Claim number: CO/2761/2023
In the High Court of Justice
King’s Bench Division
17 November 2023
The Honourable Mr Justice Poole
The King on the application of
Kent County Council
London Borough of Croydon
NHS South West London Integrated Care Board
(formerly known as NHS South West London CCG)
NHS Kent and Medway ICB
Notification of the Judge’s decision on the application for permission to apply for judicial review (CPR 54.11, 54.12)
Following consideration of the documents lodged by the Claimant and the Acknowledgement(s) of Service filed by the Defendant and/or Interested Parties
ORDER by the Honourable Mr Justice Poole on 16 November 2023
- The First Interested Party is granted anonymity under CPR 39.2(4) and shall be referred to in these proceedings as “JN”. He is a vulnerable person who was recently represented through a litigation friend in Court of Protection proceedings. The balance of convention rights justifies his anonymisation even having regard to the open justice principle.
- Permission to the Claimant to reply upon its Reply dated 13 September 2023
- The application for permission to apply for judicial review is refused.
- (i) The First Defendant’s costs of preparing the Acknowledgement of Service are to be paid by the Claimant to the First Defendant, summarily assessed in the sum of £6,196.53
(ii) The Second Defendant’s costs of preparing the Acknowledgement of Service are to be paid by the Claimant to the Second Defendant, summarily assessed in the sum of £6,570.30.
- Paragraph 2 above is a final costs order unless within 14 days of the date of this Order the Claimant files with the Court and serves on the Defendant a notice of objection setting out the reasons why he should not be required to pay costs (either in the amount required by the costs order, or at all). The submissions shall not exceed 3 pages. If the Claimant files and serves notice of objection, the Defendant may, within 14 days of the date it is served, file and serve submissions in response (not to exceed 3 pages). The Claimant may, within 7 days of the date on which the Defendant’s response is served, file and serve submissions in reply (not to exceed 2 pages).
- The directions at paragraph 3 apply whether or not the Claimant seeks reconsideration of the decision to refuse permission to apply for judicial review.
(a) If an application for reconsideration is made, the Judge who hears that application will consider the written representations filed pursuant to paragraph 3 above together with such further oral submissions as may be permitted, and decide what costs order if any, should be made.
(b) If no application for reconsideration is made or if an application is made but withdrawn, the written representations filed pursuant to paragraph 3 above will be referred to a Judge and what order for costs if any, should be made will be decided without further hearing.
- The decision challenged is said to be the decision of the Defendants (jointly) to transfer funding for JN’s care to them on 8 June 2023 following a decision to discharger him from s117 (Mental Health At 1983) aftercare taken on 30 March 2023. In fact there was a decision to discharge made on 15 June 2022 which was later reversed and then a further decision on 30 March 2023. The Claimant’s Reply strongly suggests that th decision that is challenged is the decision to discharge s117 aftercare (March 2023) not the funding decision. In any event the claim herein was issued more than 3 months after the decision in question. For the reasons set out below the claim is not strong and is not arguable. No grounds for extending time are made out. The claim is out of time.
- The decision to discharge JN from aftercare under s117 MHA 1983 was made after a multi-disciplinary meeting in June 2022 and further consideration thereafter. It was essentially a professionals’ decision having regard in particular to JN’s mental condition. He has been diagnosed as having mild to moderate intellectual disability, ASD, Emotionally Unstable Personality Disorder, and recurrent depressive disorder. In June 2022 professionals, having regard to the opinion of JN’s Responsible Clinician, decided that he had no acute presentable health condition requiring treatment and a low risk of readmission. He had been discharged from hospital having previously been the subject of a s37 Hospital Order and was discharged from his Community Treatment Order on 13 April 2022. By March 2023 he had not required admission or a CTO. Although the Defendants had agreed to rescind the discharge decision and review, by March 2023 the situation was effectively unchanged (an if anything the previous decision even more justified) and so the decision to discharge was made
- There can be no dispute that JN needs care and support but as held in R(Mwanza) v Greenwich London Borough Council  PTSR 965,  EWHC 1462 (Admin), s117 aftercare services are obnly required to meet the needs arising from a person’s mental disorder and no further. S1(2A) of the MHA 1983 applies. “section 117 is not concerned with the provision of support and accommodation at large, but rather with the provision, to the specified category of patients who have been detained on account of their mental disorder, of services tailored to meet needs arising from that disorder. “ per Hickinbottom J at . And “In practice, the assessment of needs that do arise from a mental disorder may of course give rise to difficult issues. It is for the relevant authorities – the local authority and the health authority – to reach their own view as to what need the person has, and, in making an assessment under section 47 of the 1990 Act, they enjoy a discretion as to what if any services are required to meet such needs. As Lord Phillips MR said in R (K) v Camden and Islington Health Authority  EWCA Civ 240 at :
“The nature and extent of those [after-care] facilities must, to a degree, fall within the discretion of the [authorities] which must have regard to other demands in [their] budget.”
The reference to “nature”, as well as “extent”, of the services in my view emphasises both the potential broad scope of section 117 and the wide discretion of the authorities within that scope. They are The recognition of this discretion, given to the authorities by Parliament, appears to me to be vital.” 
- The Court should accord respect for the Defendants’ belief that JN did not have a need for aftercare arising from or as a result of his mental disorder. It does not follow that the court could not intervene in an appropriate case and find that the decision making was unlawful or procedurally unfair, but the grounds do not disclose any arguable basis for doing so in the present case. The statutory criteria were properly addressed. The lack of a contingency plan, if that can fairly be levelled at the Defendants, would not render the decision irrational, unlawful or unfair. That is not a requirement of a lawful decision to discharge JN from aftercare. The Defendants properly took into account evidence relevant to the decision to discharge. The responsible clinician had given a view in June 2022 and there was no significant reason to believe that a different view or decision was likely in March 2023.
- There is no arguable ground for judicial review which has a realistic prospect of success.
- Costs: the Claimant should pay the costs of the two defendants. The First Defendant’s hourly rate is too high and I have summarily assessed its costs using an hourly rate of £167 ph, comparable to the Second Defendant’s costs. Such costs as summarily assessed are reasonable and proportionate. Assessment is £6196.53. The Second Defendant’s costs are reasonable and proportionate.