Stephen Knafler

Practice

Stephen specialises in public law but also undertakes commercial, family and criminal law cases that have public law issues.

He advises and represents individuals, local authorities, health bodies, commercial and statutory organisations, regulators, carers and care homes/agencies.

Stephen has appeared in over 100 reported cases. Many of these are landmark decisions relevant to community care, discrimination, health and mental health, asylum support, social security, immigration, prisons, education, public authority negligence, human rights, civil liberties and housing.

Stephen has appeared as an advocate, and also as a leading junior counsel, at all levels of the judicial system including the Court of Appeal and House of Lords.

He also advises on adult and child social care policy and eligibility criteria; housing policy; continuing NHS care disputes; local connection and other inter-authority disputes; care home, day centre and hospital closures; adult and child protection; charging, registration, disciplinary and regulatory matters; contractual disputes; procurement decisions; education issues; mental health; freedom of information and confidentiality; supporting people, supported housing and related benefits issues; the refusal of NHS healthcare, including in relation to new drugs; local authority powers, finances and investments; disputes with the LGO and Audit Commission.

Stephen has represented a number of clients in high value or sensitive mediations.

Whilst Stephen has appeared in a large number of high profile and often fiercely controversial cases, that has occurred despite his view that litigation, and in particular final hearings, are a last resort. His approach is essentially pragmatic and is directed at getting the most suitable, cost-effective result possible for the particular client, based on a careful appraisal of the facts and the client's needs, frank and objective advice about the law and related practical issues and a reasonable approach to the other parties.

In the last few years, Stephen has represented Shelter, the Medical Foundation for the Care of Victims of Torture, the Women's Aid Federation of England and others on a pro bono basis. He is a member of the Law Commission's panel of expert advisers on adult social care reform.

In 2008 and 2009 Stephen has provided advice and representation in connection with a major commercial fraud of over £65M, disputes between the Audit Commission and local authorities in relation to investments in failed Icelandic banks, negligence on the part of a health and social services authority resulting in a mental patient killing her children, the operation of domestic violence refuges, the government's post office closure scheme, the provision of health care to persons from abroad, a major enquiry into the provision of health and social care services to persons with learning disabilities, the provision of mental health aftercare services by local authorities, supported housing schemes, insurance-backed social care schemes, on homelessness and on many other similar issues.

Stephen is ranked in the Legal 500 and Chambers UK Guide as a leading junior in human rights, social housing and administrative law, where he is described by solicitors and other barristers as:

• "having had a major impact on the law"
• "a deep thinker and a highly creative lawyer"
• "quick and efficient"
• "a rising star"
• "an absolutely fantastic advocate"
• with "fantastic advocacy, which hinges on his sheer ability to put a point across clearly"
• "especially recognised for his excellence in housing and social welfare matters"
• "particularly well-known for his work in housing, community care and asylum support"
• "the first-choice junior for many solicitors when it comes to housing-related judicial reviews, particularly those that touch on particularly tricky points. He has earned this status due to "his prolific output and flawless judgement," and solicitors and clients appreciate the "clear and practical advice" on offer from a barrister who "turns work around quickly and doesn't sit on the fence""
• "clearly a leading lawyer in health and community care issues. He is praised for his "excellent, comprehensive knowledge""
• "legally rigorous but able to put his cases in a moderate, non-inflammatory way"
• "He is particularly well respected in the Administrative Court, where judges respect him and are reported to adopt his skeleton arguments. Clients appreciate his "clear, practical advice and fast turnaround," describing him as "incredibly hard-working and efficient under pressure""
  

Publications

General editor of the Community Care Law Reports (LAG); Support for Asylum Seekers (LAG) 2001 (1st edition) and 2004 (2nd edition); Contributor to De Smith, Woolf & Jowell: Judicial Review of Administrative Action (Sweet & Maxwell, 1996); author of Remedies for Disrepair and other Building Defects (Sweet & Maxwell, 1996); Co-author of Disrepair: Tenants' Rights (LAG, 3rd edition, 1999). Articles in Legal Action and Solicitors' Journal.

Stephen writes the Garden Court Chambers' Community Care Update. If you wish to be added to the mailing list please click here.

Societies

Legal Action Group, Administrative Law Bar Association.

Other

Stephen has given seminars for: inter alia, Legal Action Group, Housing Law Practitioners' Association, judicial organisations, Community groups, Central Law Training and Public Law Project.

Runner up Times/Liberty Human Rights Award 1997 and 2003.

Runner up Legal Aid Barrister of the Year 2005 and 2006.

Stephen is a trustee and secretary of Kisakye Children's Trust, a trust which is building a hospital for AIDS children in Uganda (see http://kisakye.org).

Notable Cases

Stephen has appeared in over 100 reported cases, the more recent of which include:

R (YA) v Secretary of State for Health [2009] EWCA Civ 225; Times, April 2, 2009; (2009) 12 CCLR (forthcoming): guidance given by the Secretary of State for Health on the implementation of the National Health Service (Charges to Overseas Visitors) Regulations 1989 was unlawful in so far as it failed to make clear how the discretion to withhold or allow treatment in certain circumstances should be exercised, particularly where the treatment was urgent and the failed asylum seeker was unable to pay for the treatment.

Lexi Holdings v Luqman [2009] EWHC 496 Ch: various heads of a committal application in respect of a major commercial fraud of over £65M were dismissed because of autrefois convict and for other reasons.

R (M) v Birmingham CC [2009] EWHC 688 Admin: in assessing a disabled person's needs, a local authority had implicitly had proper regard to its general duties to disabled persons pursuant to the Disability Discrimination Act 1995 section 49A and it was entitled to conclude that it was not necessary to provide a disabled person with all of the incontinence services requested.

R (Gargett) v Lambeth LBC [2008] EWCA Civ 1450; (2009) NPC 4; Times, March 20, 2009: on the proper construction of the Discretionary Financial Assistance Regulations 2001, a local authority had the power to make a discretionary housing payment to pay arrears of rent which had accumulated in the past even where the applicant was now being paid full housing and council tax benefits.

R (Brown) v Secretary of State for Work and Pensions and others [2008] EWHC 3158 Admin: the Divisional Court analysed the lawfulness of the government's post office closure scheme, by reference to the Disability Discrimination Act 1995.

R (TF) v Secretary of State for Justice [2008] EWCA Civ 1457; [2008] 1 MHLR 370; Times, February 6, 2009; (2009) 12 CCLR (forthcoming): the Secretary of State's transfer direction under the Mental Health Act 1983 section 47 had been unlawful and it had been wrong of the Judge at 1st instance not to quash it and direct the release of the patient.

Jeleniewicz v Secretary of State for Work and Pensions [2008] EWCA Civ 1163: a social security commissioner had been entitled to find that a Polish national who had separated from her child's father, a French national who had come to the UK to pursue a vocational training course, was not entitled to income support.

Lexi Holdings v Luqman [2008] EWHC 2908 Ch: it remained lawful for the Court to grant a passport order in aid of worldwide asset freezing and disclosure orders.

R (Thomas) v Havering LBC [2008] EWHC 2300 Admin; (2009) 12 CCLR 7: decisions by two local authorities to close certain care homes had been neither unreasonable nor contrary to the European Convention on Human Rights 1950 Article 2 where the totality of the medical evidence, which the local authorities' decision-makers had taken account of, had not established a statistically demonstrable rise in mortality following geriatric relocation, and the local authorities had undertaken to provide individual assessments of every resident before their transfer.

R (St Helens BC) v Manchester PCT [2008] EWCA Civ 931; (2009) PIQR P4; (2008) 11 CCLR 774; Times, October 6, 2008: a primary care trust, as the delegate of the secretary of state, was the primary decision maker as to whether a person required NHS continuing care. Its decision was amenable to orthodox judicial review, but not to a fully fledged substantive challenge which the court itself must decide.

R (M) v Slough BC [2008] UKHL 52; [2008] 1 WLR 1808; [2008] 4 All ER 831; [2008] HLR 44; (2008) BLGR 871; (2008) 11 CCLR 733; (2008) NPC 94; Times, September 5, 2008: a local social services authority was not obliged under the National Assistance Act 1948 section 21(1)(a) to arrange and to pay for residential accommodation for a person subject to immigration control who was HIV positive but whose only needs, other than for a home and subsistence, were for medication prescribed by his doctor and a refrigerator in which to keep it.

RS (Zimbabwe) v Secretary of State for the Home Department [2008] EWCA Civ 839: the Immigration and Asylum Tribunal had erred in confining its analysis of a human rights appeal by a Zimbabwean woman suffering from HIV to the health issues surrounding her return to Zimbabwe, when there was material on the general situation in Zimbabwe and its impact on the accessibility of health services which required analysis. In the light of statements by the European Court of Human Rights in N v United Kingdom (26565/05) (2008) 47 EHRR 39 accepting a broader approach to "humanitarian considerations", the IAT's approach could not be justified.

Lee v Rhondda Cynon Taf CBC [2008] EWCA Civ 1013: in offering a gypsy a tenancy of "bricks and mortar" accommodation after she had been made homeless from her caravan site, a local authority had given lawful and adequate consideration to her position as a gypsy. The local authority had been correct not to consider whether it should acquire an alternative site as the procedure likely to be involved would be lengthy and thus inconsistent with the manner in which homelessness applications were expected to be dealt with.

Bamgbala v CSCI [2008] EWHC 629 Admin: the Commission had been entitled to decide that the Appellant had been unfit to carry on a care home (consideration of the correct legal tests).

R (B) v Lewisham LBL [2008] EWHC 738 Admin; [2008] 2 FLR 523; (2008) 11 CCLR 369; (2008) ACS 59: in devising a scheme under which special guardians were paid by reference to adoption allowances rather than by reference to fostering allowances, the local authority had acted unlawfully.

KC v City of Westminster [2008] EWCA Civ 198; [2008] 2 FLR 267; [2009] 2 WLR 185: the marriage, celebrated in and valid according to the law of Bangladesh, of a Bangladeshi woman to a British national who lacked the capacity to marry under English law by reason of his mental impairment, was not recognised as a valid marriage in the jurisdiction of England and Wales.

R (D, G) v Leeds CC [2007] EWHC 3275 Admin: the accommodation needs of destitute expectant and nursing mothers, who were failed asylum-seekers, were the responsibility of the Home Office and not of local authorities

Westminster CC v IC, KC, NNC [2007] EWHC 3096 Fam: the marriage of an incapacitated adult groom was lawful under Muslim and Bangladesh civil law but was not recognised in English law because of the groom's incapacity to marry; the Court did have jurisdiction to prevent the groom's family taking him to live in Bangladesh with his wife, albeit that it might not be exercised unless living in Bangladesh would be incompatible with the groom's Convention rights; the Court did have jurisdiction to prevent the groom and his wife living together in the UK, even though the marital arrangements were regarded as lawful and in the groom's best interests, under Muslim and Bangladesh law, to which the family adhered in personal matters

R (St Helens BC) v Manchester PCT [2007] EWHC 2391 Admin: the PCT had acted rationally and lawfully in concluding that a person with very high needs was nonetheless a social services and not a continuing care health responsibility; the PCT and not the local authority was the primary decision maker

R (Pettigrew) v Hammersmith & Fulham LBC [2007] EWHC 2671 Admin: it had not been unlawful to reduce grant funding for the Law Centre; the consultation process had been adequate

LLBC v TG, JG, KR [2007] EWHC 2640 (Fam): The task to be undertaken by the court at a without notice hearing involving vulnerable adults was to evaluate as best it could the degree of urgency, the risks of intervening by way of making an order and the risks of not intervening at that stage; TG had not been unlawfully deprived of his liberty whilst accommodated at a care home, albeit that he had lacked capacity to choose to live there and some (but not all) family members had been opposed to him living there and had demanded that he be released

R (Strickson) v Preston County Court [2007] EWCA Civ 1132: the decision of a circuit judge was not susceptible to judicial review merely because it was wrong, even extremely wrong; it had to be shown that the judicial process itself had been corrupted or frustrated

R (Hide) v Staffordshire CC [2007] EWHC 2441 Admin: the conduct of a solicitor advocate when bringing proceedings relating to care home and day centre closures had been unreasonable and negligent but a wasted costs order would not be made because it would be unjust having regard to the solicitor's financial circumstances

R (Abdirahman) v SSWP [2007] EWCA Civ 657: EEA nationals who were not "qualified persons" within the Immigration (European Economic Area) Regulations 2006 reg.14 did not have a "right to reside" in the United Kingdom and therefore were not entitled to social security benefits. The requirement of a right to reside in the UK was not contrary to EU law

R (Otley) v Barking & Dagenham PCT [2007] EWHC 1927 Admin: PCT had acted unlawfully by refusing to fund Avastin treatment for advanced colo-rectal cancer, albeit that Avastin was neither licensed for such use or recommended by NICE

R (Lee) v Waltham Forest LBC/Staffordshire CC [2007] EWHC Admin: the local authority looking after a child under CA 1989, s 20 continued to be responsible for his SSEN, not the local authority in whose area the child had come to live

R (Hide) v Staffordshire CC [2007] EWCA Civ 860: it had been lawful for the local authority to make a political decision to close care homes and day centres and the local authority was not in breach of its consultation duty

R (Hook) v Secretary of State for DWP [2007] EWHC Admin 1705: social security authorities and tribunals are required to consider whether benefits rules and decisions are Convention compliant and, where that is not the case, to grant Convention compliant relief

R (Thomas) v Staffordshire CC [2007] EWHC Admin 1479: the local authority had acted lawfully in relation to consulting on care home and day centre closures

R (Hematzadeh and others) v Wandsworth LBC and others [2007] EWHC Admin 1082, (2007) 10 CCLR 439: local authorities required to accommodate destitute children in need under Children Act 1989, s 20 and not s 17

R (AW, DAY) v Croydon LBC [2007] EWCA Civ 266, (2007) 10 CCLR 189, (2007) BLGR 417, Times, May 11, 2007: local authorities not SSHD responsible for destitute plus failed asylum-seekers (if lawfully present or with pending, non-abusive fresh representations) (appeal pending)

R (Khelassi) v Brent LBC [2007] EWCA Civ 1825: local authority refusal to award priority need procedurally unfair and unlawful because of reliance on NowMedical

R (Ahmad) v Waltham Forest LBC [2007] EWHC Admin 957: lawful to refuse pupil admission to preferred school notwithstanding parental disability

R (Limbuela) v SSHD [2005] UKHL 66, (2006) 1 AC 396, (2005) 3 WLR 1014,: (2007) 1 All ER 951, (2006) HRLR 4, (2006) HLR 10 (breach of Article 3 not to support destitute asylum-seeker)

St Helens BC v PE, JW, Manchester PCT [2006] EWHC 3460 Fam, [2007] 2 FLR 1115: the Court granted complex declarations in relation to a patient with dissociated identity disorder and her carer; it was no longer necessary it is no longer necessary on every occasion to adopt the conventional formula that something was "lawful as being X's best interests" or "not lawful as not being in X's best interests."

R (PB) v Haringey LBC/SSHD [2006] EWHC 2255 Admin, (2007) 10 CCLR 99, [2007] HLR 13: local authority required to accommodate destitute mother engaged in child care proceedings, pending determination of her Article 8 claim for leave to remain

R (Omotayo ) v City of Westminster [2006] EWHC 2572 (Admin): correct approach to JR interim relief in homelessness cases

R (Raines) v Orange Grove Foster Care Agency [2006] EWHC 1887 Admin (2007) 1 FLR 760, (2006) 9 CCLR 541, LTL 28/6/2006, (2006) 2 FCR 746: decision to de-register foster carer quashed on the grounds of procedural unfairness and irrationality

R (M) v Slough BC [2006] EWCA Civ 655, Times, June 13, 2006, (2006) 9 CCLR 438, (2007) BLGR 225, Times, June 13, 2006: asymptomatic HIV+ asylum-seeker entitled to residential accommodation (appeal to HoL pending)

Barnet LBC v Ismail and Abdi [2006] EWCA Civ 383, (2006) 1 WLR 2771, (2007) 1 All ER 922, (2006) HLR 23, (2006) BLGR 559, Times, April 25, 2006: non-qualified EEA national on income support eligible for housing

R (Supportways) v Hampshire CC [2005] EWHC Admin 3101 an [2006] EWCA Civ 1035 and [2006] EWCA Civ 1170, (2006) BLGR 836, (2006) 9 CCLR 484 and 498: local authority had acted unlawfully in completing review of commercial supporting people services contract but only very limited relief allowed

R (Strickson) v Preston CC, Chief Constable of Lancashire, Blackburn & Darwen BC, the Department of Constitutional Affairs [2006] EWHC Admin 3300: the circuit judge had acted unlawfully in striking out a claim in respect of the death of the Claimant's daughter, but the Court had no jurisdiction to quash his decision (appeal pending)

R (S) v Waltham Forest LBC [2006] EWHC Admin 3144 : the LEA's school transport policy was lawful and the LEA had reached a lawful decision not to offer dedicated transport to an autistic child

St Helens BC v PE and Manchester PCT [2006] EWHC 3460 Fam: best interests declaration in relation the care of a woman with dissociative idenity disorder

R (Calgin) v Enfield LBC [2005] EWHC Admin 1716, [2006] 1 All ER 112 (whether resources relevant to operation of Housing Act 1996, s 208)

R (M) v Islington LBC/SSHD [2004] EWCA Civ 235, [2005] 1WLR 884 (test case on section 54 and Schedule 3 of the Nationality, Immigration and Asylum Act 2002)

R (Khatun) v Newham LBC [2004] EWCA Civ 55, [2005] QB 37 (public sector tenancies subject to Unfair Terms in Consumer Contracts Regulations 1999)

R (Grant) v LambethLBC [2004] EWCA Civ 1711, [2005] 1 WLR 1781 (test case on Schedule 3 of Nationality, Immigration and Asylum Act 2002)

R (DTS) v SSHD [2003] EWHC Admin 1941 (test case on Article 3 and asylum support)

R (Mani) v Lambeth LBC [2003] EWCA Civ 836 (local authority and not NASS responsible for disabled asylum seekers)

R (Q) v SSHD [2003] EWCA Civ 364, [2004] QB 36 (test case on section 55 of the Nationality, Immigration and Asylum Act 2002)

R (G) v Barnet LBC [2003] UKHL 57, [2004] 2 AC 208 (scope of duty to provide accommodation under s.17 Children Act 1989)

R (Price) v Carmarthenshire CC [2003] EWHC 42; [2003] NPC 9 (travellers entitled to pitches under homelessness legislation as 'suitable accommodation')

R (von Brandenburg) v Tower Hamlets LBC [2003] UKHL 58, [2004] 2 AC 280 (legality of 2nd admission under MHA 1983 after previous discharge)

R (Wahid) v Tower Hamlets LBC [2002] EWCA Civ 287, (2002) 5 CCLR 239 (community care rights to housing)

R (H) v Ashworth Hospital Authority [2002] EWCA Civ 923; [2003] 1 WLR 127 (lawfulness of second section by ASW)

Ratcliffe v Sandwell MBC [2002] EWCA Civ 6; [2002] 1 WLR 1488 (liability under Article 8 ECHR for damp and mouldy housing)

R (Stewart) v Wandsworth LBC and others [2001] EWHC Admin 709, (2001) 4 CCLR 466 (which of 3 local authorities responsible under Children Act 1989)

R v Newham LBC ex p Sacupima [2001] 33 HLR 1 (unlawful to house homeless persons outside the Borough)

Moisejevs v Jephson Homes HA [2001] 2 All ER 901 (leading case on oppression in the execution of warrants)

Mohamed v Hammersmith & Fulham LBC [2001] UKHL 57; [2002] 1 AC 547 (redefined the law relating to local connection in homelessness cases)

Welsh v GreenwichLBC (CA) [2001] 33 HLR 40 (local authority liable for condensation damp, first successful case in Court of Appeal)

Bankway Properties Ltd v Dunsford [2001] EWCA Civ 528; [2001] 1 WLR 1369 (very high rent reviews unlawful attempt to evade security of tenure)

R v SSHD ex p Salim [2000] Imm AR 6 (availability of internal flight)

Ellis v Lambeth LBC [2000] 32 HLR (first reported successful squatters case in the Court of Appeal)

Demetri v City of Westminster [2000] 1 WLR 772 (leading case on time limits for homelessness appeal)

R (O) v Wandsworth LBC (CA) [2000] 1 WLR 2539 (destitute applicants for ELR on the grounds of illness not excluded from assistance under National Assistance Act 1948 by the Asylum and Immigration Act 1999)

R v Kensington & Chelsea RLBC ex p Kujtim [1999] 4 All ER 161 (local authority not entitled to discharge community care duties unless circumstances truly exceptional: established for the first time that an assessment of need creates an individually enforceable community care duty)

Ireland [1999] 2 All ER 609 (successful appeal defining law as to service of s.82 EPA 1990 notices)

Birmingham CC ex p Taj Mohammed [1999] 1 WLR 33 (assessment for disabled facilities grants required to be resource-free)
n the Matter of D 1999] 45 BMLR 191 (Evening Standard prevented from publicising details of AIDS victim seeking ELR in the UK

R v City of Westminster ex p M, P, A & X [1998] 30 HLR 10 (local authorities under a duty to provide residential accommodation to destitute asylum seekers) Camden LBC ex p Mohammed</strong> [1998] 30 HLR 315 (test for interim relief in homelessness cases)

Wigan MBC ex p Tammadge [1998] 1 CCLR 581 (social services authority required to purchase larger, adapted accommodation for mother with three severely disabled children)

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