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“Fridges and unseemly turf wars”

 

 The Supreme Court has handed down its judgment in the adult care case, SL v Westminster 2013 which related to whether a Local Authority owed a duty under section 21 of the National Assistance Act 1948 to provide a man who was a failed asylum seeker with accommodation.

 http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2011_0229_Judgment.pdf

 

As the Supreme Court themselves observed, up until the mid to late 90s, there was no suggestion that providing accommodation to failed asylum seekers was going to be the job of Local Authority social services departments, or that it would fall under section 21 of the National Assistance Act 1948 which is really intended to protect people who have health or other vulnerabilities, but that as the Government squeezed immigrants and asylum seekers in other pieces of legislation, those representing them began to turn their attention elsewhere, and section 21 came to be seen as a refuge of last resort to get accommodation for people for whom all other avenues had been cut off.

 

There followed what one commentator called an “unseemly turf war” (Slough, para 28) over responsibility for homeless asylum-seekers as between, on the one hand, local authorities under section 21(1)(a) of the 1948 Act and, on the other, central government under the new national scheme.

 

Parliament tried to engineer a resolution of this turf war by changing legislation, so that section 21 was amended

 

Section 21 of the 1948 Act (as amended in particular by the Immigration and Asylum Act 1999) 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:

(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; and

 (aa) residential accommodation for expectant and nursing mothers who are in need of care and attention which is not otherwise available to them.

(1A) A person to whom section 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…

 

(Sub-section (1B) provides that “destitute” for these purposes is defined in accordance with section 95 of the 1999 Act.)

 

 

And thus, in order to trigger the Local Authority duty to provide accommodation under section 21 of the National Assistance Act 1948, the person must show that they have needs for accommodation that arise OVER and ABOVE just not having accommodation and being destitute, or that their health will deteriorate as a result of not having accommodation and being destitute.

 

[One could of course argue, that failed asylum seeker or not, the State should either provide the person with accommodation or take steps to remove the person from the country, rather than effectively stepping over the destitute person in the street, much like Phil Collins in the Another Day in Paradise video….]

 

The Council in this case were informed of SL’s circumstances – he had fled from Iran fearing persecution over his sexuality in 2006 and his asylum claim was refused in 2007. He attempted suicide in December 2009 and was diagnosed as suffering from depression and post traumatic stress disorder.

 The Council assessed him and considered that  SL needed support and services and that they could provide him with support and services but that he did not require the provision of accommodation as a result of his needs. 

The idea then, would be that it would be central government, rather than local government who needed to provide SL with accommodation. In reality, as know, that doesn’t happen.

 There is a considerable body of cases in which the person had some additional form of physical ailment or disability (for example having only one leg or in the NASS case, spinal cancer) and whether that triggered the s21 duty.

 

 

18. Lord Hoffmann summarised the effect of section 21(1A):

“The use [in section 21(1A) of the 1948 Act] of the word ‘solely’ makes it clear that only the able bodied destitute are excluded from the powers and duties of section 21(1)(a). The infirm destitute remain within. Their need for care and attention arises because they are infirm as well as because they are destitute. They would need care and attention even if they were wealthy. They would not of course need accommodation, but that is not where section 21(1A) draws the line.” (NASS, para 32)

 

The counter argument here, is that suddenly, failed asylum seekers were able to obtain s21 National Assistance Act accommodation if they were able to evidence some health problem or disability, even though that health problem or disability (were they NOT a failed asylum seeker) would NOT have triggered s 21 National Assistance Act accommodation

 

“Mr Pleming said that this case (Mani) demonstrated the absurd consequences of the decision of the Court of Appeal. If Mr Mani had been an ordinary resident, his disability would never have entitled him to accommodation under a statute intended to provide institutions for the old and retreats for the mentally handicapped. His entitlement as found by Wilson J arises simply from the fact that he is an asylum seeker. Such a conclusion is inconsistent with the policy of having a national support system specifically for asylum seekers. Furthermore, the decision undermines the policy of dispersal followed by NASS, which is intended to prevent asylum seekers from gravitating to London boroughs or other local authority areas of their choice. An asylum seeker who can produce a disability, physical or mental, which makes his need for care and attention ‘to any extent more acute’ than that which arises merely from his destitution, can play the system and secure accommodation from the local authority of his choice.” (para 48)

 

 

In the Slough case, the need for “care and attention” arose because the claimant was HIV positive and needed both various prescribed medications and a refridgerator to keep them in.

 

Lady Hale determined that this did not trigger a s21 need for accommodation

 

“I remain of the view which I expressed in R (Wahid) v Tower Hamlets London Borough Council [2002] LGR 545, para 22, 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…” (para 33)

 

When the Court of Appeal considered SL’s case, they determined that the assistance and support that the Council were providing did amount to “care and attention” and that thus the s21 criteria were triggered.

The Supreme Court very neatly summarised the submissions of the various parties on the difficulties and merits or otherwise of SL being a section 21 case

 

Confined to their essentials, the respective submissions can I hope be fairly summarised as follows. Mr Howell submitted that:

i) Monitoring (or assessing) an individual’s condition at a weekly meeting is not itself “care and attention” for this purpose. It is rather a means of ascertaining what “care and attention” or other services (if any) the individual may need in the future.

ii) Care and attention means more than monitoring, or doing something for a person which he cannot do for himself. As Dunn LJ said in the comparable statutory context of attendance allowance (R v National Insurance Commissioner ex p Secretary of State for Social Services

[1981] 1 WLR 1017 at 1023F) the word “attention” itself indicates –

“something involving care, consideration and vigilance for the person being attended… a service of a close and intimate nature.”

iii) On the second issue, the services provided by the council, other than accommodation, could be provided under other statutory provisions; they were therefore “otherwise available”, and thus excluded from consideration by section 21(8) of the 1948 Act.

iv) Alternatively, in line with the reservations expressed by Laws LJ (para 41), and contrary to the decision of the Court of Appeal in Mani, the court should hold that the section applies, not to all those who need care and attention, but only to those who have an “accommodation-related need”, that is those who need care and attention “of a kind which is only available to them through the provision of residential accommodation” (Mani, para 16).

v) In any event, as the judge found, there was no link between any need for accommodation and the services needed by SL, which were being

provided wholly independently of the place where SL was or might be living.

37. Mr Knafler submitted in summary that:

i) “Care and attention” or “looking after” included not only intimate personal care, but any other forms of personal care or practical assistance. It is enough, in Lady Hale’s words, that the council is “doing something” for the person being cared for “which he cannot or should not be expected to do for himself”. Monitoring SL’s mental state was indeed “doing something” for him, and was no different in principle from “watching over” as described by Mr Howell’s concession in Slough.

ii) “Care and attention” is not an “accommodation-related need”. Care and attention can be provided to persons in residential accommodation under section 21(1)(a), and also to persons in their own homes under section 29 or other enactments. Longstanding local authority practice is to provide care and attention in residential accommodation when it can no longer be provided reasonably practicably and efficaciously in a person’s home, or elsewhere, having regard to all the circumstances, including cost.

iii) “Not otherwise available” means, as Laws LJ held, not otherwise available in a reasonably practicable and efficacious way. In this case, SL needed care and attention because he needed accommodation, basic subsistence, personal care and practical assistance. That “package” was not available at all, otherwise than by the provision of residential accommodation. Alternatively, looking simply at the care he needed for his mental illness, and given that he was homeless and destitute, the necessary care was not available to him in any reasonably practicable and efficacious way, otherwise than by providing him with accommodation as a stable base.

 

The Supreme Court concluded this

 

 

44   . What is involved in providing “care and attention” must take some colour from its association with the duty to provide residential accommodation. Clearly, in light of the authorities already discussed, it cannot be confined to that species of care and attention that can only be delivered in residential accommodation of a specialised kind but the fact that accommodation must be provided for those who are deemed to need care and attention strongly indicates that something well beyond mere monitoring of an individual’s condition is required.

 

 

45. Turning to the second issue, and assuming for this purpose that Mr Wyman was meeting a need for “care and attention”, was it “available otherwise than by the provision of accommodation under section 21”? Although it is unnecessary for us to decide the point, or to consider the arguments in detail, it seems to me that the simple answer must be yes, as the judge held. The services provided by the council were in no sense accommodation-related. They were entirely independent of his actual accommodation, however provided, or his need for it. They could have been provided in the same place and in the same way, whether or not he had accommodation of any particular type, or at all.

 

 

 

48   . The need has to be for care and attention which is not available otherwise than through the provision of such accommodation. As any guidance given on this point in this judgment is strictly obiter, it would be unwise to elaborate, but the care and attention obviously has to be accommodation-related. This means that it has at least to be care and attention of a sort which is normally provided in the home (whether ordinary or specialised) or will be effectively useless if the claimant has no home. So the actual result in Mani may well have been correct. The analysis may not be straightforward in every case. The matter is best left to the good judgement and common sense of the local authority and will not normally involve any issue of law requiring the intervention of the court.

 

 

 

I love the continued optimism of the higher courts (as underlined) , here as in cases of designated authority, ordinary residence, section 117 after care funding, mental capacity, whether a young person presenting as homeless is section 20 Children Act, whether the burden of proof increases with seriousness of the allegations, that now that they have given a judgment, that will be the end of all that nonsense, and nobody will ever quibble about the facts of a case and try to put something in one box or another – it will be plain and agreed in all cases exactly which side of the clear bright line the case falls. Nobody need ever argue about it again.

 

It is, in my mind, rather akin, to that unbridled optimism with which the UK Foreign office decided that the best solution to disputed territorial claims was partitioning, which worked so well in Cyprus, Palestine, Berlin, Northern Ireland, (Korea, though the Americans were to blame on that one), Kashmir….        [That list seems to cover most of the world’s trouble-spots and a cynical fool might suspect that there was some correlation there between a sticking-plaster solution and festering wounds later coming to life]

 

 

 

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

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