England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, ADMINISTRATIVE COURT
John Bowers QC sitting as a Deputy High Court Judge
CO/1534/2015

		Royal Courts of Justice Strand, London, WC2A 2LL
		03/05/2017

Lord Justice McFarlane :

1. The individual at the centre of this appeal arrived in the United Kingdom in October 2013 seeking asylum having fled from her native home in Afghanistan. Her circumstances at that time were parlous in the extreme. She was accepted to be a victim of torture, rape, emotional and physical abuse. As a result she suffered from severe mental health problems, including complex post-traumatic stress disorder, insomnia, depression, and anxiety. She did not speak English and was said to be illiterate. She had left seven of her eight children and her husband in Afghanistan. Her eighth child had been killed in conflict. She did not know the whereabouts of her remaining children or of her husband.
2. The issue before the court relates to housing provision. Having applied for asylum, the appellant was provided with asylum support pursuant to Immigration and Asylum Act 1999, s.95 which included accommodation and some limited financial assistance. From February 2014, however, those acting on her behalf argued that the appellant should be housed by the relevant local authority, Haringey London Borough Council ("the local authority"), either under the National Assistance Act 1948 or, following a change in the law, the Care Act 2014. On 28 January 2015 the local authority refused to provide accommodation pursuant to the NAA 1948 and, on 20 May 2015, decided that the claimant had eligible needs for care and support under the CA 2014 but she was not entitled to be provided with accommodation pursuant to s.18 of the 2014 Act in order to meet those needs.
3. The claimant sought judicial review of each of these two decisions. The judicial review application was set down for a "rolled up" hearing before Mr John Bowers QC, sitting as a Deputy High Court Judge. On 4 August 2015 Mr Bowers gave judgment in which he dismissed the claimant's challenge to the January 2015 decision, on the basis that the claimant could not come within the transitional provisions relating to the implementation of the CA 2014. No point is taken on appeal in relation to the judge's decision with respect to the 1948 Act and no more need be said about it.
4. With respect to the later decision of May 2015, taken under the CA 2014, the judge concluded that the local authority's process was defective in two important respects. Firstly, as the local authority accepted, the claimant was entitled to have, but did not have, an independent advocate to support her during the assessment process. Secondly, the judge found that the local authority "did not ask itself the correct questions" during the assessment process by, in particular, failing to give any proper consideration to the claimant's accommodation needs, with the consequence that accommodation was simply not addressed within the assessment. As a result of those two findings the judge quashed the decision of 20 May 2015, but did not grant any other relief.
5. Despite the fact that the claimant succeeded in achieving an order quashing the May 2015 decision, the judge declined to go on to grant a declaration to the effect that the local authority was bound to provide the claimant with accommodation pursuant to CA 2014. It is against the refusal of such a declaration that the claimant now appeals, permission to appeal having been granted by Lord Justice Moore-Bick at an oral hearing on 15 November 2016.
6. At the commencement of the appeal hearing this court, having undertaken the "essential reading" identified by the parties, expressed a clear preliminary view to the effect that the proposed argument of the appellant with respect to a local authority's duty to provide housing did not arise out of the facts in this case or from the judge's findings. Despite the admirably tenacious, yet courteous, arguments of Mr Burton for the appellant to the contrary, the court was unpersuaded from its preliminary view and, as a result, the parties accepted there was no benefit in the appeal proceeding to a full blown review of the new statutory provisions in a manner which the appellant and the intervenor (MIND) had hoped for.
7. At the end of the short appeal hearing, we announced our decision which was that the appeal should be dismissed. I will now set out the reasons for that decision in this short judgment.

Statutory context

8. In view of the course that this appeal has now taken, it is not necessary to set out the relevant statutory provisions in full. The Care Act 2014 is a major piece of legislation which is supported by regulations and extensive statutory guidance. The 2014 Act establishes principles and a new structure for decision making by local authorities in the field of adult social care. CA 2014, s.1 imposes a general duty on a local authority, in exercising functions under the relevant part of the Act in the case of any individual, "to promote that individual's well being". By section 9(1) "where it appears to a local authority that an adult may have needs for care and support, the authority must assess: (a) whether the adult does have needs for care and support, and, (b) if the adult does, what those needs are."
9. By CA 2014, s.13 and the Care and Support (Eligibility Criteria) Regulations 2015, where a local authority is satisfied on the basis of a needs assessment that an adult has needs for care and support, it must determine whether any of the needs meet the "eligibility criteria". The "eligibility criteria" relate to an individual's physical or mental impairment or illness, their consequent incapacity and the impact of that incapacity on their well being. The assessment of eligibility expressly excludes taking account of any support that is being provided at the time by third parties (for example, under the Asylum Support Scheme).
10. The question at the centre of the appeal which the appellant had hoped to run in this case relates to the next stage of the process described in CA 2014, s.18, the appellant's case being that s.18 establishes a duty upon a local authority to meet the needs for care and support which have been identified and which meet the eligibility criteria and, where those needs are "accommodation-related", they must be met by the provision of appropriate accommodation. The respondent local authority does not accept that the statute places a "duty" upon local authorities in the manner claimed by the appellant. It argues that the provision of accommodation under CA 2014 is a matter of discretion, rather than duty, determined by the professional judgment of the social workers.

The judge's judgment

11. Having reviewed the various statutory provisions and relevant case law, together with the factual sub-strata to this case, the judge dealt with three stand-alone issues, including the lack of an independent advocate, before turning to the central issue relating to the provision of accommodation under the CA 2014.
12. At paragraph 48 the judge described the dual basis upon which Mr Burton, counsel for the claimant, argued her case:

"48. Mr Burton submits there is a duty here to provide accommodation because it would be irrational not to do so in order to meet the adult's care and support needs. He has the lesser case, however, that the council did not ask itself the correct questions. I agree with Mr Burton in the latter argument that the only suggestion that the question of whether or not the defendant was under a duty to provide accommodation was even considered by the defendant is contained in the pre-action letter. I also accept that there is no evidence that the defendant asked itself whether, even if services could have been provided in a non-home environment, they would have been rendered effectively useless if the claimant were homeless and sleeping on the street."

13. At paragraph 49 the judge described Mr Burton's further submission to the effect that there is only one rational answer to the question of the provision of accommodation on the basis that Part 1 of CA 2014 establishes a duty for local authorities to do so in a case such as this. The judge's conclusion on this point is described at paragraph 50:

"50. I do not agree that there is only one possible outcome, although I do think that the question that should have been asked has not been properly asked, and also that those carrying out the care plan appear to have thought that it was appropriate to take into account the accommodation being provided elsewhere which the council now accepts it should not."

14. At paragraph 51 the judge indicated a preference for the defendant local authority's case based on discretion rather than duty before moving on at paragraph 52, to deal with a further point in the claimant's argument:

"52. The claimant says that it would be effectively useless to provide services otherwise than in a home. I will address this although I do not think this is the appropriate way of dealing with it because this is a public law challenge. The claimant relies on these matters of provision of service to the claimant that she: (emphasis added)

…

(d) is visited at home by [social work assistant] and her home environment is checked:

…

(i) is assisted with domestic and practical tasks in the home by other women who live there and [social work assistant]."

15. The following paragraph contains the sole basis upon which the present appeal is mounted:

"53. I do not accept that any others than (d) and (i), as I have set them out, are truly accommodation-related, and in any event I think it is still within the discretion of the local authority to decide that notwithstanding these services it is not appropriate to meet needs through the provision of accommodation."

The judge then concluded the main part of his judgment as follows:

"54. As I have already trailed, Mr Burton is, I think, on stronger ground when he says the decision-making here was defective. As he says, it is not clear that the defendant actually gave consideration to the need to provide the claimant with accommodation when it made the decision of 20 May.

55. I have thought carefully about what relief to grant and I think it is appropriate, although I will hear both counsel on the detail, to quash simply the decision of 20 May 2015 on the cumulative grounds that there was a lack of an independent advocate and for failure to properly consider accommodation. There will be no other relief."

The appeal

16. As Mr Burton accepted in his oral submissions, this appeal is based entirely on the judge's words in the one sentence to be found at paragraph 53. First of all, the appellant relies upon the judge's indication of acceptance of points (d) and (i) as being a finding that the applicant's eligible needs for care and support were accommodation-related, thereby setting up the question of whether or not the local authority was, as a result, under a statutory duty to provide accommodation in order to discharge its s.18 duty to meet her needs, or, merely had the power, at its discretion, to make such provision.
17. The core of the appeal therefore arises from the statement in paragraph 53 of the judgment that such matters are "in any event … within the discretion of the local authority to decide".
18. It has always been accepted that the outcome of this appeal is academic so far as the personal circumstances of this appellant are concerned. As was known at the time, within days of the judge's decision, the appellant was afforded refugee status and was granted leave to remain in the UK. As a result of the judge's decision a further assessment was undertaken and that is not the subject of challenge. Mr Burton's recent supplemental skeleton argument stresses that the appeal does not entail any criticism of the social workers involved in the appellant's care and, on the contrary, states that "she has plainly benefited significantly from their help and assistance and is in much less need of care and support than she was … She has been reunited with her children." And that she "was able to improve in this way because she had safe, secure and suitable accommodation."
19. When granting permission to appeal Lord Justice Moore-Bick recognised the academic nature of the appeal in the sense that I have thus far described. He was, however, persuaded that it was proportionate for the Court of Appeal to examine the wider issues in this case in order to determine a matter which is of more general importance.
20. Mr Burton submits, and I accept, that it is in the nature of claims such as the present for events to have moved on significantly in the period prior to any appeal hearing so that it will often, if not always, be the case that the issue has become academic.
21. It is my concern that this appeal is also "academic" in a wholly different context, and is so to such an extent that it cannot be regarded as a viable vehicle to carry the appellant's argument as to the interpretation of CA 2014, s.18 on the question of "duty" or "power".
22. The role of a local authority under CA 2014, s.18, whether it be a duty or a power, only comes into play after a determination under s.13 has been made to the effect that the relevant individual has accommodation-related care and support needs. As the judge found, the local authority wholly failed to address the question of accommodation during their assessment of the claimant and therefore in this case the local authority had not made a relevant determination under s.13 sufficient to trigger the next stage of the process, with respect to accommodation under s.18. and the care and support plan required by s.23(4)(1)(a). The judge therefore set the May 2015 assessment aside with the implication that it would have to be undertaken afresh. Thus, on the facts of the case and the judge's findings on those facts, any question as to the local authority's role under s.18 was premature and did not fall for determination by the judge.
23. Insofar as the appellant relies upon the judge's words at paragraph 53 as indicating an acceptance that the appellant had established accommodation-related needs (at least with respect to items (d) and (i)), I do not consider that paragraph 53 of the judgment can be read in that way. Paragraphs 52 and 53 must be read together. In them the judge, for completeness, rehearsed the claimant's case on s.18 but he did so on the express basis that he did not "think that this is the appropriate way of dealing with" the proceedings. It is therefore clear that the judge's words at paragraphs 52 and 53 form no part of his determination. By identifying two accommodation-related factors from the claimant's list at paragraph 53 the judge was doing no more than describing the high point on this aspect of the claimant's primary case, albeit that that was a case which the judge rejected. The judge's observation at paragraph 53 that these matters are "still within the discretion of the local authority" was no more than passing commentary on an aspect of the case which he, in express terms, stated that he did not consider was an appropriate way of dealing with the proceedings. Neither at paragraph 53, nor at any earlier stage of the judgment, is there any judicial analysis of the issue as to "power" or "discretion" under s.18. The absence of any judicial analysis of the point underlines, to my eyes, my conclusion that the judge's reference to "discretion" at paragraph 53 is no more than a passing observation rather than a reasoned judicial conclusion on a matter which the judge understood to be at the centre of his decision.
24. As the following paragraph (paragraph 54) makes clear, the judge determined the proceedings on the claimant's secondary case, namely, that the local authority decision making process was defective as a result of a failure to give consideration to the need to provide the claimant with accommodation.
25. Although this court will, where the need to do so is plainly established, entertain "academic" appeals, the "academic" nature of such proceedings will arise because time has moved on and there is no longer a live issue for determination between the parties. In the present case, the argument that the appellant proposes to run on appeal is "academic" in a different sense in that it simply does not arise on the facts of the case and was not a matter upon which the first instance judge delivered a reasoned ruling. It therefore provides, in my view, a wholly unsatisfactory basis for consideration on appeal with the appellate court being invited to determine these important points in a complete vacuum.
26. Mr Burton, whose impressive, forceful, yet courteous, submissions both assisted and impressed the court, accepted that, if the judge had not said what he had said at paragraphs 52 and 53, there would be no appeal. Mr Burton argued that as the judge had included those passages in his judgment and had refused to grant a declaration that the claimant was entitled to housing from the local authority, the appeal was not academic in this context and had merit.
27. For the local authority, Mr Stephen Knafler QC, welcomed the court's preliminary analysis and supported the dismissal of the appeal on that basis. The local authority's case has always been that this appeal is academic and that (applying R (Salem) v Secretary of State for the Home Department (1999) UKHL 8) there is no justification for permitting it to proceed.
28. MIND intervene in this appeal with the leave of the court. The court is grateful to MIND for the evidence and submissions that it has filed. The interpretation of Part 1 of CA 2014 and its impact upon those individuals who have mental health difficulties are matters of pressing concern to MIND. Mr Christopher Buttler, acting for MIND, whilst understandably making no direct submissions as to the outcome of this particular appeal, urged the court to note the importance of these matters to MIND and record that organisation's willingness to assist by way of intervention any court in the future which has to grapple with these important matters.

Conclusion

29. As Mr Burton conceded, the appellant's case relating to the interpretation of CA 2014, s.18 is based entirely upon paragraphs 52 and 53 of the judge's judgment. For the reasons that I have given, it is clear that those two paragraphs do not form any part of the reasoning that underpins the judge's determination of these judicial review proceedings. Paragraphs 52 and 53 are no more than passing commentary on an aspect of the claimant's case, which the judge expressly held was not an appropriate basis for determining the claim. These two paragraphs are, therefore, plainly obiter dicta. They could not, and should not, be regarded in any manner as authority or precedent on the interpretation of CA 2014, s.18. If a court in the future has cause to consider the interpretation of CA 2014, s.18 it should, in my view, do so without any regard to paragraphs 52 and 53 of the first instance judgment in this case, but should embark upon the task of interpretation with, as it were, an entirely clean sheet.
30. For the reasons that I have given, this appeal is to be dismissed.

Lord Justice Lindblom:

31. I agree.

Lord Justice Flaux:

32. I also agree.