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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> BLZ, R (On the Application Of) v Secretary of State for the Home Department [2025] EWHC 153 (Admin) (29 January 2025) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2025/153.html Cite as: [2025] EWHC 153 (Admin) |
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KING'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING IN LONDON
B e f o r e :
____________________
| THE KING (on the application of BLZ) |
Claimant |
|
| - and - |
||
| SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
|
| - and - |
||
| LEEDS CITY COUNCIL |
Interested Party |
____________________
(instructed by Turpin Miller LLP) for the Claimant
Jack Holborn, Matthew Howarth and Ella Grodzinski
(instructed by Government Legal Department) for the SSHD
David Lawson and Katherine Hampshire (instructed by LCC) for Leeds City Council
Sian Davies (instructed by the Second LA) for the Second Local Authority
Hearing dates (BLZ No.1): 3-6, 12.9.24, 15.10.24
Hearing dates (BLZ No.2): 28 & 29.11.24
Further written submissions: 15.11.23, 5, 13 & 16.12.24
Draft judgment: 17.1.25
____________________
Crown Copyright ©
FORDHAM J:
I. INTRODUCTION
Issue (1). Policy-Gap. Did the SSHD act unlawfully in failing to have in a place a written policy (1a) helping decision-makers to identify when a person has or may have eligible care and support needs under the 2014 Act and/or (1b) requiring decision-makers to refer such persons to a local authority for a needs assessment under the 2014 Act prior to or following their release from detention to HOBA?
Issue (2). Policy-Adherence. Did the SSHD fail to apply these published policy guidance documents: (2a) Immigration Bail Interim Guidance, by failing to provide the Claimant with "Level 3" accommodation within the meaning of that policy? (2b) DSO 08/2016, by failing to convene an expedited multi-disciplinary meeting to plan for the Claimant's Safe-Release from detention and/or arrange a local authority assessment of the Claimant's 2014 Act needs?
Issue (3). Statutory Duty/Reasonableness. Did the SSHD act unlawfully in breach of the duties under Sch 10 §9 to the 2016 Act to provide suitable HOBA and/or did she act unreasonably in: (3a) Failing to consider the need for and make the necessary arrangements for referral to a local authority for assessment under the 2014 Act prior to or following the release of the Claimant from detention to HOBA? (3b) Failing to provide the Claimant with suitable/safe HOBA on and/or after release from detention?
Issue (4). HRA. (4a) Does the SSHD's system for the provision of release accommodation create a real risk of a breach of fundamental rights? (4b) Did the SSHD breach the Systems Duty under Articles 2 and/or 3 ECHR, by failing to put in place effective systems and arrangements to prevent foreseeable risks to life and/or serious injury and/or serious harm to mental and/or physical health? (4c) Did the SSHD breach the Operational Duty owed to the Claimant under Articles 2 and/or 3 ECHR, because she knew or ought to have known of a real and immediate risk to life and/or serious injury and/or serious harm, and failed to take reasonable measures within the scope of her powers which might have been expected to avoid that risk? (4d) Did the SSHD breach the Claimant's substantive Article 3 rights between 3 August 2023 and 22 December 2023 because (i) the level of the Claimant's suffering or indignity crossed the severity threshold for constituting 'degrading treatment' under Article 3 (ii) for which the SSHD was responsible? (4e) Did the SSHD breach the Claimant's Article 8 rights between 3 August 2023 and 22 December 2023 because the treatment of the Claimant was a disproportionate interference with his private life as protected by Article 8?
Issue (5). EA. (5a) Did the SSHD breach the Public Sector Equality Duty under s.149 of the EA? (5b) Did the SSHD breach ss.20 and 29 of the EA by failing to make reasonable adjustments to: (i) the release planning process and/or (ii) the process for sourcing and providing HOBA for disabled people with complex or high-level needs? (5c) Did the SSHD discriminate against the Claimant by failing to provide him with suitable accommodation as a consequence of his disability, in breach of s.15 of the EA?
There are agreed prior questions which came to this:
Prior Question (A). Anonymity. Should the interim anonymity order and reporting restrictions be continued and were the further restrictions sought justified based on maintenance of the administration of justice and/or harm to other legitimate interests?
Prior Question (B). Academic Claim. Should the Court decline to determine Issues (1)-(3), (4a) and/or (5a) on the basis that they are academic in light of the Claimant's placement in the Hotel and/or the SSHD's proposed policy review?
Prior Question (C). Transfer Out. Should the determination of Issues (4b), (4c), (4d), (4e), (5b) and/or (5c) be transferred to the KBD for determination as a damages claim?
II. THE LEGAL LANDSCAPE
IRCs
Safe-Release Planning (including Potential Care and Support Needs)
62. In cases where IRC or Healthcare staff have significant concerns about planned releases who are considered to be at risk, for example if the detained individual has a contagious disease or requires a mental health follow up, a multi-disciplinary meeting (or teleconference if a physical meeting is not possible due to time constraints), must be arranged by the local DET team to agree a plan to safely release the individual. This should be expedited to avoid any impact on release timings. The attendees to this multi-disciplinary meeting will depend on the circumstances and needs of the individual, as an example, attendees might include representatives from the local DET team, Compliance team, Foreign National Offender Senior Caseworker, National Removal Command Senior Caseworker, Border Force Caseworker, contracted supplier staff and Healthcare staff. The list is not exhaustive and any team that can positively contribute to these meetings are welcome to attend, for example representatives from the Mental Health Team in IRCs where there are severe mental health concerns 63. In cases where the detained individual requires support and/or accommodation from the Local Authority, the case owner and, where allocated, the non-detained casework team, must arrange a Local Authority needs assessment prior to release The contracted supplier or local DET team should assist the caseworker with signposting for local services wherever possible. 64. In the case of release to the community, the IRC Healthcare provider will inform the relevant Healthcare provider in the community (where known) to ensure continuity of care, and records, including any onward care plan, will be forwarded as appropriate on release. A detained individual should also be provided with a copy of their medical record and any onward care plan, on release.
DSO 08/2016 §63 is matched in the case of a release from a prison by Prison Service Instruction PSI 03/2016 §8.1:
If a prisoner is in receipt of care and support, or may require care and support on transfer or discharge, prisons must provide timely notice to local authorities, and to care and support service providers when a decision is made to transfer a prisoner to another establishment and must advise local authorities of planned discharge dates
[1] A multi-disciplinary meeting must be held to resolve any complex issues identified with the release of a vulnerable adult (adult at risk) and to mitigate any risks and delays associated with such a release [2] When the individual being released requires support and/or accommodation from Local Authorities, [the local Detention Engagement Team] will, where possible, support and work with the caseowner, who is the lead, and the non-detained casework team in arranging a Local Authority needs assessment prior to release In the case of release, the IRC healthcare provider will inform the relevant healthcare provider in the community to ensure continuity of care. [3] Referral to National Asylum Allocation Unit (NAAU) routing team. When referring an individual regarded as vulnerable to NAAU for accommodation, the caseowner's referral email must clearly set out any vulnerabilities identified and when any medical assessments have been made, it must include the outcome(s) of these. The caseowner should also include the safeguarding referral form along with their email Medical information must be supplied to NAAU to ensure placement of the individual to meet their needs, including if the individual is taking medication and also if the individual has had a care package in the past.
Recognised Sources for Identifying Vulnerabilities
[T]here are a number of ways in which the FNORCAT caseworker may be made aware of special requirements or vulnerabilities in relation to an FNO. [1] The first is that an FNO may themselves submit medical representations with the application itself (on the Form 409 or ASF1) which relate to their mental or physical health. These representations are referred to the independent medical assessor so that he can look through the information and provide advice on whether or not there are specific accommodation requirements. [2] Another possibility is that the individual's medical history may be included in detention reviews, such that the caseworker will become aware of the same. [3] Thirdly, in some cases the police will inform the team of specific accommodation requirements. [4] Finally, caseworkers will also consider the individual's GCID or Atlas notes, which can include information from a variety of sources and will often contain information about an individual's mental or physical health, if there are concerns about the same.
ATLAS is an immigration case management system. GCID is the General Cases Information Database, a database of notes made by Home Office caseworkers.
Asylum Support Accommodation
Asylum Support Accommodation and FNOs
FNOs and Public Protection Needs
Statutory-Destitution
Legally Adequate Asylum Support: Three Legal Standards
Limbuela-Suffering
Asylum Support Planning (including Potential Care and Support Needs)
[1] Referrals to local authorities. Officers and relevant commercial partners should refer for needs assessment any adult customer who appears to have a care need outlined in the following three scenarios. [i] Non-urgent needs. Where a newly arrived asylum seeker has potential care needs that do not appear to be urgent, or otherwise to require assessment prior to dispersal, assessment of those needs may await the person being dispersed. A person dispersed to a local authority's area should be considered ordinarily resident in that area, and any needs or carer's assessment will be requested from that local authority. [ii] Urgent needs. Where a person presents with urgent needs that may require any of the following: [a] residential care [b] specific accommodation [c] day to day assistance with basic personal care, a needs assessment should be requested from the local authority in whose area the adult is present at the earliest practicable point in the process. For example, where a person claiming asylum at a port of entry presents with urgent care needs, the local authority in whose area the port is situated should be requested to do an urgent assessment [iii] Urgent needs where the person has already been accommodated by Home Office. Where, exceptionally, a person has already been accommodated by the Home Office before an urgent care need is revealed, and therefore no request for assessment has been made, an urgent assessment must be requested from the authority in whose area the accommodation is situated. Such an assessment should be requested by the first responder (for instance the accommodation provider, the caseworker or other person, using specialist safeguarding staff where appropriate) when made aware of the care need. Where a local authority is requested to do a needs assessment either because the asylum seeker is ordinarily resident in its area, or is present in its area but of no settled residence, that local authority is obliged to do so in accordance with the terms of the Care Act 2014. [iv] Access to Initial Accommodation (IA). Those with an urgent care need, as opposed to a purely medical need (that can be addressed by the IA medical team or National Health Service as appropriate), should not be admitted into IA without a needs assessment having been conducted by a local authority [2] Asylum support assessment When considering asylum support requirements for someone who has or may have a care need, which has not already been referred to a local authority for assessment, the asylum seeker should be referred to the relevant local authority for a needs assessment.
HOBA
9.(1) Sub-paragraph (2) applies where (a) a person is on immigration bail subject to a condition requiring the person to reside at an address specified in the condition, and (b) the person would not be able to support himself or herself at the address unless the power in sub-paragraph (2) were exercised. (2) The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of that person at that address. (3) But the power in sub-paragraph (2) applies only to the extent that the Secretary of State thinks that there are exceptional circumstances which justify the exercise of the power.
HOBA pursuant to Sch 10 §9(2) is accommodation for those on immigration bail, in relevant need of accommodation and not accommodated through asylum support. HOBA is provision for unaffordable state-required action: the state is requiring something (living at a specified bail address) which the individual cannot afford (Sch 10 §9(1)(b)). The same idea applies to costs of travel "for the purpose of complying with a bail condition" (Sch 10 §9(4)-(5)) and asylum support covering asylum claim costs and bail hearing attendance costs (1999 Act s.96(1)(c)-(e)). HOBA decision-making must be reasonable and fair: R (Sathanatham) v SSHD [2016] EWHC [2016] 4 WLR 128 at §91. Like asylum support, HOBA is accompanied by "subsistence" payments for essential living needs: Mr Holborn says the derivation is incidental powers; Ms Harrison KC says it is implied in Sch 10 §9 itself; but nothing turns on who is right. An application for HOBA is made on form BAIL 409 (described in Kingham 1 as Form 409). HOBA is arranged with the same providers as asylum support, under the same AASCs, by the same caseworkers issuing the same sort of ITPs. As with asylum support, if you are an FNO, the CAT caseworker handles accommodation-allocation and the CDT caseworker handles Safe-Release.
Harm Cases. Cases involving: [a] people including Foreign National Offenders (FNOs) who are granted bail and who are currently assessed by Her Majesty's Prison and Probation Service (HMPPS) as being at a high or very high risk of causing serious harm to the public [b] FNOs at high risk of harmful reoffending against an individual for example, offences of domestic burglary, robbery, sexual assaults and violence who are assessed using the Offender Group Reconviction Scale (OGRS) with a minimum score of 70% [in either case] where that person has nowhere suitable to live in accordance with their probation licence and/or multi-agency public protection arrangements (MAPPA), for a limited period, or otherwise at the discretion of the SSHD in the interest of public protection.
Article 3 Cases. It may be appropriate to consider using the power to provide accommodation under [Sch 10] paragraph 9 to accommodate individuals who are not SIAC or harm cases, but only usually where both of the following circumstances apply: [a] they do not have adequate accommodation or the means of obtaining it [b] the provision of accommodation is necessary in order to avoid a breach of their human rights (usually rights under Article 3 ECHR) When it appears on a fair and objective assessment of all relevant facts and circumstances that an individual applicant faces an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food or the most basic necessities of life, this is likely to be considered inhuman or degrading treatment contrary to Article 3 of the ECHR (see: Limbuela).
The Immigration Bail Interim Guidance addresses the provision of accommodation and types of bail accommodation (§71 below). It also identifies this as one of the categories of person for whose accommodation other legislation makes provision:
[M]igrants accommodated under the provisions of the Care Act 2014 [G]enerally, they will have been accommodated because they have a serious disability, exceptionally, however, accommodation may be arranged temporarily under the power in paragraph 9 whilst the case is referred to a local authority and pending a decision by that local authority as to whether the duty to provide accommodation under the Care Act 2014 (or equivalent) applies.
Legally Adequate HOBA: Three Legal Standards
The Stated Equivalence Policy
[The] system for the provision of Schedule 10 accommodation is, as a matter of general practice, equivalent to that in place for the provision of support to current and former asylum-seekers under the Immigration and Asylum Act 1999.
it is accepted that SSHD's caseworkers [in HOBA cases] should also make referrals [for needs assessments] where a service user appears to have a care need as already provided for in Asylum Seekers with Care Needs (the Care Needs policy) for those in receipt of support under the 1999 Act
Kingham 1 told the Court that:
In practice, whilst there are distinct legal regimes for accommodation and/or support to be granted to individuals by the [SSHD], there is little difference between the manner in which support under either Schedule 10 of under the 1999 Act is provided.
HOBA Planning (including Potential Care and Support Needs)
Local Authority Care and Support Duties
Why SSHD Care and Support Liaison and Referrals Matter
Equality Duties
HRA Duties
The Article 3 Severity-Threshold
Inflicted and Unprotected Article 3 Harm
Unlawful Article 2/3 Exposure to Risk: The Munjaz Principle
(1) R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58 [2006] 2 AC 148 concerned the legality of Ashworth hospital's bespoke policy on periodic reviews of detained psychiatric patients held in seclusion. A key point was that, in certain circumstances, seclusion could constitute state-inflicted Article 3 harm. The context can be seen from the Court of Appeal at [2003] EWCA Civ 1036 [2004] QB 395 at §§53-60 and the argument in the House of Lords in [2006] 2 AC 148 at 161A-C and 166B-G. In asking whether the Ashworth policy failed to comply with Convention rights (§1), Lord Bingham said "the Trust must not adopt a policy which exposes patients to a significant risk or treatment prohibited by Article 3" (§29). Lord Hope who had identified the Operational Duty (§78) asked whether the policy "gives rise to a significant risk of ill-treatment of the kind that falls within the scope of" Article 3 (§80). The claim failed because the policy did not expose patients to, or give rise to, a significant risk of this nature (see §§29, 81-82).
(2) The Supreme Court in R (A) v SSHD [2021] UKSC 37 [2021] 1 WLR 3931 and in R (BF (Eritrea)) v SSHD [2021] UKSC 38 [2021] 1 WLR 3967 saw Munjaz as "concerned with a distinct obligation which arises pursuant to Article 3 of the ECHR to protect an individual from being exposed to a real risk of treatment falling within the scope of that provision" (BF §72), as "a rule of law specific to Article 3" to "protect individuals against the risk of ill-treatment contrary to that provision, even at the hands of others" (A §79, citing Soering v UK (1989) 11 EHRR 439). The Soering principle, which governs Article 2/3 protection in deportation and extradition cases, recognises that it can violate Article 2/3 to send a deportee or extraditee to a state where they face a real risk of torture or inhuman and degrading treatment. That is another context where there can be no "wait and see", because the individual would be being handed over to a foreign state's authorities.
(3) In R (W) v SSHD [2020] EWHC 1299 (Admin) [2020] 1 WLR 4420 the Divisional Court considered the lawfulness policy guidance in the context of lifting "no-recourse to public funds" (NRPF) conditions. That policy guidance was held to be unlawful because it failed to recognise the Article 3 duty to protect against Limbuela-Suffering. The unlawfulness in W was seen in A as having had two aspects. One aspect was unlawfulness under "principles of domestic law", as a complete set of instructions requiring Home Office officials to maintain the unlawful retention of NPRF conditions (see A at §74). The other, relevant for present purposes, involved "the legal obligations which arise under Article 3" as seen in Munjaz (see A at §74). All of which means that a policy or arrangement may be impugned as unlawful because it breaches an Article 3 obligation to protect. Munjaz and W are about Article 3 and effective protection. They link to Limbuela, with its aversion to a "wait and see" approach to street homelessness. This could all fit with ASY but, instead, that was analysed as a Systems Duty case (§29 below).
The Article 2/3 "Systems Duty"
The Article 2/3 "Operational Duty"
Article 8
The Public Law "Adherence" Duty
Duties to have Policy Guidance
III. THE FACTUAL CONTEXT
The SSHD's Evidence: Policy Guidance
The SSHD's Evidence: Decision-Making
The Claimant's Position: Immigration Control
The Claimant's Position: Criminal Justice
The Claimant's Position: Accommodation
The CAT Caseworker's ITPs
The Claimant's Position: Disability and Health
The CAT Caseworker's Referral to Dr Wilson and his Advice
(1) Dr Wilson first advised as follows on 18.7.23:
The applicant is stated to have a history of depression and psychotic symptoms with a history of self-harm. The applicant is stated to have a history of contact with the criminal justice system. It is contended the applicant requires self-contained accommodation in Leeds, near to his sister, due to the applicant's underlying condition and vulnerability. The applicant currently resides in a shared house with other males in Leeds. The applicant additionally has a history of epilepsy resulting from neurocysticercosis, a tapeworm infection which he developed in his home country of Malawi. I note that the applicant was previously involved in charity work, although has not been able to sustain paid employment. The applicant additionally has a history of harmful misuse of alcohol. There is mention of possible learning disability, however this is not corroborated by any other formal assessment and there is no clear evidence to indicate a full scale IQ below 70 points and other diagnostic criteria. The applicant has previously resided in supported accommodation following discharge from being detained in hospital. I note additionally that the applicant is reported to have evidence of emotionally unstable personality difficulties. In summary, based on the evidence available to me, whilst the applicant's needs are significant, I do not think that there is any prospect that the applicant should be residing in self-contained accommodation, or specifically that the applicant requires accommodation close to his sister. My advice would be that the applicant requires supported accommodation as he has been housed in previously, which is likely to meet his complex needs. I would not make any specific recommendations regarding location and shared accommodation would not be precluded, providing the accommodation has some supported element to it.
(2) The CAT caseworker must then have raised a question, because Dr Wilson responded with this second advice (21.7.23):
In regard to the specific question regarding housing needs, supported accommodation is a specialist form of accommodation with staff in attendance on a either 24-hour or part-time basis with specialist skills in managing particular service users such as those with more severe and enduring mental illness, learning disability or forensic needs. In the applicant's case, leaving his asylum status to one side, if he were accessing statutory services in the UK he would likely require this service to be provided by either learning disability or mental health services as I am unclear that his sister is sufficient to provide the necessary support that he requires. With respect to the specific type of supported accommodation and its intensity I would advise investigating a previous supported accommodation that was available to him upon hospital discharge to determine this information but he probably requires some form of low or medium-supported accommodation with mental health support.
(3) This means that Dr Wilson twice advised on 18.7.23 and 21.7.23 that the Claimant's disabilities meant he needed accommodation with a "supported" element, making a link to the Claimant's supported accommodation in 2014 (ie. at Murray Lodge). The Home Office position was that it does not provide "supported" HOBA or asylum support accommodation, as the CAT later informed the Claimant's solicitors (18.8.23). There is no evidence that anyone within the CDT saw Dr Wilson's advice. The ITPs raised by the CAT caseworker, from ITP2 on 25.7.23 onwards, included reference to "severe mental health" and to "history of self-harm". But no multi-disciplinary meeting was convened; no anticipatory referral to a local authority for a needs assessment was made or considered; and there is no evidence that anyone whether the CDT caseworker dealing with Safe-Release from the IRC or the CAT caseworker dealing with the allocation of HOBA addressed the Claimant's potential care and support needs. This is a fourth striking feature of the case.
Local Authority Involvement
Hospitalisation
Litigation
The SSHD's Breach of a Court Order (6.11.23 to 22.12.23)
The Claimant's First 25 Days at Willow Lane
[The Claimant] commented on being unsteady in the shower and that his legs can often shake and struggle to hold his body weight. During these times he will either fall or faint. There is no assistive technology to support [him] around these needs. Nor is there any equipment in the show[er] such as a shower stool for [him] to sit on or any handrails. [i] As [the Claimant] has epilepsy, he can experience a seizure without warning. There is [no] one in the building able to monitor [the Claimant] or even know what to do in these instances, again assistive technology may be of assistance, for example a seizure alert or falls detector. [ii] The steps up to his bedroom are steep and poorly lit with no hand rail to steady himself. The carpet is uneven in places and is a falls risk to anyone let alone with needs such as [the Claimant]'s
[The Claimant] has a very basic understanding of his needs, for example he knows that he has certain diagnoses and that he has medications for these diagnoses but has no idea what medications he takes or when he should take them. [iii] Up until today when his sister has put his medications into a dispenser whilst this is arranged with his GP and local chemist [the Claimant] had no idea what he should be taking and when. This I find worrying given his past history of attempting to take his own life, his medications being loos[e] in a bag was a recipe for disaster. Having been told how he should manage the dispenser [the Claimant] now seems better able to manage but I still believe his medications should be monitored to ensure he is taking them accordingly. Although [the Claimant] can wash and dress himself, he has the instability in the shower and risk of falling. It would be ideal for someone to be supervising to maintain [the Claimant]'s safety and wellbeing and prompting to wash in all areas. [The Claimant] would also benefit from being prompted to regularly change his clothing otherwise would be liable to wear the same clothes for extended periods. I believe [the Claimant] would benefit from a supported living environment where he would be able to benefit from support from staff to learn new skills such as activities of daily living such as doing his own laundry, cooking, budgeting etc
Within days of this email being forwarded to the CAT caseworker (15.8.23), the following events had occurred. As to [iii] (meds), the very next day (16.8.23) the Claimant was admitted to hospital overnight, having accidentally overdosed by taking too many tablets. As to [i] (seizure-support) six days later (22.8.23) he was admitted to hospital overnight again, having had a seizure in the house in circumstances where paramedics had to force entry to get to him. As to [ii] (stairs), another six days later (28.8.23) the Claimant was admitted to hospital overnight for a third time, this time having had a seizure and having fallen down the stairs. All of that was within 25 days of the Claimant's release. These concerns and incidents have brought into sharp focus questions about the lawfulness of arrangements for legally adequate accommodation and Safe-Release. They are a fifth striking feature of the case.
The Stairs at Willow Lane and the Fall on 28.8.23
admitted with Fall and Seizure. Appears to have had a seizure at the top of the stairs. Fallen down full flight of stairs. Spilled hot drink on left thigh.
The ambulance attendance document says:
Pt has ? had seizure at top of stairs, he has woken up at the bottom of the stairs, he has called 999 due to being in pain on L side of ribs.
The Home Office witness statement of Gwen Heeney, Senior Executive Operations Manager for the CAT, says correctly that on 4.9.23 the SSHD received:
a copy of the hospital discharge letter from the Claimant's legal representatives following the incident in the accommodation on 28 August 2023, when the Claimant had fallen down the flight of stairs at his present accommodation following a seizure.
The Stairs at Rokeby Gardens
(1) The Claimant's room at Rokeby Gardens was on the ground floor. Outside his door there was a carpeted square landing area. Opposite, across that landing area, was the door to the kitchen and then, to the right hand side, the bathroom. That was also the route to come and go from the house. There was a single step down from his room onto the landing, and a single step up again to go into the kitchen. To the right, on the landing, was a wall with no hand rail. To the left were 8 carpeted stairs with a handrail, down to a basement with a communal lounge. This can all be seen in photos derived from a video taken by the Claimant's sister on 27.9.23. In her witness statement dated 13.10.23 the Claimant's sister said this:
In order to go into [the Claimant]'s room, you have to go down a step and then you have to go up another step to get into the room. Immediately beside his door, and those small steps, is a steep staircase going into the basement. For [the Claimant] to come in or out of his room, he has to go up and down the small steps, and cross directly over the top of the steep flight of stairs to the basement.
The Claimant's witness statement evidence says "there were steep stairs right outside my bedroom going down to a basement" and that "I had to go down a step and then up a step crossing these stairs if I wanted to get to any other part of the house from my bedroom, including the kitchen, toilet and bathroom". The layout is recorded within the Peters Assessment, written by Leeds City Council SW Olu Peters who, with Senior Social Worker (SSW) Gillian Wood, who visited the Claimant at Rokeby Gardens on 10.11.23. SW Peters recorded that that, although "the bedroom is on the ground floor, the living room is only accessible via a set of stairs"; that "the communal bathroom is right opposite his room and the communal kitchen to the right, all on the ground floor"; and that "outside of his room there's steps to the left and a drop in front of his bedroom door". CAT Litigation sent an email (6.12.23) referring to Rokeby Gardens as "not suitable for his needs as there is a flight of stairs down to a basement which poses a fall risk for him", written in the context of court orders at interim relief hearings.
(2) This is how the Claimant came to be in property with this configuration. He was being moved from Willow Lane because of the stairs there. ITP7 on 1.9.23 specified "ground floor or lifted" and "walk in shower". On 11.9.23 the CAT caseworker sent an email, cc'd to SW Wilson, identifying Rokeby Gardens and asking police colleagues to review the property. Rokeby Gardens was described by the caseworker as "an alternative property which should be more ideal as we have been advised it is a ground floor property (including the bathroom)". The description "more ideal" was in comparison to another candidate property called Bell Lane with an upstairs bathroom, about which SW Wilson had responded in an email of 6.9.23. Also on 11.9.23 the SSHD also notified the Court that a property consisting of "a single bedroom with shared facilities" and "situated on the ground floor with a ground floor bathroom" was proposed in Leeds, subject to checks by the police and Kirklees social services. On 14.9.23 the SSHD confirmed to the Court the identification of a property on the ground floor of a Leeds address, which had been "approved by Kirklees Social Services and the Leeds Public Protection Unit"; and confirmed a dispersal date of no later than 20.9.23. On 20.9.23, by consent, the High Court made an Order. It recorded in recitals the notification of 11.9.23 and the confirmations of 14.9.23. It ordered that the Claimant be dispersed to the proposed and approved accommodation in Leeds, by 11.59pm on 20.9.23. The Claimant was transferred to Rokeby Gardens in accordance with that Court Order.
(3) This is what happened next. On 26.9.23 the Claimant's sister spoke to his solicitors and sent them the video. On 29.9.23 the solicitors emailed LCC to say they considered Rokeby Gardens "to be unsuitable as there are steep stairs immediately outside his room going down to the shared living area; he is at risk of seizure at any time due to his epilepsy, has previously fallen down a flight of stairs due to this, and Kirklees social services made clear that accommodation should be contained to one floor. We would appreciate being put in touch with the relevant social worker as soon as possible given the urgency of the matter." An attempt to send that same communication to the SSHD failed. On 3.10.23 the Claimant's solicitors wrote to the SSHD "to request the urgent relocation of our client to alternative accommodation, as his room is directly at the top of a steep flight of stairs" and the SSHD "is fully aware of the risks posed to our client by stairs due to the risk of him suffering an epileptic fit without warning, and that this renders any such accommodation wholly unsuitable". That letter also alleged that the SSHD "knew or ought to have known that (i) the property was not in truth a 'ground floor property' and (ii) that the bedroom proposed for the Claimant's use was directly at the top of a flight of stairs".
(4) On 7.10.23 the Claimant was admitted to hospital where he remained for 21 days until 27.10.23. The ambulance service record says: "Today the carers came into patient property and found patient to be laid supine on the floor at approx 1750hrs. Carers unable to wake patient and called for ambulance service". On 10.10.23 the CAT caseworker sought, and on 11.10.23 received, confirmation that the bedroom, kitchen, bathroom and toilet at Rokeby Gardens were all on the ground floor. On 12.10.23 the Government Legal Department (GLD) wrote to the Claimant's solicitors saying that the Claimant's bedroom, bathroom and kitchen were situated on the ground floor; that it was "unfortunate" and "regrettable" that there were stairs located near to the Claimant's bedroom door; but that the SSHD had not been aware of this; that this was still a ground floor property, there had been no breach of the Court order, and the Claimant would not need to use the stairs; that the "remedial approach" had been taken of asking LCC to provide a remedy such as a stairgate; and that a further move might be away from the Leeds area and no timeframe could be given. The CAT caseworker recorded on 17.10.23 receiving information that "near to the [Claimant]'s bedroom there [are] approx 7 stairs that lead to a basement and this has been raised as a concern (in case the [Claimant] was to have a seizure and fall down them)". Although maintaining that the accommodation was suitable, the SSHD agreed on 23.10.23 to source alternative accommodation. The Claimant's discharge from hospital was on 27.10.23.
Delayed Discharge
The hospital would initially not discharge me back to the Leeds accommodation because it was not safe due to the stairs outside of my bedroom. I was eventually discharged only because the social services had created a plan
In my judgment there is no issue warranting oral evidence and cross-examination, still less transfer for a full KBD trial. I accept the contents of the contemporaneous documents. A letter dated 12.10.23 from Dr O'Cofaigh said the Claimant would be "ready for discharge once he has been seen by Occupational Therapy and Physiotherapy (hopefully by the end of this week)". An email exchange on 18.10.23 records the Hospital Senior Occupational Therapist (SOT) Rebecca Dickinson confirming that the "medical team" had "advised" her that the Claimant was "now medically ready to be discharged" and recording her views: that she assessed "the presence of stairs and the single step drop outside his accommodation as posing a risk to him, given [that he] can seizure at any time without warning and these factors increase the risk to him of any fall"; that "it would not be appropriate for [the Claimant] to remain in hospital when there is no timescale for alternative accommodation to be sourced"; but that, "if discharged" she "would want certain supports in place at the property prior to discharge to lessen the risk on discharge". I find the following as facts: there was a period from 18.10.23 to 27.10.23 when the Claimant was assessed as medically fit for discharge but remained in hospital; he remained in hospital because the SOT had assessed the presence of the stairs at Rokeby Gardens as posing a risk to the Claimant and she wanted supports in place prior to discharge to lessen the risk to him on discharge.
Description of the Rokeby Gardens Stairs
"Confined Living" at Rokeby Gardens
The OT [SOT Dickinson] acknowledged that [the Claimant]'s current property is not ideal and that he would benefit from being rehoused to single level living property and if able to secure this in a supportive living complex would be better as they would be onsite support. However, in order to minimise risks associated with the stairs, OT has recommended that [the Claimant] could be discharged home for one room living, with commode, urinal bottles and telecare. OT would send a referral to the community team for an assessment of the bathroom to suggest possible adaptations (fixed grab rails as pose to FSTF as safer in event of a seizures whilst using equipment). [The Claimant] was agreeable to this plan. [His] package of care would be increased to 4 visits daily to support with personal care, washing and dressing, bathroom visits, meal preparation and medication administering.
The hospital discharge advice note (27.10.23) records that the Claimant was "waiting to hear about potential rehousing" and that "[i]n the meantime it has been deemed appropriate for him to return to his current accommodation with some modifications to help optimise his safety". This is from the Peters Assessment (10.11.23):
[1] [The Claimant] shares facilities the bathroom, living area and kitchen with other residents in the property but has his own bedroom. Although the bedroom is on the ground floor, the living room is only accessible via a set of stairs. The communal bathroom is right opposite his room and the communal kitchen to the right, all on the ground floor. Whilst in hospital [the Claimant] shared that the walk-in shower in the property is quite small and that he has struggled to have a wash in there. He advised that he has had a fall in the bathroom on a couple of occasions. [He] also explained that he has had to use the stairs to access the living area which due to his continued risk of seizures, he rarely does. Given the concerns raised about the property, [the Claimant] was assessed by a Hospital Occupational Therapist. They gave the recommendation that long term [the Claimant] should be accommodated in a single level property to reduce the risks of injury/falls should a seizure occur on or near to the stairs and that if this could be provided within a supported living complex, this would be better to ensure there is onsite support.
[2] However it was agreed that to support a timely hospital discharge [the Claimant] could return to his current accommodation to have confined living in his bedroom on a temporary basis, during which the Home Office would continue to search for more appropriate accommodation. The recommendation was that [the Claimant] would be provided with a commode, urinal bottles, Telecare (on discharge from hospital at his request) and a referral to the Disability Services Team for grab rails to be installed in the bathroom. [The Claimant]'s package of care prior to this hospital admission was 2 visits a day (12 hours 15 minutes a week.) A Hospital Social Worker carried out a needs assessment and determined that the care package should be increased to 4 visits a day (17 hours 30 minutes a week) as a protective measure to ensure [the Claimant] has the appropriate level of support to reduce any risks associated with the use of the stairs
[3] [O]utside of his room there's steps to the left and a drop in front of his bedroom door, I asked how he manages with this. [The Claimant] shared he is okay to walk to the kitchen and aware of the stairs and drop. His sister has advised him to stay away from the stairs due to his seizures. [The Claimant] has everything in his room to make a drink, he has a urine bottle and a commode, hereby reducing the risks of fall on the stairs. [The Claimant] shared he doesn't usually use the commode as he could hold his bowel to wait for carers to help him access the toilet. I asked if carers have to help him in/off the toilet. [The Claimant] said yes because he has bad knees and ankles which may make him fall easily and his feet are wobbly. I asked if his bad knee and ankle is due to an injury. [The Claimant] shared its part of his condition "Pick disease"
[4] Surryna [from the care agency Ethicare] explained [the Claimant] currently has 3 calls a day, 45 minutes in the morning to help with shower ([the Claimant] has to have a shower every morning as part of his routine), support with medication and preparing breakfast and carers shared they normally spend some time talking to [the Claimant] for reassurance as well as emptying his urine bottles and commode. They provide a lunch call and although [the Claimant] doesn't take medication at lunch anymore due to a change of his medication, he is supported to access the toilet, empty commode, and urine bottle, prepare lunch and drinks. A 45 minute call is provided at around 6pm and carers support with evening meds and meals. [the Claimant] normally takes medication before bed, but carers leave the meds on his table, and his Sister reminds him to take it by phoning him, and this is reported to be going well. Surryna feels the current time is okay and doesn't have any issues the arrangement. [The Claimant]'s medication is now delivered weekly by the pharmacy
[5] Social worker's recommendation The recommendation from Adults & Health is that in the longer-term level access accommodation would be preferable. Presently his current accommodation is level access, apart from the lounge area. To mitigate the fact that [the Claimant] is unable to use the stairs to access the lounge area unsupported, social support is being explored. There is a risk to [the Claimant]'s safety if he was to use the stairs unsupported which he is aware of. [The Claimant] continues to have mental capacity to make informed decisions about his care and support needs. He recognises the risks around using the stairs and is not using the stairs without support. Due to the current accommodation being both temporary and an HMO, the Disability Services Team are not able to provide an aids or adaptations to the bathroom, however [the Claimant] is managing his care needs well with the carer's support and he has access to the items he needs in his bedroom such as the urinal bottles and commode for use in between care visits, however confined living should not be considered on a long term basis and the Home Office should continue to secure appropriate level access accommodation which can ensure both [the Claimant]'s safety but independence and quality of life.
the social services had created a plan where I had to stay in my room to avoid having to go past the stairs. I had to use urine bottles instead of going to the toilet, unless there were carers to help. It was very hard to live this way.
I did use the urine bottles but not really use the commode as it was too unpleasant unless desperate. It was horrible having a toilet in the room where I sleep. I was normally trying to wait for the carers to help with accompanying me to the toilet, although I of course did not like having to do this. It was embarrassing like I am a child. I used the urine bottles regularly as it was more difficult to wait. I have no problems with continence, and this was not something I want to do. I wanted to be able to use the toilet like a normal person, but the accommodation meant I could not. The urine bottles would normally stay there until the carers came to collect them, and it would leave a smell of urine in the air which was horrible. Although I was very nervous about leaving my room in Leeds and my sister told me not to, it was not possible to just stay in my room all the time. I would have to go out to get my medication from the pharmacy and sometimes I went for short walks to try to get some fresh air, once or twice per week. My sister was not happy about this, and I knew it was a risk, but I could not be a prisoner again in the bedroom 24/7. However, I did spend most of my time just lying in bed. I felt very low. I didn't want to get up and I wasn't looking after myself. I understand my sister spoke to the carers about this. My representative told me that the Home Office were trying to find different accommodation, but that it was taking a long time. It was an awful environment. The smell of the urine made being in the room for such long periods even harder. It was a damp room to begin with, and the air was only made worse by the smell of urine and being stuck in there all the time. Although I am a person who is used to being alone, it was still very hard having to stay to my room for such long periods of time with only the carers seeing me regularly. It is quite hard to explain how I felt at that time now. I have had a lot of bad things happen to me and this was just another time I had to wait and hope things would change to be better. It was very upsetting and made me feel bad most of the time.
Findings of Fact about "Confined Living" at Rokeby Gardens
(1) Leaving aside the periods of time when the Claimant was back in hospital, there were 35 days between his hospital discharge (27.10.23) and his transfer to the Hotel (22.12.23) when the Claimant was present at Rokeby Gardens under what the local authority professionals were describing as "one-room living" and "confined living". This was an ongoing, uncertain period. It was not a known, finite period. The Claimant did not know when the period would end with a transfer to alternative accommodation; only that he had to wait until that happened. He lived under those arrangements for those 35 days, and 35 nights. The communal basement lounge at Rokeby Gardens was inaccessible to the Claimant during that period. His bedroom was, for him, a bed-sitting room. He had originally moved to Rokeby Gardens on 20.9.23. He moved because of an assessed danger from a staircase, down which he had fallen. Within a week his sister was warning him about the stairs to the basement at Rokeby Gardens. In the period from 20.9.23 to his hospital admission on 6.10.23 he only "rarely" accessed the basement living area. That is what he told Dr O'Cofaigh (12.10.23). The unsafety of using the stairs to the basement even though they had a hand-rail had been reinforced when he was discharged from hospital on 27.10.23. He complied with this advice. That meant he could not be in the communal area which was intended to serve as a living area for the house in multiple occupancy. This reduced his personal autonomy and his opportunities for increased social interaction.
(2) The Claimant knew he should avoid walking unassisted across the small square landing outside his bedroom. His discharge from hospital on 27.10.23 was on the clearly-advised basis that he should avoid the risk. That was why he had been given the urine bottles and the commode. It was why carers were coming, four times a day later three times a day to make his meals; empty the urine bottles and commode; and assist him with washing and showering. Because meals were prepared, the Claimant did not have to carry food or drink across the landing area from kitchen to bedroom. To a very large extent the Claimant was compliant with these instructions. He had facilities to make a drink in his room. The carers had to complete a daily log. They consistently recorded emptying the urine bottles. That was because the Claimant had urinated in bottles in his bedroom, where the bottles remained until carers came to empty them. That meant the smell of urine in the bed-sitting room, from the time of using the bottles, for a period of several hours until the next carer visit. The commode, on the other hand, did not require frequent emptying. The Claimant had said that he preferred not to use the commode, and that he felt he could wait and use the toilet rather than the commode, during the next carer visit. He did not wish to use a commode and avoided doing so.
(3) The Claimant did for the most part stay in his bedroom, as a bed-sitting room. His room was not a place of social interaction with other house-mates. Nor was it suitable for that. He was, however, visited several times a week by his sister and by his brother in law. He could accompany them across the landing. He was taken to their house for meals. He was able to go for walks with his brother in law. The Claimant also had the visits four times a day then three times a day by a pair of carers. This was an increase in provision. Those visits were for functional reasons: meals, showering, toileting, prompting with meds. When the Claimant was alone, he did not stay exclusively in his room. His door was not locked. Time was passing with no alternative accommodation having been found. As he had explained to SW Peters (10.11.23), for his part he actually felt he was "okay" to walk to the kitchen being "aware" of the basement stairs, and the single-step down and up. Crossing the landing was a few steps. It was a single, forward direction. With his seizures there was a general pattern of having some warning sign. He went outside the house to smoke. He sometimes went for a walk. The position became more relaxed in this respect as time went on. Frequently, the Claimant had to go to the front door to let his carers in. That should not have been expected of him. It involved him taking the very risk against which the arrangements were designed to protect. The Claimant increasingly told his carers that he would shower after they had left, and they recorded their belief that this is how his hygiene was being managed. In passing the stairs, as the Claimant did, he was taking risks which a local authority OT and the social workers had been recommending that he should avoid. The Claimant continued to have seizures during this period. They were at a rate of around two to three a week. He was admitted to hospital several times, but none was related to the stairs or landing area. He did not have a seizure at the landing outside his room. He did not fall down the stairs to the basement.
IV. ANALYSIS
The Anonymity Question
Should the interim anonymity order and reporting restrictions be continued and were the further restrictions sought justified based on maintenance of the administration of justice and/or harm to other legitimate interests?
My answer is "in part yes, but with liberty to apply". This issue relates to BLZ No.1 and BLZ No.2. I addressed it during Day 1 (3.9.24). The "interim" order was made by Yip J, at whose direction it was published on the Judiciary website and served on the Press Association, with a Case Summary. Any media representative or other interested person could make representations. None did. I heard submissions in private to allow all points to be fully ventilated and explained, with as full a summary as possible then given in open court and a revised Case Summary produced. My Order, with reasons, was published on the Judiciary website, containing liberty to apply to vary or discharge it. No application has yet been made. I ruled that an anonymity order with reporting restrictions was justified as necessary, covering the Claimant, the Hotel and the Second Local Authority; but not Kirklees or LCC. Regarding the Claimant, anonymity and reporting restrictions had been ordered by Constable J on 2.6.23, Bourne J on 25.8.23 and Lane J on 14.12.23, based on evidence and submissions about vulnerability and risk. I was satisfied that the protections relating to name and address remained justified, being necessary to protect the Claimant's legitimate rights and interests. It followed that the Hotel and geographical area could not be identified since, together, these were the Claimant's address and the protection would be defeated. The application to anonymise local authorities was so as to strengthen the protection, in circumstances (in the summer of 2024) involving violent disorder and unrest. The SSHD agreed that there were risks of targeted abuse and disruption engaging legitimate interests. No question of the legality of the Second Local Authority's actions was in issue, no remedy was sought against it, there were no strong open justice reasons in favour of naming it, and no countervailing legitimate interest in knowing or communicating where the Claimant was accommodated. Having balanced the relevant interests and considered the practical implications, and in light of what I was told at the private hearing, I was satisfied that in the particular circumstances of the present case, it was necessary as well as appropriate and proportionate, to prevent identification of the Second Local Authority. But it was not necessary, appropriate or proportionate to prevent identification of Kirklees; nor LCC, the legality of whose actions were in issue in BLZ No.2.
The Academic Claim Question
Should the Court decline to determine Issues (1)-(3), (4a) and/or (5a) on the basis that they are academic in light of the Claimant's placement in the Hotel and/or the SSHD's proposed policy review?
My answer is "no". The "proposed policy review" was described in Kingham 1 (15.3.24) as a review by the team responsible for the Immigration Bail Interim Guidance, intended to lead to publication of amended policy and guidance with a target date of 15.9.24. Kingham 2 (8.8.24) gave a new target date of 4.11.24. A letter from GLD (27.11.24) gave a new target date of 31.1.25.
(1) As the Administrative Court, Judicial Review Guide 2024 explains (at §6.3.4): where there is no longer a case to be decided which will directly affect the rights and obligations of the parties to the claim, the pursuit of judicial review is generally inappropriate; in some circumstances the public interest may justify hearing a claim for a declaration and to achieve acknowledgement of a past wrong; and in exceptional circumstances, the Court may decide to proceed with a claim whose outcome has become academic for the claimant, for example a large number (or at least some) similar cases exist or are anticipated, where the decision will not be fact-sensitive. To this, I add the following. The Court can legitimately ask whether any 'academic' issues stand alone (see Humnynstskyi at §§157-158); whether any unlawfulness is accepted (§§190-191); whether generic non fact-sensitive issues are appropriately addressed (§197; DMA at §331); whether permission has been granted, points argued and other cases are affected (Humnynstskyi at §198; DXK at §§143, 164). In Humnynstskyi it was inappropriate to consider a challenge to an impugned policy which was no longer in force (§290). Individual claims as to the failure to move an individual to dispersal accommodation were discontinued, after such a move took place in DXK (see §§3, 11); and systemic grounds lacking a firm factual foundation were found in that case to be inapt for determination (see §8).
(2) I am unable to accept Mr Holborn's submission that it would be appropriate for me to decline to answer substantive issues in this case on the grounds that they are 'academic'. The substantive issues are issues of law, apt for a judicial review; not simply issues of policy guidance merits for a policy review. The legal issues about the system have squarely been raised, with a firm factual foundation. Permission for judicial review was granted on 14.11.23 and the case was listed for its substantive hearing. There has been a full and fair opportunity to adduce evidence. If there is, as claimed, demonstrated unlawfulness in relation to the HOBA systems and practices, the Court should in my judgment say so. Others are undoubtedly affected. It is common ground that the Court should rule on some of the issues of law. The substantive issues are linked and overlap. There are human rights arguments, including arguments which can directly affect the Claimant's rights and the SSHD's obligations through "just satisfaction". The human rights issues overlap with the statutory duty and reasonableness issues. They arise out of the same facts. There is also the overlap between the substantive issues and those in BLZ No.2 against LCC. There are grounds which involve claims for declaratory relief and which engage questions about the acknowledgment of past wrongs. It would, in my judgment, be contrary to the interests of justice and the public interest to decline to deal with substantive issues. This means that on Prior Question (B) the Claimant succeeds.
The Transfer-Out Question
Should the determination of Issues (4b), (4c), (4d), (4e), (5b) and/or (5c) be transferred to the KBD for determination as a damages claim?
My answer is "no". I have been unable to accept Mr Holborn's submission that these issues involve material disputes of fact which require oral evidence with cross-examination, or expert evidence, or disclosure. The Court has a considerable volume of material. The duties of candid disclosure in judicial review were triggered. Mr Holborn helpfully identified in a marked-up chronology during the hearing what he said were key points of material factual dispute. But I was left unpersuaded that any of them called for oral evidence with cross-examination; nor a disclosure exercise beyond what is called for in judicial review; nor any other feature of a KBD trial. Had there been any discrete issue needing something more, my starting-point would have been thinking about whether that could be achieved within the judicial review proceedings. There were really three points which Mr Holborn submitted involved material factual disputes, addressed at §§53, 55-56 above. This means that on Prior Question (C) the Claimant succeeds.
The Policy-Gap Issue
Issue (1). Did the SSHD act unlawfully in failing to have in a place a written policy (1a) helping decision-makers to identify when a person has or may have eligible care and support needs under the 2014 Act and/or (1b) requiring decision-makers to refer such persons to a local authority for a needs assessment under the 2014 Act prior to or following their release from detention to HOBA?
My answer is "yes". This issue was contested by the SSHD until after 5 days of oral argument. Emphasising DSO 08/2016 (§6 above) and the Stated Equivalence Policy (§19 above), Mr Holborn was arguing that caseworkers should be making anticipatory local authority referrals in cases of apparent care and support needs; that there was no inherent unlawfulness in the system; that confusion is not the same as unlawfulness; nor are examples of shortcomings, including in case study examples given by NGOs. Then on Day 6 (15.10.24), Mr Holborn made the following concession in open court. The SSHD now accepted that there was unlawful action. That was because there was neither a clear instruction about caseworkers considering potential care and support needs and making anticipatory local authority referrals; nor training in relation to these matters. The source of the legal obligation being breached was the Adherence duty (§32 above) in light of the Stated Equivalence Policy (§19 above). It did not follow that there was any duty to "publish" policy guidance, because a clear instruction could be sufficient in law.
The SSHD accepts that there is a 'policy gap' in that whatever the position in practice written policies dealing with vulnerable service users in receipt of asylum support under the 1999 Act, including those with Care Act needs, are not expressly replicated for Schedule 10 claimants. SSHD has therefore committed to a policy review in order to determine the best means to remedy that discrepancy
Third, I do not see the unlawful vacuum as being a violation of Article 2 or 3 ECHR rights: as a policy or practice which exposes those affected to an unlawful risk to life or an unlawful risk of inhuman or degrading treatment; or as a failure to have administrative or regulatory arrangements to take proportionate administrative measures reducing such risks to a reasonable minimum; or by failing to take reasonably-expected measures to protect individuals from real and immediate risk of death or inhuman or degrading treatment about which the SSHD knows or ought to know. A HOBA decision can violate Article 3 (as in Humnyntskyi); as can a local authority breach of a 2014 Act statutory duty (as in TMX); as can the SSHD's systemic arrangements (as in W, ASY and SAG). But this vacuum does not, in my judgment, imperil individuals by reference to the Article 3 Severity-Threshold so as to constitute unlawfulness in breach of these statutory human rights.
The EA Systemic Issues
Issue (5a) Did the SSHD breach the Public Sector Equality Duty under s.149 of the EA? (5b) Did the SSHD breach ss.20 and 29 of the EA by failing to make reasonable adjustments to: (i) the release planning process and/or (ii) the process for sourcing and providing HOBA for disabled people with complex or high-level needs?
My answer to both is "yes". Issue (5a) was contested by the SSHD until after 5 days of oral argument. Issue (5b) remained contested.
(1) EA s.149 requires a public authority to have due regard to the need to take steps to gather relevant information in order that it can properly take steps to take into account disabled persons' disabilities in the context of the particular function in question: see DMA §313. This is an "important duty" to monitor provision of accommodation: see SA v SSHD [2023] EWHC 1787 (Admin) at §5. The purposes of monitoring are to identify and resolve problems where HOBA is not being provided; to see whether the system is working; and, if not, to identify solutions: see DMA §320.
(2) It would be impossible for the SSHD to say that there is "no evidence of a problem" in relation to disabled recipients of HOBA: cf. DMA §317. In DMA, there was evidence from individuals with experience and expertise from the Refugee Council, Freedom from Torture, Helen Bamber Foundation and Bristol Refugee Rights: see §§147, 314-315. That was not the first case where assistance has been derived from evidence emanating from NGOs (non-governmental organisations): see Limbuela §§35-36; Sathanatham at §§11, 23; and Humnyntskyi at §§35, 56. I had witness statement evidence from the following. First, Medical Justice (MJ). Theresa Schleicher who is MJ's Casework Manager. Her statement (18.4.24) explained why MJ sees the absence of an adequate system, to ensure that vulnerable individuals with specific needs are release safely and with appropriate support, as a long-standing issue of concern. Lisa Incledon is MJ's Senior Caseworker. Her statement (16.8.24) explained why reports identifying physical and mental health needs are not seen by MJ to lead to arrangements being put in place. Secondly, Bail for Immigration Detainees (BID). Pierre Makhlouf is BID's Legal Director. His statements (22.1.24 and 16.8.24) explain why BID sees as long-standing problems arrangements for suitable HOBA for vulnerable detainees with a disability.
(3) On 14.12.20, the High Court ruled in relation to asylum support accommodation for failed asylum-seekers with disabilities (DMA §325):
the SSHD is in breach of the public sector equality duty in failing, once she has reached a decision that she has a duty to accommodate under s.4(2) of the 1999 Act, to monitor the provision of that s.4(2) accommodation to individuals who have a disability. In this respect the SSHD has not, in the exercise of her functions, had due regard to the need to eliminate discrimination and to the need to advance equality of opportunity between persons who share the protected characteristic of disability and persons who do not share it.
The Court urged engagement over data and monitoring towards a system which would win confidence and respect (DMA §349). This would apply to decisions by the CAT and CDT caseworkers dealing with FNOs who were failed asylum seekers. In my judgment, based on the evidence in the present case, the SSHD is in equivalent breach of the public sector equality duty in failing to monitor the provision of HOBA to individuals who have a disability. In this respect the SSHD has not, in the exercise of her functions, had due regard to the need to eliminate discrimination and to the need to advance equality of opportunity between persons who share the protected characteristic of disability and persons who do not share it. No basis was put forward why any different position could apply to HOBA and individuals with a disability. There is no suggestion of any credible basis on anyone could have thought the requirements of the law were any different where decisions by the CAT and CDT caseworkers dealing with FNOs who were failed asylum seekers. In December 2023 the SSHD tried in DXK to distinguish DMA from the position of pregnant and new mother asylum-seekers and failed asylum-seekers (PNMAS) being moved from initial accommodation to dispersal accommodation: see DXK at §§152-154. Here, no attempt to distinguish the logic of DMA has even been mounted. In DXK, it failed, the Court ruling (at §157):
the SSHD is in breach of the PSED in failing, once he has reached a decision that he has a duty to accommodate under s.4(2), s.98 or s.95 of the 1999 Act, to collect statistical data on the provision of that accommodation to PNMAS and to monitor that data
(4) As to the reasonable adjustments duty, in DMA, the Court decided (at §§290-291) that in:
a lack of any monitoring of disabled people within the system operated by the SSHD by her officials [and] a lack of an effective system for prioritising claims the SSHD acting by her officials did not take the steps it was reasonable to take to avoid the disadvantage to disabled individuals
In the present case I have not been provided with, and have been unable to find, an answer to avoid the same conclusion on the same basis. It is reflected in the agreed issue (5a) that the focus of this part of the claim was known to be on reasonable adjustments to "the release planning process" and "the process for sourcing and providing HOBA for disabled people with complex or high-level needs". It is conceded that there has been no monitoring of the position of disabled people within the HOBA system. The evidence has not demonstrated an effective system for prioritising claims. This links to the evidential picture about relevant policy guidance (§§34-37 above) and the unlawfulness relating to that aspect under Issue (1) (§§63-64 above). I cannot accept that it is in law an answer, in the context and circumstances of the present case, for the SSHD to say that there is an intention to consider reasonable adjustments through a future Equality Impact Assessment. This means that on Issues (5a) and (5b) the Claimant succeeds.
The Level 3 Accommodation Issue
Issue (2a). Did the SSHD fail to apply the published policy guidance document Immigration Bail Interim Guidance, by failing to provide the Claimant with "Level 3" accommodation within the meaning of that policy?
My answer is "no". This issue concerns the lawfulness of the SSHD's actions regarding the Claimant's individual case. It is the only such issue relating to the Claimant's present HOBA at the Hotel, where he has been since 22.12.23.
Provision of accommodation. [1] Where a person applies for bail to the Tribunal and the Home Office considers that a residence condition is necessary were bail to be granted, the decision maker must note this in the bail summary (BAIL 505), along with information as to the type of accommodation required and the reasons why this is necessary. [2] FNOs granted bail whilst still under prison licence will need to have their proposed bail address approved by HMPPS The agreed timeframe for HMPPS to consider an address is approximately 9 weeks. The police and other related partners may also have an interest in approving addresses for those who are not under licence.
Types of bail accommodation: [3] There are 3 different levels of bail accommodation as follows: [3a] level 1 initial accommodation high, multiple-occupancy accommodation, this: [i] accommodates females as well as single persons of either gender and lone parents [ii] contains shared accommodation spaces used by families and individuals [iii] is located in high-density urban residential areas [iv] is unlikely to be suitable for FNOs who meet the exceptional criteria for accommodation provision. [3b] level 2 standard dispersal accommodation, mostly high multiple-occupancy accommodation, individual accommodation but often with shared common spaces, lone adult males do not share accommodation with families or lone females [3c] level 3 complex bail dispersal accommodation, increased liaison with local authorities in sourcing appropriate accommodation, accommodation provider's staff have specialist training and increased risk awareness, the authority can request specific location or specify how far the service user should be from local amenities, schools and so on, lone adult males do not share accommodation with families or lone females. [4] FNOs receiving support because they meet the harm criteria will require Level 3 accommodation (Complex Bail Dispersal Accommodation). For vulnerable persons who are not FNOs, the suitable accommodation level will vary according to the individual's needs.
The Claimant is an FNO receiving support because he meets the criteria of a Harm Case (§17 above). The Hotel is not Level 3 accommodation. It is not "dispersal" accommodation; still less "complex bail dispersal accommodation". The words "will require Level 3 accommodation" in [4] are clear and unambiguous. The SSHD has failed to understand the objectively correct meaning of the policy guidance; has failed to recognise the departure from it; and has failed to provide any good reason for the departure. It follows that the SSHD has been acting unlawfully since 22.12.23. That is the argument.
(1) I do not accept that "will require" in [4] means "will even if [3a] considerations mean initial accommodation is, exceptionally, suitable still require". Nor do I accept that "will require" in [4] means "will permanently require". I think "will require" means "can be expected for public protection reasons to require". There is room reconciling public protection and the circumstances of an individual who would otherwise be in immigration detention for an initial accommodation response under [3a][iv]. The purpose of paragraphs [2] to [4] is not that it is concerned with setting out policy criteria entitling FNOs being given HOBA to particular types of accommodation. If that were the purpose, it would be found in the language of [3b] (level 2) and [3c] (level 3). It would also be found in a description of persons who satisfy different HOBA criteria, including Article 3 Cases. The Claimant is an Article 3 Case as well as a Harm Case, but Ms Harrison KC recognises that she can mount no Adherence challenge to his accommodation at the Hotel by reference to his Article 3 position. The clear purpose of these paragraphs is to guide the approach taken by decision-makers to securing public protection needs. It is only when we reach the second sentence of [4] that the text is addressing "the individual's needs" as a "vulnerable person". The guidance at [2], [3a][iv], [3b], [3c] and the first sentence of [4] is about the needs for protection of the public including other residents from the individual.
(2) I can accept that, in principle, even a public protection criterion within policy guidance could be the basis of an Adherence claim. I have identified as one of the three published eligibility criteria for HOBA that the Claimant is a Harm Case. That too has a public protection rationale, but it is a criterion for the exercise of the statutory power, against which an applicant is being fairly considered: Humnyntskyi at §270(2) and (4). I also accept that, in a case where an individual is eligible for Home Office accommodation, policy guidance could identify a type of accommodation suitable for the needs of the individual, to be capable of triggering the Adherence duty. But I cannot accept that the first sentence of [4] has that meaning or legal consequence. The word "require" in [4] is not about benefits or needs of the individual. It is an instruction about securing suitable public protection from the individual. This is a description of "the suitable accommodation level" from a public protection perspective. Reading this part of the policy guidance in a common sense way and as a whole, by reference to its public protection purpose, decision-makers are being guided in how they think about risk and public protection. I accept that what serves public protection may also protect the individual being allocated HOBA, in keeping them from an environment which may lead them to deteriorate or reoffend. But none of this is about "conferring a particular substantive benefit" (A at §3). There must always be a built-in evaluative judgment, and that is how this policy guidance must be read and applied. The first sentence of [4] needs to be read alongside [3a][iv], which allows flexibility (the word is "unlikely") for Level 1 accommodation to be used for a person even if they are a Harm Case. Especially if it was single males and away from high-density urban areas [3a][i]-[iii].
(3) There is, in my judgment, sufficient flexibility within the language of [1] to [4] once the central purpose is understood to allow for the decision-makers and those who advise about public protection and suitability, lawfully to decide not to use level 3 or level 2 accommodation in a Harm case. I accept, as the SSHD's pleaded defence puts it, that:
The three accommodation 'levels' in the Interim Guidance do not mandate that a particular form of accommodation is provided, but are descriptive. The level required is assessed by the caseworker dealing with any particular outcome, and the level is then recorded on any ITP and utilised to signify the kind of steps that may need to be taken in a given case.
It is obvious that an accommodation allocation decision may need to involve the least-worst available option, especially where the alternative for the individual is prolonged executive detention: see Sathanatham at §§30, 86. The general entitlement is to such premises as have been identified and assessed for suitability, acting fairly and reasonably: Sathanatham §§68-69. Another way of putting all of this is that, where the SSHD fairly and reasonably assesses accommodation other than Level 3 accommodation as suitable for the individual from a public protection perspective, there is good reason for any departure from paragraph [4]. All of which means that, on Issue (2a), the Claimant fails.
The Individualised Care and Support Liaison Issues
Issue (2b). Did the SSHD fail to apply the published policy guidance document DSO 08/2016, by failing to convene an expedited multi-disciplinary meeting to plan for the Claimant's Safe-Release from detention and/or arrange a local authority assessment of the Claimant's 2014 Act needs? Issue (3a). Did the SSHD act unlawfully in breach of the duties under Sch 10 §9 to the IA 2016 to provide suitable HOBA and/or did she act unreasonably in failing to consider the need for and make the necessary arrangements for referral to a local authority for assessment under the 2014 Act prior to or following the release of the Claimant from detention to HOBA?
My answers are "yes". These issues go together, being concerned with the lawfulness of the SSHD's actions regarding the Claimant's individual case, in planning Safe-Release (the CDT caseworker) and planning HOBA (the CAT caseworker), in relation to liaising with a local authority as to potential care and support needs. These claims were defended by the SSHD throughout the litigation and 5 days of oral argument. That was notwithstanding an express acceptance in the SSHD's pleaded defence (28.3.24) that the Claimant "requires some degree of social care". Mr Holborn was arguing that the solicitors' covering letter (30.6.23) did not request, and Dr Wilson's advice (18.7.23 and 21.7.23) did not advise, a local authority referral for a needs assessment; and that there was little practical difference between an anticipatory pre-release referral and PPO Thorp's PPN (8.8.23) alerting Kirklees 5 days after the Claimant's release from the IRC to Willow Lane. Then on Day 6 (15.10.24), Mr Holborn made the following concession in open court. The SSHD now accepted that there was unlawfulness in the Claimant's case because there was neither an expedited multi-disciplinary meeting to plan for the Claimant's Safe-Release from detention nor the pre-release arrangement of a local authority care and support needs assessment. At least one of these actions should in law have been taken. The sources of the obligation were the Adherence duty in light of the Stated Equivalence Policy. It was also unlawful, on these same bases, to have failed even to consider the Claimant's potential care and support needs; and to fail even to consider making an anticipatory referral for a local authority needs assessment.
Six Species of Unlawfulness
(3b). Did the SSHD act unlawfully in breach of the duties under Sch 10 §9 to the IA 2016 to provide suitable HOBA and/or did she act unreasonably in failing to provide the Claimant with suitable/safe HOBA on and/or after release from detention? Issue (4c). Did the SSHD breach the Operational Duty owed to the Claimant under Articles 2 and/or 3 ECHR, because she knew or ought to have known of a real and immediate risk to life and/or serious injury and/or serious harm, and failed to take reasonable measures within the scope of her powers which might have been expected to avoid that risk? (4d) Did the SSHD breach the Claimant's substantive Article 3 rights between 3 August 2023 and 22 December 2023 because (i) the level of the Claimant's suffering or indignity crossed the severity threshold for constituting 'degrading treatment' under Article 3 (ii) for which the SSHD was responsible? (4e) Did the SSHD breach the Claimant's Article 8 ECHR rights between 3 August 2023 and 22 December 2023 because the treatment of the Claimant was a disproportionate interference with his private life as protected by Article 8? (5b) Did the SSHD breach ss.20 and 29 of the EA by failing to make reasonable adjustments (in the Claimant's case) to: (i) the release planning process and/or (ii) the process for sourcing and providing HOBA for disabled people with complex or high-level needs? (5c) Did the SSHD discriminate against the Claimant by failing to provide him with suitable accommodation as a consequence of his disability, in breach of s.15 of the EA?
The relevant law is at §§18, 30, 26-27, 31, 23-24 above. What came into clear focus through the oral hearing was that three distinct features of the case were being relied on by Ms Harrison KC as constituting a breach of any, each and all of these six duties. They are the three features which I identified from SW Wilson's email of 11.8.23 (§52 above at [i], [ii] and [iii]). The best way of addressing the six species of unlawfulness is to take them together, but by reference to each of the three distinct features in turn.
The Six Medication-Planning Issues
So far as medication-planning is concerned:
My answer to each of those six questions is "no". Ms Harrison KC submitted in essence as follows. The Claimant was released from the IRC to Willow Lane on 3.8.23 with discharge medication which SW Wilson described in her email of 11.8.23 as being "loos[e] in a bag" and "a recipe for disaster"; and the consequence was the overdose incident on 16.8.23. The release from the IRC was in the context of ongoing concerns about health, mental health, cognitive deficit, and suicide risk. It was clearly unlawful to release the Claimant with a large bag of meds, but no support as to how and when to take them. When, in consequence, PPO Thorp conducted his welfare check on 16.8.23 he found the Claimant "in an almost unconscious and delirious state" following the "suspected unintentional overdose of his medication". The hospital discharge summary (17.8.23) records the diagnosis of "acute confusion", the Claimant having "attended due to overdose of carbamazepine and possibly other substances". It is no answer to say that medication including discharge medication is the responsibility of IRC Healthcare. It is the SSHD who is liable in law for any breach of duty: see CSM where arrangements for antiretrovirals for IRC detainees with HIV violated the Article 3 Systems Duty owed by the SSHD. It is the SSHD's responsibility to plan for Safe-Release. Providing the medication, without support as to how and when to take it, breached any, each and all of the six applicable legal obligations in Issues (3b), (4c), (4d), (4e), (5b) and (5c).
(1) The Claimant's medical records from Brook House IRC show that when he arrived from Leeds Prison on 24.7.23 he was on the following medication. The anti-seizure drug Clobazam (also known as benzodiazepine) 10mg tablets, 1 tablet once per day. The anti-depressant Fluoxetine 20mg capsules, 3 capsules once per day. The anti-seizure drug Zonisamide 100mg capsules, 3 capsules once per day. The anti-seizure drug Tegretol (also known as carbamazepine) 200mg tablets, 3 tablets twice per day. The antipsychotic drug Flupentixol 500microgram tablets, 1 tablet twice per day. The anti-seizure drug (prolonged release) Epilim Chrono 400mg tables, 1 tablet twice a day. The folate deficiency prevention drug Folic acid 5mg tablets, once a day. On arrival (24.7.23) from Leeds Prison he had with him: Clobazam (28 tablets); Fluoxetine (84 capsules); Zonisamide (84 capsules); Tegretol (168 tablets); Flupentixol (56 tablets); Epilim Chrono (56 tablets); and Folic acid (28 tablets). That was around one month's supply.
(2) The position was addressed. An entry (24.7.23) records that the "[patient] came with medication"; that he was "on prescription medication"; that there was a "self-medication assessment"; and that from 25.7.24 the Claimant "had authorisation for medication under PGD" (Patient Group Direction). Another entry records that there was put in place an "epilepsy care plan" (from 24.7.24) and a "psychosis care plan" (from 28.7.24); and that one of the recorded "objectives" under those care plans was to "ensure medication is provided and take[n] as prescribed and monitor effect (reporting any abnormalities)". The Claimant was then under the care of IRC Healthcare for the next 9 days. It was in that context involving these arrangements and care plans that on 3.8.24 the Claimant then came to be recorded as being discharged with what can be seen as the remaining 22 days' supply of his medication. This was his "discharge medication": Clobazam (22 tablets); Fluoxetine (66 capsules); Zonisamide (66 capsules); Tegretol (135 tablets); Flupentixol (45 tablets); Epilim Chrono (48 tablets); and Folic acid (22 tablets). I have been shown no record or indication of any problem, which was known to or ought to have been known to the clinicians. Conscious thought was given to the appropriateness of the discharge medication, in light of the care plans and their objectives.
(3) Everything that I have recorded would have been what was visible to the SSHD. There is no indication that the clinicians, making these medical records, were not doing their jobs. Still less, that the position was known or should have been known to the SSHD through the CAT or CDT caseworkers. There is no basis for any adverse inference. There is no specific allegation of a failure, under the care plans, to ensure that medication was being taken as prescribed. There is no specific allegation of a failure to give instructions or ensure understanding. In fact as Mr Holborn points out the medication-planning issue was never pleaded as a standalone breach of any legal duty. It did not, in fairness, call for witness statement evidence. Even in Ms Harrison KC's skeleton argument the arrangements relating to the meds were relied on for two reasons. One was to "illustrate" the absence of an "effective process for identifying highly vulnerable detainees". The other was that the incident on 16.8.23 meant the SSHD's failure to provide suitable accommodation and Safe-Release support had diminished the Claimant's human dignity and caused intense suffering for the purposes of the Article 3 Severity-Threshold. I cannot accept the second point. As to the first, I have accepted that medication-planning provides a relevant and powerful illustration why it is important that potential care and support needs are addressed in conjunction with Safe-Release to HOBA. That is its legal relevance.
(4) I entirely accept that the incident on 16.8.23 is concerning. But the lawfulness of the SSHD's Safe-Release arrangements cannot properly be approached on a hindsight basis. Nor can I accept, on the evidence, that the incident was a consequence of the Claimant's medication being in foil strips in a bag. SW Wilson wrote in her email on 11.8.23 which was forwarded to the CAT caseworker on 15.8.24 that:
Up until today when his sister has put his medications into a dispenser whilst this is arranged with his GP and local chemist [the Claimant] had no idea what he should be taking and when.
This means the incident on 16.8.23 15 days after transfer from the IRC came 5 days after SW Wilson was satisfied that the Claimant's sister had now "put" the medications "into a dispenser". None of this is a criticism of SW Wilson who was alert to the issue and doing her job. When on 22.8.23, SW Wilson signed off on the Wilson Assessment, she drew attention to problems with confusion, even after instruction had been given to the Claimant. She said this:
On his arrival to the property on Willow Lane East, Huddersfield [the Claimant]'s medications were clustered together in a carrier bag in their foil strips without the majority of packaging. There was no telling what medications [the Claimant] should be taking, in what dose or time of day. [The Claimant]'s medication is now dispensed in blister packs by a local chemist, these are delivered to [the Claimant] weekly on Fridays. [The Claimant] is still susceptible to taking the wrong medications, not always confident of how the blister pack works regardless of the number of times he is shown how to use the blister pack. Most recently on 16th August [the Claimant] took an accidental overdose of his prescription medication after becoming confused as to what medications he should be taking.
On the evidence, the incident on 16.8.23 was borne out of confusion, where medication had already been taken, notwithstanding a further intervention and further clear instruction. The reference to carbamazepine (Tegretol), alongside the pattern of 3 tablets twice per day, suggests the Claimant took 3 Tegretol anti-seizure tablets not realising despite conscientious best efforts including by his sister and a social worker that he had already taken his daily dose. This reinforces the points about potential care and support needs, but it does not constitute any freestanding breach of any of the further legal duties being invoked, all of which I have considered individually. On this part of the case the Claimant fails.
The Six Seizure-Support Issues
So far as seizure-support is concerned:
My answer to each of those six questions is "no". Ms Harrison KC submitted, in essence, as follows. The Claimant's disabilities and health conditions (§§43-46 above) were known throughout to the SSHD, including the fact that he experienced regular seizures. The SSHD released the Claimant from the IRC on 3.8.23 to the HOBA at Willow Lane where he spent 7 weeks to 20.9.23; and then transferred him to Rokeby Gardens where he spent 3 months to 22.12.23. These were not the "supported" living arrangements which the Home Office medical adviser Dr Wilson had twice advised. The seizure-support problem was immediately visible to and reported by SW Wilson in her email on 11.8.23 (§52 above at [i]), sent to the CAT caseworker on 15.8.24. Yet no action was taken by the SSHD to ensure that the Claimant was in safe and suitable accommodation which provided for his needs and vulnerabilities so far as seizure-support was concerned. The direct consequence of the ongoing default was seen in the incident at Willow Lane on 22.8.23, less than three weeks after being transferred there, when paramedics had to force entry to gain access. The seriousness was explained in a subsequent email (18.11.23) from Dr Joanna Allen (a Consultant in Infection and Travel Medicine):
With seizures such as this the risks are that [he] is not able to recognise that he is about to have a seizure so can experience trauma as he falls or as he convulses. This trauma could be significant including a risk of further head injuries. During the seizure if he is not placed on his side there is a risk of aspirating vomiting which can lead to pneumonia or death. With frequent uncontrolled seizures, there is risk of death.
A follow up email (27.11.23) from Dr Rumana Chowdhury (Neurology Consultant) responded as follows to the Claimant's solicitors' question "What are the risks posed to [the Claimant] by his seizures if there are not people available to assist on site":
If he [were] alone and were to have a seizure, he would be at risk of physical harm from injury during the seizure and if the seizure were to be prolonged then there would be a risk to his life as he would not be able to call for emergency help, also after the seizure he may be confused and not fully aware of what has happened so again at risk of harm.
The failure by the SSHD, in the decision-making from 4.7.23 and the arrangements for HOBA from 3.8.23 to 22.8.23, to protect the Claimant and mitigate the risks from the seizures by means of safe and suitable HOBA constituted breached any, each and all of the six applicable legal obligations in Issues (3b), (4c), (4d), (4e), (5b) and (5c).
The Six Presence of Stairs Issues
So far as the presence of stairs is concerned:
My answer to (3b), (5bii) and (5c) is "yes, from 6.11.23 to 22.12.23"; but otherwise the answer to the six questions is "no". My conclusions come to this:
So far as presence of stairs is concerned, the SSHD from 6.11.23 to 22.12.23 (3b) did act unlawfully in breach of the duties under Sch 10 §9 to the IA 2016 to provide suitable HOBA and unreasonably in failing to provide the Claimant with suitable/safe HOBA after release from detention and (5bii) did breach ss.20 and 29 of the EA by failing to make reasonable adjustments (in the Claimant's case) to the process for sourcing and providing HOBA for the Claimant as a disabled person and (5c) did discriminate against the Claimant by failing to provide him with suitable accommodation as a consequence of his disability, in breach of s.15 of the EA.
But, so far as the presence of stairs is concerned, the SSHD (3b) did not otherwise act unlawfully in breach of the duties under Sch 10 §9 to the IA 2016 to provide suitable HOBA or act unreasonably in failing to provide the Claimant with suitable/safe HOBA on and/or after release from detention and (4c) did not breach the Operational Duty owed to the Claimant under Articles 2 and/or 3 ECHR, because she knew or ought to have known of a real and immediate risk to life and/or serious injury and/or serious harm, and failed to take reasonable measures within the scope of her powers which might have been expected to avoid that risk and (4d) did not breach the Claimant's substantive Article 3 rights between 3 August 2023 and 22 December 2023, because the level of the Claimant's suffering or indignity crossed the severity threshold for constituting 'degrading treatment' under Article 3 and (4e) did not breach the Claimant's Article 8 ECHR rights between 3 August 2023 and 22 December 2023 because the treatment of the Claimant was a disproportionate interference with his private life as protected by Article 8 and (5b) did not otherwise breach ss.20 and 29 of the EA by failing to make reasonable adjustments (in the Claimant's case) to: (i) the release planning process and/or (ii) the process for sourcing and providing HOBA for disabled people with complex or high-level needs (5c) did not otherwise discriminate against the Claimant by failing to provide him with suitable accommodation as a consequence of his disability, in breach of s.15 of the EA.
(1) The unsuitability of any stairs, for the Claimant with his disabilities and health conditions, should have been obvious to the SSHD from the start. Just as "ground floor/ lift/ walk in shower" could feature in the ITPs from 1.9.23, so "no stairs" should have featured in all of the ITPs from the start. Willow Lane and Rokeby Gardens were both unsafe for the Claimant. SW Wilson spotted the dangerous unsuitability of Willow Lane immediately (11.8.23). The Claimant's sister spotted the dangerous unsuitability of Rokeby Gardens immediately (26.9.23). The professionals on the ground recognised the dangerous unsuitability of Rokeby Gardens, hence the delayed discharge and special arrangements (§§55, 57 above). The transfer from Willow Lane took place after 7 weeks; and from Rokeby Gardens only after 3 months. The SSHD rightly accepts that there was unlawfulness from 6.11.23 by reason of being in breach of a court order (§51 above). But it was far more than that. It was a failure by the SSHD, in the decision-making from 4.7.23 onwards and in the arrangements for HOBA from 3.8.23 to 22.8.23, to provide safe and suitable accommodation, by reference to the accepted legal standards (§§13, 18 above). The dangerous stairs at Willow Lane and at Rokeby Gardens were a violation of duties owed under the HRA. There was a real and immediate risk to life and of serious physical harm, which was objectively verified, present and continuing. The circumstances moreover engaged, and crossed, the Article 3 Severity-Threshold which includes actual bodily injury (Limbuela §54), especially in the context of pre-existing poor health (Limbuela §59). The Claimant fell down the stairs at Willow Lane during a seizure and was injured. He risked serious injury, and death, from the stairs at Willow Lane and at Rokeby Gardens. These dangerous conditions were incompatible with physical and moral integrity.
(2) The "confined living" at Rokeby Gardens (§57 above) was the direct consequence of the SSHD's actions in failing to provide, and failing to transfer to, safe and suitable accommodation. That placed the Claimant in conditions which, applying the relevant law (§§26-27, 31 above) plainly violated his Article 3 and Article 8 rights. He was forced to live in conditions where he stayed in his bedroom, being required to urinate in bottles and sometimes defecate in a commode, and then live with the bottles and commode in the same room. He was, consciously and by design of the arrangements, "confined". The basement stairs from the landing outside his room were assessed as a hazard and he was advised not to risk walking past them. He was placed in a position of fear for an undefined, open-ended period. The conditions were degrading and dehumanising. They were incompatible with physical and moral integrity, dignity and personal autonomy. DHCJ Kolinsky's interim relief ruling (14.11.23) rightly described the "current living accommodation living with a commode" as "unsatisfactory" and "starkly inadequate", having an "impact" on the Claimant which was of a "stark nature"; and his subsequent ruling (28.11.23) described the Claimant as "not able to access the bathroom" and "having to use a commode" which was "on any view, a patently unsatisfactory and dehumanising position which should not continue". In Article 8 terms, there was a singular lack of respect for the Claimant's private and family life and he was condemned to living conditions which made it virtually impossible for him to have a meaningful private or family life (Bernard §34).
(3) It follows from all of this that the SSHD breached any, each and all of the six applicable legal obligations in Issues (3b), (4c), (4d), (4e), (5b) and (5c). That is the argument.
(1) There was no unlawfulness, in the decision-making from 4.7.23 or in the transfer to Willow Lane on 3.8.23 in the SSHD allocating the Claimant to HOBA which had stairs. The SSHD had access to information about the seizures experienced by the Claimant, within the recognised routes for information as to vulnerabilities (§8 above). But I was shown no reference, in any of the materials available to the SSHD, to "stairs" as posing a risk or to a need for "level-access" accommodation. The picture included the Claimant's 4½ months at Leeds Prison, preceded by the periods in HOBA which the SSHD had provided including 12 months at Bodmin Road in Leeds from 10.3.22. At Bodmin Road there were stairs and the Claimant's bedroom was upstairs. If the Claimant's place at the Bodmin Road house had been kept open to him for more than the 3 months from his 7.3.23 recall to prison to 8.6.23, the Claimant would straightforwardly have been released back to that HOBA after the FTT bail decision on 29.6.23. He missed that option by 3 weeks. That would not have been rendered unlawful by reason of the same stairs which he had navigated there, every day, for 12 months. I was shown nothing which indicated stairs as being dangerous and needing to be avoided: in Dr Wilson's advice emails of 18.7.23 and 21.7.23; in Dr Jung's letter of 5.5.23; or in Dr Hoggard's reports of 28.12.22 and 7.6.22; in the Leeds Prison information obtained for the Home Office Bail Summary of 29.6.23; or in the medical records. And the fact is that, when the Claimant's solicitors made the Claimant's application for HOBA, the BAIL 409 form which asks about "individual circumstances" and "individual accommodation requirements" was accompanied by the covering letter which addressed "property requirements". It said nothing about stairs. It asked for "self-contained accommodation as he has been previously provided by SSHD". I agree with Ms Harrison KC that the solicitors' letter is not an exclusive focus and they were not the SSHD's delegate. But the point is that having been instructed since 16.4.21 before the Claimant's previous HOBA from 21.6.21, then from 26.8.21 and then from 10.3.22 they were addressing this topic and they too were not indicating stairs as a red flag. Nobody was.
(2) I cannot accept that there was unlawfulness, by reference to stairs, immediately after SW Wilson identified the steep and unlit staircase in her email of 11.8.23, which was sent to the CAT caseworker on 15.8.23. This was one of many points she made. The Claimant's solicitors wrote a 4-page letter before claim (15.8.23), urging the SSHD that the Claimant's "dire circumstances" violated his Article 3 and Article 8 rights. That letter included a summary of SW Wilson's email, emphasising six points including a risk of falls in the context of "struggling to use the shower" with "no shower stool or handrails". But there was no mention of stairs. A further letter before claim (22.8.23) said "accommodation should also be self-contained and with necessary adjustments, including equipment in the shower such as a handrail and shower stool". Again, no mention of stairs. The first reference to stairs was the reference to "the steps up to his bedroom are steep and poorly lit" within grounds for judicial review (25.8.23), 14 days after SW Wilson's original email. The Claimant's fall down the stairs at Willow Lane occurred 3 days later, on 28.8.23. An ITP was issued on 1.9.23 seeking accommodation which was ground floor or a lift, with a walk in shower. Time was needed to action the change, and the Claimant's solicitors sensibly recognised that fact in proposing deferral of interim relief hearing dates. When replacement accommodation (Bell Street) was then being considered, SW Wilson's response in an email on 6.9.23 said that "a fully downstairs living residence" would be "far more ideal and less risky".
(3) The Claimant was moved from Willow Lane on 20.9.23. That was done to protect him from the acknowledged risk posed by having to use the steep and poorly lit steps at Willow Lane. I accept that if he had remained much longer at Willow Lane, that would have become unlawful, breaching the duty to provide legally suitable HOBA. I think this would have become a breach of the second and third standards of legally adequate accommodation; a breach of the duty to make reasonable adjustments; and it would have constituted discrimination against the Claimant by failing to provide him with suitable accommodation as a consequence of his disability (Issues (3b), (5bii) and (5c)). But I am unable to accept, in all the circumstances, that the SSHD was acting unlawfully in any of the respects alleged by failing to move the Claimant from Willow Lane earlier than 20.9.23. The Claimant's representatives pursuit of judicial review, including interim relief, had the consequence of holding the SSHD to the applicable duties. The SSHD at that stage remained within the law. The Claimant needed to be moved to alternative HOBA. That happened by 20.9.23. A series of ITPs from 1.9.23 specified "ground floor/ lift/ walk in shower". Oral hearings of an application for interim relief were deferred by agreement on 1.9.23, 4.9.23 and 12.9.23, with relisting for 20.9.23. Viewed independently of the litigation and involvement of the Court, that timetable would not in my judgment constitute a breach of any of the legal duties. It was within 23 days of the fall on the stairs; within 26 days of the judicial review grounds which relied on the stairs; and within 19 days of raising an ITP specifying "ground floor/ lift/ walk in shower".
(4) I cannot accept that the stairs in the HOBA at Willow Lane to 20.9.23 constituted a breach of the Claimant's Convention rights, so as to breach the Convention-compatibility standard of legally adequate HOBA. Limbuela-Suffering and for that matter Statutory-Destitution were avoided by the provision of Willow Lane. There was a risk of "experiencing a fall/injury", as SW Wilson put it on 6.9.23. There was the fall down the stairs (28.8.23). There is no evidence of confinement, or any other aspect relating to private or family life. There was no real and immediate risk to life or of Article 3 ill-treatment of which the SSHD was aware or ought to have been aware. There was a changed set of known circumstances, directly related to the Claimant's known disabilities, linked to an evaluation from a social worker. A relocation was needed. That was the necessary reasonable adjustment. It would not have been justified or proportionate to allow the Claimant to move temporarily to his sister's house (in breach of public protection requirements) or return him to immigration detention, involving a deprivation of liberty and related risk to mental health.
(1) Rokeby Gardens was identified to the SSHD as being suitable accommodation which avoided risks from stairs. I have described the circumstances: see §54(2) above. ITPs from 1.9.23 specified "ground floor/ lift/ walk in shower". SW Wilson from Kirklees was advising on 6.9.23 (in the context of Bell Street) "a fully downstairs living residence" as being "far more ideal and less risky" than the Claimant having to use a set of stairs. Nobody contests that Rokeby Gardens was "a single bedroom with shared facilities" and "situated on the ground floor with a ground floor bathroom"; nor that it was "approved by Kirklees Social Services". The HOBA allocation of Rokeby Gardens was a conscientious response, in good faith, intended to avoid risks associated with stairs. Kirklees whose SW Wilson had first spotted the steep, badly lit staircase at Willow Lane had, for its part, "approved" Rokeby Gardens. Rokeby Gardens was better than Willow Lane (which he had left) and Bell Lane (which Kirklees advised against), in that he did not need to ascend or descend a flight of stairs to get to his bedroom or bathroom; still less a steep flight of badly lit stairs (as at Willow Lane). Rokeby Gardens had the seven carpeted steps down to the basement, at a right angle crossing the landing outside the Claimant's ground floor room to the ground floor kitchen and bathroom. When concerns were raised about Rokeby Gardens, and about what the SSHD "knew or ought to have known" (3.10.23), the SSHD first made an enquiry as to whether the accommodation had been misrepresented as "a single bedroom with shared facilities", "situated on the ground floor with a ground floor bathroom", meeting the description "ground floor/ lift/ walk in shower". In my judgment, there is no basis for concluding that the SSHD knew or ought to have known that there was any problem with steps and stairs at Rokeby Gardens; nor that the SSHD ought in law to have undertaken some different or further enquiry. There was no reason for the SSHD, or the Claimant's representatives or the Court, to think there was a problem with stairs and Rokeby Gardens. The SSHD also enquired as to whether a stairgate could be a satisfactory solution, but the advice was that it was not. Within 16 days of being at Rokeby Gardens, the Claimant was in hospital (from 6.10.23) but not because of any incident regarding the stairs where he then stayed for 21 days (to 27.10.23).
(2) It was at this point that there was a significant change in circumstances. The local professionals including LCC's SOT Dickinson (18.10.23), SW Fasisi (23.10.23), then SW Peters with SSW Wood (10.11.23) were advising that the presence of the stairs at Rokeby Gardens posed a risk to the Claimant. The Claimant was in hospital, where his discharge had to be delayed (§55 above). Such was the risk that LCC's social workers had to identify a "confined living" plan to mitigate it (§57 above). The information was being communicated to the SSHD, promptly, by the Claimant's solicitors. The SSHD's position (23.10.23) was to maintain that Rokeby Gardens was suitable, but to agree to source an alternative. The High Court made an order for interim relief, requiring alternative accommodation by 6.11.23, or a justified application to vary the date. The deadline was not met by the SSHD, nor was there any justified application to vary the date. This was unlawful, by virtue of being breach of a court order: §51 above. In my judgment, it was also unlawful action by the SSHD, independently of the breach of the Court Order. The risk from stairs was not itself a new point. Local authority approval was important, and these were local authority professionals in the actual area of Rokeby Gardens. The selection of Rokeby Gardens, albeit made in good faith, proved to be unsafe and unsuitable, on the assessment of professionals on the ground. Their professional assessment gave rise to a "confined living" arrangement by way of an interim protection for the Claimant. These circumstances, independently of litigation and interim relief, should in my judgment had triggered urgent action within two weeks of the Fasisi Assessment (23.10.23). The Claimant should not still have been at Rokeby Gardens when he had the seizure on 7.11.23 for which he was hospitalised overnight; or the seizure on 16.11.23 with the head injury for which he was hospitalised for 7 days; or the seizure on 26.11.23 for which he was hospitalised for 6 days; or the seizure on 8.12.23 for which he was hospitalised overnight. There should not have been the open-ended period of delay and uncertainty. Especially in circumstances where the SSHD's approach to the applicable policy guidance allowed for the use of accommodation which was not "Level 3" (Issue (2a)). I find that, from 6.11.23 the SSHD's failure to transfer the Claimant from Rokeby Gardens was unlawful, breaching the duty to provide legally suitable HOBA. It was a breach of the second and third standards of legally adequate accommodation, not being reasonably assessed as adequate or meeting the EU-derived objective standard (as in NB at §171); a breach of the duty to make reasonable adjustments; and it constituted discrimination against the Claimant by failing to provide him with suitable accommodation as a consequence of his disability. The relevant law is at §§13, 18, 23-24 above. I will make an appropriate declaration. In those circumstances, the Claimant succeeds from 6.11.23 to 22.12.23 under Issues (3b), (5bii) and (5c).
(3) I am unable to accept that the "confined living" arrangement from 27.10.23 to 22.12.23 placed the SSHD in breach of the Article 2/3 Operational Duty (§30 above) or violated the Claimant's substantive Article 3 or 8 rights (§§26-27, 31 above). My findings of fact are at §59 above. Rokeby Gardens was HOBA which served to protect the Claimant from Limbuela-Suffering and, for that matter, from Statutory-Destitution (§§14, 12 above). LCC's carer visits four times a day later three times a day to provide meals and help with hygiene, toileting and showering were a response to care and support needs by LCC to reduce risks to the Claimant. The Claimant needed to be moved to safe and suitable accommodation, speedily. But I cannot accept that his Article 2, 3 or 8 rights or the SSHD's HRA duties were breached by the circumstances and conditions which applied while he awaited being transferred. The evidence about risk to life from seizures is concerned with seizure-support (§79 above). I was shown no evidence of a risk of death from the seven carpeted stairs down to the basement; nor of the chance of a seizure taking place without any prior warning at the moment of crossing the small landing. The Claimant was not in fact confined. Nor was he in fact forced to use a commode or be in a confined space with a used commode. Insofar as reliance was placed on the "difference in presentation" which "shocked" PPO Harrison (in her email of 13.12.23), that was her comparison of the Claimant's presentation at Willow Lane (before being transferred to Rokeby Gardens) and prior to his March 2023 recall. The conditions and circumstances of the "confined" living did not in my judgment cross the Article 3 Severity-Threshold (cf. TMX). Nor was there the sort of interference to a high degree with the Claimant's physical and psychological integrity, with a particular emphasis on privacy and family life, to constitute an Article 8 violation (cf. TMX). The Claimant was not condemned to living in conditions which showed a singular lack of respect for his private and family life or made it virtually impossible for him to have any meaningful private or family life, still less for an extended period (cf. Bernard). As in McDonagh (see §§68-74), Article 8 was not violated here. The upshot of all of this is set out at §81 above.
The Systemic HRA Issues
(4a) Does the SSHD's system for the provision of release accommodation create a real risk of a breach of fundamental rights? (4b) Did the SSHD breach the Systems Duty under Articles 2 and/or 3 ECHR, by failing to put in place effective systems and arrangements to prevent foreseeable risks to life and/or serious injury and/or serious harm to mental and/or physical health?
My answers are "no". Ms Harrison KC submitted, in essence, as follows. The SSHD has adopted a system which "exposes" released IRC detainees to a "significant risk" of treatment prohibited by Articles 2 and/or Article 3, in violation of the Munjaz principle (§28 above). The SSHD has also failed to put in place effective systems and arrangements to prevent foreseeable risks to life and/or serious injury and/or serious harm to mental and/or physical health, in violation of the Systems Duty (§29 above). These shortcomings are conspicuous in complex cases which are both Harm Cases and Article 3 Cases and the facts of the present case are illustrative as a compelling case study. The Court also has the firm factual anchorage (DXK §§111-112) of the powerful case study evidence from MJ and BID. In the context of potential care and support needs, where there is the vacuum in the SSHD's policy guidance arrangements, and where the SSHD's evidence about the arrangements is so unsatisfactory, the SSHD has both created and failed to protect against Article 2 and Article 3 harm. This is manifested through: the provision of unsafe and inadequate HOBA; delays in the provision of safe and adequate HOBA; failures in proactive liaison with local authorities; failures to convene anticipatory multi-disciplinary meetings; failures to make anticipatory local authority referrals; failures in prioritisation; an approach which is reactive, requiring email chasers; and a practice of considering candidate properties only "one at a time" (until late November 2023); all in the context of long-standing problems and concerns, seen in R (Razai) v SSHD [2010] EWHC 3151 (Admin); then in Sathanatham, Humnyntskyi and DXK.
Conclusions
Order
The claim. (1) The claim for judicial review is granted on Issues 1(a), 1(b), 2(b), 3(a), and 5(a), and 5(b). It is also granted on Issues 3(b), 5(bii), and 5(c) in respect of the period between 6.11.23 and 22.12.23. The claim for judicial review is dismissed on all other issues.
Declarations. (2) It is accordingly declared that the SSHD acted unlawfully by: (a) failing between 6.11.23 and 22.12.23 to provide the Claimant with safe and suitable HOBA, in breach of the duties under: (i) Sch 10 §9 to the 2016 Act and reasonable decision-making; (ii) ss.20 and 29 of the EA to make reasonable adjustments to the process for sourcing and providing HOBA for the Claimant as a disabled person; and (iii) s.15 of the EA not to discriminate against the Claimant by failing to provide him with suitable accommodation as a consequence of his disability; (b) continuing to accommodate the Claimant at Rokeby Gardens between 6.11.23 and 22.12.23, in breach of the Order to provide alternative accommodation made by DHCJ Palmer dated 26.10.23; (c) failing to have in place a written policy or instruction (i) helping decision-makers to identify when a person has or may have eligible care and support needs under the 2014 Act and (ii) requiring decision-makers to refer such persons to a local authority for a needs assessment under the 2014 Act prior to or following their release from detention to HOBA; (d) failing in the Claimant's case, contrary to DSO 08/2016 and unreasonably, to (i) consider the need for and make the necessary arrangements for referral to a local authority for assessment under the 2014 Act prior to or following the release of the Claimant from detention to HOBA and (ii) convene an expedited multi-disciplinary meeting to plan for the Claimant's Safe-Release from detention or arrange a local authority assessment of the Claimant's 2014 Act needs; (e) failing to have "due regard" to the need to eliminate discrimination and to the need to advance equality of opportunity, in breach of the by the Public Sector Equality Duty, due to (i) the absence of any system or arrangement for collecting and monitoring data regarding the provision of HOBA to disabled persons and (ii) the absence of any Equality Impact Assessment ("EIA") relating to the provision of Schedule 10 accommodation, contrary to s.149 of the EA; (f) failing to make reasonable adjustments to the release planning process and/or the process for sourcing and providing HOBA for disabled people with complex or high-level needs, including by establishing an effective system for prioritising such cases, contrary to ss.20 and 29 of the EA.
Mandatory Orders. (3) The Court further orders that: (a) The SSHD shall, as soon as reasonably practicable, extend the system for collating and monitoring statistical data, established by the SSHD following a mandatory order in DXK [2024] EWHC 579 (Admin) [2024] 4 WLR 46, so that it applies all FNOs including those in HOBA; (b) The SSHD shall, as soon as reasonably practicable, carry out and publish an EIA relating to the provision of Sch 10 accommodation, in a manner that addresses and complies with the duty under ss.20, 21 and 29 of the EA. Liberty to Apply. (4) The Claimant has liberty to apply to set a deadline in respect of the matters ordered at §§(3)(a) and (b) above, in the event that those orders are not complied with in a reasonable time without adequate explanation or justification.
Costs. (5) The SSHD shall pay the 85% of Claimant's costs on the standard basis. (6) The SSHD shall make a payment on account of £75,000 of the Claimant's costs within 21 days of being served with the Claimant's bill of costs. (7) Costs shall be the subject of detailed assessment if not agreed. (8) There shall be detailed assessment of the Claimant's publicly funded costs which are payable by the Lord Chancellor under Part I of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.