England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH
DIVISION (ADMINISTRATIVE COURT)
(HALLETT, J.)

		Royal Courts of Justice Strand, London, WC2A 2LL Thursday 28th June 2001

LORD JUSTICE MANCE:

Introduction and factual outline

1. This appeal from a decision of Mrs Justice Hallett dated 1^st December 2000 concerns the nature and extent of a local authority's duty to provide community care services to a person in need of such services, in circumstances where the services offered by the local authority differ from those considered appropriate by the person in need, or those representing her interests. The appeal is brought by Mrs Khana, through her next best friend, the Official Solicitor, against Southwark Borough Council ("Southwark"). Her husband, Mr Karim, was party to the application below, but does not appeal. The appeal relates to decisions by Southwark offering accommodation and care in a residential home first to Mrs Khana (letter dated 2^nd March 2000) and then to Mrs Khana and Mr Karim (letter dated 23^rd May 2000). Mrs Khana by this appeal maintains that Southwark ought to be offering her and her husband a two-bedroom ground floor flat, which they could then share with their daughter, Ms Kazal, with whom they presently share a one bedroom second floor flat.
2. Mr Karim and Mrs Khana have been in the United Kingdom since 1998. Previously they lived in Iraq. A condition of their leave to enter was that they should have no recourse to public funds. Their sponsors were a grandson and the (later estranged) husband of their granddaughter, Nazanin, both of whom ceased to provide support by September 1999. In these circumstances, Mr Karim and Mrs Khana were not and are not eligible for income support or housing benefit. But they continue to be eligible for community care services, where necessary, under Part III of the National Assistance Act 1948. Ss. 21(1)(a) and 29 of the 1948 Act (read with s.2 of the Chronically Sick and Disabled Persons Act 1970) are in this case particularly relevant. Southwark, as the responsible local authority, were obliged accordingly to make an assessment of any needs for community care services under s.47(1) of the National Health Service and Community Care Act 1990.
3. Southwark in January 2000 accordingly made an assessment under s.47(1) of Mrs Khana's needs and of Mr Karim's position as her carer. The following statement of the factual position comes largely from Southwark's assessment, which is now not challenged as such.
4. Mrs Khana is a 91-year old Iraqi Kurd who suffers from paranoid schizophrenia. She is blind in her left eye and has reduced sight in her right eye. She is deaf in her right ear and wears a hearing aid due to reduced hearing in her left ear. She suffers from arthritis in her knees, hips and shoulders and her mobility is very considerably affected. She needs support with getting into and out of bed, dressing and other personal tasks. She speaks only Kurdish. She is not capable of managing and administering her own affairs and requires the representation of her interests by the Official Solicitor in these proceedings.
5. Mr Karim is aged about 71. He does not speak English (at least beyond a fairly rudimentary level – instanced below). Mr Karim's and Mrs Khana's daughter and grand-daughter, Nazanin, act as interpreters. Mr Karim is presently his wife's primary carer, supported in this role by his daughter and other family members when they visit. However, his own advancing years and physical condition are making this role very stressful and difficult for him. He has already injured his neck and back while caring for his wife, and is on pain-killers. The social worker conducting the assessment, Mr Anthony Wilson, said:

"Based on this information I am led to conclude that Mr Karim is placing himself and his wife at risk of an accident as there is potential for him to further damage himself and to cause injury to his wife should he drop her while transferring or supporting her to mobilise"

6. There is no lift access to Ms Kazal's one bedroom second floor flat, which Mrs Khana and Mr Karim presently share. Ms Kazal sleeps in the bedroom, they in the sitting room. The flat is "overcrowded and inappropriate for Mrs Khana's needs". Mrs Khana is effectively housebound because of the combination of lack of a lift and her mobility problems. The assistance of a number of people is necessary for her to get downstairs. When she was admitted for a spell in hospital in September 1999, she had not been outside for 3 months. There is no possibility of Mr Karim taking her in a wheel-chair for a walk or a visit. She also suffers hallucinations at night which, in the cramped conditions of a one-bedroom flat, cause particular distress to her and everyone else and keep everyone awake. To have to make up a bed in the sitting room is particularly unsatisfactory, when Mrs Khana spends most of the daytime in bed.
7. The social worker, Mr Wilson, indicated Mrs Khana's needs under headings. In each case three possible categories were identified, viz: (1) manages independently (needs no help); (2) requires help but all current needs adequately met and (3) further assistance/support required. "Activities of Daily Living", "Physical Health and Condition" and "Equipment for Daily Living" were placed within category (2). "Personal Care", "Housing". "Financial Issues" and "Other" were placed within category (3). "Mobility" was, surprisingly, left blank, but Mr Drabble QC for Mrs Khana accepts that she should logically have been placed within category (3). The social worker was instructed by the form to place Mrs Khana's needs in order of priority on the next page. The following there appears:

"Summary of assessed needs – Mrs Khana needs:

1. Support from one person with all personal care activities including washing dressing, continence care.

2. Support from one person to get out of bed, transfer, get to standing and to walk a short distance.

3. Full support with all activities of daily living including maintaining a clean, safe environment, getting help in an emergency, shopping, meal, drink preparation, encouragement, support to eat and drink.

4. Encouragement to initiate any activity.

5. Accommodation which is more appropriate to her needs.

6. Income to meet her basic needs."

8. Mr Karim was reported as saying that he could manage with the support of his family and did not want social services input with the care of Mrs Khana, at least unless a Kurdish speaking carer could be identified. He wanted social services' assistance with more appropriate accommodation.

Southwark's first decision

9. By care plan signed by Mr Wilson on 25^th January 2000 and approved by a senior social worker on 2^nd March 2000, Southwark concluded that "the provision of additional funds and rehousing would not reduce her dependency and her needs would remain the same" and that

"On balance it would appear that both Mrs Khan's and Mr Karim's needs would be best met if she were placed in residential accommodation [where] she can receive 24 hour care. The objectives of providing such care is to minimise the risk of accident for both Mr Karim and his wife and to provide Mrs Khan with support to meet her physical and mental health needs. (Please refer to Community Care Assessment dated 20/1/000 for needs list)"

The plan concluded with a note that:

"The offer of residential accommodation has been refused by Mr Karim."

10. This in context referred to the offer of such accommodation for Mrs Khana alone. Also on 2^nd March 2000 Southwark sent its first decision letter offering Mrs Khana (alone) residential accommodation, on the basis that only in such accommodation could she receive the care and support she needed.

Subsequent expert advice obtained on applicant's behalf

11. On Mrs Khana's behalf an independent social worker, Mr O'Meara, was then instructed. His report in April 2000 says that the cramped and unsuitable nature of the flat where Mr Karim and Mrs Khana presently live is likely to have "a serious detrimental impact on the emotional and mental health of Mrs Khana as well as her physical well-being" and as well as imposing considerable extra stress on her carers. It says:

"Mr Karim informed me that he has experienced severe back-pain for about one year. He described having back-pain from the neck down and believes that this may have been caused by having to lift his wife. He is becoming increasingly disheartened at his situation and summarised this when showing me his own and Kazal's medication by saying in English, "we are all sick, in this house – look not good, not good"."

12. Mr Karim again described his and his wife's most pressing need as being the provision of a two bedroom ground floor flat, that would enable him, his wife and his daughter as support carer to continue to live together, and was utterly opposed to his wife going (separately) into a residential home, saying that they had been married "for over forty years" and were "both inseparable".
13. Mr O'Meara asked Mr Karim what his views would be, were Southwark to offer him a joint residential placement with his wife. He noted responses as follows from Mr Karim and his grand-daughter:

"Overall, he is unhappy at this prospect as he feels that the family should not be broken up. He stated that he would only consider this, as a very last option. Nazanin also stated that would be contrary to Kurdish custom and culture as their older people are seen as being intrinsic to the family unit."

14. Mr O'Meara's "risk assessment" was that Mrs Khana was totally dependent on her husband and family for meeting all her care needs and that:

"Based on my assessment, I am of the firm view that Mr Karim is continuing to place himself at high risk of further damage to his back as he continues to care for and inevitably has to lift and physically support his wife daily. There is also a high risk of [him] having an accident whilst undertaking any of these tasks with a consequent risk of injury to his elderly wife. There is a further risk of [him] being unable to evacuate the flat safely with his wife, in the event of a fire. …

Additionally the sense of isolation and stress that Mr Karim and his wife Mrs Khana as well as their daughter M/s Kazal experiences at the present can only continue to have a detrimental impact on their emotional and mental health as well as their physical well-being."

15. Under the heading of "Recommendations and Care Plan" Mr O'Meara said that he held "the firm view that that it would be utterly inappropriate as well as highly detrimental for Mrs Khana to be placed in residential care. …. it would be completely against the expressed wishes of herself and her husband as well as her wider family." However, this, as is apparent from his next paragraph, was based on an assumption that what was in view was placing Mrs Khana alone in residential accommodation. Mr O'Meara continued that her "most urgent and pressing need" was to be provided with suitably adapted two bedroom ground floor accommodation, and he went on to make recommendations that Southwark "vigorously seek out and provide some Kurdish speaking carers" and commission care agencies or approach voluntary agencies or visitors in this connection. He also advised that the family be introduced to the Incontinence Laundry Service and to Meals on Wheels. He concluded by saying that an urgent need for two bedroom ground floor accommodation should be "proactively" urged on Southwark, and that he was quite confident that with such accommodation it would be quite practicable and safe for Mrs Khana to continue to be cared for by her family in the community.
16. A letter dated 17^th March 2000 from Dr Evans, a member of the practice with which Mrs Khana is registered, was also obtained on Mrs Khana's behalf. Dr Evans' opinion was that

"Mrs Khana would be best helped by being re-housed in the community, in more suitable accommodation, with Social Services support. This would provide an immediate gain of being returned to the world, albeit an English world and not Turkish. By removing her isolation which is dependent on living in a second floor flat her mental health should improve and the burden of care should diminish."

Southwark's second decision

17. Southwark considered Mr O'Meara's and Dr Evans' views, and in its second decision letter dated 23^rd May 2000 expressed its view that "the only way in which Mrs Khana's needs can properly be met is for her to go into a full time residential home". It cited Mr O'Meara's risk assessment (above) and commented on each aspect of his recommendations and care plan. It considered that Mr Karim could not cope and that neither the family nor two bed ground floor accommodation could take care of Mrs Khana's needs. It pointed out the plain fact that there were no Kurdish speaking carers and no relevant voluntary or advice centres. A residential home would meet her needs from the viewpoint of safety and care and go towards meeting her isolation, as she would be in an environment where she would be with other elderly people. In view of her circumstances, Southwark said that it was prepared to consider a residential placement for her together with Mr Karim. The letter concluded:

"If Mr Karim and Mrs Khana absolutely refuse the provision of a residential care home the Local Authority could provide some practical home care assistance (but as previously explained the home carers would not be Kurdish speaking) although it considers that this is not an appropriate response as it would not provide the care and level of support that Mrs Khana needs; it is the view of the Local Authority that only residential care can provide this."

The proceedings below and further developments

18. A form 86A was prepared on Mrs Khana's behalf, and sent to Southwark. In a response dated 9^th June 2000 Southwark said that it had identified no homes where staff spoke Kurdish and that it therefore seemed to Southwark that residential provision would be best met in a home in Southwark "where, although their language may not be spoken, they will receive the practical care needs and assistance which they require and their family will be able to visit easily". It has not been suggested that this last hope would be unrealistic. Indeed, we have been shown some documentation relating to one residential home (Millpond Residential Home) that is, we are told, as close as 200 yards to Ms Kazal's flat.
19. Witness statements were made by, amongst others, Nazanin on 25^th May 2000, taking issue with the reasonableness of both Southwark's decision letters, and by Mr Anthony Wilson on 24^th August 2000. On 24^th July 2000 Mr O'Meara commented on Southwark's letter dated 23^rd May 2000. He disagreed with its conclusion "that only residential care can provide the care and level of support that Mrs Khana needs", and believed "that her best interests as well as her primary carer, Mr Karim's, would best be met by being housed in a two bed ground floor flat". He said that the extended family were strongly motivated to continue to care for Mrs Khana in the community, and that Mr Karim strongly wished to continue to care for her in an ordinary home-life setting, was aware of his physical constraints and takes due care to minimise any exacerbation of this. Moving Mrs Khana to residential setting would, on the other hand, be

"highly likely to lead to a swift deterioration in her mental health. The familiarity of her routine and regular contact with her extended family I would deem to be quite crucial in helping her to maintain equilibrium in her mental state. The disorientation and sense of loss to be experienced on entering residential setting might well greatly destabilise her overall".

20. On 26^th July 2000 Dr Evans wrote to Southwark that in her opinion Mrs Khana "would be well served with elderly housing that would accommodate her and her husband and close to the family for visiting".
21. Leave to move for judicial review was granted by Scott Baker J. on 27^th July 2000, and the notice of motion issued on 1^st August 2000.
22. In answer to further questions put by those representing Mrs Khana's interests, Dr Evans wrote again on 23^rd October 2000, saying:

"I would have considered that the sort of housing being offered by [Southwark] for Mrs Khana would be an ideal compromise.

The priority for Mrs Khana is to receive some form of residential care in a situation that she is not isolated from her family or other members of her community. Isolation would make her mental state worse. If her husband was able to live with her in residential care this would get around both problems, provide her with care with her immediate family, ie husband with her. …. Her family could visit as much as they wish and her husband would have much more support than would be available in elderly housing."

23. She added that she was aware of Mr O'Meara's reports, but said that, although she sympathised with the ideals they were trying to achieve:

"I cannot fully concur with all their recommendations. Access with wheelchairs, Kurdish support, Kurdish food can all be provided in residential care."

24. An independent medical report dated 27^th November 2000 was commissioned on Mrs Khana's behalf from a Dr Peter Jefferys, a psychiatrist, who spent two hours with Mrs Khana and interviewed Mr Karim and Nazanin. He said that "Mrs Khana has a psychological need to remain in close contact with her husband and at least one other female family member" and that:

"20. In my opinion it is in Mrs Khana's best interests to remain residing with her husband and daughter. There are three main reasons for this: first it should mean that she would receive personal care and social stimulation from people whom she trusts – namely her closest family members; second; she would receive culturally appropriate stimulation – and Southwark Council have not been able to identify a Kurdish speaking home care worker to support her; third, the risk of serious deterioration in her mental illness would be very high if she were separated from her husband.

21.It would be in Mrs Khana's best interests to live in ground-floor accommodation with wheel-chair access. At present she is flat-bound and quite apart from the direct benefit to her of access to fresh air it would assist her husband who appeared …. to be showing evidence of clinical depression – caused at least in part by his unwillingness to leave his wife alone in the flat for fear of a fall.

22. I think it would be in Mrs Khana's best interests to receive some professional help with personal care to supplement the existing input from her husband and other family members. In my experience it can be very stressful on individual carers supporting a person with high physical and psychological dependency (like Mrs Khana) without respite ….

23. While I welcome Southwark Council's offer to accommodate Mrs Khana and her husband in the same location, there are serious weaknesses in proposal to place them in a residential home for older people. Southwark does not appear to have access to a home with other Kurdish residents and their proposal would mean that both husband and wife would be socially and linguistically isolated. In addition, other family members are likely to find themselves subject to criticism from the Kurdish community for letting their elderly relatives be moved to "an institution" outside the Kurdish culture. Although I have no clear picture of the precise difficulties faced by the couple's younger daughter with whom the couple are living, I gained the impression that all three of them would wish her to live with them in future – provided that the living accommodation was suitable. I was told that it would be unacceptable for a single Muslim woman from their culture to live alone in London."

He repeated that a two bedroom ground floor flat would be "the ideal arrangement", adding:

"24. ….. In addition I would strongly recommend provision of home-care assistance for Mrs Khana so not all personal care tasks are undertaken by husband and daughter. The frequency could be adjusted according to need.

25. If it was not possible to accommodate Mrs Khana with her daughter, an alternative would be a sheltered housing flat for the couple or an enhanced sheltered housing flat in specialised accommodation. Here it should be possible to provide personal care input (by home care staff) to assist Mrs Khana with tasks such as washing, dressing and toileting in a culturally sensitive way."

Finally, he said:

"27. It is normal social policy in the care of older people with complex care needs in our society to provide extra support for people in a safe physical environment without transfer to 24 hour staffed accommodation (residential or nursing home) unless absolutely essential. In this case, in my view, the alternative to residential care should be tried first, as recommended as part of normal social practice."

25. Mr Sam Mayne, a social worker with Southwark's Guy's/St Thomas' hospital discharge team responded to Dr Jefferys' report in a witness statement of 1^st December 2000. He noted that Dr Jefferys did not appear to find that Mrs Khana's psychological needs would not be met within a residential home, provided that her husband was also resident there and she would have regular family visits. He pointed out that Dr Jefferys appeared to accept in places that care could, indeed should, be provided by others than immediate family, that trust could be built up with staff and social stimulation received from family within a residential home and that Mr Karim would not need to fear leaving Mrs Khana alone in a residential home. Clients like Mrs Khana needing 24 hour attention were best cared for in residential accommodation. He went on:

"12. …. However, as choice remains an important element of assessment and care planning, if a client or family do not wish to leave their own home we would negotiate a care package at home. This however would not be 24 hour care and therefore some degree of risk is involved in such a care package. In this situation we would share our concerns with the family and attempt to minimise the risks.

13. I do not see how the provision of two bedded accommodation will provide for her needs for personal/practical help or substantially alter her social/cultural environment. Having taken into account Dr Jefferys' report the Defendant's decision is still to offer Mrs Khana and Mr Karim accommodation in a residential home.

14. A practical care package of one and a half hours each morning was provided for a short period of time. The carer had attempted to learn a few words of Kurdish. However, the family refused the continued provision of care on 31 October 2000."

26. As to Ms Kazal, Mr Mayne understood the present flat to be hers and that she lived there alone, before her parents came to live with her.
27. Against this background of fact the matter came on 1^st December 2000 before Mrs Justice Hallett. She held that Southwark's decision to offer joint residential accommodation was "the only reasonable option" and that the refusal to accept the offer was, objectively, unreasonable. She expressed the hope that those acting on behalf of Mrs Khana would rethink their refusal of the accommodation offered, adding that, if they did not, their refusal would amount to the equivalent of "persistent and unequivocal refusal", discharging Southwark from the duty to offer any further accommodation while it lasted.

The applicable statutory scheme and principles

28. S.21(1)(a) of the 1948 Act provides:

"21.-(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 18 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 …."

29. The Secretary of State has, by Approvals and Directions under s.21(1), App. 1 to Department of Health Circular No. LAC(93)10, directed local authorities to make arrangements under s.21(1)(a) in relation to persons who are ordinarily resident in their area and other persons who are in urgent need thereof.

S.29(1) provides:

"A local authority may, with the approval of the Secretary of State, and to such extent as he may direct in relation to persons ordinarily resident in the area of the local authority shall make arrangements for promoting the welfare of persons to whom this section applies, that is to say persons …. who are blind, deaf or dumb or who suffer from mental disorder of any description, and other persons …. who are substantially and permanently handicapped by illness, or congenital deformity or such other disabilities as may be prescribed by the Minister".

30. The Secretary of State has, by Approvals and Directions under s.29(1), App. 2 to Department of Health Circular No. LAC(93)10, approved the making by local authorities of arrangements under s.29(1) for all persons to whom that subsection applies and directed local authorities to make arrangements under s.29(1) in relation to persons ordinarily resident in their area for all or any of purposes, which include providing a social work service and such advice and support as may be needed for people in their own homes or elsewhere.
31. S.2 of the Chronically Sick and Disabled Persons Act 1970 provides that, where a local authority having functions under s.29 of the 1948 Act, are satisfied in the case of any person to whom s.29 applies who is ordinarily resident in their area that it is necessary in order to meet the needs of that person for that authority to make arrangements for all or any of various matters, which include the provision of practical assistance for that person in his home and the provision of meals for that person whether in his home or elsewhere, it shall be the duty of that authority to make those arrangements in exercise of their functions under s.29.
32. S.47 of the National Health Service and Community Care Act 1990 provides:

"47.-(1) Subject to subsections (5) and (6) below, where it appears to a local authority that any person for whom they may provide or arrange for the provision of community services may be in need of any such services, the authority-

(a) shall carry out an assessment of his needs for those services; and

(b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services."

33. In the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, a local authority must "act under the general guidance of the Secretary of State": Local Authority Social Services Act 1970, s.7(1). A failure without good reason to comply with such guidance has been held to be unlawful and to be capable of correction by judicial review: R v. Islington LBC ex p. Rixon [1996] 1 CCLR 119, 125I-J, per Sedley J. Non-statutory guidance (such as the Practitioners' Guide entitled "Care and Management and Assessment") must also be taken into account: ibid, p.126A.
34. S.47(1) of the 1990 Act contains a mechanism for assessing social need and does not modify the distinct powers and duties under other legislation, such as Part III of the 1948 Act: see R v. Kensington BC ex p. Kujtim [1999] 4 AER 161, 171b, per Potter LJ. Ss.21(1) and 29(1) of the 1948 Act thus impose duties on the local authority to meet any needs which it assesses under s.47(1): ex p. Kujtim, 171d-175a. Resources have a limited subjective role to play in deciding what constitute needs or what is necessary: R v. Sefton BC ex p. Help the Aged [1997] 4 AER 532, 543a-b, per Lord Woolf MR. But once needs have been identified, they must be met in one way or another: ex p. Help the Aged, at p.543b-e. However, if there is more than one possible way in which they may be met, then, in deciding between these alternative ways, the local authority may at this point also take into account resources: see R v. Gloucester CC ex p. Barry [1996] 4 AER 421, 439d, where Swinton Thomas LJ said:

"Once the assessment has been made then resources may well be relevant to the manner in which provision is made to meet the need. Take the facts of these appeals. Mrs Ingham's needs were identified as being '24 hour care'. Lancashire Borough Council's duty was to meet that need. They could do so either by making arrangements for her to go into a residential home or by providing 24 hour care in her own home. In making that decision they are entitled to take into account the alternative costs. …."

35. The point was confirmed in ex p. Kujtim, both at pp.171g-172 and at p.175e where Potter LJ said:

"The …. reality is that the resources of the local authority are finite and that, in providing accommodation for the needy, save in rare cases where individual or special accommodation may be necessary and available to meet the special needs of a particular applicant, the accommodation may, and will usually be, provided within multi-occupied premises, whether in the form of flats, or hostel or bed and breakfast accommodation, in relation to which it will be reasonable for the local authority to lay down certain requirements as to the use of such accommodation and the activities to be permitted in it …."

36. It was common ground before us that the duty to provide accommodation under s.21(1) extends to the provision of basic or 'normal' housing, where this is required to meet a community care need (i.e. a need for "care and attention") within that section: R v. Bristol CC ex p. Penfold [1998] 1 CCLR 315, 325J-326C and 326K-327B, per Scott Baker J., and R v. Islington BC ex p. Batantu (unreported, 8/11/00, Henriques J.), where the local authority was ordered to provide such housing for the applicant. But Mr Harrop-Griffiths, who appeared for the local authority in the latter case as he did before us, repeated before us his (unsuccessful) submission in that case that it was a pre-condition to the provision of 'normal' housing that the applicant should be able to identify how his need would otherwise be met by other community services and to identify such services. I shall return to that point.
37. Potter LJ in ex p. Kujtim expressed the view that a local authority would be entitled to treat its duty as discharged and to refuse to provide further accommodation, if (and for so long as) the person in need was unreasonably refusing to accept the accommodation offered or was by his conduct manifesting a persistent and unequivocal refusal to observe a local authority's reasonable requirements in relation to its occupation: p.175g-j. He considered that:

"That will remain the position unless or until, upon some subsequent application, the applicant can satisfy the local authority that his needs remain such as to justify provision of Pt III accommodation and that there is no longer reason to think that he will persist in his refusal to observe the reasonable requirements of the local authority in respect of the provision of such accommodation."

The submissions regarding application of the statutory scheme and principles

38. I return to the circumstances of this case. In the form 86A, it was asserted first and foremost that Southwark had acted in a way in which no reasonable authority could, in its two decision letters and in refusing to accept or to pay adequate regard to the reports obtained from Mr O'Meara and Dr Evans, to Mrs Khana's and her family's needs and the effects on Mr Karim and Mrs Khana of having to live in a residential home. It was further asserted that Southwark had acted unlawfully in failing to comply with guidance, to which I will come, emphasising the importance both of providing care in the home whenever possible and of taking into account the wishes of service users and carers. Thirdly, it was said that Southwark

"may not treat itself as having discharged its duty to make community care provision for the applicants solely by offering them a place in a residential care home. If the applicants reasonably refuse such a service the respondent is under a continuing duty to make community care provision for them, although it is unable to do so by its preferred method."

39. The skeleton drafted on Mrs Khana's behalf by junior counsel pursued all limbs of these submissions, although appearing to shift the emphasis towards the third. It also invoked the right to respect for private and family life and home enshrined in article 8 of the European Convention on Human Rights.
40. Before us, Mr Richard Drabble QC did not in his oral submissions pursue all of these points. He did not seek to challenge Southwark's assessment (through Mr Wilson) of Mrs Khana's needs, particularly its assessment of care needs arising from the problems that Mr Karim was having in coping safely and satisfactorily. He frankly acknowledged that Southwark's offer of joint residential accommodation was a reasonable attempt to meet Mrs Khana's assessed needs, and that, if the appeal turned on the question whether Southwark had reasonably decided to offer such accommodation, it would fail. He did not make any submission based on article 8 of the Convention that was not covered by submissions made under domestic legal principles apart from the Convention. He analysed the assessed needs as falling into two distinct categories: better accommodation and day by day care; and he accepted that the second set of needs could not be met in accommodation outside a residential home.
41. But, Mr Drabble submitted, there were also legitimate objections to the package involving living in a residential home that Southwark were proposing. It would isolate Mr Karim and Mrs Khana from their daughter in a non-Kurdish speaking environment, and it required Mr Karim, who had himself no community care needs, to move into a residential home against his wishes. Neither of the solutions proposed on each side was therefore absolutely satisfactory; and the sharp legal issue, according to his submissions, was as to "the extent of Southwark's duty when the family is, perfectly reasonably, unhappy about the solution being offered" by Southwark. In that situation, since a residential home is not acceptable to the family, it is, in his submission, Southwark's duty (assuming that Southwark either lacks or does not resort to using any compulsory powers) to provide for so much as it can in any way it can of what it has assessed as necessary. On the present facts, he submits, that means providing appropriate accommodation outside a residential home, in the form of a two bedroom ground floor flat, where Mrs Khana, Mr Karim and their daughter can live as a family unit.
42. Mr Harrop-Griffiths' first objection to this argument is based on the (unsuccessful) submission which, as I have said, he raised in ex p. Batantu. This in turn relies on the way in which Scott Baker J. expressed the legal position in ex p. Penfold. Scott Baker J. said:

" 'Normal' housing can be provided by this subsection when it is the answer to a need which would otherwise have to be met by other community care services."

43. However, I agree with Henriques J. in ex p. Batantu that these permissive words are not to be understood as introducing a rigid hurdle or pre-condition to be overcome by any applicant or indeed local authority seeking to rely on the section. S.21(1)(a) requires simply that a person is in need of care and attention which is not otherwise available to him or her. If accommodation will meet that need, the local authority may meet it in that way, without having to show that it could have been met in any other way. That seems to me to be also to be confirmed by the reasoning in both R v. Hammersmith and Fulham BC ex p. M (1997) HLC 10 and ex p. Kujtim.
44. Nevertheless, it is the case that Southwark did not assess Mrs Khana's needs as being limited to basic or normal accommodation. Rather it decided that her needs called for the provision of quite different services, involving placement in a residential home. That was for reasons relating to the safety and well-being of both Mrs Khana herself and Mr Karim as her principal carer. Originally, in the applicant's form 86A and skeleton, it was submitted that Southwark's decisions in this regard were unlawful or unreasonable, because they took no or insufficient account of the family's previously expressed wishes to live in a two bedroom ground floor flat. Now, the challenge to the legality of Southwark's approach is based on Southwark's failure to respond to the family's subsequent refusal to accept Southwark's offer of 23^rd May 2000.
45. In both contexts, we have had the benefit of extensive citations from the White Paper preceding the 1990 Act, the Secretary of State's general guidance and other non-statutory guidance. Para. 3.2.6 of the White Paper emphasises the importance of taking into account the wishes of persons in need and their carers and says that "Every effort should be made to offer flexible services which enable individuals and carers to make choices".
46. The statutory guidance emphasises at paras.3.16 and 31.8 that those in need and carers should feel that the process of assessment is aimed at meeting their wishes, and aims to encourage them "to exercise genuine choice and participate in the assessment of their care needs and in the making of arrangements for meeting those needs"; at para. 3.24 it identifies an order of preference in constructing care packages, that puts support in the home first, followed by "a move to more suitable accommodation, which might be sheltered or very sheltered housing, together with social services support" second, and then "a move to another private household" third, followed by residential care fourth, nursing home fifth and long-stay in hospital sixth. The aim, it says in para. 3.25, "should be to secure the most cost-effective package of services that meets the user's care needs, taking account of the user's and carers' own preferences".
47. Para. 81 of the practitioners' guide underlines as central tenets:

"A respect for the independence of individuals and their right to self-determination and to take risks, minimising any restraint upon that freedom of action.

An understanding of the dignity and individuality of every user and carer.

A quest within the available resources, to maximise individual choice in the type of services on offer and the way in which those services are delivered."

48. As I have already made clear, it is no longer submitted that either Southwark's assessment of Mrs Khana's and her carers' needs or the care package that Southwark proposed on 23^rd May 2000 failed to take due account of these principles. Southwark recorded and took into account the family's (and in particular Mr Karim's) expressed wishes for a two bedroom ground floor accommodation. But it concluded that this would not meet the identified needs, which included the need to avoid considerable risks (identified by both its and the family's social workers) to both Mrs Khana's and Mr Karim's safety. That being so, it is difficult to identify at what point and on what basis Southwark had any duty to change its mind. Since these proceedings were begun to challenge Southwark's original decisions, Mr Karim speaking for himself and Mrs Khana through the Official Solicitor have maintained their common wish for two bedroom ground floor accommodation. But, if Southwark was, prior to the proceedings, entitled to conclude that this would not properly meet Mrs Khana's needs, Southwark remains, on the face of it, entitled to hold the same view.
49. Mr Drabble submits that Southwark must adapt to Mrs Khana's and her husband's refusal of residential accommodation. The form 86A contains the contention, clearly referable to Potter LJ's dicta in ex p. Kujtim, that Mr Khana's and Mr Karim's refusal of Southwark's offer of a residential home place was reasonable, so that it remained Southwark's duty to provide an alternative. Those dicta are not to be read as a statute, or taken out of context. There was no issue in ex p. Kujtim as to the method by which needs should be met. The dicta in ex p. Kujtim concerned the potential effect of a refusal or rejection of particular accommodation arranged to meet needs by the method that the local authority had assessed as appropriate. There was also no question in ex p. Kujtim of choice between the provision of community services which would meet the assessed needs and community services which would not do so.
50. In his oral submissions, Mr Drabble preferred a formulation of his clients' case that did not depend on Potter LJ's dicta, but derived Southwark's duty to provide basic accommodation from the mere fact that Mr Karim and Mrs Khana were and are refusing to contemplate living in a residential home. If necessary, however, he submitted that both were acting reasonably in refusing to contemplate living in a residential home.
51. In relation to his primary formulation, Mr Drabble invites consideration of a situation, perhaps not uncommon, involving an elderly person living at home, whose needs are assessed as requiring the provision of a place in a residential home. If he or she refuses that proposal - on whatever ground, reasonable or unreasonable - the local authority cannot treat themselves as discharged from any further duty to provide community services (e.g. Meals on Wheels, or clean laundry) to him or her at home. I would accept that submission. Southwark does not suggest the contrary, since through Mr Mayne it confirms that it would provide such services as the family would accept to Mrs Khana at her present accommodation. (In the event Southwark's readiness to provide such services has not been fulfilled, since the family refused the continued provision of care in the home on 31 October 2000.) Nor do I see any difficulty in principle in treating a local authority's duty to continue to provide such services as it can at home to a person who refuses an offer of residential or other accommodation. Any duty relating to accommodation arises under s.21. Its satisfaction or discharge could have no effect on any duty to provide services promoting the welfare of persons eligible under s.29.

Conclusions

52. I take first Mr Drabble's submission that there has been a refusal, of a final nature, to contemplate living in a residential home, to which Southwark should now adapt. I start with the factual situation. As to Mrs Khana, there seems to be no basis for concluding that, if these proceedings failed, she or anyone acting for her, would refuse to take up the residential place that remains on offer. As to Mr Karim, it is asserted, but I am not persuaded, that his refusal is absolute or that it would be maintained if there was no other option – in particular if these proceedings were to fail. The contrary appears to be indicated by Mr O'Meara's description of his attitude (as set out above) was that "Overall, he is unhappy at this prospect as he feels that the family should not be broken up. He stated that he would only consider this, as a very last option."
53. Mr Drabble at certain points invited us to consider Mr Karim's wishes as if he was an uninvolved third-party whose refusal could itself render unviable the offer of joint places in a residential home, made on 23^rd May 2000, that is all that Southwark now seeks to advance as realistic or appropriate. It is right that Mr Karim is not the person in need, that his role is as husband and carer and that his co-operation and agreement to move with her would be essential, before Mrs Khana could be expected to move into a residential home. Since he is not a person in need, he is also someone whose independent right to live in the community and with family requires attention and respect. But he is not party to any appeal, and I do not in any event understand him at any point to have been taking any point on his own behalf. The issue between the family, including Mr Karim, on the one hand and Southwark on the other hand concerns the appropriate method of providing for Mrs Khana's needs.
54. In some circumstances, instanced by R v. Avon CC ex p. M [1994] 2 FLR 1004, a person may have a need (in ex p. M psychological in nature), as distinct from a preference, to reside in a particular place. Here, it seems to me that Mrs Khana (through her advisers and representatives) is in reality seeking to insist, as against Southwark, on the - no doubt strongly held – preferences or beliefs of Mrs Khana and her family as to what community services should be provided to Mrs Khana and in what way. Under the relevant legislation and guidance, Southwark must take into account Mrs Khana's and Mr Karim's beliefs and preferences, but the assessment of any needs regarding, inter alia, accommodation and how to provide for them rests ultimately with Southwark.
55. Secondly, the beliefs and preferences on which Mrs Khana and Mr Karim are insisting would, if adopted, involve Southwark in providing community care services that Southwark have positively concluded would not satisfy important (indeed, on the face of it, priority) needs. It is one thing for a local authority to do the best it can under s.29 of the 1948 Act (as Mr Mayne confirms that Southwark would do, and has tried to do) in an already existing situation where a person in need declines to accept an offer under s.21 of the 1948 Act of accommodation that the local authority reasonably considers to be the only type of accommodation appropriate for that person's needs. It is another matter to treat a local authority as obliged to bring about a new situation, by offering under s.21 a different type of accommodation to that which it has assessed as necessary, when this would still not satisfy important assessed needs, although it would have the merit of catering for a need for improved accommodation. Mrs Khana has no assessed or established need to have that different type of accommodation, rather than the residential home place on offer to her and Mr Karim. The local authority is required to assess and meet needs, not to satisfy preferences for, or insistence upon, new accommodation which would meet only some and not all of a person's needs.
56. I would wholly endorse Mr Drabble's general submission that s. 21 of the 1948 Act and s.47 of the 1990 Act contemplate an assessment by the local authority of a person's accommodation needs, which takes very full account of their wishes, including the very fundamental aim of preserving the independence of elderly people in the community and in their own homes for as long and as fully as possible. A certain degree of risk-taking is often acceptable, rather than compromise independence and break family or home links. But, where a local authority concludes, as Southwark did here, that "the only way in which Mrs Khana's needs can properly be met is for her to go into a full time residential home", and makes a corresponding offer, and where this assessment and the reasonableness of the offer made cannot be challenged as such, then the local authority has in my judgment satisfied its duties under the legislation.
57. Further, although I do not consider that the case requires analysis in these terms, I would, if necessary, also treat Mrs Khana's refusal of the offer of residential home accommodation – the only course that would meet her assessed needs - as unreasonable in the sense intended by Potter L.J., when he was considering in ex p. Kujtim what would discharge a local authority from any further duty for so long as such refusal was maintained. Her position has, it is true, received some strong support from distinguished sources, but the local authority's assessment of her needs, the appropriateness of their offer and the inappropriateness (in terms of meeting all Mrs Khana's needs) of Mrs Khana's position are not ultimately challenged.
58. If this had been a case where Mrs Khana's assessed needs could be met in different ways, then, on the authorities already cited, Southwark would have been entitled to take into account its resources in deciding which way to adopt. Mrs Justice Hallett in her judgment seems at certain points to have taken the view that a question of resources did arise in this case. For my part, I would agree with Mr Drabble that any problem of resources would require to made out by evidence, and cannot be assumed to be present. There is no material enabling comparison between the cost of a two bedroom ground floor flat provided by the authority - with or without further community care services - and the costs of living in a residential home.
59. Further, if the issue had been between two courses, each of which would meet Mrs Khana's assessed needs, and no resource implications were shown, the question would arise, whether and why a local authority should be entitled to insist on its preference, if the person in need preferred the other. This question would probably arise at the stage of deciding how to provide for assessed needs. But, if it did not become apparent until the authority had, reasonably, made its assessment, I can see that, by analogy with Potter LJ's reasoning, an equally reasonable refusal by the person in need to accept the authority's approach might well not discharge the authority from meeting its duty. The authority might in other words have to think again, and adopt the other course, corresponding with the person in need's preference, if there were no resources implications. But that is a different case from the present, where Mrs Khana's and Mr Karim's preferred course would meet only some of her assessed needs.
60. For these reasons, in my judgment, Southwark was entitled to maintain its offer of a joint residential home placement, and was not obliged to offer the two bedroom ground floor flat on which Mrs Khana through the Official Solicitor and Mr Karim have been seeking to insist. Before us, Southwark indicated through counsel that it would keep Mrs Khana's position and needs under review, including the reaction to this judgment of all parties. That is appropriate and welcome, as well as being required under the legislation. This judgment is based solely on the assessment made, the decision reached to offer residential accommodation to Mrs Khana and Mr Karim and the evidence before us now. On that basis, the appeal brought on behalf of Mrs Khana in my judgment fails.

MR JUSTICE MCKINNON: I agree.

LORD JUSTICE HENRY: I also agree.

ORDER: Appeal dismissed; order for costs against legally assisted party, not to be enforced without a determination from the costs judge; detailed public funded costs assessment. (Order does not form part of approved Judgment)