When does the refusal to provide accommodation to an applicant breach Article 3?

In R (GS) v Camden LBC [2016] EWHC 1762 (Admin), the High Court was required to consider whether a Swiss national, who was not present in the UK lawfully, was entitled to accommodation under the Care Act 2014 or, alternatively, whether Camden were obliged to provide accommodation under s.1, Localism Act 2011 to avoid a breach of Article 3 of the European Convention of Human Rights. The result – which was positive for GS – is potentially of considerable assistance for similar people.

Factual background

GS was born in Afghanistan, but became a Swiss national in 2006. She had physical and mental health problems and was wheelchair dependent. Between 1992 and 2011 she was accommodated and supported by the Swiss state. In 2011, she left her accommodation after she had been raped and slept in Zurich airport. In 2013, she came to the United Kingdom and lived in Heathrow airport for six months before being admitted to hospital. After leaving hospital she moved into a hostel and applied to Camden for accommodation under s.21, National Assistance Act 1948. Camden found that she was ineligible for assistance under the 1948 Act and offered her money to return to Switzerland. However, Camden subsequently decided that GS was eligible for assistance after she was assessed as having a persistent delusional disorder and therefore lacked capacity to decide whether to return to Switzerland. Camden continued, save for a period when GS was in Canada and hospitalised, to provide accommodation under s.21 until October 2015 when an assessment was carried out under the Care Act 2014. Camden decided, as a result of that assessment, that GS did not have a need for care and support under the 2014 Act: Camden were satisfied that while she suffered from a mental disorder this did not prevent her from being able to achieve two or more outcomes as prescribed by the Care and Support (Eligibility Criteria) Regulations 2015. A need for accommodation was not a need for care and support.

GS challenged that decision on the grounds that her need for accommodation amounted to care and support within the meaning of the 2014 Act and, in any event, that if she were not provided with accommodation this would result in a breach of Article 3, ECHR.

The Care Act 2014

Before considering the case in detail it is first necessary to set out the circumstances in which a duty under the Care Act 2014 arises. Where, after an assessment, a social services authority is satisfied that an adult has needs for care and support, and that such needs meet the eligibility criteria, the local authority must meet that adult’s needs if the adult is ordinarily resident in the authority’s area or is present in its area but of no settled residence and the adult’s accrued costs exceed the cap on care costs: Care Act 2014 ss 9, 13 and 18. Meeting an adult’s needs may include the provision of accommodation in a care home or in premises of some other type: Care Act 2014 s8(1)(a). However, an authority may not meet a person’s needs by doing anything which it or another local authority is required to do under Housing Act 1996: s23(1).

An adult’s needs meet the eligibility criteria if the adult’s needs arise from or are related to a physical or mental impairment or illness and as a result of the adult’s needs the adult is unable to achieve two or more outcomes prescribed by regulations and as a consequence there is, or is likely to be, a significant impact on the adult’s well-being: Care and Support (Eligibility Criteria) Regulations 2015, reg2(1-2).

Is a need for accommodation a “need for care and support”?

Under s.21, National Assistance Act 1948 both the House of Lords and the Supreme Court had held that a need for accommodation was not sufficient to engage the duty; the duty to provide accommodation only arose if the need for care and attention, which was a need to be looked after, was for services that were not otherwise available unless residential accommodation was provided: M v Slough BC [2008] UKHL 52 and R (SL) v Westminster CC [2013] UKSC 27.

GS sought to argue that neither M or SL should be followed because they concerned a different statute and the words under the 1948 Act and 2014 Act were different. Accordingly, a need for care and support, as opposed to care and attention, could include a need for accommodation. This was rejected by the High Court; a need for care and support, as under the 1948 Act, meant more than a need for accommodation. The fact that accommodation could be provided by an authority under s.8 to meet a need for care and support did not mean that a need accommodation was a need for care and support.

In this case that meant that GS’ need for accommodation did not give rise to a need for care and support so as to trigger the obligation to provide her with accommodation. As she did not otherwise satisfy the eligibility criteria an obligation under the Care Act 2014 did not arise.

The Localism Act 2011

GS’s alternative argument was that Camden were under a positive obligation to exercise its power under s.1, Localism Act 2011 to provide GS with accommodation as to do otherwise would result in a breach of Article 3 or Article 8 of the Convention. The High Court held that

“Taking into account the entirety of the Claimant’s circumstances including her potential social isolation, physical disabilities, pain, mental health condition and the physical difficulties that she encounters it is my judgement that if she were to become homeless then there would be a breach of article 3.”

She would become homeless because she could not afford, on the income she received from a Personal Independence Payment, to pay for accommodation. Although the High Court recognised that the lack of accommodation was not of itself sufficient to engage Article 3, in GS’s case it did so because the lack of accommodation had in the past exacerbated her mental conditions, which included suicidal ideation. This meant that Camden was obliged to provide GS with accommodation in the exercise of its power under s.1, Localism Act 2011.

Comment

This is a potentially a very significant decision (which the judge does not appear to have appreciated in his judgment) and could apply to a great number of disabled people who are currently not entitled or eligible to be provided with accommodation under either the Care Act 2014 or the Housing Acts because of their immigration status.

It is, however, a frustrating judgment, because it will, largely by the way it has been written, be relatively easy to distinguish. The most frustrating thing is that the judge did not actually set out very much of the authority’s assessment in the body of the judgment. It is therefore not entirely clear why Camden were of the view that GS’s rights under Article 3 would not be breached if she was not accommodated. Nor is it clear whether Camden remained of the view GS was unable to return to Switzerland. It would be surprising if they did because she appears to have traveled freely to Canada after this judgment was initially reached and there had been a number of assessments that followed from that earlier decision. However, none of that is made clear in the judgment.

This is important because it is now reasonably settled law that an authority can decide not to provide accommodation and support to an applicant, even that would result in them suffering inhumane treatment in the UK, if the authority are satisfied that the applicant can return to their country of origin. This even applies if the level of care that they would receive in that country is far below what is provided in the UK. The sole exception appears to be where the applicant is close to dying and there is insufficient care available in the returning country to enable the applicant to die with dignity: N v Secretary of State for Home Department [2005] UKHL 31; [2005] 2 AC 296 and N v UK (2008) 47 EHRR 885. For example, in R (P) v Camden LBC [2004] EWHC 55 (Admin), it was held that an authority’s refusal to provide support under s.21 to a US national who was mentally ill did not breach Article 3 because he was able to obtain the necessary support in the US. Whereas in R (De-Almeida) v RBKC [2012] EWHC 1082 (Admin); (2012) 15 CCL Rep 318, the High Court held that at it would be a breach of Article 3 not to provide a Portuguese national with accommodation under s.21 because his illness had developed to such a critical stage that he would, in practice, be unable to take the necessary steps to obtain accommodation and the benefits he required, and was entitled to, in Portugal.

Unfortunately, the judgment does not consider or analyse any of those authorities or a number of others (despite appearing to have been referred to them). It is therefore not clear what his reasons for distinguishing them (if he needed to) were.

It will be interesting to see whether Camden appeal. If they were to do so no doubt GS would appeal against the decision concerning Camden’s obligations under the Care Act 2014. This would be particularly welcome as it is not at all clear whether the 1948 Act cases can simply be transposed over to the Care Act 2014 as was argued in this case and in R(SG) v London Borough of Haringey [2015] EWHC 2579 last year.

About S

S is a barrister, based in London, who practices predominantly in housing and local government law.
Posted in Community care, Homeless, Housing law - All.

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