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Guidance given on the obligation to assess under s.47 NHS and Community Care Act 1990

NM v Islington LBC and Northamptonshire CC (Interested Party)

Islington has succeeded in defeating a claim for Judicial Review brought by a prisoner seeking to require it to carry out an assessment of his needs so as to promote his prospects of release by the Parole Board. In the course of a judgment on a test case, Sales J gave important general guidance on when a section 47 NHSCCA duty to assess will arise writes Sian Davies.

NM's case was that Islington was required to assess his needs. It was required to do so, he contended, before he appeared before the Parole Board, so as to identify what accommodation and package of support would be available to him on travelling to Islington on his release. The Parole Board hearing is in April 2012, NM having been sentenced to an indeterminate sentence in 2006 for a string of offences.

Islington's defence was that:

a) There was no obligation to assess under s.47, as there was insufficient reason to think NM would in fact be released and the authority should not be put to unnecessary expense on such a speculative basis;

b) Secondly, it contended that even if there was an obligation to assess, the responsibility did not fall on Islington as NM had not been ordinarily resident there before his incarceration.

Mr Justice Sales found that no obligation had yet arisen on Islington to assess NM's needs, as the question of whether he might be released remained too speculative. Islington and Northamptonshire County Council, in whose area NM was living at the time of his arrest, agreed to refer the question of which of them is the responsible authority to meet his needs on release to the Secretary of State for a determination. The claim was dismissed.

Comment

The question of what triggers an obligation to assess can be a vexed question. It is of particular importance in the context of assessments for prisoners, those in Youth Offender Institutions, those in hospital and those seeking section 117 MHA aftercare services. Sales J found:

"Parliament cannot have intended to create an obligation of assessment in relation to a very wide class of cases of future provision of services, since doing so would create a serious risk of scarce resources available to local authorities for community care being wasted through assessments being carried out for no ultimate good purpose, thereby depleting funds available to provide much-needed services to vulnerable people who actually do require social welfare support from the local authority in question. In interpreting the intended ambit of the class of cases of future provision covered by section 47(1), it is necessary to bear in mind that the relevant condition set out in the opening part of the provision is expressed in the present tense so it is reasonable to suppose that Parliament intended the relevant extension to cover future cases on pragmatic grounds, as set out above, to be narrow. The future cases intended to be covered are those which are closely analogous to those where there is a (possible) present need for provision of community care. It is only in relation to such a narrow class that it can be said that "the contextual imperative" is so powerful as to allow the language in the present tense in section 47(1) to be interpreted as covering future or future conditional cases (see the approach to interpretation of community care legislation indicated by Lord Neuberger in R (M) v Slough Borough Council [2008] UKHL 52; [2008] 1WLR 1808 at para. [55]).

86. In the present case, I consider that the connection between the proposed consideration of the Claimant's case by the Parole Board as things stand on the case before the Board and the release of the Claimant to go to Islington is too conditional and speculative to fall within the narrow class of future provision cases covered by section 47(1). Nor can it be properly said that the Claimant is "about to be in need" or "may reasonably be considered to be liable" to have an order for release made in his favour, in line with the indication by Stanley Burnton J in R (B) v Camden LBC at para. [66]".

It was relevant to the prospects of release, and the conclusion that it was too speculative to trigger the assessment duty, that no MAPPA work had been done as to what risks might be posed to or by NM in Islington's area.

The local authorities agreed to have the question of ordinary residence referred to the Secretary of State.

Bryan McGuire QC appeared for Islington LBC. Ranjit Bhose appeared for Northamptonshire County Council