COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(MR JUSTICE STANLEY BURNTON)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE MUMMERY
LADY JUSTICE HALE
| Abdul Wahid ||Appellant|
|- and -|
|The Mayor and Burgesses of The London Borough of Tower Hamlets||Respondents|
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Stephen Knafler (instructed by The Solicitor to the Council, London Borough of Tower Hamlets) for the Respondents
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Pill:
“(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 of attention which is not otherwise available to them;”
“...nothing in this section shall authorise or require a local authority to make any provision, authorised or required to be made (whether by that or by any other authority) by or under any enactment not contained in this part of this Act...”
“2(1) The Secretary of State hereby
(b) directs local authorities to make arrangements under section 21(1)(a) of the Act in relation to persons who are ordinarily resident in their area and other persons who are in urgent need thereof,
to provide residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstance are in need of care and attention not otherwise available to them
(3) without prejudice to the generality of sub-paragraph (1), the Secretary of State hereby directs local authorities to make arrangements under section 21(1)(a) of the Act to provide accommodation...
(a) in relation to persons who are or have been suffering from mental disorder, or
(b) for the purposes of prevention of mental disorder,
for persons who are ordinarily resident in their area and for persons with no settled residence who are in the authority’s area.”
On behalf of the respondents it is accepted that the appellant is ordinarily resident in their area so that, contrary to the judge’s finding, the appellant does not need to rely on the provision as to urgency in paragraph 2(1)(b). On behalf of the appellant it is accepted that the statutory requirement for the “need of care and attention which is not otherwise available” to him must be established.
“I have visited the family home on several occasions, but remain concerned to ensure that my community nursing support is not undermined by their very obviously acute housing problem. I do know at first hand how much Mr Wahid dearly wishes that this long standing problem could be finally solved. It would undoubtedly afford him a degree of happiness and stability which would significantly contribute to his mental welfare.
In summary, I posit that Mr Wahid’s present mental stability can only be safely maintained by his transfer into a more congenial and relaxed environment, in the context of a healthy and happy family life.”
“43. I have given due regard to Mr Golightly’s memorandum dated 23 February 2001 and the views he has subsequently expressed to me about the Claimant’s mental state. I agree with Mr Golightly that the Claimant needs better accommodation. It is however a matter for the social services authority whether he needs care and attention.
44. Having regard among other things to Mr Golightly’s views, I do not consider the Claimant currently needs care and attention, or that he is likely to need care and attention imminently. I remain of the view that the conclusion of Ms Sharif’s assessment (that the Claimant needs better housing and that social services should help him by liaison with the Housing Directorate) is correct.
45. I have taken into account the assessment of Ms Sharif as a whole, the fact that the Claimant was supported in the community and not admitted to hospital between 1996 and November 2000. Further, as Mr Golightly agrees, the Claimant is currently in good mental health, better than for many years.
46. In my opinion, the risk of adverse mental consequences resulting in a breakdown to the Claimant caused by overcrowding is relatively small.”
“53. In my opinion, the Claimant is not in need of care and attention which is not otherwise available to him.
54. Unfortunately, the Claimant’s housing situation is no different from a number of families within the borough. There are many families within the borough whose unsatisfactory housing impacts adversely on their physical and mental health. In the general run of such cases, the Housing Directorate are able to prioritise different cases, through its transfer and allocations systems and also to assess (with social work and medical assistance) whether or not a housing duty is owed under the homelessness provisions.
55. I accept that there can be cases where despite the availability of housing assistance, a person might need care and attention. For example, as the result of the way he is adversely affected by unsatisfactory housing, but these cases will be exceptional and I do not consider the Claimant’s cases is such a case, at the present time.”
“18. In my opinion, the Appellant and his family have neither conscientiously or assiduously pursued their options of re-housing under housing legislation. The Appellant and his family have rejected suitable offers of accommodation which would have reduced the overcrowded conditions in which they reside.”
“In my judgment while section 21(1)(a) is not a basic safety net for everybody, it can in appropriate circumstances extend to the provision of ‘normal’ accommodation. ‘Normal’ housing can be provided by this sub-section when it is the answer to a need which would otherwise have to be met by other community care services.”
“33. My attention is drawn to the dicta of Scott Baker in R v Bristol CC ex p Penfold, to the effect that normal housing can be provided under the 1948 Act when it is a function of need which would otherwise have to be met by other community care services. It is submitted that since the applicant seeks the provision of normal or ordinary housing, his first task is to identify how his need would otherwise have to be met by other community care services and to identify such services. I reject that contention. The local authority have themselves assessed the applicant and identified his needs, namely a safe, secure, accessible and larger ground-floor flat. It is not for the applicant to now identify how his needs would have to be met by other community care services. There is no such hurdle facing the applicant: see ex p Tammadge (1998) 1 CCLR 581 and ex p Kujtim.
34. The next submission by the respondent is that the respondent is entitled to find that the provision of such accommodation that meets this need is otherwise available to him through its Housing Department or will be at some future stage. This attitude fails to take account of the respondent’s duty under section 21 of the 1948 Act. The duty to provide community care services are obligations of the local authority’s social services committee, pursuant to section 2 and schedule 1 of the Local Authority Social Services Act 1970. The duty is to provide accommodation to a person with identified community care needs. The housing list is but one of the ways in which accommodation might be provided. As Scott Baker J said in ex p Penfold, the meaning of accommodation is wide and flexible and embraces residential care, nursing homes, ordinary and sheltered housing, and to this list might be added housing associations, other registered social landlords, and private sector housing which may have to be purchased by the respondents.”
“In the case of section 21 of the 1948 Act, once the authority has come to the conclusion that the person concerned is in need of care and attention which is not otherwise available to them, then the residential accommodation is to be provided.”
In the present case, the need for care and attention has not been accepted by the authority and the first issue is whether it should have been. Reliance is placed, first, on section 117 of the Mental Health Act 1983. I see no basis for the submission that the fact that after-care services were provided under section 117, by way of visits from Mr Golightly following the appellant’s discharge from hospital, for example, amounted to or necessarily required a finding that he was in need of care and attention under section 21.
Lady Justice Hale:
(1) the person is in need of care and attention;
(2) that need arises by reason of age, illness, disability or any other circumstances; and
(3) that care and attention is not available to him otherwise than by the provision of residential accommodation under this particular power.
Three further points are also relevant:
(1) it is for the local social services authority to assess whether or not these conditions are fulfilled, and if so, how the need is to be met, subject to the scrutiny of the court on the ordinary principles of judicial review;
(2) section 21 does not permit the local social services authority to make provision which may or must be made by them or any other authority under an enactment other than Part III of the 1948 Act (see s 21(8)); but
(3) having identified a need to be met by the provision of residential accommodation under section 21, the authority have a positive duty to meet it which can be enforced in judicial review proceedings (see R v Sefton Metropolitan Borough Council, ex parte Help the Aged  4 All ER 532, CA; R Kensington and Chelsea London Borough Council, ex parte Kujtim  4 All ER 161, CA).
“Asylum seekers are not entitled merely because they lack money and accommodation to claim that they automatically qualify under section 21(1)(a). What they are entitled to claim (and this is the result of the 1996 Act) is that they can as a result of their predicament after they arrive in this country reach a state where they qualify under the subsection because of the effect upon them of the problems under which they are labouring.”