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Care and attention v keeping a watch over

SL, R (on the application of) v City of Westminster Council [2010] EWHC 3182 (Admin)

A rolled up permission and substantive judicial review hearing on the issue of whether the local authority owed a duty under s.21 National Assistance Act 1948 (as amended), with the complication that NASS had accepted a duty to accommodate in the meantime.

SL was an Iranian asylum seeker. He sought asylum on the basis that he was gay and faced persecution in Iran. His application was rejected, but he made a fresh application which is not yet determined (and the approach of UKBA may have been changed by HJ Iran v Secretary of State for the Home Department [2010] 3 WLR 386.)

In the interim SL had become homeless and a few months later was diagnosed with severe mental health problems. He was admitted to psychiatric hospital. After some time, he was assessed by a social worker from Westminster. Westminster decided no duty to accommodate SL under s.21 arose. Firstly, SL was not in need of ‘care and attention’ under s.21(1)(a), or that such support as he needed from a social worker was available whatever his accommodation arrangements. Secondly, both s.21(8) which excludes NHS care, and s.21(1A) applied. S.21(1A) provides:

“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.”

While NASS does not have to accommodate all (or indeed many) of those caught by s.21(1A), it acknowledged a duty to accommodate in this case. (The Secretary of State had been an interested party, but had been discharged earlier in the case. NASS’s position had not changed).

The Claimant maintained that the local authority owed a duty under s.21 National Assistance Act and brought a claim for judicial review shortly after the initial decision. Interim relief was granted.

By the time the claim reached hearing, the Claimant’s position was:

That the state of the authorities demonstrates that it was wrong to conclude that the claimant does not fall within section 21(1)(a) of the 1948 Act and also wrong to conclude, in consequence, that the obligation to house the claimant fell upon NASS.

The Court adopted the sequential approach set out in [2002] 1 WLR 2956. Firstly, it must be decided whether s.21(1)(a) is engaged and only then whether the exclusions in s. 21(8) and s.21(1A) apply.

However, in this case, SL’s care needs were being met by the NHS in terms of medication, therapy and occupational therapy, so care and attention was provided other than by means of accommodation:

[the Claimant] seeks to avoid this conclusion by submissions developed, first, by reference to the facts, and secondly by reference to the law. The factual submission is that, if the claimant is not accommodated by the Council, his care needs will significantly increase because he will be on the streets. Thus, whatever the position when the assessment was made, the necessary care would no longer be capable of being delivered without providing accommodation.

The principal difficulty with that submission is that, on the evidence in this case, there was no question of the claimant being homeless. NASS had accepted its responsibility to accommodate the claimant and, as the evidence suggests, were seeking to do so either within Westminster or close to it so as to avoid discontinuity in the provision of medical care. Whatever might be the legal consequences of imminent street homelessness, they do not arise on the facts of this case.[paras 17 & 18]

Further, assistance in this case was being provided outside the home, rather than care being provided in the home as in the Westminster  v NASS case.

The Claimant was infirm, but this was not enough to bring him within the exception to s.21(8) in the Westminster case, as that relied on someone first having passed the s.21(1)(a) test, which was not the case here. Care and attention was available otherwise than by accommodation. On this issue, R (Mani) v the London Borough of Lambeth [2003] EWCA Civ 836 amounted to a reformulation of the test in Westminster v NASS.

As per Lady Hale (as she was) in R (M) v Slough London Borough Council [2008] 1 WLR 1808, at para 36:

“Although M is HIV positive, his medical needs are being catered for by the National Health Service so, even if they did amount to a need for care and attention within the meaning of section 21(1)(a), he would not qualify, but, for the reasons given above, I do not think that they amount to such a need … as he does not fall within section 21(1)(a) it is unnecessary to decide whether he would be excluded by section 21(1A)”.

On the evidence in this case:

In my judgment, it would be more accurate to say that the support that the claimant needs amounts to keeping an eye on him. That is a rather different matter [to care and attention]. It imports the notion that whilst keeping an eye on him, if circumstances change, different or further interventions might become necessary. It is not, however, in my view, care and attention. On this basis also, the claimant fails to establish that he came within the criteria found in section 21(1)(a).

Permission for Judicial Review granted but claim dismissed.

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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