Joshua Swirsky conducts judicial reviews and other proceedings concerning social care (both adults and children), housing and property-related issues.
Local authorities regularly instruct him in :
- their complex community care cases relating to the interplay between the Housing Act 1996 and the Care Act 2014, funding or age assessments; and
- their more complicated cases in the Court of Protection.
In addition, Joshua does some insolvency, employment and commercial work for a range of clients including companies, individuals, local authorities and insurers.
Joshua is a Recorder sitting in the Crown and County Courts. He is also an accredited mediator with experience of conducting mediations in a wide range of disputes.
If you would like more information about Joshua’s practice, please contact his clerks or call +44 (0)20 7405 6114.
Joshua undertakes judicial reviews and other proceedings in the field of adult social care and arising out of property-related issues. The former includes all aspects of adult social care, the Care Act 2014 (including issues relating to charging and fees), age assessments, disputes regarding the provision of services under the Children Act 1989 (including services to former relevant children), housing policy, general issues relating to governance and Human Rights.
Notable recent cases:
- R(Campbell) v London Borough of Ealing  EWHC 10 Admin. This case established that an adult could not be provided with ordinary accommodation under the Care Act 2014 when he had no needs that could not be met by a local authority performing its ordinary housing functions.
- R(W) v London Borough of Lambeth  EWHC 702 Admin. A case concerning the lawfulness of a local authority’s practice regarding homeless 16-17 year olds who do not want to be accommodated under the Children Act 1989.
- R(BCD) v Birmingham Children’s Trust  PTSR 1277. The case concerned the lawfulness of the local authority’s ‘No Recourse to Public Funds’ policy. The court found the policy to be unlawful because it discriminated under ECHR Articles 14 and 8 by treating British children with Zambrano carers the same way as children of people excluded from benefits save for the purpose of avoiding destitution (Schedule 3 of the Nationality Immigration and Asylum Act 2002.
- R (HAM) v London Borough of Brent –  PTSR 1779 – representing the local authority resisting this challenge to a ‘short-form’ age assessment. It established that Merton compliance could not be demonstrated by the fulfilment of checklists alone. Each case was fact sensitive and what amounted to a fair procedure would depend on its own facts. The case also established that it was not necessary for there to be a minded-to process in every case, nor was it always necessary for an appropriate adult to be present or 2 social workers conducting the age assessment.
- R(Birmingham City Council) v London Borough of Croydon  EWHC 1990 Admin. A case concerning the point when a local authority became responsible for putative children in respect of whom an age assessment was necessary. The Court determined that responsibility did not arise merely because Home Office premises where asylum was claimed were situated within an authority’s area.
- R(Idolo) v London Borough of Bromley  EWHC 860 Admin. In which it was established that s23 of the Care Act 2014 prevented a disabled person from using the provisions of the 2014 Act to obtain an additional preference as regards housing allocations.
Joshua also represented the local authority in Anufrijeva v London Borough of Southwark –  QB1124. This is the leading case on the recoverability of damages for breaches of Article 8 of the European Convention on Human Rights. In this case Joshua Swirsky acted for the local authority defending a claim that it had failed to have regard to the right to family life of an asylum seeker with health problems when it housed her in premises which she and her advisors regarded as unsuitable because of her disabilities. In addition to establishing principles regarding the award of damages, the local authority succeeded on the facts.
Court of Protection and deprivation of liberty
Joshua is instructed in all aspects of Court of Protection practice including:
- personal welfare
- property and affairs
- serious medical issues and
- deprivation of liberty.
He appeared for the local authority in CGM v Luton Borough Council  EWHC 709 (Admin) in which it was established that in an appropriate case a writ of habeas corpus was an appropriate remedy to ensure that a child was not wrongfully deprived of their liberty.
Joshua is instructed in civil disputes involving property, insolvency and employment. He appeared in Boas v Aventure Ltd  EWHC 237 Ch concerning the circumstances when an appellate court will entertain an appeal on the facts.
- BA (Dunelm)