Personal Injury, Serious Injury & Clinical Negligence

Judicial Review Claim – Human Rights and HIV

Adalberto Jesus De Almeida’s case

R (on the application of ADALBERTO JESUS DE ALMEIDA) v KENSINGTON & CHELSEA ROYAL LONDON BOROUGH COUNCIL (2012)

The Administrative Court has declared that the decision of Kensington and Chelsea Council to repatriate Mr Almeida, an EEA national from Portugal who had contacted HIV and Hepatitis C, to be unlawful and that it would be a breach of his human rights under the European Convention on Human Rights (ECHR) if the Council carried out its intention. Specifically the Claimant’s rights under Article 8, right to family life and Article 3, freedom from inhuman and degrading treatment of the ECHR would be breached if he was returned to Portugal.

Mr Almeida had sought support from Kensington and Chelsea Council under s 21 National Assistance Act 1948 after he fell ill and was unable to look after himself or pay the rent on his accommodation. The Council refused to provide assistance, on the basis that there was a scarcity of resources. The Council had concluded that Mr Almeida did not meet the threshold for services and that if he was returned to Portugal the necessary accommodation and support would be available. Mr Almeida gave evidence that his only support network was in the UK and that if he was to return to Portugal he faced imminent death in the company of strangers.

Mrs Justice Lang held that the Council had applied too high a threshold in deciding that Mr Almeida was not in need of care and attention. It was not a pre-requisite of eligibility under s.21(1)(a) that the person was incapable of performing a domestic task himself. In the Claimant’s case it was sufficient that, because of his fragile condition, he reasonably required support with domestic tasks such as shopping, cleaning and cooking. Secondly, the nature of Mr Almeida’s illnesses meant that the level of his fatigue, weakness, pain and secondary infections fluctuated from time to time. It followed that his ability to look after himself also fluctuated and that was not an unusual feature of long-term illnesses. It was irrational for the local authority to have concluded that he was not “in need of care and assistance” when there was ample evidence that he had a continuing need for support in day-to-day living, albeit fluctuating from time to time, depending on the state of his health. Finally, the use of the Fair Access to Care Services risk criteria was not appropriate for assessing whether L was eligible . Mrs Justice Lang also said that “The claimant has a limited life expectancy and so the cost to the public purse is not open-ended”.