Wed, 31 Mar 2021
Special mental health provision can render Section 4 location unsuitable
In a matter of a Judicial Review, Mrs Justice Farbey granted interim relief, at an ‘in person’ hearing on the 29th March 2021 to a failed Asylum, claiming Section 4 Immigration and Asylum Act 1999 accommodation, whilst resident in Covid19 ‘prevent and protect’ accommodation.
The interim relief compelled the SSHD to secure accommodation in the boroughs of Lambeth, Southwark and Croydon, to enable travel for the purposes of Cognitive Behavioural Therapy at the South London and Maudsley Foundation NHS Trust. The Defendant had granted the Claimant Section 4 support, within 14 days of application on the 15th October 2020, however, the Claimant remained in a large shared hostel accommodation.
The Claimant made an application for judicial review on 4 grounds of challenge, including Equality Act claims and an Article 8 claim because of the disproportionate interference on the Claimant's mental health, caused by the ongoing delay to obtain Section 4 accommodation. The Claimant suffered from historic sexual abuse, complex PTSD presentation including worsening symptoms of psychosis, anxiety and low mood.
He also suffered from suicidal ideation, with a risk of suicide in unsettling circumstances and was finding that his symptoms were aggravated in shared accommodation.
The Claimants’ pharmacotherapy was augmented with CBT, to obtain a higher chance of remission. His complex mental health resulted in his being accepted on a randomised research trial, which used innovative resources made available from the centre of psychiatry at Kings College London. This trial allowed him access to a new type of therapy that is specifically tailored to his complex set of symptoms and is not yet in the NICE guidelines, which meant that it is not yet available across the NHS services.
The Defendant argued that they had located accommodation in Oldbury and that the Section 4 housing stock was not available in London. Whilst the Claimant had complex mental health needs, his treatment could be continued as CBT with another NHS trust. The Defendant relied heavily on the shortage of accommodation available to its provider.
However, the Claimant relied on the complex mental health needs and the benefits that he would gain from 9 months of CBT that he would not ordinarily receive under the NICE guidelines. It was further contended that the Defendant had a PSED and that the Defendant must have exercised the duty in substance, with rigour, and with an open mind” Bracking v Secretary of State for Work and Pensions  EWCA Civ 1345,  Eq LR 40. This did not happen in this case, because the consequence of moving the Claimant outside of the NHS Trust was such that he suffered unfavourable treatment as a consequence of his needing treatment related to his mental health disability, thus breaching Section 15 Eq Act 2010.
In granting interim relief, Mrs Justice Farbey, stressed that the decision was one confined to the specific facts of the case and not applicable to those that suffer mental health disabilities/disorders, specifically she noted that the Claimant had built a strong and trusted relationship with those responsible for his treatment and the consequences of unsettling him by moving him outside the catchment area for his ‘tailored’ treatment. When considering, whether it was just to refuse interim relief, she decided that it would not be.
The claim demonstrates that certain therapeutic treatment might place the individual in the same circumstances as someone receiving treatment from Helen Bamber foundation or Freedom of Torture. In those circumstances, it is the Claimants counsel's opinion that the Defendant should have in place a specific policy, for those provided with special NHS provision, not available widely under the NICE guidelines.
The Defendant was represented by GLD Counsel Mr Ben Keith.