|Judgments - R (On The Application of M) (Fc) V Slough Borough Council
HOUSE OF LORDS
 UKHL 52
on appeal from:  EWCA Civ 655
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
R (on the application of M) (FC) (Respondent) v Slough Borough Council (Appellants)
Lord Bingham of Cornhill
Lord Scott of Foscote
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
Lord Neuberger of Abbotsbury
John Howell QC
(Instructed by Slough Borough Council )
David Pannick QC
(Instructed by Hackney Community Law Centre )
9 and 10 JUNE 2008
WEDNESDAY 30 JULY 2008
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
R (on the application of M) (FC) (Respondent) v Slough Borough Council (Appellants)
 UKHL 52
LORD BINGHAM OF CORNHILL
LORD SCOTT OF FOSCOTE
BARONESS HALE OF RICHMOND
The facts and these proceedings
Section 21(1)(a) and the other responsibilities of local social services authorities
"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; and
(aa) residential accommodation for expectant and nursing mothers who are in need of care and attention which is not otherwise available to them."
The impact of immigration control
"What [asylum seekers] 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. In addition to the lack of food and accommodation is to be added their inability to speak the language, their ignorance of this country and the fact that they have been subject to the stress of coming to this country in circumstances which at least involve their contending to be refugees. Inevitably the combined effect of these factors with the passage of time will produce one or more of the conditions specifically referred to in section 21(1)(a). It is for the authority to decide whether they qualify."
"The Court of Appeal judgment relating to the 1948 Act meant that, without warning or preparation, local authority social services departments were presented with a burden which is quite inappropriate, which has become increasingly intolerable and which is unsustainable in the long term, especially in London, where the pressure on accommodation and disruption to other services has been particularly acute."
The white paper proposed the setting up of a national asylum support scheme, separate from the welfare schemes available to people with an established right to live here, and specifically intended as a safety net of last resort for people with nowhere else to turn. It was recognised that the scheme might be used to promote specific policy objectives, including the deterrent effect of making the claimants' situation "less eligible" (to use a 19th century poor law concept). Thus, in para 8.17:
"In considering what form support arrangements for asylum seekers should take, the Government believes that they should satisfy the following objectives:* To ensure that genuine asylum seekers cannot be left destitute, while containing costs through incentives to asylum seekers to look first to their own means or those of their communities for support; * To provide for asylum seekers separately from the main benefits system; * To minimise the incentive to economic migration, particularly by minimising cash payments to asylum seekers."
Meanwhile, at para 8.23:
"The 1948 Act will be amended to make clear that social services departments should not carry the burden of looking after healthy and able bodied asylum seekers. This role will fall to the new national support machinery."
"A person to whom section 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."
Subsection 21(1B) incorporated the definition of destitution, together with its ancillary provisions, from section 95(3) of the 1999 Act:
"For the purposes of this section, a person is destitute if -
(a) he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or
(b) he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs."
Our lives would have been a great deal easier if section 21(1A) had simply provided that local social services authorities were under no obligation at all to "persons subject to immigration control". It did not do that, no doubt because it was accepted that people with particular health or care needs should have still access to the National Health Service and social services. So the question was where to draw the line between those for whom the social services were responsible and those for whom they were not, for some of whom the asylum support service might be responsible and for some of whom there might be no-one responsible at all.
"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."
The House declined to express a view on whether the exact test adopted by Lord Justice Simon Brown in Ex parte O was correct, because it also affected people who were not entitled to asylum support. The case had been argued throughout on the basis that Mrs Y-Ahmed had a need for care and attention which had not arisen solely because she was destitute but also (and largely) because she was ill.
"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.
LORD BROWN OF EATON-UNDER-HEYWOOD
(i) What constitutes a need for care and attention such as (subject to section 21(1A)) to entitle a person to section 21 residential accommodation?
I agree with Lady Hale's analysis. 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. But that does not exclude him under section 21(1A): that provision only excludes those whose need for care and attention (not whose need for accommodation) has arisen solely because of destitution. As Lord Hoffmann said in NASS para 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."
As Lady Hale explains, the respondent (unlike the two claimants in R v Wandsworth London Borough Council Ex parte O; R v Leicester City Council Ex parte Bhikha  1 WLR 2539 ("Ex parte O"), Mrs Y-Ahmed in NASS, and Mr Mani in the later case of R (Mani) v Lambeth London Borough Council  BLGR 35) fails at this initial hurdle: M needs no looking after beyond medical care which is provided by the NHS and thus excluded from consideration by section 21(8).
(ii) Should the person's need for care and attention be regarded as having arisen "solely because he is destitute"?
This question only arises once it is established that the person has a need to be looked aftera need beyond merely the provision of a home and the means of survival. If a person reaches that state purely as a result of sleeping rough and going without food, as envisaged in R v Hammersmith and Fulham London Borough Council, Ex parte M (1998) 30 HLR 10 ("Ex parte M") at p.19, then clearly the need for care and attention will have arisen solely from destitution. If, however, that state of need has been accelerated by some pre-existing disability or infirmitynot of itself sufficient to give rise to a need for care and attention but such as to cause a faster deterioration to that state and perhaps to make the need once it arises that much more acutethen for my part, consistently with the views I expressed in the earlier cases, I would not regard such a person as excluded under section 21(1A).
The Court of Appeal's decision
LORD NEUBERGER OF ABBOTSBURY