R (Shoaib) v LB Newham [2009] All ER (D) 198 (Jun) [only available as an All ER note as yet] was a Judicial Review of a decision to terminate s.21 National Assistance Act support to Mr Shoaib.
Mr Shoaib had claimed asylum in 2004. His claim had been rejected in 2006 and with it NASS support (as it was then). A fresg asylum claim was made and Newham decided to provide s.21 support. Mr Shoaib suffered from epilepsy. His support was reviewed on a number of occasions. On the last occasion, the social worker, who had not had details of Mr Shoaib’s medical condition provided to him, decided that Mr Shoaib ‘was able to look after himself’ and therefore not in need of s.21 support.
Mr Shoaib sought judicial review on grounds that:
1. the social worker had misdirected himself in law by limiting the definition of care and attention.
2. further investigation should have been carried out into Mr Shoaib’s medical condition. The effect on the frequency, severity and impact of his epilepsy should support be refused had not been properly taken into account.
Held
1. The social worker had not misdirected himself but applied the correct test, i.e. whether the person concerned needed things to be done for him which he could/should not be able to do for himself. There was ample material to indicate the claimant could look after himself.
2. The claimant’s medical condition was not at the serious end of the spectrum and would not have warranted s.21 support even if it had been fully brought to the social worker’s attention.
Claim dismissed.
At various stages it was argued by Newham Legal/their counsel that:
1. In order to qualify for s21 Mr Shoaib would have to demonstrate a need of community care services (other than accommodation).
2. That supervision and monitoring could never amount to “looking after”, alternatively that they could only do so if they were necessary because of mental illness (eg schizophrenia – remember Mr Wahid?)
Judge held that supervision and monitoring could amount to looking after in an appropriate case, even if they arose because of a physical condition such as epilepsy. However he was satisfied the social worker (as opposed to the council’s legal advisors) had applied a suitably wide interpretation to words “looking after”. The assessment found correctly there was no such need in this case.
Proposition (1) is probably correct though certainly insofar as it stresses that an accomodation need itself cannot give rise to the s.21 duty. See R (M) v Hammersmith & Fulham [2008] UKHL 52 – noted by us here: http://nearlylegal.co.uk/2008/08/care-and-attention/
(2) Seems a bit more dicey. What authorities did the LA rely on?
Re proposition (2) the authority relied on was … Newham the local authority. Could you ask for more? Such nonsense was not even argued in Slough (see para 31)
Prop. (1) is also wrong. What a s21 applicant must show is a need for care and attention (now ‘looking after’) which would be unavailable otherwise than by the provision of s21 accommodation. Two important points to note:
(a) the care and attention could be provided by a friend or relative instead of social services. In Mr Wahid’s case it was accepted he was receiving care and attention from his wife (see [2003] HLR 2 at para 33). The reason his claim failed was because he did not have a further unmet needing requiring him to be rehoused.
(b) Far less is ‘care and attention’ restricted to the list of community care services as listed at s46(3) NHSCCA 1990 – it’s looking after in the Hale sense (Slough para 33).
These are important because I fear Newham are not the only authority to misunderstand them.
Thanks Banjo,
Interesting and useful points. I dearly wish we had a full transcript of this one (hint) as the All ER report is cursory at best and we have found the reports to have errors in them in the past.