Safe as houses: SL v Westminster County Council

The Court of Appeal has clarified the circumstances in which ?social services departments owe a duty to provide accommodation and support to adults who are in need of care and attention.

Under section 21 of the National Assistance Act 1948 (‘the Act’), local authorities owe a duty to make arrangements for providing residential accommodation to adults who are in need of care and attention (by reason of age, illness, disability or any other circumstance) which is not otherwise available to them.

This duty arises, for example, when an elderly or frail individual can no longer remain in his or her own home and needs to be accommodated in a care home. It also arises for those individuals in need of care and attention who do not have accommodation otherwise available to them. This would include those excluded from the Housing Act 1996 (due to, for example, lack of priority need and/or intentional homelessness) as well as asylum seekers and failed asylum seekers, where those individuals are in need of care attention or ‘looking after’.

In R(SL) v Westminster City Council [2011] EWCA Civ 954, the appellant was an asylum seeker from Iran who arrived in the UK in 2006. He sought asylum on the basis that he had been persecuted due to his homosexuality. He became homeless in October 2009 and, in December 2009, after learning of the death of his partner in an Iranian prison, he attempted suicide and was admitted to hospital as an in-patient where he was diagnosed as suffering from depression and post-traumatic stress disorder.

These proceedings arose out of his contention that, on discharge from hospital in April 2010, he required accommodation and support from Westminster social services under ?section 21 of the Act.

The application was dismissed by Burnett J at a rolled-up hearing on 15 November 2010. On appeal, the Court of Appeal (Laws, Richards and Rimer LJJ) identified two questions for consideration:

1. What is the definition of “care and attention” in section 21(1)(a)?

2. What is the meaning of the words “not otherwise available” in the same subsection, i.e. what nexus is required between the care and attention needed and the provision of accommodation?

These questions concern the eligibility, not only of asylum seekers, for social services accommodation and support, but also for anyone else, including British citizens, who requires residential accommodation.

The statutory framework

So far as material, section 21(1) of the ?Act provides:

(1) 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 residential accommodation for persons 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.

?The Department of Health’s Circular in LAC (93) 10 provides the general direction envisaged in section 21(1) and converts the power into a duty on local authorities to make arrangements under section 21(1) in relation to adults who are ordinarily resident in the authority’s area and other adults in urgent need of residential accommodation.

It is important to note in this context that residential accommodation is not limited to care home accommodation, but extends to ‘normal’ housing.

Meaning of “care and attention”

The Court of Appeal held that:

• SL’s identified needs amounted to a need for care and attention under section 21. This is significant and amounted to a reversal of the decision in the lower court, where the judge had held that the services the local authority had assessed SL as needing did not amount to the provision of ‘care and attention’.

• The services SL was receiving from his social worker at his community mental health team amounted to ?‘care and attention’ as his social worker was doing something for him which he could not do for himself, namely monitoring his mental state so as to avoid, if possible, a relapse ?or deterioration.

The services involved weekly meetings with his social worker as well as making arrangements for him to receive counselling and the services of a befriender through voluntary sector groups. In reaching this decision, the court held that the judge at first instance, who had found that SL was not in need of care and attention, had understated the nature of the support provided by the local authority through SL’s social worker.

• Care and attention is not limited to acts done by the local authority’s employees or agents, which is why services provided by two counselling groups and by a befriender could qualify as care and attention.

• The legislation does not envisage any particular threshold or intensity of support in order to constitute care ?and attention.

Meaning of ‘not ?otherwise available’

The judgment notes that previous cases have identified a division between two classes of asylum seekers, the able bodied and the infirm destitute. All members ?of the first class are excluded from ?support pursuant to the provisions of section 21(1A). All members of the second class are covered by section 21(1)(a) and are eligible for support. There is no middle ground.

The court found that not allowing for a middle category would give no weight to the words ‘not otherwise available’ which implies a requirement for a nexus between the need for care and attention and the need for accommodation. The court held that a duty to accommodate arises if the care and attention required is not otherwise available unless it would be reasonably practicable and efficacious to supply it without the provision of accommodation.

Applying this formulation, the court found that the question “admits of ?only one sensible answer”, namely that ?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”.

This was a reversal of the decision of the lower court. The High Court’s decision was that not only was SL ineligible, but that any individual with a need for care and attention where his or her care needs could be met outside of the accommodation would not be entitled to section 21 accommodation.

Freedom from Torture and Mind were given permission to intervene by way of written submissions. Their evidence focused, inter alia, on the extent to which many services provided to those with mental health needs are unable to be effective without that individual having stable and safe accommodation.

The judgment provides the most significant clarification of the law in this area since the House of Lords decision in R(M) v Slough Borough Council [2008] UKHL 52. However, the City of Westminster was recently granted permission to appeal by the Supreme Court with the case to be heard by the Supreme Court in January 2013.

The Draft Care and Support Bill (Cm8386), which was presented to parliament in July 2012 would have the effect of repealing section 21, thus apparently removing the exception that assessments for eligibility for section ?21 accommodation currently fall ?outside the usual eligibility criteria as mentioned above in the context of the Almeida case.

 

• Although the judgment is most useful in clarifying and defining the duties owed to those with a need for care and attention arising from mental health difficulties, it is of sufficiently wide application to provide useful guidance for all cases concerning eligibility for accommodation pursuant to section 21.
• The care and attention SL was assessed as needing, namely weekly meetings with a social worker, counselling services and a befriending service, were found by the Court of Appeal to require the provision of accommodation in order ?that the services could be provided practicably and efficaciously. That gives ?a clear indication of the threshold at which the Court of Appeal expects this ?test to be applied in other cases. 
• The services are not limited to those provided by the local authority’s employees or agents, but can include services provided by voluntary organisations (such as, in SL’s case, services from counselling groups and the services of a befriender).
• There is no de minimis for the types of services which would amount to a need for care and attention, i.e. no particular intensity of support is required. In this context, the Department of Health’s Guidance on Eligibility Criteria for Adult Social Care 2010 (which replaced the Fair Access to Care Services guidance) which provides for eligibility to be divided into four bandings of need (namely critical, substantial, moderate and low), has no application to section 21. 
• Local authorities which, for example, restrict the provision of services to those with critical or substantial needs sometimes seek to apply their eligibility criteria to argue that someone assessed with a moderate or low need is ineligible for section 21 accommodation. This is unlawful, as clarified in the recent High Court judgment in R(Almeida) v Royal Borough of Kensington and Chelsea [2012] EWHC 1082 (Admin).
• The test for the necessary nexus between care and attention and accommodation is whether or not it would be “reasonably practicable and efficacious” to supply the services the person is assessed as needing without ?the provision of accommodation. In effect, if it would be impracticable to provide the necessary services without the provision of accommodation and if those services would also not be effective without the provision of accommodation, then a duty is triggered. 
• This is of obvious significance for anyone whose need for care and attention ?is of the type which is generally provided outside of his or her accommodation but who requires accommodation in order to access those services and for ?them to be effective.

Victoria Pogge von Strandmann is ?a solicitor at Maxwell Gillott Solicitors and was instructed by Freedom ?from Torture on a pro bono basis ?in its written intervention in the ?Court of Appeal