Accommodation - Duty to provide - Appellant failed asylum seeker

SL v Westminster City Council: CA (Civ Div) (Lord Justices Laws, Richards, Rimer): 10 August 2011

The appellant was an Iranian national who arrived in the UK in 2006. His asylum claim was refused in January 2007 and he became homeless in October 2009. In December 2009, he attempted to kill himself and was admitted as an inpatient to a mental health unit. He was discharged in April 2010, diagnosed as suffering from depression and post-traumatic stress disorder.

Following his discharge, certain assistance was provided to him by or through the local authority, the principal element of which consisted of regular weekly meetings between the appellant and a social worker employed by the local authority, AW, at which AW offered advice and encouragement and generally monitored the appellant’s condition and progress.

AW was the appellant’s care coordinator and was also instrumental in arranging contact with various counselling groups and a ‘befriender’. In a letter dated 14 April 2010, the local authority confirmed however that it owed the appellant no duty under section 21(1)(a) of the National Assistance Act 1948 (the act) to provide residential accommodation.

That was based on the fact that the appellant was not in need of care and attention within the meaning of section 21(1)(a) of the act (the determination). The appellant sought judicial review of that decision. The judge ruled that the decision reached by the local authority had not been wrong in law and dismissed the claim. The appellant appealed.

The principal issues that fell to be determined were: (i) the meaning of ‘care and attention’ under section 21(1)(a) of the act and accordingly whether the respondent’s determination was open to a reasonable decision-maker; and (ii) the meaning of ‘not otherwise available’ under section 21(1)(a) of the act. The appeal would be allowed.

(1) It was established law that the natural and ordinary meaning of the words ‘care and attention’ in the context of section 21(1)(a) of the act was ‘looking after’. Looking after meant doing something for the person being cared for which he could not or should not have been expected to do for himself. The definition drew a reasonable line between the ‘able bodied’ and the ‘infirm’ (see [19], [21] of the judgment).

On the facts, the appellant was, and at all material times had been, in need of care and attention within section 21(1)(a) of the act, subject however to the meaning of ‘not otherwise available’. The judge had understated the nature of the support provided by the respondent through AW.

AW had been doing something for the appellant which he could not do for himself: he was monitoring his mental state so as to avoid if possible a relapse or deterioration. He was doing it principally through their weekly meetings but also by means of the arrangements for contact (or the renewal of contact) with the counselling groups and with the ‘befriender’.

Care and attention within the subsection was not limited to acts done by the local authority’s employees or agents. The subsection did not envisage any particular intensity of support in order to constitute care and attention. It was for the appellant to show that the respondent’s determination was not open to a reasonable decision-maker and that test had been met. Accordingly, the support provided by the respondent to the appellant had qualified as care and attention and the local authority had been wrong to conclude otherwise (see [22]-[23] of the judgment).

(2) It was established law that the test for qualifying for assistance under section 21(1)(a) of the act was that if an applicant’s need for care and attention was 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 qualified for assistance. That test reflected the division of destitute asylum seekers into two mutually exclusive classes: able bodied and infirm.

All members of the first class were covered by section 21(1A) of the act, the effect of which was broadly to exclude from section 21(1)(a) a series of categories of foreign nationals and all members of the second by section 21(1)(a). If all asylum seekers who were destitute and infirm were entitled to the benefit of section 21(1)(a), so were all other persons who were destitute and infirm. The difficulty with that approach was, however, that, read ­literally, it included within the embrace of section 21(1)(a) an infirm and destitute person even though there was no nexus between his destitution and his infirmity.

This gave no weight to the words of the statute, ‘not otherwise available’ and some force had to be given to those words. A nexus between a claimant’s destitution and his infirmity might mean different things. The sense of ‘not otherwise available’ which most closely reconciled the statutory condition which those words exemplified with the exhaustive division of destitute asylum seekers between the infirm and the able bodied was that care and attention would not be ‘otherwise available’ unless it would be reasonably practicable and efficacious to supply it without the provision of accommodation. That meaning was consistent with existing authority.

On the facts, the question of whether it would have been reasonably practicable and efficacious, for the purpose in hand, for the respondent to have provided the services that it had provided to the appellant without the provision of accommodation admitted of only one sensible answer.

It would have been absurd to have provided a programme of assistance and support through a care coordinator without also ­providing the obviously necessary basis of stable accommodation. It followed that the judge below had been wrong to dismiss the claim for judicial review (see [35]-[39], [44] of the ­judgment).

Stephen Knafler QC and Jonathan Auburn (instructed by Pierce Glynn) for the appellant; Hilton Harrop-Griffiths (instructed by Creighton & Partners) for the respondent.