COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
MR JUSTICE BURNETT
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RICHARDS
LORD JUSTICE RIMER
|- and -
|Westminster City Council
|The Medical Foundation
|Interveners (in writing)
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Mr H Harrop-Griffiths (instructed by Creighton & Partner) for the Respondent
Hearing dates : 8 June 2011
Crown Copyright ©
Lord Justice Laws:
THE STATUTORY PROVISIONS
"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."
It is important to note, as the judge did, that the application of s.21(1)(a) is limited by two further provisions. First, s.21(8) of the 1948 Act has the effect of excluding care and attention which is provided by the National Health Service from the ambit of s.21(1)(a). Secondly, s.21(1A) of the 1948 Act, inserted by s.116 of the Immigration and Asylum Act 1999, provides:
"A person to whom section s.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."
The effect, broadly, is to exclude from s.21(1)(a) a series of categories of foreign nationals including those who have exhausted their immigration appeal rights and have no lawful basis on which to remain in the United Kingdom.
"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 aged eighteen or over who are blind, deaf or dumb or who suffer from mental disorder of any description, and other persons aged eighteen or over who are substantially and permanently handicapped by illness, injury, or congenital deformity or such other disabilities as may be prescribed by the Minister."
S.29(4) sets out a non-exhaustive list of the kind of arrangements that may be made under s.29(1). The second item there specified is "[arrangements] for giving such persons instruction in their own homes or elsewhere in methods of overcoming the effects of their disabilities".
THE COUNCIL'S DECISION
"Mr Wyman's assessment noted that the claimant had been supported by the Abbey Road Community Mental Health Team prior to his admission to hospital. It also noted that such support would be needed after his discharge. He concluded that the claimant did not need 'looking after' [this is a phrase found in the learning, to which I will refer in due course]. On the contrary, his view and the view of Dr Maria Clarke... was that the claimant should not only be encouraged to live independently but that any other arrangement would be to his detriment. National Health Service support would be provided, but the limit of the input from the Council would be social worker support. That support would be provided through weekly meetings with Mr Wyman at Abbey Road."
The judge for his part was very clear that "[t]he assistance provided by the local authority, even if it is properly described as care and attention, is limited to social worker input provided by Mr Wyman when the claimant visits him at the Abbey Road Centre. The balance of the claimant's needs identified in the original assessment... are all being met by the NHS" (paragraph 17). In legal terms the Council's decision was to the effect that the appellant was not in need of care and attention within the meaning of s.21(1)(a) of the 1948 Act, and in consequence they owed him no duty under the subsection to provide residential accommodation. That conclusion was challenged as being wrong in law given the facts of the case. The judge rejected it and the challenge is repeated on this appeal.
ESSENTIAL FACTS: THE SERVICES PROVIDED
"[T]he real question here is whether the council's own findings... compel a conclusion that the claimant was in need of care and attention within the meaning of section 21(1)(a) or, to put it in conventional public law terms, whether that conclusion was one which, on the facts, no reasonable council could reach."
The precise nature of the services provided to the appellant by or for the council was the subject of some little controversy at the Bar. The principal element seems clearly to consist in regular weekly meetings between the appellant and Mr Wyman, referred to by the judge. But there is a good deal more detail in the evidence, and I should describe some of it.
"Support from care co-ordinator [that is Mr Wyman] or outreach support workers to link [SL] with local support groups (ie refugee and asylum seekers' groups, gay and lesbian community groups) to help with expanding his social support network."
In his first witness statement Mr Wyman comments on the substance of the occupational therapist's report as follows (paragraph 16):
"In summary her report concluded that SL is independent in all self care needs, ie personal hygiene, toileting, cooking, budgeting. He has no cognitive or motor difficulties and is sociable and able to form positive relationships. During my assessment I assessed SL's needs as not significantly different from those described in this report."
"[SL] continuing to experience symptoms of depression and anxiety, sleeplessness and repetitive nightmares. Mood remains labile and SL can be subject to bouts of hopelessness and feelings of self-harm".
Alongside this column 3 has:
"SW [sc. social worker Mr Wyman] to provide community support and liaison of care. Initially weekly visits following discharge by Crisis Team.
SW to contact counselling groups and request they reinstate contact and support."
Later in the document, where column 1 has "Social Network and Support", column 3 reads:
"There may be some mileage in contacting groups associated with the exiled Iranian community in London, or groups from within the gay community who [SL] may find he can draw some additional support from."
Then on the last page of the document three "risk factors" are identified: "increased compulsion to self-harm, increasing depression, danger of becoming overwhelmed by daily struggle to contain and to cope". Below that, under "Action to be Taken", this appears:
"Has access to SW through direct line telephone number and will receive community SW support initially at least 1x week.
SW to arrange for counselling groups to reinstate contact via offering regular appmts with regard to counselling."
"[N]ormally, a person needing care and attention which could be provided in his own home, or in a home provided by a local authority under the housing legislation, is not entitled to accommodation under section 21. That is why the use of the section had previously been for the most part limited to the provision of accommodation in specialist institutions like homes for the aged, in which the necessary care and attention could be provided more conveniently than in separate dwellings."
I shall return to the nexus between the care and attention furnished and the accommodation provided, which for reasons I will give is in my view problematic.
MEANING OF "CARE AND ATTENTION"
"31. Mr Howell [for the appellant authority] adopts the three conditions which I suggested in R (Wahid) v Tower Hamlets London Borough Council  EWCA Civ 287,  HLR 2, para 30, and Lord Hoffmann found helpful [in the NASS case] at para 26:
'first, the person must be in need of care and attention; secondly, the need must arise by reason of age, illness, disability or "other circumstances" and, thirdly, the care and attention which is needed must not be available otherwise than by the provision of accommodation under section 21'.
Mr Howell argues that there must be some meaningful content in the need for care and attention. He was at first disposed to argue that it must mean care and attention to physical needs, such as feeding, washing, toileting and the like, and not simply shopping, cooking, laundry and other home help type services. But he accepted that it had also to cater for people who did not need personal care of this sort but did need to be watched over to make sure that they did not do harm to themselves or others by what they did or failed to do. The essence, he argued, was that the person needed someone else to look after him because there were things that he could not do for himself. [The respondent] does not need care and attention of this sort. He is perfectly capable of looking after himself. He needs his medication, but that is supplied by the National Health Service and under section 21(8) the local authority is not allowed to provide him with anything which is authorised or required to be provided under the National Health Service Act 2006. Medical treatment has always been provided for separately in the National Health Service legislation. The need for a fridge in which to keep his medication cannot be described as a need for care and attention.
32. My Lords, a test as strict as that proposed by Mr Howell might not even include Mrs Y-Ahmed, let alone Mrs O and Mr Bhikha [the references are to earlier cases: Mrs Y-Ahmed was as I have indicated the claimant for care and attention in NASS]. It might not include a great many people who have been accommodated in old people's homes over the years since 1948. Our ideas of when people need to be in residential care have changed a good deal since then. Much of the care which used to be provided in a residential setting can now be provided at home. Furthermore, section 26(1A) requires that if arrangements are made under section 21(1)(a) for accommodation 'together with nursing or personal care' for people who are or have been ill, people who have or have had a mental disorder, people who are disabled or infirm, or people who are or have been dependent on alcohol or drugs, then in effect the home must be registered under the Care Standards Act 2000. Thus accommodation may be arranged under section 21(1)(a) without including either nursing or personal care. So the 'care and attention' which is needed under section 21(1)(a) is a wider concept than 'nursing or personal care'. Section 21 accommodation may be provided for the purpose of preventing illness as well as caring for those who are ill.
33. But 'care and attention' must mean something more than 'accommodation'. Section 21(1)(a) is not a general power to provide housing. That is dealt with by other legislation entirely, with its own criteria for eligibility. If a simple need for housing, with or without the means of subsistence, were within section 21(1)(a), there would have been no need for the original section 21(1)(b). Furthermore, every homeless person who did not qualify for housing under the Housing Act 1996 would be able to turn to the local social services authority instead. That was definitely not what Parliament intended in 1977. This view is consistent with Ex parte M, in which Lord Woolf emphasised, at p 20, that asylum seekers were not entitled merely because they lacked money or accommodation. I remain of the view which I expressed in Wahid ( EWCA Civ 287,  HLR 2), at para 32, 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. Viewed in this light, I think it likely that all three of Mrs Y-Ahmed, Mrs O and Mr Bhikha needed some care and attention (as did Mr Wahid but in his case it was available to him in his own home, over-crowded though it was). This definition draws a reasonable line between the 'able bodied' and the 'infirm'.
34. This construction is consistent with all the authorities, including R (Mani) v Lambeth London Borough Council  EWCA Civ 836,  BLGR 35. That case was argued on the assumption that the claimant did have a need for care and attention, but not a need which required the provision of residential accommodation. Mr Mani had one leg which was half the length of the other. He had difficulty walking and when in pain he could not undertake basic tasks such as bed-making, vacuum cleaning and shopping. He did need some looking after, going beyond the mere provision of a home and the wherewithal to survive."
"...M is not 'in need of care and attention' simply because he is without accommodation. However, in addition to being without accommodation, he is HIV-positive (and may have AIDS), he consequently must take medication which is provided to him by the NHS, he requires the use of a refrigerator in which to keep the medication; and he needs access to a medical practitioner four or five times a year. However, his illness does not otherwise affect him, and he can look after himself. The absence of somewhere to live, coupled with the requirement for medication, refrigerator use and access to a doctor, even taken together, cannot, in my view, be said to amount to a need for care and attention, as a matter of ordinary language. M simply does not need looking after."
" [S]ection 21(1)(a) only applies to a person who is in present need of care and attention, albeit that a local authority may act under the section once satisfied that there is such a need, even if it is currently not very pressing, especially where the situation appears likely to deteriorate."
CARE AND ATTENTION: APPLICATION TO THIS CASE
"On analysis, Mr Wyman's input was expected to be limited to a weekly meeting with the claimant to provide social work support. Important though that no doubt is, and has been, to the claimant's continued well being, my conclusion is that it does not amount to care and attention for the purposes of section 21(1)(a) of the 1948 Act. To suggest that the claimant needs 'looking after' would stretch the meaning of those words beyond their proper limit. In my judgment, it would be more accurate to say that the support that the claimant needs amounts to keeping an eye on him. That is a rather different matter. It imports the notion that whilst keeping an eye on him, if circumstances change, different or further interventions might become necessary. It is not, however, in my view, care and attention. On this basis also, the claimant fails to establish that he came within the criteria found in section 21(1)(a)."
The judge has, I think, understated the nature of the support provided by the council through Mr Wyman. As Mr Knafler submitted, Mr Wyman is doing something for the appellant which he cannot do for himself: he is monitoring his mental state so as to avoid if possible a relapse or deterioration. He is doing it, no doubt, principally through their weekly meetings; but also by means of the arrangements for contact (or the renewal of contact) with the two counselling groups, and with the "befriender". It is to be noted that care and attention within the subsection is not limited to acts done by the local authority's employees or agents. And I have already made it clear that the subsection does not envisage any particular intensity of support in order to constitute care and attention.
MEANING OF "NOT OTHERWISE AVAILABLE"
"12. If this applied across the board to all asylum seekers, it meant that local authorities in particular areas to which asylum seekers regularly went, would have to bear the cost of a large number of asylum seekers whereas the large majority of local authorities would have no or little liability.
13. This on the face of it imposed a heavy burden on a few local authorities for what should have been a national problem. The Government accepted that the burden, or some of it, should be taken over nationally..."
"17... [T]he only limitation of a local authority's liability to provide accommodation is where the need is 'solely' due to destitution or its effects."
And Lord Hoffmann at paragraph 32:
"The use 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."
"42. Looking back, I have little doubt that our thinking (or certainly my thinking) on asylum-seekers was this: Those who without support would deteriorate essentially through destitution would be entitled to s.95 support irrespective of whether they were particularly vulnerable through age, ill health or disablement. Those, however, whose need for care and attention would exist even if in funds would still be entitled to community care under the 1948 Act.
43. The difficulty with this approach, however, a difficulty not I think appreciated by anyone when we decided ex parte O, is that it involves looking at s.21(1A) differently depending upon whether the 'person subject to immigration control' who is seeking support is or is not an asylum-seeker. If not an asylum-seeker then clearly the 1948 Act is indeed 'the last refuge of the destitute' and, as ex parte O decided, s.21(1A) should exclude from relief only the young and fit. If, however, the applicant is an asylum-seeker, then national assistance is no longer their last refuge: s.95 has replaced it."
Also in this court in NASS Mance LJ as he then was said:
"63. I am therefore left in no doubt that the overall scheme was that NASS should take responsibility only for asylum seekers falling within s.21(1A), and that persons (whether asylum seekers or not) needing care and attention for other reasons would continue to be dealt with under s.21(1)(a) of the 1948 Act.
65 Simon Brown LJ has drawn attention to the potential implications of this strict or limited interpretation of the scope of s.21(1A) on the balance of responsibility between NASS and local authorities in relation to asylum seekers. Our decision today indicates a mutually exclusive analysis of the roles of s.21(1)(a) of the 1948 Act and s.95 of the 1999 Act, which one would expect to apply whether or not the person seeking support was an asylum seeker. The relationship between and the working of the two sections will presumably be kept under review, and can if necessary be fine-tuned by legislation, regulation or, within limits, by pragmatic accommodation between the parties involved."
"[I]f an applicant's need for care and attention is to any material extent made more acute by some circumstance other than the mere lack of accommodation and funds, then, despite being subject to immigration control, he qualifies for assistance. Other relevant circumstances include, of course, age, illness and disability, all of which are expressly mentioned in section 21(1) itself. If, for example, an immigrant, as well as being destitute, is old, ill or disabled, he is likely to be more vulnerable and less well able to survive than if he were merely destitute."
"... [T]he test now applicable equally to asylum seekers as to non asylum seekers is that laid down in Ex parte O and it must remain so unless and until the House of Lords decides otherwise or Parliament in some way adjusts the balance of responsibility between NASS and local authorities..."
Judge LJ as he then was and Nelson J agreed. The council's appeal was dismissed.
"50. Your Lordships are not however concerned to decide whether the test laid down by the Court of Appeal in R v Wandsworth London Borough Council, Ex p O  1 WLR 2539 (and applied by Wilson J in Mani's case, The Times, 8 May 2002) for determining whether the need for care and attention has arisen 'solely because he is destitute' was correct. It would not be right to express any view on this point because it affects the rights of everyone subject to immigration control, whether an asylum seeker or not, and they were not represented before your Lordships."
"I accept that there is some force in Hillingdon's contention that not all of the Claimant's identified needs are accommodation-specific - an example might be his need for assistance in using public transport to get to his English class - but those I have just mentioned are not in this category. Meeting the needs I have identified is dependent on him having stable accommodation."
This court dismissed the local authority's appeal. At paragraph 16 of my judgment I said:
"It is clear on the council's own approach to the case that the claimant needed help finding his way around his accommodation, at least until he had learnt the geography, help also in ensuring that his clothes matched and were put on properly, help with shopping and help with laundry, help with housework such as vacuuming. Not all of these needs, as the deputy judge accepted (paragraph 20), are, so to speak, accommodation-specific, but some undoubtedly are."
And I proceeded to cite paragraph 20 of Mr Brennan's judgment.
"It is important to note that it has been accepted in [Mani], approved by Lady Hale at paragraph 34 of [M v Slough BC], and in [NASS] that the need of care and attention spoken of in section 21 was not such as necessarily to call for the provision of residential accommodation notwithstanding the fact that such provision is made by the statute the principal medium for meeting the need, and notwithstanding the further fact that, as other parts of Part III of the 1948 show, section 21 typically entails a move into local authority accommodation."
"[I]f an applicant's need for care and attention is to any material extent made more acute by some circumstance other than the mere lack of accommodation and funds, then, despite being subject to immigration control, he qualifies for assistance [sc. under s.21(1)(a)]."
Lord Brown added this at 2548:
"The word 'solely' in the new section [sc. s.21(1A)] is a strong one and its purpose there seems to me evident. Assistance under the 1948 Act is, it need hardly be emphasised, the last refuge for the destitute. If there are to be immigrant beggars on our streets, then let them at least not be old, ill or disabled."
"NOT OTHERWISE AVAILABLE": APPLICATION TO THIS CASE
"It seems to me that, on the basis of the evidence before me concerning the assessment carried out in April of this year, the answer to the question that I have formulated is self-evidently 'yes'. The assistance provided by the local authority, even if it is properly described as care and attention, is limited to social worker input provided by Mr Wyman when the claimant visits him at the Abbey Road Centre. The balance of the claimant's needs identified in the original assessment, and indeed confirmed in the recent review of Dr Clarke, are all being met by the NHS. As it happens, those too are being met at the Abbey Road Centre."
Lord Justice Richards:
Lord Justice Rimer: