MM, R (on the application) v Secretary of State for Home Department

An application to discharge interim relief is not ordinarily a rehearing of the original application. The court should start from the assumption that the order was justified when made. It may revisit the position where there has been a significant change of circumstances, or where material facts could not reasonably have been known in time.

The court should separate the original threshold findings from subsequent changes affecting the balance of convenience. Issues concerning the underlying lawfulness of a care assessment ordinarily belong to the substantive judicial review. Custodial events and practical difficulties must be assessed, but they do not necessarily displace existing interim relief. The order remained binding and the local authority was required to identify accommodation capable of supporting a bail application.

The claimant, who had a traumatic brain injury and was initially held in immigration detention, obtained interim mandatory relief requiring the London Borough of Hillingdon to provide accommodation with care and support pending determination of his judicial review claim.

After the claimant’s supported accommodation was terminated following incidents of arson, and after he was arrested and remanded in custody, the claimant applied to enforce the order. The council applied to discharge it, arguing that circumstances had materially changed, that compliance was impracticable, and that the claimant’s care needs and the appropriate responsible authority should be reconsidered.

The central issue was whether the subsequent events had sufficiently altered the balance of convenience to justify discharging the existing order.

1. The claimant’s enforcement application was granted and the council’s application to discharge the interim relief order was dismissed. The council accepted that it remained bound by the order made on 18 April 2024.
2. An application to discharge interim relief is not a rehearing of the original application. The court should begin from the assumption that the order was justified when made. Reconsideration requires a significant change of circumstances, or material facts which could not reasonably have been known or discovered in time for the original hearing. The significance of any change is fact-specific and may concern the serious issue to be tried, the balance of convenience, or another relevant discretionary factor.
3. The court separated the threshold findings made at the original hearing from later developments. It declined to revisit whether there was a serious issue to be tried, treating the council’s arguments on the Care Act assessment, section 19(3), and the appropriate local authority as matters for the substantive judicial review.
4. The claimant’s later custody, alleged arson, absconding, and the difficulties in obtaining accommodation were significant developments. However, they had not sufficiently shifted the balance of convenience. Evidence that providers were willing to interview the claimant in custody substantially weakened the council’s principal practical objection.
5. The effect of the claimant’s neurological condition and the level of care required remained unresolved. His requirements in custody might differ from those in non-custodial accommodation, and safeguarding or deprivation-of-liberty issues might require additional measures. Those uncertainties did not justify discharge.
6. The council was required to identify accommodation capable of grounding a bail application within 21 days. Further case-management directions could be considered by a judge authorised to sit in the Court of Protection. Costs followed the event, with the Second Defendant ordered to pay the claimant’s and First Defendant’s costs.

The judgment concerned enforcement and discharge of an interim relief order made by Andrew Kinnier KC, sitting as a Deputy High Court Judge, on 18 April 2024. The judgment does not describe an appeal from that order.