Campbell, R (On the Application Of) v London Borough of Ealing (2023) EWHC 10 (Admin)

This judicial review concerns the relationship between the Care Act 2014 and housing legislation, in particular the effect of s.23 of the Care Act 2014, which prevents care and support needs being met through a local authority doing anything it is required to do under the Housing Act 1996. The Claimant, Mr Campbell’s, claim was rejected, and he had to seek accommodation under the Housing Act. The local authority Defendant, Ealing Council, could not continue to provide or fund temporary accommodation under the Care Act.

Facts
The Claimant was first accommodated in the Defendant’s area by LB of Hillingdon under Part VII of the Housing Act 1996 (the Housing Act). After eviction for non-payment of rent, he was accommodated by Hillingdon in a hotel in Southall. Hillingdon treated its housing duty as having been discharged in Feb 2016, after which the Defendant took over the funding of the accommodation. It took this step in exercise of its discretion under s.19(3) of the Care Act 2014 (the Care Act) whilst it carried out an assessment of the Claimant. The assessment identified eligible domiciliary needs, and it planned to make direct payments to meet these. The Claimant declined because he was being looked after by his family.

The Claimant moved again in July 2016, and in October 2016 he moved to the property he was in at the time of the hearing, temporary accommodation in the PRS. A reassessment of the Claimant’s needs was completed that October, and he was again found to have eligible needs. There was discussion with social services regarding the Claimant being assisted to bid for accommodation under Part VI of the Housing Act, and did receive support to do this. The Claimant’s care and support needs were assessed as including managing and maintaining nutrition, using his home safely and maintaining a habitable home environment, among other things.

The Claimant had made three applications for homeless assistance to the Defendant, but each time the application did not reach a conclusion. He was placed at Band B under their allocation scheme, and had made numerous bids, he had also received and rejected direct offers.

The Defendant wrote to the Claimant on 28/02/22, telling him that it would withdraw funding for his accommodation from 25/04/22. The main grounds of challenge in the JR were that the Defendant erred in concluding that it did not owe a duty to provide, or to fund, accommodation under the Care Act, or in failing to conduct a proper assessment addressing whether it owed such a duty. The decision was also said to be irrational, taking account of irrelevant matters and failing to consider relevant ones, and taken for an improper purpose. It was further alleged that it breached the Equality Act 2010 in that it amounted to victimisation contrary to that legislation.

Legislation
The Care Act provides a single statutory scheme for the provision of social care to adults, supported by regulations and statutory guidance. The Care Act sets out a series of steps whereby an applicant’s needs are assessed (s.9), care and support needs, if any, are identified and those needs assessed against the eligibility criteria set out in the Care and Support (Eligibility Criteria) Regulations 2015. If an eligible need is identified, the local authority has a duty to provide the support if, among other things, the person is ordinarily resident in their area, or present in their area but of no settled residence (s.18). If a carer is willing and able, the local authority does not need to intervene. Section 19 provides a power for the local authority to meet an adult’s needs in circumstances where there is no s.18 duty. Examples of how needs may be met are set out in s.8(2) and include: providing a service, arranging for a person to provide a service, and by making direct payments. The local authority must also draw up a care and support plan (ss.24-25).

S.23 of the Care Act, headed: “exception for the provision of housing etc.” provides that an authority: “may not meet needs under ss. 18-20 by doing anything which it or another local authority is required to do under – (a) The Housing Act 1996, or”

Paragraphs 30-33 of the judgment set out the principles of how to apply for accommodation under Part VI and Part VII of the Housing Act 1996, with a focus on how an applicant’s vulnerabilities should be considered by the local authority.

Judgment
Judge O’Connor held that the central issue in the case was the lawfulness of the Defendant’s funding of the Claimant’s accommodation under the Care Act. It is well established that a need purely for accommodation is not a need for care and support under the Care Act: R(GS) v Camden [2016] EWHC 1762 (Admin), our note here, and subsequent authority. Section 8 of the Care Act sets out examples of what type of accommodation may be provided, such as accommodation in a care home “or in premises of some other type”. This is subject to s.23, the prohibition set out above in relation to the Housing Act.

The judge considered the purpose and effect of s.23 by reference to the case of R(on the application of Idolo) v Bromley LBC (2020) EWHC 860 (Admin), (2021) HLR 17, our note here. In that case, the Claimant alleged delay on the local authority’s part due to the time it took to rehouse him after an assessment that his care and support needs could not be met where he was. It was argued that, owing to the significant care and support needs of the Claimant, and the route to accommodation available through the Care Act, the local authority should have acted under those powers.  The claim was dismissed, because the judge found an intention in s.23 to give a measure of priority to the general scheme of housing legislation over the specific scheme of the Care Act. This recognised the need for balanced priorities and the need to ensure fair allocation of scarce resources.  It also respected the detailed provisions of the Housing Act 1996 and the ways in which it sought to balance competing demands, in addition to care and support, such as overcrowding:

48. That is not a conclusion reached simply by extrapolation from s.23 of the Care Act. It is also suggested by s.166A of the Housing Act. Subsection (3) of that section requires housing schemes to be framed so as to secure that “reasonable preference” is given to certain categories of people including the homeless and “people who need to move on medical or welfare grounds (including any grounds relating to a disability)”, whether or not, presumably, that need itself technically amounts to ‘homelessness’ under s.175(3). This is a clear housing duty. The council’s housing prioritisation scheme has to discharge that housing duty. Section 23 ensures that the Care Act does not cut across that duty, or that scheme of priority.

49. Of course, it is the priority need for a (suitable) home which the Housing Act duty addresses. It does not address adaptations or other care and support needs. However, a “need to move” on medical, disability or welfare grounds
must be given some meaning in terms of the Housing Act duty. It cannot mean less than that those grounds point to a particular, and different, kind of accommodation from that occupied (or, under s.175(3), that a home has become
unsuitable in a relevant way). So, it has at least to address such “ordinary” housing issues as size and suitability for family life, location, and perhaps also other “liveability” factors (accessibility and adaptability to other care and support needs). If no adaptations had been needed by Mr Idolo, it is hard to see why his primary need for three bedrooms and ground floor access would not engage the Housing Act duty. The addition of further needs for adaptability and adaptations does not obviously alter that.

Counsel for the Claimant in this case argued that the better interpretation was found in the case of R(Aburas) v LB Southwark (2019) EWHC 2754 (Admin), at para 6(i), not referred to in Idolo, external article here.  That application, dismissed by Judge Fordham, concerned a refused asylum seeker who could have sought accommodation through the immigration legislation.  The Claimant argued that his eligible care and support needs concerned the provision of care and support that would normally be provided for in the home, and therefore he needed accommodation.  In distinguishing that case, Judge O’Connor held that it was not directly concerned with s.23 (there is only one reference to that section in the judgment) and comments on when accommodation was required to ensure that it was possible to deliver care and support needs, were obiter. As a refused asylum seeker, the Claimant would not have been eligible for accommodation under the Housing Act 1996, so there could not have been the same problem with the application of s.23 in that case.

Comment
Where there is an application or even an identified need for housing under either Part VI or VII of the Housing Act 1996, it would be very hard to argue against the express language in s.23.  If an applicant is struggling to regularise their housing position due to an eligible need, an assessment should be made and Care Act support provided.  Where s.23 is not engaged, the judgment confirms that it is possible to provide accommodation under the Care Act, but those powers are limited.  The most likely circumstances in which a local authority can exercise them is where the person with eligible needs can only meet them if accommodation is also provided, likely to be in an institutional setting.  It could also assist those with care needs who cannot get accommodation under the Housing Act because of their immigration status.