this narrative history. I consider that to be a serious failure of duty by you both.
49. MS LUH: Well, my Lord, I accept that in future this is a lesson to be learned, a serious lesson to be learned, but, as your Lordship also noted, the letter ‑‑ the reply to the letter before claim does in full set out the substance of the defendant's position.
50. MR JUSTICE BLAKE: I accept that you haven't sought to suppress it in some way. Perhaps that saves you from a disciplinary order.
51. MS LUH: I am grateful, my Lord.
52. MR JUSTICE BLAKE: But I think you understand the depth of my concern in this way. I think you do need to reflect quite hard about this. I, for my part, understand that these are difficult cases where you have got people who may be street homeless and you wish to do all that you can within the ambits of the law, but, equally, sitting in this case, as one does on permission applications, one is increasingly conscious that one is not a source of humanitarian intervention, let alone an alternative psychiatry service or an alternative housing service, and one has to work through the aspects of the law that one needs to be fully cited, whatever the material, from both sides. And if you had a clear and cogent psychiatric report going the other way, which the defendant was suppressing, you know what you would expect this court to say in response to that. And no lesser duty is on you, indeed a greater duty, when you and your team are seeking interlocutory proceedings.
53. Please put that in the forefront of your mind if you ever make such an application again.
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