There has been a spate of recent litigation involving prisoners challenging failure to assess and provide for their community care needs. This follows last year’s reported decision of R (NM) v LB Islington [2012] EWHC 414 (Admin). This year there have been a number of similar claims, including R (R) v LB Tower Hamlets (Admin Court 18 July 2013, Lawtel ref AC9601684) and R (Hall) v Secretary of State and others C0/7083/2013.

The issues in these cases are generally as follows. The claimant is an indeterminate sentence prisoner who has served the tariff part of his sentence and is then detained purely for the purposes of public protection. He will only be released on licence if the Parole Board decide that his risk in the community is sufficiently manageable. The claimant wants the local authority (there may be a dispute as to which local authority is responsible) to conduct a s.47 assessment, determine a care support plan to facilitate his return to the community and/or agree a particular expensive form of placement such as an intensive therapeutic residential care placement.

The local authority’s response may be any of the following: that they are not the correct authority; that the time for an assessment has not arisen yet as the person is in prison and his release is not sufficiently imminent; that it should be the Probation Service who is responsible for his oversight on release into the community; that normal local authority housing is sufficient; and that the expensive intensive therapeutic residential care placement is not necessary and will not be provided.

The litigation is given urgency by the fact that the Parole Board indicate release into the community is a realistic possibility only if there is accommodation and some support in place for the claimant on release. The Parole Board usually ask the local authority to set out in advance its plan for the claimant’s release, or ask for confirmation that the local authority has agreed to fund the expensive residential placement. The claimant claims that the absence of a s.47 assessment or failure to determine a support plan or agree to fund the placement is responsible for the claimant being detained unnecessarily, in breach of Article 5.

The NM v Islington case established that local authorities may be under a duty to complete a s.47 assessment for such prisoners if their release was sufficiently imminent. In the Regan v Tower Hamlets case the court largely rejected the claim and in particular rejected the attempt to force the local authority to fund the expensive placement and to fund education pursuant to leaving care duties, but did recognise that a s.47 assessment needed to be completed in a timely manner, and did require the local authority to at least convey its funding decision to the Parole Board ahead of the Board’s hearing the following week. The Hall case has not been heard yet, but will test the extent to which claimants in such cases can obtain relief for allegedly undue delays in the local authority assessment and decision-making process.

There are many issues still to be worked through in this developing line of litigation. On assessments, there is no absolutely clear line delineating when a person still in prison should have his or her community care needs assessed and a plan made for his accommodation and support on release. As regards provision, it is clear that local authorities only need fund provision which is necessary to meet assessed needs, in accordance with their eligibility criteria. This will very often be far less than that which the claimant feels is necessary to support him or her for life after prison.