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Section 23 Care Act and a need for accommodation


Campbell, R (On the Application Of) v London Borough of Ealing (2024) EWCA Civ 540

This was an appeal from a judicial review of Ealing’s decision in May 2022 to end funding for Mr Campbell’s temporary bed and breakfast accommodation that had been provided by Social Services since 2016. Mr C had been placed in temporary accommodation in Ealing’s area by LB Hillingdon under Part VII Housing Act 1996. Hillingdon then apparently discharged duty. Ealing Social Services then took over funding the accommodation (and various subsequent temporary accommodation) on, they said, the basis that it was “exercising its statutory power under s.19(3) Care Act 2014 to provide care and support in the form of accommodation pending a needs assessment”.

Mr C is partially sighted, has OCD, and suffers from depression. He receives disability living allowance. Care needs assessments were carried out in 2016, 2017 and 2020. All concluded that he had care and support needs “including, managing and maintaining nutrition, maintaining personal hygiene, being appropriately clothed, using his home safely and maintaining a habitable home environment.” Mr C each time declined a care and support package on the basis that it was being provided by his partner and family.

Social Services assisted Mr making an application to join the housing register in 2016 and by 2019 he had Band B priority, the second highest band.

Mr C repeatedly complained that the bed and breakfast accommodation he was now in was unsuitable and in late 2021, brought a claim for disability discrimination, currently stayed.

In April 2022, Ealing told him that it was terminating the funding for the B&B, stating

“My client department has been funding your accommodation at 117 Northcote Avenue Southall for more than 5 years on the understanding that you would, through Ealing Council’s Housing Allocation System, bid for properties for which you were eligible.
You have recently issued court proceedings against my client department and their Housing colleagues.
You indicated in your claim that you are dissatisfied with the temporary accommodation, which my client department has been funding on your behalf for 5 years.
You have made it clear that you wish to live elsewhere, and it had been anticipated given your view about your current accommodation that you would be eager to take steps to bid for properties and pursue other measures available to you to resolve your permanent housing situation.
My client department has done its best to assist you to avail yourself of the resources available to you to resolve your housing issues.
My client department have referred you to agencies to assist you in this regard.
However, you have rejected these offers of assistance and agencies that were initially prepared to assist you have withdrawn their help.

For the avoidance of doubt, I would make clear that your current accommodation was not funded by my client department because of any duty to provide care and support to you under the Care Act 2014.””

The letter then detailed the assistance provided to the Claimant by the Defendant’s adult social services team to help resolve his housing issues and the measures made available to and rejected by him. These included: making sufficient, regular bids for alternative appropriate accommodation through the Locata system; allowing Ealing’s housing team to automatically bid for properties through Locata on his behalf; accepting assistance to make a homelessness application to secure a transfer to alternative temporary accommodation (the letter recorded three occasions when this was declined); or otherwise independently seeking alternative private rental accommodation, the rent for which could be paid by Housing Benefit.

A review of this decision upheld it, and Mr C brought the judicial review claim. This was dismissed, on the basis that Mr C was eligible for housing under either Part VI or VII Housing Act 1996, that section 23 of the Care Act 2014 applied, and so providing Mr C with accommodation was not a care need for the purposes of sections 18 to 20 Care Act.

Section 23 Care Act provides:

“(1) A local authority may not meet needs under sections 18 to 20 by doing anything which it or another local authority is required to do under—
(a) the Housing Act 1996, or
(b) any other enactment specified in regulations.”

The first instance Judge also held Ealing’s decision was not irrational, was not taken for an improper purpose, and was not influenced by the discrimination claim being issued. (Our note here)

Mr C appealed. Permission was only given on the section 23 issue (and in consequence whether Ealing’s decision was irrational).

(In the meantime, Mr C had taken a tenancy with a housing association, but the wider importance of the section 23 point overrode the potentially academic nature of the appeal).

Mr C sought to argue that Part VI Housing Act 1996 – and Mr C being on the housing register and able to bid dd not mean that Ealing was ‘required’ to provide him with accommodation. Nor was Ealing ‘required’ to provide him with accommodation under Part VII – the only obligation was to accept an application, it did not follow automatically that Mr C would be ‘entitled’ to be provided with accommodation.

R (Idolo) v Bromley LBC (2020) EWHC 860 (Admin), (our note) on which the first instance Judge had relied on the section 23 issue, could be distinguished as it concerned someone who already had accommodation but wished to be prioritised for a move to specially adapted accommodation.

Mr C’s position was that of a person in ‘accommodation plus’ need, as per R (Aburas) v London Borough of Southwark (2019) EWHC 2754 (Admin). As Ealing was not required to immediately provide accommodation under Part VI or Part VII, section 23 did not apply.

Ealing argued that Part VI was a scheme of prioritisation and Part VII the homeless duties. Section 23 was intended to prevent the Care Act from interfering with either and subverting their respective schemes of prioritisation.

In any event, Mr C was eligible and in priority need for the purposes of Part VII. He was not in ‘accommodation plus’ need, as he did not need a particular kind of accommodation, indeed his new tenancy was of general needs accommodation.

The Court of Appeal dismissed the appeal.

The Judge in Idolo had found

It is clear that there is an intention in s.23 to give a measure of priority to the general scheme of the Housing Act over the specific scheme of the Care Act. That should not come as a surprise. On the one hand, local authorities face the irresistible force of demand to meet properly assessed needs for adult social care, including needs for decent adapted or adaptable housing. On the other hand, they face the immovable object of limited housing resources, and the housing duties they owe to others in the community. The solution the law appears to provide is that (re)housing needs, even if identified through the Care Act route, cannot shortcut the detailed system of balanced priorities within Housing Act schemes, but must find their proper place within those schemes.

This was precisely right. Mr C’s submissions would remove all meaning from section 23

It is common ground that it is very rare, if not unprecedented, for a local housing authority to be required to provide accommodation to anyone under Part VI of the Housing Act 1996. On the contrary, each authority is not merely permitted but required under s 166A(3) to devise a scheme giving reasonable preference to, among others, “people who need to move on medical or welfare grounds (including on any grounds related to a disability).” Mr Idolo was plainly in such a category but, despite the compelling facts of his case – far more so than those of Mr Campbell – he had no right to be allocated a satisfactory property immediately.

The error was to take what the local authority was ‘required to do’ under Housing Act 1996 as meaning ‘required to provide accommodation’. Section 23

does not refer to a requirement to provide accommodation under Part VI of the Act for the straightforward reason that there is, as Lord Justice Bean explains, no such requirement. Instead there is a requirement, imposed by section 159 of the Act, ‘to comply with the provisions of this Part [i.e. Part VI] in allocating housing accommodation’. The provisions with which the local authority must comply include the framing of an allocation scheme (section 166A(1)), giving ‘reasonable preference’ to certain categories of person (section 166A(3)) and allocating accommodation only in accordance with that scheme (section 166A(14)). Similarly in homelessness cases, the requirement on the local authority is to secure accommodation in cases where the applicant is homeless and eligible for assistance in accordance with the provisions of Part VII of the Act.

Thus what a local authority is ‘required to do under the Housing Act 1996’ is to allocate accommodation only in accordance with its allocation scheme and to apply the provisions of Part VII of the Act to homeless persons.

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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