England and Wales High Court (Administrative Court) Decisions

1. This case is concerned with the relationship between the duty of a local authority under section 21 of the National Assistance Act 1948 as amended and its duties under other legislation, and in particular the Housing Act 1996. The essential question before me is whether the Claimant, who suffers from schizophrenia, whose mental condition is vulnerable, and whose mental health may be affected by his and his family's desperately overcrowded accommodation, is entitled to suitable accommodation provided by the Local Authority Defendant pursuant to section 21, irrespective of its resources, including the availability to it of suitable affordable housing, and the requirements of other applicants for housing. The answer to this question has obvious implications for the allocation by local authorities of their limited supply of affordable housing. At the heart of the case are the decisions of Scott Baker J in R v Bristol CC ex p Penfold (1998) 1 CCLR 315 and of Henriques J in The Queen on the application of Batantu v London Borough of Islington (8 November 2000) [2000] All ER (D) 1744.

2. I have been fortunate to have had the assistance of counsel who are familiar with this area of the law, and indeed have appeared in a number of the leading cases. I have to say that even with counsels' considerable assistance, I have found this case difficult.
The facts

"We have 661 applicants waiting for 5 bedroom and only 27 have been let from April 1998 to date and we have 1855 applicants waiting for 4 bedroom and only I09 have been let from April I998 to date.
In view of this it has not proved possible for us to offer (the Claimant's family) a suitable property, and I am unable to accurately predict when we will be in a position to do so.
I would urge him to:
- consider changing his application for flats up to the 4th floor, lifted and unlifted, as the higher the floor level the less applicants there are for rehousing.
- consider changing his application to include areas on the eastern side of the Borough, for example Bromley or Blackwa11, where there are far fewer applicants competing for far more vacancies.
- consider changing his application to include properties one bedroom smaller than they ideally require.
This could mean for example, that for a 4th floor, 4 bedroom flat in the Bromley area, his application would be 7th on the list, for the 40% of properties that are available to transfer applicants."

6. In a later letter dated 3 June 1999, the Defendant's Housing Department confirmed that the Claimant's coding had been changed so as to include both 4- and 5-bedroom properties. It stated:

"Mr Wahid only wants to be considered for a house. Therefore his chances of being offered a 4 or 5 bedroom house is Zero."

It again urged him to consider a flat up to the 4th floor with a lift.

7. At the request of the Claimant's previous solicitors, the Defendant's social services department undertook a Child in Need Assessment. It is dated 25 June 1999, and is the source of the description of the family and their accommodation contained in paragraph [4] above. The Assessment impliedly speaks volumes for the ability of the Claimant's wife to care for her family in very difficult circumstances. The conclusion of the Assessment is as follows:

"From the information gathered for the assessment, this would seem to be a family with a number of problems. Mr. Abdul Wahid has a long history of mental illness, Abul Laice was involved in a serious accident and Mrs. Bibi is struggling to care for her children and her husband in a (sic) overcrowded accommodation. Despite all these difficulties the needs of the four younger children are met by the family. The schools have not reported any concerns. So they do not come under section 17 of Children Act 1989.
However, the family's housing situation is not a suitable arrangement. It is not appropriate for grown up children like (the 2 older daughters) to share a bedroom with parents. They would benefit from a larger accommodation, whereby children and other members of the family can have their own space and privacy. Children will also be able to do their school work without any interruption.
(3 of the sons) are an important resource for the family in terms of support. ... So it is important that they live, if not in the same household, close by."

Its recommendations were:

* "The case be referred to the Housing Department for consideration of rehousing.
* Social Services to discuss homework club provisions with (the children's schools).
* Social Services to advise family to consider (the 3 oldest boys) making a separate housing application with a request to being housed near their parents so that they can continue to provide support."

The last recommendation doubtless reflected the social worker's awareness of the scarcity of large units of affordable accommodation.

8. For some 3 years the Claimant was relatively well. However, on 28 November 2000, he was again admitted to hospital for treatment of his schizophrenia. His family were unable to understand why his health deteriorated. He was released on 9 January 2001 and returned home.

9. The "Care Programme Approach - Care Plan" relating to Mr Wahid, dated 9 January 2001, stated that the Claimant was discharged because it was felt he no longer required admission and could be managed effectively at home with community support. The "Needs identified during assessment" box stated:

"Abdul was experiencing psychotic episode. At present he appears very well and he reports that he is free from hallucinations for the first time in 20+ years."

Under "Interventions/Actions required to meet needs", it stated that Mr Wahid needed ongoing support and monitoring of his mental condition. It did not state that he required rehousing.

10. By letter dated 8 January 2001, the Claimant's new solicitors required the Defendant to carry out an immediate assessment of his community care needs pursuant to section 47 of the National Health Service and Community Care Act 1990 ("the NHSCCA"), and to consider exercising their discretion under section 47(5) to provide him and his family with suitable accommodation pending a full assessment.

11. Section 47(1) of the NHSCCA provides:

"... where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care 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 the assessment, shall then decide whether his needs call for the provision by them of any such services."

Mr Wahid and his wife stated that overcrowding was their main problem.

I shall not set out the whole of the Assessment, but it is an obviously important document. Under the heading "Summary of the nature of risk", it stated that Mr Wahid was reported to be mentally stable, was compliant with his medication and was currently monitored weekly by his Community Mental Health Nurse Arthur Golightly, who is employed by the local health authority. Under the heading "Mood", the Assessment stated:

"Subjectively happy, feels better than he has for the past 28 years."

Under the heading "Summary of Needs" the Assessment stated only: "Assistance with liasing with the Housing Department". The Initial Action Plan was for a mental state assessment to be undertaken by Mr Golightly, and "Liaise with the housing department". Under the heading "Housing" the Assessment stated that that appeared to be the main issue for Mr Wahid and his wife and was the only need identified by them.

14. Mr Golightly produced a report on Mr Wahid dated 23 February 2001. His description of his mental state was consistent with the Care Programme Approach Assessment and the Care Plan. He added:

"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 problems. 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 general 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."

15. The evidence of the Defendant consisted of 2 witness statements of Alan Mountain, the Team Manager of their Bethnal Green Mental Health Team. He had considered Mr Golightly's report and discussed the Claimant with him. Whereas Mr Golightly considered that the Claimant was at significant risk if he was not rehoused, and that he required immediate rehousing if he was to maintain his mental stability, Mr Mountain considered that the risk of adverse mental consequences resulting in a breakdown to him caused by overcrowding was relatively small. In his second witness statement, Mr Mountain clarified what Mr Golightly had told him: Mr Mountain reported that Mr Golightly had stated that the Claimant needed larger accommodation immediately if his mental stability was to be guaranteed. The Claimant had declined any social services assistance apart from help with the resolution of his housing situation. In words obviously taken from section 21 of the National Assistance Act 1948, Mr Mountain concluded that the Claimant was not in need of care and attention which was not otherwise available to him. He added:

"Unfortunately, the Claimant's housing situation is no different from a number of other families within the borough. There are many families in the borough whose unsatisfactory housing impacts adversely on their physical or 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."

Mr Mountain was unable to specify when larger accommodation would be available to the Claimant.

16. It is clear from the correspondence and the evidence filed on behalf of the Claimant that his object in bringing these proceedings is to obtain a transfer to suitable improved housing accommodation provided by the Defendant.
The parties' submissions

17. The Claimant's case was clearly and cogently put. Mr Wahid has a need for a housing transfer by reason of his medical condition, i.e., by reason of illness or disability within the meaning of section 21(1) of the National Assistance Act. The accommodation required by Mr Wahid is not otherwise available. His case is indistinguishable from those of the claimants in Penfold and Batantu . The Defendant is therefore bound, under section 21, to provide the necessary accommodation, and its duty is absolute, and independent of its available housing resources: see R v Kensington and Chelsea RBC ex p Kujtim [1999] 4 All ER 161, (1999) 2 CCLR 340.

18. Mr Knafler emphasised that section 21 requires that an applicant be in need not of accommodation, but of care and attention. He submitted that the Claimant needs the former, but that he is receiving the latter, from Mr Golightly in particular, and that such care and attention is therefore "otherwise available" within the meaning of section 21. He sought to distinguish the decisions in Penfold and Batantu by reference to the evidence in those cases as to the health of the claimants.
Discussion

19. A number of matters can be cleared away as a preliminary. The Claimant's claim form seeks relief, under section 17 of the Children Act 1989, in relation to Mr Wahid's and his wife's children under the age of 18. The Child in Need Assessment referred to above concluded that the children are not in need within the meaning of section 17. That conclusion has not been challenged, and Mr Goudie did not pursue this head of claim. I point out that the Children Act 1989 does not contain the equivalent of section 21(8) of the 1948 Act: compare section 30(1) of the Children Act.

20. Secondly, the condition of the Claimant's present home may give rise to causes of action and remedies against the Defendant as their landlord. It exacerbates their need for alternative accommodation, but does not otherwise give rise to separate consideration so far as the present claim is concerned.

21. Thirdly, after the commencement of these proceedings, the Claimant made an application for homelessness assistance under Part VII of the Housing Act 1996. That application is not the subject of these proceedings.

22. Fourthly, it is not suggested that the Claimant's application to the Defendant as his housing authority for a transfer from his present local authority housing to suitable affordable housing has been dealt with otherwise than properly and lawfully by the Defendant.

23. Fifthly, the Care Programme Approach, which is the subject of central government guidance, does not modify the statutory powers and duties of the relevant authorities. It is concerned with co-operation between them.

24. I therefore turn to consider the relevant statutory provisions. Section 21 of the National Assistance Act, so far as is relevant, is set out below.

"(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing -
(a) residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them.

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

25.

(8) ... 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 or authorised or required to be provided under the National Health Service Act 1977."

The Secretary of State has directed local authorities to make arrangements for persons such as the Claimant who have are in urgent need: see paragraph 2 of the Direction contained in Appendix 1 to Circular LAC (93) 10, R v Sefton MBC ex p Help the Aged and Blanchard [1997] 4 All ER 532, (1997) 1 CCLR 57; Kujtim . If, therefore, the Claimant has that need, the Defendant is under a duty to make arrangements for providing him with residential accommodation.

26. I have set out the relevant provisions of Section 47(1) of the NHSCCA above.

27. Section 21 is curious in that there is a difference between the need it addresses and the means to meet it: the need is for care and attention, yet the means of meeting it is by the provision of residential accommodation. Clearly, a need for accommodation is not the same as a need for care and attention. The kind of accommodation that one would have thought was envisaged by the Act is accommodation in a hostel or nursing home or other facility. Subsections (2) and (3) give this view some support. In my view, subsection (8) provides considerable support for this view of the section. What is sometimes referred to as "ordinary" residential accommodation, for example in a house or flat, or as "housing accommodation", is the subject of the Housing Acts 1985 and 1996, which confer authority and impose duties on local authorities in connection with the provision of such accommodation. Housing accommodation, therefore, is a "provision authorised or required to be made ... by or under any enactment not contained in (Part III of the 1948 Act)" within the meaning of section 21(8). It would seem to follow, therefore, that the provision of housing accommodation is not authorised or required to be made under Part III of the 1948 Act. This conclusion is reinforced by section 161(1) of the 1996 Act, which prohibits a local housing authority from allocating housing accommodation to persons who are not qualified to be allocated housing accommodation by that authority: qualification under the Housing Act is irrelevant to section 21 of the 1948 Act. See too the other provisions of Part VI of the 1996 Act.

28. This interpretation of the effect of section 21(8) is consistent with the view that section 21 is a safety net provision, a provision to be relied upon when all else fails. It is also rational for provision made under other enactments not to be affected by Part III of the 1948 Act. Part VI of the Housing Act 1996, for example, is a statutory code (see section 159(1)) relating to the allocation of housing accommodation to those who (essentially) do not already have secure or assured tenancies, with which Part III of the 1948 Act sits uncomfortably. (Part VI of the 1996 Act does not apply to the allocation of housing accommodation to persons who are already secure tenants and persons in a similar position: section 159(5). For this reason the transfer to housing accommodation to the Claimant is not subject to the provisions of Part VI.) Homelessness is the subject of Part VII of the Housing Act 1996. Given the provisions of section 175(3) of that Act, which makes it clear that a person is to be treated as homeless if his accommodation is such that he cannot reasonably be expected to occupy it, Part VII is clearly applicable to the Claimant. Section 188 of the 1996 Act imposes a duty on housing authorities such as the Defendant to secure that accommodation is available for his occupation pending a decision as to the duty owed to him under the succeeding provisions of Part VII of that Act, and section 193 requires accommodation to be made available, for a specified period, to a person who is homeless, eligible for assistance, has a priority need, and is not intentionally homeless.

29. Of course, it is proper to provide for local authorities to be under different duties in relation to those whose needs have reached a degree of urgency or which are so great that an absolute duty to provide for them is appropriate. But that is not the structure of Part III of the 1948 Act as drafted: any need for care and attention is capable of triggering the statutory duty. Against that, by reason of the Secretary of State's direction it is only if the need is urgent that the duty arises: see paragraph 2(1)(b) of the Direction referred to in paragraph [25] above. So far as is relevant, paragraph 2 is as follows:

"2 (1) The Secretary of State hereby -
(a) approves the making by local authorities of arrangements under section 21(1)(a) of the Act in relation to persons with no settled residence; and
(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.
(2) ... "

30. In any event, one would expect to see the gradation of duties set out in the housing legislation; yet Part VII of the 1996 Act does not even refer to Part III of the 1948 Act. In particular, priorities in the allocation of the housing resources of housing authorities are the subject of sections 167 and 168 of the Housing Act. Section 189(1) provides that those who are vulnerable as a result of mental illness have a priority need for accommodation. It is to be noted that there is no complaint in the present case that the Defendant has failed to have or to apply in relation to the Claimant an allocation scheme in accordance with section 167.

31. The present case is concerned with the effect of overcrowding on the health of the Claimant. But overcrowding generally does affect the health of those whose residential accommodation is overcrowded. Overcrowding of itself cannot justify a duty under section 21. Nor, in my judgment, can a risk to the health of the occupiers of accommodation. Section 167(2) of the Housing Act 1996 requires a local housing authority to give preference to people occupying insanitary or overcrowded housing, and those who have a particular need for settled accommodation on medical grounds, but does not otherwise impose any obligation to provide them with housing accommodation. Similarly, the Defendant's housing allocations policy for transfers, which is applicable to the Claimant, specifies 7 re-housing target groups, which include an overcrowding group and an urgent health group. Points are awarded in proportion to the degree of existing overcrowding, and to the category of medical need, of which category 1 is described as "urgent", and which presumably includes the Claimant. This policy is liable to be circumvented or made irrelevant if an overriding duty arises under section 21 of the 1948 Act. If, as Mr Goudie submits, a need for a housing transfer by reason of a medical condition gives rise to duty under section 21, a whole category of applicants for housing accommodation or a transfer from existing local authority accommodation will be taken outside any allocations policy adopted under the Housing Acts, and a local authority will be under an absolute duty to provide them with suitable housing accommodation.

32. For the above reasons, like, I believe, Carnwath J in Gorenkin at 313C-D, I do not believe that Part III of the 1948 Act was intended to apply to the provision of housing accommodation. However, like Carnwath J, I am constrained by the line of decisions in which housing accommodation has been held to be residential accommodation for the purposes of section 21: I refer to Penfold ; R v Avon CC, ex p M [1994] 2 FLR 1006, (1999) 2 CCLR 185, R v Wigan MBC ex p Tammadge (1998) 1 CCLR 581, and Batantu . I do not however accept that in either Kujtim or Sefton did the Court of Appeal decide that a local authority's duty under section 21 of the 1948 Act to provide residential accommodation includes a duty to provide housing accommodation; and I accept Mr Knafler's submission that the decision in R v Wigan MBC ex p Tammadge was influenced by, if not dependent on, the concession by counsel for the local authority, at 584A-B, that housing accommodation can amount to a community care service and be provided pursuant to a section 21 duty. In the light of the above decisions, Mr Knafler too accepted that residential accommodation under section 21 may include housing accommodation. The result of the above decisions appears to be, therefore, that if there is a need for care and attention, and the applicant also needs housing accommodation for reasons of illness (or other cause within section 21(1)(a)), and the care, attention and accommodation are not otherwise available, a local authority is under a duty to provide that accommodation. That is what, I believe, Henriques J meant at paragraph 27 of his judgment in Batantu . Another way of putting it is to include housing accommodation in the care and attention the need for which is the pre-condition for the existence of a section 21 duty: i.e., if a person needs care and attention, including housing accommodation, that is not otherwise available, a local authority is under a duty to provide that accommodation. But the need for care and attention remains the pre-condition for the duty.

33. Furthermore, as appears above, I accept Mr Knafler's submission that care must be taken to retain section 21 as a provision of last resort. Otherwise there is a danger that it will become a provision of principal resort, and will lead to the circumvention or sidelining of section 167 of the Housing Act and local housing authorities' policies for the allocation of housing to new and existing tenants. A need for better housing should not in general give rise to a duty under section 21. When construing and applying section 21, it is important to bear in mind the other provisions under which a housing authority is under a duty to provide accommodation.

34. I turn to the facts of the present case. The principal question is: has the defendant assessed the Claimant as having a need for care and attention that is not otherwise available? The relevant assessment is the Defendant's, not Mr Golightly's: Mr Golightly is not an employee or officer of the defendant. The assessment is summarised in paragraph [12] above. It did not find that Mr Wahid was in need of care and attention that is not otherwise available. Mr Mountain has also assessed that he does not have such a need. The Claimant is mentally stable and receiving the medical care and attention he requires. There is a risk that Mr Wahid will relapse, and that risk is exacerbated by his unsuitable accommodation; but that risk is not a present need for care and attention. Similarly, the need for suitable accommodation is not urgent. Mr Mountain's assessment is not irrational. He has considered and taken into account the views of Mr Golightly. The Defendant's assessment is consistent with the Claimant's previous refusal to consider accommodation otherwise than in the shape of a 5-bedroom house, and subsequently otherwise than in a 4- or a 5-bedroom house, in specified areas. I have some difficulty in reconciling the statement of the Claimant's family's preferences, appropriate to an application for a transfer under the Housing Acts, with a section 21 duty. In my judgment the Defendant's assessment is not based on an error of law. If there is no need for care and attention not otherwise available, there can be no complaint about the assessment identifying Mr Wahid's need as liaison with the Housing Department.

35. This case differs from Batantu and Penfold . In Penfold there had been no assessment within the meaning of section 47 of the NHSCCA. Scott Baker J stated that a local authority may provide "normal" housing "when it would otherwise have to be met by other community care services": see at 1 CCLR 327A and 330H. I assume that by this phrase he meant that there has to be a need for care and attention that would be met by, among other things, the provision of accommodation. In Batantu the Claimant was suffering from severe depression, it would appear that the need had been assessed, and the situation was urgent. There was a need for care and attention that involved the provision of suitable housing accommodation. I say that it would appear that the need had been assessed because the terms of the assessment are not set out in Henriques J's judgment. In the present case, the condition of the Claimant is under control, and his need for suitable accommodation has not been assessed as urgent. He is receiving appropriate care and attention. No duty under section 21 has arisen.

36. Lastly, in my judgment the Claimant's reliance on Article 8 of the European Convention on Human Rights does not add to his rights under English Law. The right to respect for his private and family life is not infringed by the decision of the Defendant, the effect of which is to deal with his housing requirement under housing legislation.

37. My conclusion should not be seen as justifying any delay in the provision of suitable housing accommodation for Mr Wahid. His and his family's need for greater accommodation is obvious. They must be given the priority that is appropriate to their needs, and I hope that the Defendant will provide the family with suitable accommodation as soon as possible. The sole question in this case is whether the Defendant Local Authority is under a legal duty to provide that accommodation immediately, irrespective of its availability from its existing housing stock and the needs of other applicants, or whether the duty is to determine his priority in accordance with the Defendant's written allocations policy and its duty in regard to homeless families. In my judgment it is the latter duties that apply in this case.