NM, R (on the application of) v London Borough of Islington & Ors

Section 47 of the National Health Service and Community Care Act 1990 requires a local authority to assess a person who may presently need community care services. The duty also extends to a narrow class of cases where the person is likely to need services in the very near future, including possible release from prison. The prospect of future need must be sufficiently concrete and likely. A merely conditional or speculative possibility is insufficient. A local authority need not await a decision in principle to release the person, but the duty may arise once relevant release planning has occurred and the Parole Board clearly requires a detailed assessment to decide the case. Before then, information about likely services may be provided through MAPPA without a full assessment.

The claimant, a prisoner with significant learning disabilities, sought judicial review of Islington’s refusal to assess his community care needs under section 47 of the National Health Service and Community Care Act 1990. He wished to live in London if released, while Islington and Northamptonshire disputed responsibility for his future support. The Parole Board had sought information about accommodation and care, but no MAPPA process had taken place in relation to a proposed release to Islington. The central issue was whether the claimant was a person who may be in need of community care services within section 47(1), despite the uncertainty surrounding his release.

1. The claim for judicial review was dismissed. The court nevertheless gave guidance for future release planning.

2. Islington was a local authority for which the claimant might receive community care services. Its powers under sections 21 and 29 of the National Assistance Act 1948 were not confined to persons ordinarily resident in its area. The dispute about ordinary residence therefore did not prevent determination of the assessment issue.

3. The phrase “may be in need” in section 47(1) is expressed in the present tense. It requires a significant possibility that the person has a present need for services. It can also cover a narrow penumbra of cases where the person is reasonably likely to be present in the authority’s area and to need services in the very near future. This pragmatic interpretation avoids a gap in social welfare protection.

4. The duty does not extend to a wide class of contingent future needs. Scarce resources must not be consumed by assessments having no sufficiently concrete prospect of serving a useful purpose. Nor is a decision in principle by the Parole Board an absolute precondition to the duty arising.

5. On the facts, the connection between the claimant’s possible release to Islington and the need for services was too conditional and speculative. No relevant MAPPA process had occurred for London, and the Parole Board could not yet make a properly informed release decision. The duty to carry out a full assessment had therefore not arisen.

6. The appropriate next step was a MAPPA consideration concerning release to London. Islington should provide information about the community care services likely to be available, without undertaking a full section 47 assessment. If, after that process, the Parole Board clearly and responsibly required more detailed information to determine the release issue, the section 47 duty might arise.

7. The arguments based on section 149 of the Equality Act 2010, section 3(1) of the Human Rights Act 1998, the ECHR and the CRPD did not alter the interpretation. The interpretation adopted was compatible with the asserted Convention rights.