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‘Not otherwise available’

SL v Westminster City Council & Ors [2011] EWCA Civ 954

This is a significant judgment by the Court of Appeal on the ambit of s.21(1)(a) National Assistance Act 1948. It addresses the interrelation of ‘care and attention’ and the provision of accommodation. While the decision does not follow the Local Authorities’ demand that ‘care and attention’ must be such that it cannot be provided otherwise than by provision of accommodation, it does moderate, or limit, the division of asylum seekers (and failed asylum seekers) into the able bodied, for whom any assistance was only by NASS (now UKBA), and the infirm, who fell under s.21(1)(a).

The High Court judgment in this case (our report here) is overturned on both the meaning of care and attention and the relation of care to accommodation.

Briefly the facts were that SL was a failed Iranian gay asylum seeker. His initial application was refused in 2007. SL became homeless in October 2009. In December 2009, after learning of the death of his partner in an Iranian prison, he attempted suicide. He was an in-patient until April 2010, discharged with a diagnosis of depression and post traumatic stress disorder. The full details of SL’s ongoing condition are in our earlier post, but for the moment it is sufficient to say that he had an acknowledged need for support by the Council in the form of weekly meetings with a social services “care co-ordinator Mr Wyman offers advice and encouragement, and generally monitors the appellant’s condition and progress. He has also been instrumental in arranging contact (or the renewal of contact) with the counselling groups to which I have referred, and the appellant’s “befriender” [a volunteer who amongst other things accompanies SL to activities he enjoys].”

SL also received medical support via prescription, whichis excluded from consideration under s.21(1)(a) by s.21(8) NAA 1948. SL was in accommodation provided by the Local Authority pending the outcome of these proceedings.

SL was granted Indefinite Leave to Remain during the course of this appeal (after the judgment below), which made the appeal academic in his case, but the appeal proceeded as the Court of Appeal decided it addressed broader issues of principle.

Asylum seekers, or failed asylum seekers are, of course, excluded from assistance under the NAA simply because of destitution (or the anticipated physical effects of destitution) by s.21(1A). So the issue is wholly whether SL was in need of ‘care and attention’ under s.21(1)(a) NAA, which reads:

“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.”

In the High Court, the Judge considered that:

“On analysis, Mr Wyman’s input was expected to be limited to a weekly meeting with the claimant to provide social work support. Important though that no doubt is, and has been, to the claimant’s continued well being, my conclusion is that it does not amount to care and attention for the purposes of section 21(1)(a) of the 1948 Act. To suggest that the claimant needs ‘looking after’ would stretch the meaning of those words beyond their proper limit. 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. 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).”

‘Looking after’ was not ‘care and attention’, so the claim failed.The appeal to the Court of Appeal therefore turned on the meaning of ‘care and attention’ and ‘not otherwise available to him’.Westminster argued that the Judge below was right. The support needed by SL did not amount to care and attention and certainly not care and attention that was not otherwise available other than by the provision of accommodation.

SL argued that “the provision of accommodation is reasonably required in order for care to be furnished in a way that fully meets the claimant’s needs”.

The sole judgment of Laws LJ takes a route through the history of s.21(1)(a) cases. It is an interesting review of the history and the particular pressures it has put upon the judgments. The issue is the ‘turf wars’ between local government and national government (via NASS as was) that sprang up after the judgment in R v City of Westminster and others ex p M, P, A and X [Ex p. M] (1998) 30 HLR 10 which held that destitute asylum seekers were entitled to support under s.21 (1)(a). S.21(1A) was introduced precisely to prevent this, stating that:

“A person to whom section s.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.”

The subsequent turf wars over who paid for destitute asylum seekers arguably included such cases as Westminster CC v NASS [2002] 1 WLR 2956, [2002] UKHL 38, W v Croydon, A v Hackney [2007] 1 WLR 3168, [2007] EWCA Civ 266, R v Wandsworth LBC ex p O [2000] 1 WLR 2539, R (Mani) v Lambeth LBC [2002] EWCA Civ 836, and, of course, M v Slough BC [2008] UKHL 52 (our report here) and R (Zarzour) v LB of Hillingdon [2009] EWCA Civ 1529. Laws LJ’s concern is to find a line of precedent, where possible, or, as becomes clear, to find a ‘third way’ which satisfies both statutory language and the demands of precedent in this case.

The meaning of ‘care and attention’ was the less troublesome aspect. The view of Lady Hale in M v Slough ‘has commanded general acceptance’, citing:

I remain of the view which I expressed in Wahid [2003] HLR 2, at para 32, that 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. [M v Slough para 33]

In that case, M, who needed a refrigerator for his medication and access to a doctor, did not need ‘looking after. However, Lady Hale’s formulation should be taken as meaning that ” the level of support provided by the local authority by way of care and attention does not have to attain any particular level of intensity.

SL’s needs were not, as phrased by the Judge below, simply ‘keeping an eye on him’. Instead, the social worker

is doing something for the appellant which he cannot do for himself: he is monitoring his mental state so as to avoid if possible a relapse or deterioration. He is doing it, no doubt, principally through their weekly meetings; but also by means of the arrangements for contact (or the renewal of contact) with the two counselling groups, and with the “befriender”. It is to be noted that care and attention within the subsection is not limited to acts done by the local authority’s employees or agents. And I have already made it clear that the subsection does not envisage any particular intensity of support in order to constitute care and attention. [para 22]

SL was therefore in need of care and attention.

On the even more fraught question of the meaning of “not otherwise available to them”, the turf war has focussed more on policy than the meaning of the statutory language. The result is the lack of an ‘undistributed middle’ between the able bodied and the infirm.

The authorities indicate that there is a need for some kind of nexus between care and attention on the one hand and the provision of accommodation on the other. But the approach taken by the Court of Appeal in R v Wandsworth London Borough Council, Ex p O [2000] 1 WLR 2539 remained the law and had not been changed by the House of Lords in M v Slough. In ex p O, Simon Brown LJ found:

“[I]f 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, despite being subject to immigration control, he qualifies for assistance. Other relevant circumstances include, of course, age, illness and disability, all of which are expressly mentioned in section 21(1) itself. If, for example, an immigrant, as well as being destitute, is old, ill or disabled, he is likely to be more vulnerable and less well able to survive than if he were merely destitute.”

Thus “All members of the first class are covered by s.21(1A), and all members of the second by s.21(1)(a); there is no third class, no undistributed middle. And if all asylum seekers who are destitute and infirm are entitled to the benefit of s.21(1)(a), so are all other persons who are destitute and infirm.”

However, this took no account of the third condition for the subsection to apply – “”the care and attention which is needed must not be available otherwise than by the provision of accommodation under section 21”. There must be some consideration of these words, some address to the ‘undistributed middle’.

The Appellant and Respondent had suggested two ways in which this passage could be understood, “First, it might mean that the necessary care and attention unequivocally requires the provision of residential accommodation. Secondly, it might mean that the provision of accommodation is reasonably required in order for care to be furnished in a way that fully meets the claimant’s needs [SL’s argument]”.

Laws LJ holds for a third interpretation, “that care and attention is not “otherwise available” unless it would be reasonably practicable and efficacious to supply it without the provision of accommodation”.

He does so with some reluctance, noting that the LA argument for a definition that it must be “care and attention of a kind calling for the provision of residential accommodation” hd been rejected in Mani, which was itself referred to without criticism by the Lords in M v Slough, although this did seem to be the closest to the ‘natural and ordinary meaning’ of the statute. On the other hand, the interpretation argued for by SL was too broad for the statutory language – “The subsection’s terms do not suggest a legislative policy by which accommodation is to be provided in order to maximise the effects of care and attention”.

So, the meaning of ‘not otherwise available’ in s.21(1)(a) is “care and attention is not otherwise available unless it would be reasonably practicable and efficacious to supply it without the provision of accommodation”.

In this case, “Given the evidence of the appellant’s condition which was before the council it would […] be absurd to provide a programme of assistance and support through a care co-ordinator without also providing the obviously necessary basis of stable accommodation.” The Judge below was not right to find that the ‘care and attention’ was available otherwise than by the provision of accommodation.

Appeal allowed.

Comment
It is largely true that the ‘battles’ over s.21(1)(a) and s.21(1A) had centred on the meaning of ‘care and attention’ and the policy of the exclusion of the ‘able bodied’ asylum seekers by S.21(1A). Given the nature of those battles, the significance of ‘not otherwise available’ as a condition of the provision of residential accommodation was rather in the background. Pace Lord Brown in M v Slough “”The word ‘solely’ in the new section [sc. s.21(1A)] is a strong one and its purpose there seems to me evident. Assistance under the 1948 Act is, it need hardly be emphasised, the last refuge for the destitute. If there are to be immigrant beggars on our streets, then let them at least not be old, ill or disabled”. But this has been, at least in part, because where there is a need for care and attention, the need for accommodation (for the homeless and destitute) has been pretty clearly evident.

While Laws LJ’s evident preference for the interpretation that accommodation must be required by the care and attention, although not open to him on the precedents, is perhaps worrying for applicants, the ‘third way’ formula he adopts is probably likely to be satisfied without too much trouble in most cases. Note the finding in respect of SL. Where an asylum seeker or failed asylum seeker is homeless and destitute, it is hard to see any form of care and attention which would qualify under s.21(1)(a) that could be reasonably and practically provided otherwise than by way of provision of accommodation. Note that the availability of NASS/UKBA accommodation cannot be taken into account. The ‘necessary basis of stable accommodation’ for providing care and attention will be a key factor.

Nonetheless, it is a limiting factor on provision of assistance under s.21(1)(a) and one which now has a test set down for it.

The Court’s finding on ‘care and attention’ the finding that it amounts to ‘do something for a person that they cannot do themselves’ and that this support does not have to attain any particular level of intensity is a clear marker, after the High Court decision in this case, that the Council (and indeed the court) should not impose an additional condition of severity.

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.

5 Comments

  1. Jackie Roberts

    This case is potentially really great news for some of the clients I work with and I’m wondering who will be eligible for care and attention from social services.

    All clients have symptoms of PTSD and destitution is highly likely to exasperate these symptoms, some have a psychiatric history after serious suicide attempts and some do not, even though there is often suicidal ideation.

    I see clients for psychotherapy, which meets one need but not all, and often social services support is required in addition to psychotherapy. Also, if a client becomes destitute it is unlikely that they would be able to attend for regular psychotherapy as they would not have the means to travel.

    Would these clients be eligible for support under NAA in view of the court of appeal case? And if so, would accommodation be provided, even if there is the possibility of S4 UKBA accommodation?

    SL argued that “the provision of accommodation is reasonably required in order for care to be furnished in a way that fully meets the claimant’s needs”.

    Reply
    • NL

      If the psychotherapy is provided by the NHS, it would not count for s.21 NAA ‘care and attention’ purposes.

      On the other hand, my understanding is that if ‘care and attention’ is needed, then the availability or otherwise of UKBA accommodation should not be taken into account in assessing whether accommodation should be provided in consequence.

      Reply
  2. Jackie Roberts

    Thanks for your reply. The psychotherapy is provided by the Helen Bamber Foundation. Although, due to the complex needs of the clients other support is required, mental health services, home treatment teams etc.

    It has been very difficult arguining in the past that care and attention is needed (based on psychological health).

    Reply
  3. chief

    Westminster’s appeal to the Supreme Court is to be heard by Neuberger, Hale, Mance, Kerr & Carnwath on 28 & 29 January 2013.

    Reply
    • chief

      Judgment is next Wednesday, 9 May.

      Reply

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