R (Mwanza) v London Borough of Greenwich & London Borough of Bromley
 EWCA Civ 755
The Administrative Court has decided that neither authority were under a duty to provide accommodation when under s.117 Mental Health Act 1983 the need for such accommodation did not arise from the claimant’s mental disorder and under s.21 National Assistance Act 1948 the claimant did not have need of care and attention not otherwise available to him because he was being looked after by his wife.
Authorities exercising social services functions must provide after-care services to persons who are resident within their areas and were previously detained under s.3 Mental Health Act 1983 (“the 1983 Act”) until the local social services authority are satisfied that the person concerned is no longer in need of such services: s.117 of the 1983 Act. Unless discharged the duty continues, even if the person moves away from the area: R (M) v London Borough of Hammersmith & Fulham  EWHC 562.
Authorities exercising social services functions must make arrangements for the provision of residential accommodation for, among others, adults who are ordinarily resident in their areas and who, by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them: s.21 National Assistance Act 1948 (“the 1948 Act”). A person is in need of care and attention if he needs “looking after”: R (M) v Slough Borough Council  UKHL 52. However, persons present in the UK without leave to remain are ineligible for support under s.21 unless the provision of support is necessary to avoid the breach of rights under the European Convention of Human Rights (“the Convention”): s.54 and Sch.3 Nationality, Immigration and Asylum Act 2002.
The claimant was a Zambian national. In August 2000, he entered the UK with his wife. Both were dependent for leave on his wife’s student visa.
On September 27, 2000, the claimant was admitted to hospital after he suffered from symptoms of paranoia. Shortly afterwards his condition worsened and he was detained under s.3 of the 1983 Act. On January 8, 2001, the claimant was discharged from s.3 of the 1983 Act and returned to live at an address in Greenwich.
On January 15, 2001, a care plan set out the after-care services to be provided by Greenwich to the claimant under s.117 of the 1983 Act. Such services included home visits by his social worker and out-patient appointments with a consultant psychiatrist. After being discharged the claimant rarely kept to his out-patient appointments and by November 14, 2001, the social worker recorded that he had lost contact with him. On November 26, 2001, the social worker wrote to the claimant’s GP to inform him that Greenwich had discharged their duty to the claimant. On January 7, 2002, the claimant’s case was formally closed.
On May 27, 2008, an application by the claimant’s wife’s to extend her leave to remain in the UK was refused by the Home Office. This prevented themboth from working in the UK and they became unable to pay the rent for the hostel they resided at in Bromley. On January 4, 2010, they were evicted for rent arrears.
On February 8, 2010, the claimant’s solicitors sent a pre-action protocol letter to Bromley demanding that the claimant’s needs be assessed under s.47 of the National Health Service and Community Care Act 1990 and for financial support and accommodation to be provided to the claimant under either s.117 of the 1983 Act or s.21 of the 1948 Act. After assessing the claimant’s needs, Bromley declined to offer him financial support or accommodation. The claimant issued judicial review proceedings against both Bromley and Greenwich and sought mandatory orders requiring that Greenwich provide him with accommodation under s.117 of the 1983 Act and that Bromley provide him with accommodation under s.21 of the 1948 Act.
The judicial review
The Administrative Court dismissed the claims against both Greenwich and Bromley. S.117 does not impose a general duty upon local authorities to provide financial support or accommodation. After-care services are limited to services that meet a need arising directly from a person’s mental disorder and are required to reduce that person’s chance of being re-admitted to hospital for the disorder. In this case, the need for housing arose from the claimant and his wife’s immigration status and their inability to work; it did not arise from his mental disorder. In any event, Greenwich had discharged their duty to the claimant under s.117 in November 2001. That discharge had been lawful and, even if it had not been, the claimant would have been refused relief owing to the delay in bringing the claim.
Bromley’s decision that the claimant was not in need of care because he was being looked after by his wife could not be faulted. This was not a case where the claimant was relying on the good will of friends that might evaporate over time; his wife had made it clear that she would look after him indefinitely. In any event, the claim also failed because the claimant was unlawfully present in the UK and his return to Zambia would not breach his rights under the Convention. It followed that he was not eligible for support under s.21 of the 1948 Act