QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
(Sitting as a Deputy High Court Judge)
|THE QUEEN ON THE APPLICATION OF MAYMOUN ZARZOUR||(CLAIMANT)|
|LONDON BOROUGH OF HILLINGDON||(DEFENDANT)|
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MR K RUTLEDGE (instructed by Legal Services Department, London Borough of Hillingdon) appeared on behalf of the DEFENDANT
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"Mr Zarzour is independent of personal care but he needs guidance with being told what clothes match or if he has put things on incorrectly. He is dependent on friends to take him shopping and to escort him to college five times a week ... He also needs assistance with laundry. [He] has been staying with friends since he moved to the UK but as his friends live in temporary accommodation he has moved three times in 11 months ... His main option involves staying with two friends in a studio flat [this is where he now is] but he is worried about this as there is very little space and he is prone to falls. He wishes to remain in Hillingdon as he has a good support network in the area.
[He] is in need of stable accommodation in order that he can maximise his independence in familiar surroundings. He is able to undertake all activities of daily living once he has 'memorised' an area and feels stable there. Once he is settled in an area and has permanent housing he is able to live independently. In Lebanon he was able to get his own shopping and use a memorized transport route to get to work. His incidence of falls is also greatly reduced in a familiar environment with adequate space.
[He] has fallen several times in the previous six months within unfamiliar environments... [He] can prepare his own meals using a microwave. [His] friends help with housework ... but he is able to undertake some tasks, such as washing up. His friends assist him with laundry as he is unable to get to the laundrette independently. His friends take him shopping or get items he needs for him. He is unable to go out unaccompanied as he is currently living on a busy main road so he is at risk of accidents or falls."
The assessor's overall summary is this:
"I feel that Mr Zarzour will be unable to gain the independence he desires unless stable accommodation is found for him. If he continues to move around different temporary accommodation with his friends he will be at increased risk of falls due to the overcrowding and unfamiliar environment and will continue to be dependent on his friends for support. He is unable to access shopping or leave his home alone at present but is likely to be able to do this independently if he is settled somewhere."
"Your client is a mobile person who can dress, wash and toilet independently. He is able to manage his own finances and is able to travel after learning a route ... [Y]our client is able to live independently in a new environment after initial training and support. Your client does not need 24 hour residential care or a full time carer. He needs help with laundry and shopping along with practical assistance and support if he moves to a new environment. The Local Authority is willing to provide support and assistance to your client pursuant to s 29 of the National Assistance Act 1948 (NAA)and s 2(1) of the Chronically Sick and Disabled Persons Act 1970 (CSDPA) to assist him if he moves to new accommodation. S.29 NAA ... allows the local authority to provide advice and assistance in their own homes [sic] or elsewhere. S 2(1) CSDPA supplements s 29 and allows for practical assistance in the home."
After a reference to equipment and adaptations, the letter continued:
"Support and training could be given to assist him to learn a new area if he shifts house to allow him to travel independently in the local area. Assistance can be given to him allow to [sic] become independent at home and travelling around the home, including exits, moving from room to room and around each room. As you state once he is familiar with his environment he will be able to meet his care needs.
The Council provide a meal delivery service. Your client is able to use a telephone or order these. They can either be delivered hot daily or frozen to allow your client to have freedom to eat when he wants.
Your client therefore does not have a need to be looked after. His needs can be met by other social services provision under s 29 NAA and s 2(1) CSPDA while residing in NASS accommodation."
"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..."
"My Lords, it might appear that this case too is part of the 'inverted and unseemly turf war' between central and local government, but although the Secretary of State intervened on a different issue in the Court of Appeal, he has not intervened on the issues before us. The main issue is the precise meaning of the words 'in need of care and attention which is not otherwise available to them'. It may well be that those who drafted section 21(1)(a) in 1948 assumed that it only applied to people who needed extra care and attention which could not be provided in their own homes. They undoubtedly drew a distinction between the ordinary homeless, who were catered for under what was then section 21(1)(b), and those with special needs, who fell within section 21(1)(a). Be that as it may, we are required, by the NASS case, to accept that people who need care and attention which could be provided in their own homes, if they had them, can fall within section 21(1)(a). But that does not answer the question in this case."
Her Ladyship continued, after discussing the submissions of counsel in that case:
"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, 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,  LGR 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.
35. The only passage which might cast any doubt upon this approach is Lord Woolf's statement in Ex parte M, that the authorities could 'anticipate the deterioration which would otherwise take place' and intervene before a person's health had been damaged. He did not, however, say that they could intervene before there was a need for care. There has to be some sensible flexibility here. Section 21(1)(a) requires that the person 'are in need of care and attention' so that the primary focus must be on present rather than future needs. But if there is a present need for some sort of care, then obviously the authorities must be empowered to intervene before it becomes a great deal worse. Section 21(1A) reflects this by referring to the anticipated physical effects of destitution. It was possible to meet the present needs that Mrs Y-Ahmed already had, for without that she would have needed a great deal more. It would be possible to meet the need for care of an HIV positive person who is beginning to get sick before he becomes a great deal worse. But there must still be a need for some care and attention for section 21(1)(a) to apply at all."
"... A person must need looking after beyond merely the provision of a home and the wherewithal to survive — beyond, therefore, the needs able to be met by NASS for suitable accommodation and subsistence. The looking after required does not have to be for either nursing or personal care. It must, however, be of such a character as would be required even were the person wealthy. It is immaterial that this care and attention could be provided in the person's own home if he had one (as he would have if he were wealthy). All that is required is that the care and attention needed must not be available to him otherwise than by the provision of section 21 accommodation. In the case of someone subject to immigration control who is destitute, inevitably only the provisions of section 21 accommodation will enable his need for care and attention to be met."
"54. As a matter of ordinary language, while reformulation of a statutory expression can be dangerous, 'are in need of' means much the same as 'currently require'. 'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'. Particularly bearing in mind the multifarious circumstances in which section 21(1)(a) might be invoked, I do not think it would be sensible or helpful to indulge in further generalised exegesis. In the great majority of cases, I would have thought that the words should not present a problem.
55. As for the word 'are', it seems to me that, unless the contextual imperative to the contrary is very powerful indeed, the use of the present tense excludes the future, let alone the future conditional. It would seem wrong to extend a duty owed to a person who satisfies a statutory requirement to a person who currently does not satisfy the requirement simply because he will or may do so in the future. I should add that, as a matter of practicality, humanity and common sense, this cannot mean that a local authority is required to wait to act under section 21 until a person becomes seriously in need, however close and inevitable that serious need may be, and however much the authority reasonably wants to assist at once. The section must contemplate that a local authority can act, where it reasonably considers it right to do so, as soon as a person can be said to be in need of some care and attention, even to a relatively small degree."
• He needs tuition in finding his way around his accommodation and its surrounding area;
• If he does not have stable accommodation (and he has already moved three times in 11 months) his need for such tuition will be constantly refreshed;
• He cannot dress or deal with his own laundry without assistance; while possibly falling short of 'personal care' in the sense in which those words might be used by a social worker or a nurse, his need for such assistance is undoubtedly a need for 'care and attention';
• He needs help with his shopping;
• He cannot go out on his own; he needs assistance to keep him safe;
• His ability to feed himself - at any rate with an adequately varied diet - is severely circumscribed, to such an extent that Hillingdon is already willing (albeit under other statutory powers and without providing accommodation) to bring him hot or frozen meals on a continuing basis.