Court of Appeal
Published July 5, 2011
Regina (Nassery) v Brent London Borough Council
Before Lord Justice Ward, Lady Justice Arden and Lord Justice Moore-Bick
Judgment May 11, 2011
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Where a local authority was assessing whether a person was in need of care and attention, the primary focus was on present rather than future needs, but, provided there was a present need for some sort of care, the authority was also empowered to intervene before it became much worse.
The Court of Appeal so stated, inter alia, in a reserved judgment dismissing the appeal of the claimant, Mr Amir Nassery, from the dismissal by Judge Robinson, sitting as a deputy High Court judge ([2010] EWHC 2326 (Admin)), of his claim for judicial review of a decision of the defendant, Brent London Borough Council, that he was not in need of care and attention for the purposes of section 21(1) of the National Assistance Act 1948, as amended by section 195(6) of, and paragraph 2(1) of Schedule 23 to the Local Government Act 1972, section 108(5) of, and paragraph 11(1) of Schedule 13 to the Children Act 1989 and section 42(1) of the National Health Service and Community Care Act 1990.
The claimant had been assessed as having a personality disorder, and he also suffered from mental illness, his ongoing condition giving rise to sporadic bizarre behaviour. The local authority had to assess how his needs were to be addressed.
The grounds of appeal were, inter alia, that the judge had erred: (i) in isolating the claimant’s most recent behaviour from the history of the case, rather than looking at the pattern of his past behaviour; and (ii) in finding that a duty under section 21 arose if the condition giving rise to a need of care and attention persisted, but did not arise in this case where more extreme aspects of the symptoms manifested themselves sporadically.
Miss Kerry Bretherton for Mr Nassery; Miss Siân Davies for the council.
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LADY JUSTICE ARDEN said that, applying R (M) v Slough Borough Council (The Times September 5, 2008; [2008] 1 WLR 1808), section 21(1) of the 1948 Act, as amended, addressed present need; but dicta of Baroness Hale of Richmond and Lord Neuberger of Abbotsbury in M (paras 35 and 55 and agreed by the other judges), had accepted that there could be a situation where it was clear that a person was in the early stages of what would be likely to develop into much more serious illness, and some flexibility was allowed, provided at all times there was indeed a need of care and attention.
However, on the facts, this case did not fall within that exceptional category and no error was disclosed. An ongoing state of illness need not necessarily translate into an ongoing need; and in this case the claimant did not have a current need.
Solicitors: Mr Nathaniel Matthews, Hackney; Ms Fiona Ledden, Brent.