Sustainable Communities

June 28th, 2012 by James Goudie KC in Local Authority Powers

The Sustainable Communities Regulations 2012, SI 2012/1523, come into force on 26 July 2012, in England only.  They are the first Regulations to be made under the Sustainable Communities Act 2007, as amended in 2010.  The 2007 Act provides a channel whereby local people can ask Central Government, via their local authority, to take action which they consider will help improve the economic, social or environmental well-being of their area.  The Act provides for the SoS to invite local authorities to consult locally and to make proposals for enhancing local sustainability and well-being.  The main elements of the Regulations are that: (1) local authorities must, before making a proposal, to consult and try to reach agreement about the proposal with representatives of interested local persons, and have regard to guidance issued by the SoS; (2) the SoS must consider each proposal, and publish the decision, giving reasons, and the action to be taken if the proposal is to be implemented; (3) a “Selector” will be appointed who will consider the resubmission of proposals from local authorities whose proposals have been rejected by the SoS: the Selector must decide whether to submit them to the SoS for reconsideration, giving reasons, and must appoint an Advisory Panel to assist it in deciding whether these proposals should be submitted for reconsideration; and (4) the SoS must publish proposals submitted by the Selector with its reasons, and and must then consult and try to reach agreement with the Selector, before publishing the subsequent decision and giving reasons, and specifying the action to be taken if the proposal is to be implemented.

 

 

Procedural Fairness

June 27th, 2012 by James Goudie KC in Council Tax and Rates

R (Dudley MBC) v SoS for CLG [2012] EWHC 1729 (Admin) concerned a decision by the SoS to change the way in which he would make payments pursuant to s88B of LGFA 1988/s31 of LGA 2003 under a PFI scheme.  There were five grounds of challenge. The first, procedural fairness, relating to consultation, succeeded.  The other four failed. They were breach of a substantive legitimate expectation; application of a rigid and inflexible policy; failure to take relevant facts into account/error of fact; and breach of the PSED under s149 Eq A 2010.

As to the first ground, Singh J considered both whether there was a duty of consultation, and, on the basis that there was, the requirements of a lawful consultation.  As to the former, there were two bases on which the Council argued that it was entitled to be consulted before the decision was taken to withdraw the PFI grant on a declining balance basis and to replace it with the annuity basis. The first was that it had a legitimate expectation that there would be consultation based on the defendant’s past practice. The second was that, quite apart from such a procedural expectation, the claimant had an expectation that its grant would continue to be paid on the declining balance basis and that fairness required that, before it was withdrawn, it would be consulted on this issue. Singh J observed that it was important to note that, in making the second of those arguments, the Council for this purpose relied on its expectation not to argue that the SoS was not entitled to reach the decision he did at all (that was the subject of a separate ground, based on the doctrine of substantive legitimate expectation), but that, before he did so, he had to follow a fair procedure. In other words, for this purpose, the Council submitted that its expectation gave rise to procedural rights, not substantive rights.

So far as the Council’s first argument was concerned, Singh J observed that in principle a legitimate expectation of consultation (i.e. a procedural expectation) can arise either from a promise that there will be consultation or from a past practice of such consultation. In the present case, the Council did not suggest that there was any promise of consultation. However, it did contend that there had been a past practice of consultation. Singh J, however, was not persuaded by that argument. All that the Council was able to rely on was the fact that in 2004 the SoS did consult when consideration was given to introducing the annuity basis as an alternative to the declining balance basis. In Singh J’s judgment, one incident of consultation of that type could not amount to a practice of consultation such as to give rise to a legitimate expectation of such consultation in the future.

However, the Council’s second argument did not depend on either a promise or a past practice of consultation. The starting-point is that, if a decision-maker intends to take a decision which affects a person’s rights, the duty to act fairly (in earlier parlance “natural justice”) will usually be required by public law, which will imply such a duty into a statutory scheme even when none is expressly laid down.

Singh J considered a number of previous authorities, concluded that the SoS’s decision “fundamentally altered the nature of the commitment” which had previously been made by the SoS to fund capital projects, that the impact on the Council was “pressing and focussed”, that there was a small and limited class of local authorities that were affected by the SoS’s decision, and that (para 69): “To make the decision abruptly without consultation would, in the circumstances of the present case, be so unfair as to amount to an abuse of power”.

Singh J went on to consider whether the requirements of a lawful consultation had been met.  He concluded that they had not.  Consultation had not been at a formative stage of the decision-making process.  The decision letter invited representations only as to how the impact of the decision might be mitigated in the Council’s case, but not about the principle of the decision itself.

As regards the PSED, Singh J said:

“93.      I accept the defendant’s submissions in relation to this ground of challenge. As the authorities have frequently stressed, what is “due regard” is such regard as is appropriate in all the circumstances. In my judgement, the defendant was not required to have regard to the matters set out in section 149 of the Equality Act for two main reasons.

94.       First, the suggested impact is a contingent and indirect one. The defendant’s decision was a financial one. It will frequently be the case that the central government makes financial decisions of a general kind which leave up to individual local authorities the manner of their implementation. The relevant authorities may have a choice about whether they cut or reduce a particular service or how they find alternative funding for it if they feel that service should continue. The local authority concerned may well have to perform the Public Sector Equality Duty itself before it decides which of various courses it should take in order to implement the financial decision of the central government.

95.          Secondly, and in any event, the defendant was entitled to take the view that he did, that the detrimental consequences which the claimant suggests would flow from the decision under challenge are not only contingent but lie some years ahead in the future, given the funding that the defendant has made available to the claimant until 2015. The defendant’s simple submission was that, in those circumstances, the duty may arise in 2015 but cannot be said to have arisen now. There are too many vicissitudes in life for a court to be able to say that the defendant has breached the Public Sector Equality Duty as things stand at present. I accept that submission by the defendant.

 

Homelessness

June 20th, 2012 by Christopher Knight in Housing

In an extempore judgment R (on the application of Cranfield-Adams) v Richmond upon Thames London Borough Council (QBD, judgment of 19 June 2012) which has not yet been properly reported, Jeremy Stuart-Smith QC, sitting as a Deputy, held that it was lawful for a local housing authority and in accordance with its duty under s.193 of the Housing Act 1996 to defer a homeless man’s application for housing for two years where he had previously refused a suitable offer of accommodation.

The Claimant had originally applied under Part VI of the Act and was allocated housing, which he refused. He subsequently became homeless as a result and re-applied under Part VII. The local authority applied the policy it had warned the Claimant of, and deferred his application for two years as a result of his previous rejection of suitable accommodation. The judge held that the authority was applying a unitary policy which synchronised Parts VI and VII. The refusal of accommodation was a reasonable factor for the authority to take into account under its policy, which was compatible with s.193.

Localism Act 2011

The Localism Act 2011 (Commencement No.6 and Transitional, Savings and Transitory Provisions) Order 2012 (SI 2012/1463) brought into force, on 18 June 2012, certain provisions of the Localism Act 2011 relevant to housing. In particular, it brought into force:

·         s.145 (reversing the amendments to s.159 of the Housing Act 1996 made by the Homelessness Act 2002, so that the majority of housing transfers are once again outside Part VI);

·         s.146 (inserting a new s.160ZA into the 1996 Act which reintroduces the concept of the qualifying person);

·         s.147 (inserting a new s.166A into the 1996 Act, re-enacting much of the current s.167, save that there is no provision that reasonable preference need not be accorded to persons who have been guilty of unacceptable behaviour, as authorities will be able to decide that such applicants are not qualifying persons under the allocation schemes permitted by s.146).

 

Public Sector Equality Duty (“PSED”)

June 13th, 2012 by James Goudie KC in Local Authority Powers

In R (Siwak) v Newham LBC (2012) EWHC 1520 (Admin) Cranston J held that the local authority had not failed to comply with the PSED under s149 of Equality Act 2010.  Policies under formulation were the subject of equality analysis.  It was not for the Court to micro-manage the process.  Consultation before proposals were formulated would have been premature.

 

 

R (KM) v Cambridgeshire CC [2012] UKSC 23: Supreme Court finds direct payment level rational and declines to reconsider Barry

June 6th, 2012 by Trevor S. in Local Authority Powers

Barry survives

In KM, the Supreme Court was expected to reconsider the House of Lords’ decision in R v Gloucestershire CC, ex p Barry [1997] AC 584.  In Barry, the House of Lords found by a bare majority, bowing perhaps to pragmatism rather than a strict interpretation of the statutory language, that local authorities may have regard to their own resources when assessing the level of services which are to be provided to individuals under section 2(1) of the Chronically Sick and Disabled Persons Act 1970.

Last year, in R (McDonald) v Royal Borough of Kensington and Chelsea [2011] UKSC 33, [2011] PTSR 1266, Lady Hale cast doubt on Barry and encouraged litigants to argue that it should be overruled.  The Supreme Court in KM subsequently gave permission for a ground of appeal that Barry had been wrongly decided.  However, when the KM hearing commenced it became apparent that the Barry issue was irrelevant (Lord Wilson at [7], Lady Hale at [41]).  The Court was therefore careful to say nothing about whether Barry was right or wrong.

KM:  direct payment amount was rational

The challenge was to the local authority’s decision to make direct payments of £85,000 per annum to KM, who is profoundly disabled.  The local authority had calculated that sum by applying its “Resource Allocation System” (“RAS”), along with its “Upper Banding Calculator”, which it used to calculate additional amounts in severe cases.  Two grounds were raised, namely, irrationality and a failure to give reasons.

Lord Wilson, with whom all six of the other Justices agreed, gave the leading speech.  At [15], he broke down the analysis required of a local authority by section 2 of the 1970 Act into the following three questions:

(1)     what are the needs of the disabled person;

(2)     in order to meet these needs is it necessary for the authority to make arrangements for the provision of any of the listed services;

(3)     if so, what are the nature and extent of the services for which it is necessary for the local authority to make arrangements?

These stages reflect the Secretary of State’s guidance (“Prioritising need in the context of Putting People First”, February 2010), which splits needs into “presenting needs” (identified by question (1) above) and “eligible needs” (identified by question (2) above) [16-18].  Once a person’s needs are deemed eligible, the local authority is under an absolute duty to meet them, and cannot refuse to do so on account of limited resources [19].

Direct payments under the Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2009 (SI 2009/1887) give rise to a fourth question, namely [23]:

(4)     what is the reasonable cost of securing provision of the services for which it is necessary for the authority to make arrangements?

Lord Wilson accepted that, in answering that question, it would be unduly laborious for a local authority to start by costing each service for every disabled person [24].  He therefore approved the general use of RASs as a lawful tool to provide a “ball-park” figure, subject to adjustment [26].  He commented that, since RASs generally work by allocating points to eligible needs and then ascribing a cost to each point, there must be a “realistic nexus both between needs and points and between points and costs” [25].  He then said that, once the indicative sum has been identified, it “is crucial [that] the requisite services in the particular case should be costed in a reasonable degree of detail so that a judgement can be made whether the indicative sum is too high, too low or about right”, this exercise usually being labelled the “support plan” [28].  In this respect, Lord Wilson at [37] approved guidance from R (Savva) v Royal Borough of Kensington [2010] EWCA Civ 1209 that adequate reasons can be achieved with “reasonable brevity”, often by listing the required services, and the suggested timings and hourly costs.

On the particular facts of KM’s case, in which the local authority had found that all of his “presenting needs” were “eligible needs” which it was under a duty to meet (hence the irrelevance of the Barry issue), Lord Wilson found that the local authority’s use of its RAS was rational, and that any flaw in computation was likely to have been in KM’s favour [38].  He criticised the authority for failing to make a more detailed presentation of its assessment of the costs of KM’s necessary services.  However, in the light of the authority’s amplification of its reasoning during the subsequent litigation, he said that it would be a pointless exercise of discretion to quash the decision so that his entitlement might be considered again, perhaps even to his disadvantage [38].

Comment

Because Barry was not reconsidered, the impact of KM on the law is rather limited.  Nonetheless, it contains useful confirmation, following Savva, that RAS-calculated payments must be accompanied by some explanation of the services which the authority considers to be covered by the payments.

RASs are often criticised for being opaque:  they rely on algorithms which are not revealed to service users; and they translate an individual’s needs into a budget, without identifying the costs of the particular services required to meet those needs.  This shortcoming is compounded by the fact that, where an authority provides or commissions services, it is relatively clear whether or not it is meeting eligible needs; but where it is providing money to purchase services, it is much less clear whether eligible needs are being met.  Service-users sometimes complain that they are offered explanations for personal budgets which are no less illuminating than being told, “Computer says no”.  Indeed, Lord Wilson agreed that “a local authority’s failure to meet eligible needs may prove to be far less visible in circumstances in which it has provided the service-user with a global sum of money than in those in which it has provided him with services in kind” [36].  This is why it is important that RAS-calculated budgets are accompanied by an explanation of the services which should be covered by the budget.

 

Compulsory Acquisition of Land

May 28th, 2012 by James Goudie KC in Land, Goods and Services

In R (Barnsley MBC) v SoS for CLG [2012] EWHC 1366 (Admin), Judgment of Foskett J on 24 May 2012, the Council made a CPO in respect of land in its area registered as a Village Green.  The Council relied upon s121 of LGA 1972 and s2 of LGA 2000.  The SoS took the view, however, that these provisions did not provide an enabling power.  He regarded the CPO as invalid, and declined to confirm it.  The Council brought judicial review proceedings to challenge his view.  The Judge agreed with the SoS.

The Council could acquire land by agreement under s120 of LGA 1972 for the purposes of the benefit, improvement or development of their area.  That was not, however, enough for a CPO under s121, as s121(2)(a) made clear.  The question therefore was whether s2 of LGA 2000 could be invoked.  Foskett J concluded that s2 was not intended to alter the LGA 1972 situation in relation to CPOs.

 

Community Right to Challenge

May 22nd, 2012 by James Goudie KC in Council Tax and Rates

On 17 May 2012, in exercise of powers conferred by sections 81 and 235 of the Localism Act 2011, the Secretary of State made the Community Right to Challenge (Expressions of Interest and Excluded Services) (England) Regulations 2012, SI 2012/1313.  They will come into force on 27 June 2012.  Regulation 3 and Schedule 1 specify requirements for expressions of interest for the purposes of Section 81(1)(b).  Regulation 4 and Schedule 2 specify services that are to be excluded for the purposes of Section 81(5), in some cases only until 1 April 2014.  The Secretary of State has also issued Statutory Guidance on the Community Right to Challenge.

RATES AND COUNCIL TAX

The Local Government Finance Bill, carried over from the last Session, completed its passage through the House of Commons on 21 May 2012.  In conjunction with the Bill, CLG has issued numerous publications. With respect to the Business Rates Retention Scheme they are:

·                      The economic benefits of local business rates retention

·                      The central and local shares of business rates  – A Statement of Intent

·                      Renewable energy projects – A Statement of Intent

·                      Pooling Prospectus

·                      The Safety Net and Levy – A Statement of Intent

With respect to Localising Support for Council Tax” they are:

·                      A Statement of Intent

·                      Funding arrangements consultation

·                      Taking work incentives into account

·                      Vulnerable people – key local authority duties (including, Chapter 2, the Public Sector Equality Duty, Chapter 3, duty to mitigate the effects of child poverty, Chapter 4, the Armed Forces Covenant, and Chapter 5, duty to prevent homelessness).

 

Housing

May 21st, 2012 by Christopher Knight in Housing

Homelessness

In Nzinga Maswaku v Westminster City Council [2012] EWCA Civ 669 the Court of Appeal clarified that in offering a homeless person with alternative temporary accommodation the local authority is obliged to point that if the offer is refused it has discharged its Part VII duties under the Housing Act 1996. It is not obliged to list every possible consequence, including ones which are not expressly mentioned in s.193(5) of the 1996 Act. Nor can failing to list the non-statutory consequences be a matter which breaches regulation 6(2) or 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 as a failure to notify the claimant. Regulation 6(2) is only intended to ensure that the individual is able to make relevant representations to the reviewing officer on the review.

A father who has joint custody of his children, but where the children live primarily with their mother, can be reasonably said not to be in priority need of housing, ruled the Court of Appeal in Said El Goure v Kensington & Chelsea Royal London Borough Council [2012] EWCA Civ 670. The statutory question was whether it was reasonable to expect the children to also reside with him (see s.189(1)(b) of the Housing Act 1996), even though they had a home with their mother, and that question was for the local authority to decide. No error of law had been committed by the reviewer finding that it was not reasonable to so expect. There was no legal test of exceptionality (see the comments of their Lordships in Holmes-Moorhouse v Richmond upon Thames LBC [2009] UKHL 7; [2009] 1 WLR 413) and the local authority had not fallen into the trap of applying one. Moreover, there was no breach of the duty to notify under regulation 6(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 where the local authority had informed the father’s solicitors of his right to make representations in support of the review application.

Housing Benefit

In Burnip v Birmingham City Council & Secretary of State for Work and Pensions [2012] EWCA Civ 629 the Court of Appeal held that it was disproportionately contrary to Article 14 ECHR taken with Article 1 of Protocol 1 for housing benefit payments to be assessed on the basis that only one bedroom was required for two severely disabled girls, and where a spare room was required by disabled recipients of housing benefit to enable an overnight carer to stay and assist them. This had been the law under regulation 13D of the Housing Benefit Regulations 2006 (although it has since been amended by the Housing Benefit (Amendment) Regulations 2010 with effect from 1 April 2011). All of the conjoined appeals had failed before the Upper Tribunal.

The Court of Appeal reached the view that the housing benefit scheme made adequate provision for able-bodied persons, but failed to make equivalent provision for the disabled, whose needs were often more costly. The criteria were apparently neutral on their face, and so the discrimination was indirect, but it could not be objectively justified. The purpose of the statutory scheme was to help people meet their basic human needs for accommodation of an acceptable standard. Cases where a disabled person required an additional bedroom were likely to be relatively few in number, easy to recognise and not open to abuse.

Disability Discrimination

Mr Lalli was disabled. He had learning difficulties and memory problems. He lived as an assured tenant in sheltered housing where the other residents were also disabled and/or over the age of 60. The landlord sought an interim injunction forbidding him from harassing or abusing other residents or from entering the communal lounge between 4pm and 9pm, which it discontinued after Mr Lalli was assessed as being disabled.

In Lalli v Spirita Housing Ltd [2012] EWCA Civ 497 Mr Lalli brought a claim under the Disability Discrimination Act 1995 alleging that in seeking the injunction Spirita had applied a practice, policy or procedure which discriminated against him by making it impossible or unreasonably difficult for him to use the communal lounge. The Court of Appeal, upholding the judge, disagreed. Seeking an injunction had been an attempt to ensure an effective sanction to prevent Mr Lalli’s abusive behaviour towards others, and it did not amount to a practice, policy or procedure anyway. In any event, the discontinuing of proceedings following the diagnosis of disability constituted a reasonable adjustment.

Housing Associations

A housing association formed to take housing stock from a local authority did not operate with a charitable purpose so as to avoid corporation tax on rental income: Helena Partnership Ltd (formerly Helena Housing Ltd) v Commissioners for Her Majesty’s Revenue and Customs [2012] EWCA Civ 569. It was argued that the association had a purpose of benefit to the community, which the Court of Appeal rejected (upholding both the First-tier and Upper Tribunals) on the basis the provision of housing would be of benefit to those other than persons in some relevant charitable need (such as by reason of age or disability) and that in any event the degree of benefit to individuals was substantially more than that to the community at large.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012

The Act gained Royal Assent on 1 May 2012 and preserves the availability of legal aid in cases of judicial review, breach of ECHR rights, claims for the sale or possession of a home (unless the occupier admits that he is a trespasser), applications for homelessness assistance under Parts VI and VII of the 1996 Act, and cases in which the assisted person seeks to remove or reduce a serious risk of harm to him or a member of his family which arises from a deficiency in his rented home: Schedule 1, paragraphs 19, 22, 33-35.

 

Council Tax and Public Procurement

May 14th, 2012 by James Goudie KC in Best Value, Council Tax and Rates

COUNCIL TAX

In Harrow LBC v Ayiku [2012] EWHC 1200 (Admin) Sales J held that the word “or” in the Council Tax (Exempt Dwellings) Order 1992, art 3 Class N, had a disjunctive meaning, therefore it was sufficient for the non-British spouse of a foreign student to satisfy one or other of the two conditions, namely being prevented from taking paid employment or being prevented from claiming benefits, in order to qualify as a “relevant person” who was exempted from liability to pay council tax.

PUBLIC PROCUREMENT

In Case C-368/10, Commission v Netherlands, Decision on 10 May 2012, the ECJ has reaffirmed, in the context of the supply to and management for a public authority of automatic coffee machines, that “both the principle of equal treatment and the obligation of transparency which flows from it require the subject-matter of each contract and the criteria governing its award to be clearly defined from the beginning of the award procedure … the formulation of the award criteria being such as to allow all reasonably well-informed tenderers exercising ordinary care to know the exact scope thereof and thus to interpret them in the same way”.

 

Community care, section 21 and human rights: R (De Almeida) v Royal Borough of Kensington and Chelsea [2012] EWHC 1082 (Admin)

May 14th, 2012 by Trevor S. in Local Authority Powers

The High Court has decided that a local authority applied too high a threshold when deciding that an applicant for accommodation under section 21 of the National Assistance Act 1948 was not “in need of care and attention”.  Moreover, it held that the authority’s refusal to provide section 21 accommodation breached  the applicant’s rights under Article 3 of the ECHR, and was a disproportionate interference with his rights under Article 8 of the ECHR.

The Claimant was a Portugese national who was terminally ill with severe AIDS.  He also suffered from depression and skin cancer.  His life expectancy was less than a year.  Upon carrying out a needs assessment, the authority nonetheless concluded that he was independent in all aspects of daily living and in areas where he experienced some difficulty, he could identify solutions.  It therefore determined that he did not qualify for support under section 21.  It also considered that non-provision of support would not breach his human rights, since he could return to Portugal and receive care services there.

Section 21

Lang J found that the authority’s conclusion that he was not “in need of care and attention”, and therefore did not fulfill the criteria in s.21(1)(a), was irrational (paragraphs 62, 67).  She referred to the decision of the House of Lords in R (M) v Slough BC [2008] UKHL 52, [2008] 1 WLR 1808 that the threshold for fulfillment of the criteria in s.21(1)(a) is “relatively low”; “’in need of’ means more than merely ‘want’ but it falls far short of ‘cannot survive without’” (at paragraph 55 of M per Lord Neuberger).

·         She found that the authority had erred by finding it a pre-requisite of eligibility under s.21(1)(a) that the person was “incapable” of performing a domestic task himself.  Someone might be eligible under s.21(1)(a) even if he simply has “greatdifficulty” performing domestic tasks himself (paragraph 65).

·         She rejected the authority’s argument based on fluctuation of the Claimant’s needs and the assertion that, when his needs were assessed, he was not in need of care and attention.  She stated:  “A fluctuating need does not necessarily take a person outside the scope of s.21(1)(a)…  [I]t will be a question of fact in each case whether a person’s condition is such that he should be treated as ‘in need of care and attention’ even though the extent of his need for care and assistance fluctuates from time to time.”  In the Claimant’s case, his ongoing and serious symptoms meant that the authority’s conclusion was irrational, albeit his needs did fluctuate (paragraphs 66 to 67).

·         The authority’s use of Fair Access to Care Services criteria (criteria used for deciding on the provision of discretionary community care services) was inappropriate for assessing whether the Claimant was eligible under section 21(1)(a) (paragraph 68).

Human rights:  standard of review

Pursuant to Schedule 3 of the National Asylum and Immigration Act 2002, the Claimant’s immigration status rendered him ineligible for support or assistance under section 21 save insofar as such support or assistance was necessary to avoid a breach of his Convention rights.  Lang J rejected a submission by the authority that, in assessing whether there had been a breach of the Claimant’s human rights, the “traditional judicial review” standard of review applied; rather, it was for the Court to reach its own conclusion as to whether there had been a breach of the Claimant’s human rights, and for this purpose the Court was entitled to take into account evidence relating to the Claimant’s current medical condition, post-dating the authority’s decision (paragraphs 74 to 85).

Article 3

Lang J concluded that sending the Claimant to an undignified and distressing end in Portugal — the likely practical result of refusing him care services — would amount to “inhuman treatment”, so breach his Article 3 rights.  A decision to remove an ill person to another country where he will receive inferior medical treatment may breach Article 3 only in “very exceptional cases” (N v UK App. No. 26565/05, ECtHR).  Following D v UK (1997) 24 EHRR, Lang J held that this was a very exceptional case, because the Claimant was at the end of his life (paragraph 116); and, even though Portugal has a health and welfare system, the practical reality was that returning him to Portugal would have led to an undignified and distressing death, facing delay and difficulty in obtaining accommodation and benefits, and parted from his existing support network of friends and healthcare professionals (paragraphs 117, 122).

Article 8

It was common ground that refusal of assistance, which in practice meant that the Claimant would have to return to Portugal, would interfere with the Claimant’s Article 8 private life in the UK.  Bearing in mind the relatively small cost saving to be gained from returning the Claimant to Portugal (the cost of caring for him in the UK was limited by his short life expectancy, and returning him to Portugal would itself involve various costs to the authority), Lang J found that the interference was not justified (paragraphs 136 to 141).