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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Afework, R (on the application of) v London Borough of Camden [2013] EWHC 1637 (Admin) (13 June 2013) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2013/1637.html Cite as: [2013] EWHC 1637 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/06/2013

Mr Justice Mostyn :

1. This is my judgment on the claimant's application for permission to apply for judicial review. The claim was issued on 3 May 2012. On 19 October 2012 Mr Robin Purchas QC directed that the application be heard inter partes as a "rolled up hearing". The matter came before me on 24 January 2013 when it was adjourned on account of a deficiency of disclosure by the defendant. It returned on 1 March 2013 when it was again adjourned, this time on account of a deficiency of disclosure by the claimant. The matter was finally returned and argument was concluded on 17 May 2013.
2. The central issue in this case is whether the defendant local authority is duty bound by virtue of the terms of section 117 of the Mental Health Act 1983, to provide the claimant, in his particular circumstances, with accommodation free-of-charge. The claimant argues that it is. The defendant strongly resists this argument. It argues that the claimant has been entitled to accommodation since 2000 under the terms of section 21(1) of the National Assistance Act 1948. This provision permits the defendant to charge the claimant for the provision of such accommodation in specified circumstances, of which the most obvious is that he has the means to pay for it. The defendant argues as a matter of law that section 117 of the Mental Health Act 1983 does not extend to obliging it or any other local authority to provide free-of-charge accommodation per se. It accepts that section 117 can extend to the need for specialist enhanced accommodation ("accommodation-plus") but it disputes that it can cover ordinary or bare accommodation, in any circumstances. It contends that there is no duty under s117 to provide the claimant with any kind of free-of-charge accommodation on the facts of this case.
3. It can be seen that this dispute will not only require legal analysis but also an examination of the facts which in this case stretch back over 20 years.
4. As is well known the 1948 Act was one of the key pieces of legislation enacted by the post-war Attlee government to implement the Beveridge reforms and to bring into being the welfare state. The long title of the 1948 Act states that it is "an Act to terminate the existing poor law and to provide in lieu thereof for the assistance of persons in need by the National Assistance Board and by local authorities; to make further provision for the welfare of disabled, sick, aged and other persons and for regulating homes for disabled and aged persons and charities for disabled persons; to amend the law relating to non-contributory old age pensions; to make provision as to the burial or cremation of deceased persons; and for purposes connected with the matters aforesaid." The old provisions of the poor law, in force since the reign of Elizabeth I, were swept away. Section 21 is headed "duty of local authorities to provide accommodation" and provides (as presently in force):

"(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing—

(a) residential accommodation for persons aged eighteen or over 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; …"

5. These words plainly encompass a person who is disabled by mental illness and this would have been fully clear to the architects of the legislation both in the executive and in Parliament. Equally, the decision to allow a local authority to charge for the provision of such accommodation in specified circumstances (which is found in s22) must be seen as a considered political and social decision made by the executive and legislature. In my judgment it would require very clear words in another piece of legislation to override this central policy decision.
6. The Mental Health Act 1983 received Royal Assent on 9 May 1983, at the very end of the first Thatcher ministry (which came to an end on 9 June 1983). It was passed in an era of great austerity. The long title of the Act states that it is "an Act to consolidate the law relating to mentally disordered persons." That of itself gives a clue as to its objective: it was not a statute intending to affect radical changes in the duties of local authorities; rather it was a consolidating statute bringing under one roof the various disparate pieces of legislation governing mentally disordered persons. Section 117 is entitled "After-care". It provides (as presently in force):

"(1) This section applies to persons who are detained under section 3 above, or admitted to a hospital in pursuance of a hospital order made under section 37 above, or transferred to a hospital in pursuance of a hospital direction made under section 45A above or a transfer direction made under section 47 or 48 above, and then cease to be detained and (whether or not immediately after so ceasing) leave hospital.

(2) It shall be the duty of the Primary Care Trust or Local Health Board and of the local social services authority to provide, in co-operation with relevant voluntary agencies, after-care services for any person to whom this section applies until such time as the Primary Care Trust or Local Health Board and the local social services authority are satisfied that the person concerned is no longer in need of such services; but they shall not be so satisfied in the case of a community patient while he remains such a patient.

7. Although the Act has in s145 an interpretation section there is, some might think surprisingly, no definition of "after-care services". Parliament, whether by design, or by accident, left the interpretation of that compound noun to the judges.
8. Before I look at the authorities I focus first on the actual language and ask myself what it means. The section applies to people who have been compulsorily detained under the Act but who have then ceased to be detained and who have left hospital. It even applies to people who may have been detained in hospital only for a very short period of time. Those people are owed a duty by the state – either the NHS body or the local authority. That duty is to provide them with "after-care services". This is a single compound noun with two components viz "after-care" and "services". The hyphenated linking of the word "after" with "care" within the first component shows that the services in question must be consequential to the detention in hospital. The services must relate to the reason, and only to the reason, for the detention in hospital. In my opinion that is the only possible logical interpretation that can be given to the qualification of the component "services" by the hyphenated component "after-care". If Parliament had intended that the services to be supplied to such persons should be of a more general nature, not specifically related to the reason for detention, then it would not have qualified the word "services" at all, or it would have used a qualifying component such as "caring".
9. Thus far I would not have concluded, having regard both to the literal meaning of the actual words used in s117(2) and to the identified policy objective enacted in 1948, that s117(2) could embrace a duty to provide any kind of accommodation whether basic or enhanced, unless the enhanced accommodation was a substitute for, or an extension of, the hospital environment in effect imposed on the patient. However I now travel forward to 2008 and to the enactment of the Health and Social Care Act 2008, which came into force on 19 April 2010. Section 148 amends section 24 of the 1948 Act. Section 24 deals with the designation of which authority is liable to provide accommodation. The normal rule is "ordinary residence". Section 148 gives a deemed meaning of ordinary residence to people in "NHS accommodation". It inserted into s24 of the 1948 Act new sub-section 6 and 6A, the latter of which provides:

"In subsection (6) "NHS accommodation" means—

(a) accommodation (at a hospital or elsewhere) provided under the National Health Service Act 2006 or the National Health Service (Wales) Act 2006, or

(b) accommodation provided under section 117 of the Mental Health Act 1983 by a Primary Care Trust or Local Health Board, other than accommodation so provided jointly with a local authority."

10. It is clear from this that in 2008 Parliament accepted that in some circumstances accommodation could be provided under s117 of the 1983 Act, although the only type of accommodation that it actually refers to is accommodation provided by a Primary Care Trust or Local Health Board (either solely or jointly with a local authority). It is because of this provision that Miss Kamm accepts that "it is clear from the wider statutory framework that after-care services can include accommodation". I am not so sure that this deeming provision really answers the question. Indeed it must be remembered that the deeming provision is for the sole purpose of designating which authority must provide accommodation to the person in question and be able to charge for it under the 1948 Act. A tenable interpretation is that if, for example, the NHS Trust in Camden is providing accommodation in Camden to a mentally disordered person as an after-care service following his detention in and release from a hospital then the London Borough of Camden has the obligation to house him under the 1948 Act but can charge him for it.
11. I now turn to the authorities. In R (Stennett) v Manchester City Council [2002] 2 AC 1127 the House of Lords was concerned with three appeals by mentally ill persons who were formally admitted to hospital under section 3 of the 1983 Act. They were discharged and placed in caring residential accommodation. The local social services authorities involved charged them for the provision of after-care services. The decision to charge was quashed and the House of Lords upheld that decision.
12. It was agreed that a residential care home was within the scope of section 117(2). This was unsurprising as in reality it was an extension of the compulsory detention in hospital. At para 15 Lord Steyn stated:

"Under section 72 of the 1983 Act a detained patient may apply to a mental health tribunal for discharge. On discharge pursuant to a direction by a tribunal a patient may often still require medical and other care. Clearly, caring residential care (ensuring, for example, that prescribed medication is taken) may be essential. It takes the place of the hospital environment. It can hardly be said that the mentally ill patient freely chooses such accommodation."

This is clearly consistent, in my judgment, with the literal and natural meaning of the words in s117(2). It is strongly supported by the observations of Langstaff J in DM v Doncaster Metropolitan Borough Council [2011] EWHC 3652 (Admin) where he stated at para 65 and 66:

"65 But, in my view, those receiving after-care are not in the same material circumstances. They are different, in my view, because all of them necessarily (because of the statutory provision) have been detained earlier under section 3 or other provisions of the Mental Health Act. Those provisions require not only that the detention of the individual is in, and is proportionate to, his own interests in protecting him from harm, as in the case of FM, but also in the public interest as protecting them from harm, which is not the case with FM. The public has a distinct interest in the detention of those who have been released into aftercare, under section 117, in a way which it does not in the case of someone whose detention is authorised by the Mental Capacity Act .

66 A second point of distinction is that the individual who is receiving aftercare is receiving care which is intrinsically linked to medical treatment he has been receiving for his mental disorder. As is well-known, there was a change of national policy seeking to shift the treatment of mental patients from institutions set apart from society, to treating them within the community. As a result, those who might previously have remained incarcerated were released into a regime of accommodation and treatment which bridged the gap between the institution and unsupported return to the community. Aftercare provided under section 117 , as Stennett recognises, was part of this scheme. Viewed broadly, it thus took the place of what had been detention at public expense when there would otherwise have been continuing medical treatment, designed to secure eventual release perhaps but medical nonetheless, as a necessary follow on from that treatment and as an integral part of the scheme by which that treatment was hoped to be rendered effective. This is demonstrated by the fact that the local authority does not have a choice whether to accommodate under section 117 or under section 21 , or, as it may be, to authorise detention under the Mental Capacity Act with the consequences that follow. Statute applies, and provides no choice."

In contrast, a person not undergoing de facto detention was to be categorised as a volunteer and it would not be unreasonable to charge him under the 1948 Act: see paras 72 and 73 where he stated:

"72 My conclusion thus has to be that there is no discrimination. Those in aftercare, under section 117, are not in the same material circumstances as is FM. But if I were wrong on this, I would hold the provision justified. Government necessarily legislates for the generality. A decision that those who are accommodated in a care home should pay is not inherently unreasonable. It may be seen to be just. If a person wishes it, it is not unfair that he should pay. If he is incapable of forming a wish whether for or against accommodation then others may have to do that for him. Providing it is in his best interests to be in such a home, it is not unreasonable to suppose that if he had capacity, he would see that for himself and would wish to be in such accommodation. He would be in precisely the same position as the true volunteer. It is not inherently unreasonable for the State, in making its general provisions, to require a charge be paid by such a person.

73 A policy to charge is in itself not unreasonable. The observations in Stennett as to the inequity of requiring mental health patients to pay for accommodation are not statements of legal principle, however compelling they may be socially and morally. The National Assistance Act looks to make a charge (see for instance the policy described by section 47 ). The charges are carefully regulated. The fact that the aftercare patient, in a materially different situation, statutorily defined, is free of charge, or the patient in hospital is freely cared for, does not mean that those on the other side of the line from such a person, on the social care side of that line, can complain about where the dividing line is placed."

13. In para 9 of Stennett Lord Steyn stated:

"Next it is necessary to identify what is embraced in the concept "after-care services" in section 117(2). There is no issue on this point. In Clunis v Camden and Islington Health Authority [1998] QB 978, 992 Beldam LJ observed on behalf of the Court of Appeal:

"After-care services are not defined in the Act of 1983. They would normally include social work, support in helping the ex-patient with problems of employment, accommodation or family relationships, the provision of domiciliary services and the use of day centre and residential facilities."

It is common ground that this was a correct description"

14. Miss Bretherton has seized on the word "accommodation" in the quote of Beldam LJ as demonstrating that any kind of accommodation can fall within s117(2). But Miss Kamm convincingly to my mind has demonstrated that there is a punctuational ambiguity in this quote and that it is properly to be read as follows:

"After-care services are not defined in the Act of 1983. They would normally include (1) social work; (2) support in helping the ex-patient with problems of (a) employment, (b) accommodation or (c) family relationships; (3) the provision of domiciliary services; and (4) the use of day centre and residential facilities"

This reading not only seems to me to make grammatical sense but also is in accordance with the legislative scheme. Therefore in Stennett the residential care homes in question clearly fell within (4) and so s117(2) was engaged. In contrast the provision of basic or pure or ordinary accommodation does not come within the concept of after-care, but there is a duty on the local authority and the NHS bodies to provide support in helping the ex-patient to deal with accommodation problems.

15. In R (Mwanza) v Greenwich London Borough Council [2011] PTSR 965, Hickinbottom J considered the very point at issue here namely whether basic or pure or ordinary accommodation does, or does not, come within the concept of after-care. He stated:

"67 Therefore, I agree with Mr Jones's suggested criteria for after-care services quoted above. However, I do not agree when later in the same paragraph he says:

"The provision of accommodation meets a basic human need that relates to all individuals, irrespective of their mental health. Ordinary accommodation cannot therefore be said to constitute a service that is provided to meet a need that arises from a person's mental disorder"

insofar as that suggests that, as a matter of law, ordinary accommodation can never fall within the scope of section 117, a submission also made by Ms Richards before me. As a proposition, that goes too far - although I accept that it is difficult readily to envisage in practice circumstances in which a mere roof over the head would, on the facts of a particular case, be necessary to meet a need arising from a person's mental disorder. That difficulty, it seems to me, explains why, in the legal authorities to which I was referred, where there is discussion of the scope section 117 services, bare accommodation is not mentioned. In my view, that reflects a dearth of practical examples, rather than a principle of law.

…

78. … even if mere housing is not available under section 117, there is provision for former patients to obtain ordinary housing, under section 21 of the 1948 Act: see paras 93 and following below. Although a residual duty, section 21 seems to me a far more appropriate vehicle for requiring authorities to provide housing, than the provisions relating to mental health."

16. I too have racked my brain to think of "circumstances in which a mere roof over the head would, on the facts of a particular case, be necessary to meet a need arising from a person's mental disorder" and I too have drawn a blank. I think the reason that blanks have been drawn by two judges is because in truth there are no such circumstances. Further, I maintain my view that the literal and natural meaning of the words in s117(2), coupled with the legislative policy of the 1948 Act, is that basic or pure or ordinary accommodation does not come within the concept of after-care services, and so to that small extent I respectfully disagree with my brother.
17. My view is fortified by the decision of Blake J in R (Gary Baisden) v Leicester City Council [2011] EWHC 3219 (Admin). He stated:

"33 The learning indicates that accommodation can in certain circumstances come within after-care services that one of the responsible agencies has a duty to provide. Equally the present state of the learning suggests that the duty to provide accommodation is likely to arise where it is accommodation plus rather than bare accommodation that is needed and where that need for accommodation is a consequence of his mental condition rather than any other factors which fall outside that mental condition.

34 If the mental condition does not require specialised accommodation with elements of support, then the duty to provide bare accommodation is under section 21 of the National Assistance Act. In any event, in respect of both duties the defendant says that the assessment of the consultant psychiatrist is that it is his voluntary drug taking that is the cause of his predicaments rather than his underlying schizophrenia that can respond to medication. Therefore what he needs to do is to stop taking drugs and to co-operate with his Outreach team in that respect, at which point he will be able, if he so chooses, to manage independent living, look after himself, abide by the conditions of his tenancy and not be a nuisance with his neighbours."

18. I would merely add to this analysis my opinion that s117(2) will only be engaged in this scenario if the placement of the ex-patient in the enhanced accommodation can authentically be characterised as being on an involuntary (in the sense of incapacitated) basis.
19. I therefore hold that as a matter of law s117(2) is only engaged vis-à-vis accommodation if:

i) The need for accommodation is a direct result of the reason that the ex-patient was detained in the first place ("the original condition");

ii) The requirement is for enhanced specialised accommodation to meet needs directly arising from the original condition; and

iii) The ex-patient is being placed in the accommodation on an involuntary (in the sense of being incapacitated) basis arising as a result of the original condition.

20. I now turn to the facts. The claimant came to this country in 1990 as a refugee from Ethiopia. By 1991 he was exhibiting signs of unusual behaviour in the children's home in which he was placed. He was placed elsewhere but things did not improve. On 27 October 1992 following some violent and delusional behaviour he was sectioned. Later he was transferred to a psychiatric rehabilitation unit. He was discharged in December 1992. In January 1993 he was sectioned again. He was discharged from hospital in July 1993 pursuant to an after-care plan dated 8 July 1993. As regards accommodation all the plan stated was "HOUSING CONDITIONS: money from community care grant and benefits awaiting clearance from house office. Julia Izard to liaise with regard to this".
21. The claimant and his sister (who was noted to be his carer) were provided with a local authority flat. There is no document which specifies the basis on which that flat was provided. The rent was paid by housing benefit. Between then and 2000 the claimant was provided with a succession of council tenancies, the rental of which was paid by housing benefit. Mental health professionals observed that he continued to be troubled. In 1996 he was diagnosed as suffering from schizophrenia. Periodically he suffered from depressive and psychotic episodes. Between 1996 and 2000 he seems to have largely gone off the mental health radar. In July 1997 an application was made to exempt him from council tax on the grounds of severe mental impairment, although the point of this is obscure given that the council tax will have been met from the pocket of the state by housing benefit. There were a number of complaints against him about noise nuisance. In February 2000 he locked his social worker in his flat when she refused to take him to the bank to withdraw £500.
22. I do not doubt that the claimant's mental illness was challenging and disturbing to him. However it is plain from the evidence that he was functioning independently, at least up to a point, and was managing to live and function in his own accommodation, albeit supported by social services.
23. Stopping the clock at April 2000 I conclude from the evidence that at that point there was absolutely no duty on the local authority to provide the claimant with accommodation pursuant to s117(2) of the 1983 Act.
24. On 23 April 2000 the claimant was the victim of a vicious racist assault in the Kentish Town Road and suffered very severe injuries including serious brain injuries. Since then he has suffered cognitive difficulties and has been provided with specialist accommodation. That specialist accommodation has been provided under section 21 of the 1948 Act. However he was not charged as he has been until June 2008 without means.
25. On 1 February 2002 the claimant lodged a claim for compensation with the Criminal Injuries Compensation Authority. The application stated in paragraph 1.13 that his occupation at the time of the assault was "student". Paragraph 4.7 stated "assaulted, resulting in very severe head injuries and brain damage". Paragraph 7.1 said that he received "very severe head injuries, brain damage". Paragraph 7.3 described his current symptoms as "intellectual impairment, defects in attention, memory reasoning and problem-solving".
26. On 6 January 2007 a very full medical and neuro-psychiatric report by Dr Jonathan Bird, a consultant psychiatrist with special responsibility for neuro-psychiatry and senior clinical lecturer in psychiatry at the University of Bristol, was prepared and submitted to the Authority. In that report Dr Bird stated at pages 16-17:

"It is therefore difficult to make a decision at this stage as to what would have happened "but for" the index assault. [The claimant] clearly had an established diagnosis of schizophrenia although the more positive features seem to have been under control. He may have been working but reported psychological testing showed him to be poorly motivated. It is likely that his schizophrenic illness would have continued to cause major difficulties in employment and relationships. This may have been intermittent and well controlled with medication and community psychiatric support. I would need to see the psychiatric records for the material time in order to make a proper decision about this. The most accurate predictor of [the claimant's] mental state, employment and relationship functioning, but for this accident, is the history of these aspects during the four years prior to the index injury. If [the claimant] had been fairly stable, not showing psychotic outbursts, not using cannabis excessively (which clearly precipitated a worsening of his schizophrenic condition) and had, in fact, been involved in positive relationships and employment for the two or three years prior to the index injury, then it is likely that this would have continued thereafter as long as he took medication. If on the other hand, [the claimant] was not working and was showing significant difficulties with the "negative" symptoms of schizophrenia during that period, then the situation would have been likely to have continued for the indefinite future.

…

[The claimant] has, therefore, suffered from a very major deterioration in his physical and mental state as a result of the index injury. In fact the schizophrenic aspects of his whole picture do not seem to have been to the fore since the accident. It is my view that schizophrenia, a pre-existing condition in [the claimant], does not explain his current condition and has not been a significant problem since the accident. He is maintained on antipsychotic medication and is therefore difficult to know what would happen if he were not at this medication. It is likely that [the claimant] has continued to suffer somewhat from the more negative aspects of late-state schizophrenia but I think that this is only a small part of his current severely disabled picture. The great majority of its current condition is, in my view, clearly due to the index assault and resultant brain damage."

27. This report was used to support an application for an interim payment, which was granted. The sum of £44,000 was paid to the claimant's deputy on 3 June 2008. On 11 August 2012 the application was adjudicated by the Authority, over 10 years after it was made. The adjudicator assessed the claimant as being entitled to receive £145,000 of which £44,000 had already been paid. The adjudicator allowed no amount for loss of earnings or earning capacity or for special expenses. Specifically, he disallowed a claim for hospital or residential care placements stating that:

"your client is reported to be happy in his current placement and there is no evidence that his care requirements are not being met. Furthermore it seems likely that his current placement is not of a permanent nature. In terms of care, the authority takes a reasonable view your client's care and special equipment needs are being met since the incident and this will continue for the rest of his life."

28. On 2 April 2012 the pre-action protocol letter in these proceedings was written. No doubt it was motivated by the likely receipt of a large sum which those representing the claimant, including his deputy, did not wish to see encroached by his accommodation expenses.
29. In fact since the receipt of the interim award no payments have been made to the local authority in respect of the accommodation.
30. On 26 September 2012 the claimant's solicitors applied for a review of the adjudicator's decision. The report of Dr Bird was emphasised. The whole tenor of the application is that the claimant's present sorry state was entirely due to the criminal injury. In the application they claimed that a large sum should be allowed for the loss of earning capacity arising from the criminal injury. It asserted that while his earning capacity was likely to be restricted he could nonetheless earn 50% of the mean average wage for a mechanic, about £9,500 per annum, for 17 years. It claimed an enormous sum for the cost of future care. Overall it claimed £500,000, being the maximum sum payable under the scheme, arguing that the claimant's true losses were in fact over £1m. The review application has yet to be adjudicated.
31. The stance of the claimant before the Authority is in stark contrast to the way this case is argued on his behalf before me. In her skeleton argument Miss Bretherton stated at paras 112 – 113:

"112. The medical and other evidence demonstrates that his acquired brain injury was additional to his continuing mental health illness. Indeed, the pattern of the breakdown of accommodation in the years prior to the brain injury is very similar to that which occurred after 2000. Throughout the period from 1992 the Claimant continued to be under the care of psychiatrists and the mental health team. Attempts to live in 'ordinary' accommodation were consistently unsuccessful. Indeed, there is a real question of whether he should have been placed in ordinary accommodation in 1993 or at all.

113. Further, although the nature of the accommodation may be different from that provided in 1993 it continues to be a necessary part of the after-care plan. If it is the case that the ordinary accommodation did not qualify as after-care, the continuing duty did include an obligation to provide residential accommodation (which certainly does qualify as after-care) from 2000."

32. Miss Bretherton sought to finesse away the impact of the entirely contrary case presented to the authority by arguing that Dr Bird's report was incomplete and at variance with other evidence that was available. She even characterised the way in which the review application had been framed on her client's behalf as "ludicrous". I note that the claimant instructed different solicitors in the two sets of proceedings.
33. There is an important point at large here. I believe that the situation with which I am faced is similar to that faced by the Court of Appeal in Tinker v Tinker [1970] 2 WLR 331. In that case the husband had made completely contrary representations to respectively Mr. Registrar Compton Miller and to his creditors, concerning the ownership of the marital home. Lord Denning MR stated at 334:

"I am quite clear that the husband cannot have it both ways. So he is on the horns of a dilemma. He cannot say that the house is his own and, at one and the same time, say that it is his wife's. As against his wife, he wants to say that it belongs to him. As against his creditors, that it belongs to her. That simply will not do. Either it was conveyed to her for her own use absolutely: or it was conveyed to her as trustee for her husband. It must be one or other. The presumption is that it was conveyed to her for her own use: and he does not rebut that presumption by saying that he only did it to defeat his creditors. I think it belongs to her."

34. So here. The grant of judicial review is a discretionary remedy and I am quite satisfied that no discretion should be exercised in favour of the claimant in circumstances where he has stated unambiguously to the Authority that his present sorrows are overwhelmingly due to the criminal injury.
35. If I am wrong about that I would state that I am satisfied on the evidence and the merits that the claimant's difficulties do indeed arise predominantly, indeed overwhelmingly, from the assault. To state that his present need for specialist housing, which is undisputed, arises from the original condition which led to his detention in 1992 and 1993 in a mental hospital is to my mind completely untenable. It is idle to attempt a counterfactual "but for" exercise to try to guess where the claimant would now be had he not been criminally assaulted in 2000. I must concentrate on the actual facts and I am satisfied that everything changed for the claimant when he was assaulted in 2000. He moved from a life of independence, albeit at a low and unhappy level, to a life of total dependence. It is because of the assault that he needs the specialist housing, no more, no less.
36. Applying the law as I have found it to be I am wholly satisfied that s117(2) is not engaged in this case and I therefore refuse the application for permission to apply for judicial review.