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Care and Attention


R (on the application of M) (FC) (Respondent) v Slough Borough Council [2008] UKHL 52 is a House of Lords case concerning Local Authority obligations under the National Assistance Act 1948, and specifically when the authority is obliged to arrange and pay for accommodation.

The facts of the case are that M, a 42 year old Zimbabwean, subject to immigration control and HIV positive had applied to Slough BC for assistance under the National Assistance Act. He has subsequently become eligible for housing assistance by NASS, pending an appeal against return.

M’s needs stated needs are

other than for a home and subsistence, are for medication prescribed by his doctor and a refrigerator in which to keep it.

At judicial review and Court of Appeal, it was held that the need for medication and regular medical assistance amounted to a need for ‘care and attention’ for the purposes of s.21(1)(a) NAA 1948 (as amended). The Council appealed.

The lead judgment is by Baroness Hale, who rehearses the history of the NAA and in particular the interaction with immigration law after R v Hammersmith and Fulham London Borough Council, Ex parte M (1997) 30 HLR 10

S.21 now states:
Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing:
(a) residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them; and
(aa) residential accommodation for expectant and nursing mothers who are in need of care and attention which is not otherwise available to them.

As amended by the Immigration and Asylum Act 1996, s.21(1A) of the NAA now states:
A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely –
(a) because he is destitute; or
(b) because of the physical effects, or anticipated physical effects, of his being destitute.

s.21(1B) states:
For the purposes of this section, a person is destitute if –
(a) he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or
(b) he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs.

The Court of Appeal decision in R v Wandsworth London Borough Council, Ex parte O, R v Leicester City Council, Ex parte Bhikha [2000] 1 WLR 2539 held that

if an applicant’s need for care and attention is to any material extent made more acute by some circumstance other than the mere lack of accommodation and funds, then . . . he qualifies.

However, as NASS support for care needs beyond accommodation is only available if the asylum seeker has no other support available to them, and support is technically available under s.21(1)(a), the result was an “inverted and unseemly turf war between local and national government”.
In R (Westminster City Council) v National Asylum Support Service [2002] 1 WLR 2956 the House of Lords held that where it was only because of the lack of the applicants own accommodation that the care and attention they needed was not otherwise available to them, this fell under s.21(1)(a). And so to the current case and the meaning of ‘care and attention’.

Baroness Hale did not accept the Council’s view that this meant that the person needed someone else to look after him because there were things that he could not do for himself.

So the “care and attention” which is needed under section 21(1)(a) is a wider concept than “nursing or personal care”. Section 21 accommodation may be provided for the purpose of preventing illness as well as caring for those who are ill.

But care and attention must mean something more than accommodation. Baroness Hale’s preferred definition is as follows:

the natural and ordinary meaning of the words “care and attention” in this context is “looking after”. Looking after means doing something for the person being cared for which he cannot or should not be expected to do for himself: it might be household tasks which an old person can no longer perform or can only perform with great difficulty; it might be protection from risks which a mentally disabled person cannot perceive; it might be personal care, such as feeding, washing or toileting. This is not an exhaustive list. The provision of medical care is expressly excluded. Viewed in this light, I think it likely that all three of Mrs Y-Ahmed, Mrs O and Mr Bhikha needed some care and attention (as did Mr Wahid but in his case it was available to him in his own home, over-crowded though it was). This definition draws a reasonable line between the “able bodied” and the “infirm”. [para 34]

She recognises that this should include ‘the anticipated physical effects of destitution’ for future care needs, but there must be a need for some care and attention at the point of application. [para 35].

In the present case, the applicant’s medical needs were being met by the NHS. He was not sick or infirm so long as those needs were being met and there was no development in his condition. He therefore did not fall under s.21(1)(a).

Lord Brown concurs and adds:

The looking after required does not have to be for either nursing or personal care. It must, however, be of such a character as would be required even were the person wealthy. It is immaterial that this care and attention could be provided in the person’s own home if he had one (as he would have if he were wealthy). All that is required is that the care and attention needed must not be available to him otherwise than by the provision of section 21 accommodation. […]

(ii) Should the person’s need for care and attention be regarded as having arisen “solely because he is destitute”?

This question only arises once it is established that the person has a need to be looked after—a need beyond merely the provision of a home and the means of survival. If a person reaches that state purely as a result of sleeping rough and going without food, as envisaged in R v Hammersmith and Fulham London Borough Council, Ex parte M (1997) 30 HLR 10 (“Ex parte M“) at p.19, then clearly the need for care and attention will have arisen solely from destitution. If, however, that state of need has been accelerated by some pre-existing disability or infirmity—not of itself sufficient to give rise to a need for care and attention but such as to cause a faster deterioration to that state and perhaps to make the need once it arises that much more acute—then for my part, consistently with the views I expressed in the earlier cases, I would not regard such a person as excluded under section 21(1A). [para 40]

As to responsibility for provision of accommodation to destitute asylum seekers, he adds at para 41.

Surely the question to be asked is rather whose responsibility it is to provide accommodation and subsistence to destitute asylum-seekers before any such deterioration occurs and by reference, therefore, only to whatever particular disability or infirmity the person already suffers. Only if they already need section 21 care and attention is the local authority responsible; otherwise the responsibility falls on central government.

Lord Brown expressly notes his change of mind from his view in the Court of Appeal decision in Ex Parte Mani.

Lord Neuberger also agrees and adds:

It would seem wrong to extend a duty owed to a person who satisfies a statutory requirement to a person who currently does not satisfy the requirement simply because he will or may do so in the future. I should add that, as a matter of practicality, humanity and common sense, this cannot mean that a local authority is required to wait to act under section 21 until a person becomes seriously in need, however close and inevitable that serious need may be, and however much the authority reasonably wants to assist at once. The section must contemplate that a local authority can act, where it reasonably considers it right to do so, as soon as a person can be said to be in need of some care and attention, even to a relatively small degree.[para 55]

So, a prospective need for care and attention does not engage s.21(1)(a). The interpretation that the words ‘not otherwise available to them’ refer to ‘care and attention’ not ‘residential accommodation’ is confirmed.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


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