Blog post by Tim Baldwin of the Garden Court Chambers Community Care Team.
The Claimant was a 71-year-old woman with multiple complex physical and mental health needs. In July 1998 and June 2008, she was detained under s.2 of the Mental Health Act 1983 (MHA 83). In December 2008 she was detained under s.3 of the MHA 83 as a result of symptoms emanating from paranoid schizophrenia. Following discharge from detention under s.3 MHA 83 the Claimant was provided by s.117 MHA 83 aftercare services by Norfolk County Council and the Clinical Commissioning Group (CCG). The Claimant had lived in Norwich until 2014 but then moved to the LB Camden to live with her daughter, JU, who was important to her care and well-being. Since 2018 the accommodation, provided by Norfolk County Council and the CCG, had been sheltered one-bedroom accommodation managed by the LB Camden.
The Claimant was admitted to hospital by reason of a physical illness in November 2020. On 1 March 2021, the Claimant was transferred to a rehabilitation bed at the St Pancras rehabilitation unit and was now ready to return home. The plan was that she be discharged back to the sheltered one-bedroom flat. The Claimant claimed this flat was unsuitable for her and the discharge would breach the duty under s.117 MHA 83. Norfolk County Council and the CCG had not made a final decision but maintained that this was a lawful option.
On dismissing the Claimant’s claim the court held
The most recent assessment of the Claimant’s s.117 MHA 83 aftercare needs was on 23 January 2020 which provided for a suitable specialist one-bedroom sheltered accommodation within easily accessible distance to her daughter and her daughter’s sister’s, M, postcode. Without specialist accommodation, the Claimant was likely to suffer distress and deterioration of her mental health. Also, care was to be provided day and night to meet the Claimant’s eligible social care needs. The reason behind this was that the Claimant’s physical health had declined since her last review in 2018. It was not possible to separate the Claimant’s physical and mental health needs from each other and a large amount of formal and informal care was needed to meet the Claimant’s needs.
The Claimant was already living in a flat that met her needs and there was no suggestion the Claimant should be moved out of the flat around the time of the January 2020 assessment. The assessment was conducted by the Claimant’s social worker and was signed by her, the Claimant’s daughter and sister, the social worker and the clinical specialist nurse employed by the LB Camden. During the assessment and the admission to hospital, no specific event is relied on to make the flat unsuitable. However, the Claimant’s daughter and some professionals considered the flat was not suitable for the Claimant.
The Claimant’s daughter commissioned an occupation therapist report, the “Sheehan Report” dated 8 July 2020. It was not an assessment under s.117 of the MHA 83 or commissioned by Norfolk County Council or the CCG but was provided to them. It made a number of recommendations in respect of housing, it included a requirement for a ground floor flat with good insulation and two bedrooms, one for the Claimant and one for the carer and a number of other matters, which included being closer to her daughters. The clinical reasoning summarised that the present property was no longer fit for purpose as the carers were at risk of accidents during personal care and it did not allow for any dignity in family contact. On 14 August 2020, the Claimant’s consultant parasitologist wrote to the Claimant’s social worker seeking re-housing. On 13 October 2020, the LB Camden’s occupational therapist prepared a report which was subsequently withdrawn which suggested the existing accommodation was unsuitable.
The Claimant was admitted to hospital with a urinary tract infection on 26 November 2020 and she was placed on the LB Camden’s housing register, with the highest available points, with a view to the provision of a 2-bedroom flat. However, although it appeared the existing flat was unsuitable no bid for a two-bedroom flat was successful.
At the time of the hearing, the Claimant had been away from the flat for 6 months in the rehabilitation unit and there had been a number of developments including:
- The agency providing care being uncomfortable about resuming care at the existing flat;
- Counsel for Norfolk County Council making it clear (a) no decision has been made in respect of a return to the flat, and (b) in any event she would not be returned without carers being provided;
- An unsuccessful attempt to bypass the allocation process;
- The prospect of placing the Claimant in a care home;
- A transfer of the case to a more experienced social worker;
- A draft discharge summary from St Pancras had been produced and it undermined some of the assumptions made as to whether the existing flat was unsuitable;
- Further evidence from Norfolk County Council as to a return to the existing flat including a remote inspection by the new social worker;
- Norfolk County Council and the CCG were in the process of reassessing the Claimant’s s.117 MHA 83 needs.
On the key ground, the court held that in respect of either a mandatory order to provide suitable accommodation or a declaration that an “ongoing failure to provide suitable accommodation is unlawful”, required the Claimant to show that Norfolk County Council and the CCG were responsible for an ongoing failure to provide suitable accommodation. The judge was unpersuaded of this as the Claimant was still accommodated at the rehabilitation unit and a number of options were still being considered and a comprehensive s.117 MHA assessment was still in progress to evaluate all options. Further, the Claimant’s new social worker gave reasons for their current thinking, subject to further analysis, as to why the current flat was suitable for the Claimant’s needs, in the interim, to facilitate discharge from hospital pending reassessment. These reasons were based on a consideration of all the material, and were consistent with one view of that material, such that it cannot be said that the position of Norfolk CC and the CCG was irrational or unlawful.
The other grounds either became academic or fell away because of the judge’s reasoning on the key ground.
This case demonstrates that key aspects of a s.117 MHA 83 assessment can be complex, fact-heavy and difficult to challenge on conventional grounds for judicial review. Also the timing and content of any such challenge are key, given that in this case an assessment was still continuing and had not concluded. As an interim placement to facilitate a discharge the one-bedroom flat may have been suitable for the Claimant’s needs pending a full reassessment and lawful re-allocation to a two-bedroom accommodation.