SL v Westminster City Council [2013] UKSC 27

A failed asylum-seeker with depression and PTSD received weekly monitoring and befriending from a council social worker. The Supreme Court held Westminster was entitled to find this was not "care and attention" under s 21(1)(a) National Assistance Act 1948, and indicated such need must be accommodation-related. Appeal allowed.

Facts

SL, an Iranian national, arrived in the United Kingdom in 2006 and claimed asylum on the basis of fear of persecution because of his sexual orientation. The claim was refused in January 2007. He became homeless in October 2009 and, following an attempted suicide in December 2009, was admitted to the St Charles Hospital Mental Health Unit, where he was diagnosed with depression and post-traumatic stress disorder. He was discharged in April 2010.

After discharge, Westminster City Council provided SL with support through a care co-ordinator, Mr Adam Wyman, a social worker employed by the council. That support consisted of weekly meetings at which Mr Wyman offered advice and encouragement and monitored SL’s mental state, together with arrangements for contact with counselling groups working with gay men and women and with a weekly “befriender” who took SL to activities he enjoyed. An occupational therapist’s report of March 2010 found SL independent in all self-care needs, with no cognitive or motor difficulties. Mr Wyman considered that, although SL was at some risk of self-harm, “this risk does not warrant the need for S to be looked after”, and that providing such support would likely be “counter effective”.

On 14 April 2010 the council decided that SL was not in need of “care and attention” for the purposes of section 21(1)(a) of the National Assistance Act 1948, so that responsibility for accommodating him fell on the Secretary of State under the national asylum support scheme. SL was accommodated at the council’s expense under an interim order pending the litigation, until he obtained indefinite leave to remain in March 2011. The case thereafter proceeded as one of principle only.

Burnett J dismissed SL’s judicial review claim. The Court of Appeal (Laws LJ giving the only substantive judgment, [2012] PTSR 574) allowed his appeal on both issues. Westminster appealed to the Supreme Court; Mind and Freedom from Torture intervened.

Statutory framework

Section 21(1)(a) of the 1948 Act empowers (and, on direction, requires) local authorities to arrange residential accommodation for persons aged 18 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”. Section 21(1A), inserted by the Immigration and Asylum Act 1999, excludes persons subject to immigration control whose need for care and attention arises solely from destitution or its physical effects. Section 21(8) excludes provision authorised or required under other enactments.

It was common ground, following R (Wahid) v Tower Hamlets London Borough Council [2002] LGR 545 and R (M) v Slough Borough Council [2008] UKHL 52, [2008] 1 WLR 1808, that section 21(1)(a) imposes three cumulative conditions; only the first (need for care and attention) and third (not otherwise available) were in issue. It was also common ground that “not otherwise available” governs care and attention rather than accommodation, that ordinary housing is not excluded, and that the national scheme is one of last resort, so that the local authority must disregard hypothetically available national support.

Issues

Lord Carnwath framed the questions for the council as: (1) was SL in need of care and attention? and (2) if so, was that care and attention “available otherwise than by the provision of accommodation under section 21”? The question for the courts, applying ordinary judicial review principles, was whether the council was reasonably entitled to answer those questions as it did. A subsidiary issue was whether, as the Court of Appeal had held, “available” imports a requirement that the care and attention be “reasonably practicable and efficacious” without accommodation, or whether the need must instead be “accommodation-related”.

Arguments

For the council, Mr Howell QC argued that monitoring or assessing a person’s condition at a weekly meeting is not itself care and attention but a means of ascertaining what services may be needed in future; that care and attention connotes “a service of a close and intimate nature”; that the services provided were otherwise available under other statutory powers and so excluded by section 21(8); that, contrary to R (Mani) v Lambeth London Borough Council [2003] EWCA Civ 836, [2004] LGR 35, the section covers only those with an “accommodation-related need”; and that in any event there was no link between SL’s need for accommodation and the services he received.

For SL, Mr Knafler QC relied on Lady Hale’s formulation in Slough that “looking after” means doing something for a person which he cannot or should not be expected to do for himself, submitting that monitoring SL’s mental state qualified. He argued care and attention is not an accommodation-related need, and that “not otherwise available” means not otherwise available in a reasonably practicable and efficacious way; the “package” SL required was unavailable otherwise than through accommodation.

The interveners emphasised modern mental health evidence, the importance of “social recovery”, the near-impossibility of delivering effective care to someone without stable accommodation, and the UN Convention on the Rights of Persons with Disabilities.

Judgment

The Supreme Court allowed the appeal. Lord Carnwath gave the only reasoned judgment, with which Lord Neuberger, Lady Hale, Lord Mance and Lord Kerr agreed. There was no dissent.

Care and attention

Lord Carnwath declined the council’s invitation to narrow the concept to intimate personal care, observing that such submissions “seemed to turn the clock back not just on previous authority, but on his own concessions (albeit, on behalf of a different council) in the Slough case”, and that it would in any event be inappropriate to revisit an issue so recently considered at the highest level.

However, he rejected the wide reading advanced for SL. Treating Lady Hale’s “doing something” formulation as a complete definition divorced the concept from its statutory context and could lead to absurd results:

It is wrong to elevate the words of Lady Hale in Slough that care and attention involves “doing something for the person which he cannot or should not be expected to do for himself” into a compendious statement of all the elements of the “care and attention” or “looking after” concept. These words were merely illustrative of an aspect of the notion of what is meant by the stipulation.

Nor did “watching over” assist: that implied more direct and regular involvement than Mr Wyman’s weekly sessions, aptly characterised by Burnett J as “keeping an eye” on SL. Mr Wyman’s professional assessment that SL did not need to be looked after, and that providing such care would be counter-effective, could not be regarded as irrational. Crucially:

What is involved in providing “care and attention” must take some colour from its association with the duty to provide residential accommodation. Clearly, in light of the authorities already discussed, it cannot be confined to that species of care and attention that can only be delivered in residential accommodation of a specialised kind but the fact that accommodation must be provided for those who are deemed to need care and attention strongly indicates that something well beyond mere monitoring of an individual’s condition is required.

“Not otherwise available”

Although it was unnecessary to decide the point, Lord Carnwath considered the council was plainly entitled to conclude that any care and attention was otherwise available: the services “were in no sense accommodation-related”, being independent of SL’s accommodation or its location, and could have been provided anywhere.

He rejected the Court of Appeal’s “reasonably practicable and efficacious” gloss as resting on “a loose and indirect link” not justified by the statutory language, noting that Slough had decided that a need for accommodation cannot itself constitute a need for care and attention. He recognised that Laws LJ had reached that construction reluctantly, feeling bound by R v Wandsworth London Borough Council, ex p O [2000] 1 WLR 2539 and Mani. At Supreme Court level it was open to hold that the Court of Appeal “took a wrong turning in Mani following the lead thought to have been given by ex p O” by failing to give proper weight to the words “otherwise available”. There is therefore a class of people whose need is made more acute by circumstances beyond lack of accommodation and funds but who still do not qualify — Laws LJ’s “undistributed middle”.

Expressly describing the guidance as “strictly obiter”, Lord Carnwath stated that the care and attention “has at least to be care and attention of a sort which is normally provided in the home (whether ordinary or specialised) or will be effectively useless if the claimant has no home”, so that the actual result in Mani may well have been correct. He added that the analysis “is best left to the good judgement and common sense of the local authority and will not normally involve any issue of law requiring the intervention of the court”.

The case was distinguishable from R (Westminster City Council) v National Asylum Support Service [2002] UKHL 38, [2002] 1 WLR 2956, where the claimant’s illness-based needs affected both the nature and location of her accommodation. Burnett J had erred in taking account of the Secretary of State’s acceptance of responsibility, but this did not undermine the remainder of his reasoning.

Implications

The decision confirms and confines the Slough test. “Care and attention” retains its ordinary meaning of “looking after”, but Lady Hale’s illustrative formulation is not a definition, and routine monitoring, encouragement and signposting to counselling or befriending services may rationally be found to fall short. The threshold is coloured by the statutory consequence — a duty to provide residential accommodation.

Equally significant, though obiter, is the court’s disapproval of the reasoning in ex p O and Mani insofar as it treated the destitute as exhaustively divided between the able-bodied (excluded by section 21(1A)) and the infirm (automatically within section 21(1)(a)). The court endorsed an accommodation-related requirement: the need must be for care normally provided in the home, or care that would be effectively useless without a home. The Court of Appeal’s “reasonably practicable and efficacious” test was rejected.

The decision matters to local social services authorities, to those subject to immigration control who are destitute and unwell, and to advisers navigating the boundary between local authority and central government responsibility. It reduces the scope for section 21 claims founded on low-level social work support, leaving such claimants to the national asylum support scheme. The court expressly did not question the interveners’ evidence about the importance of stable accommodation for mental health and torture survivors, nor the relevance of the UN Convention, but held that importance does not determine the construction of the section. Because review is on rationality grounds and the court stressed local authority judgment, outcomes will remain fact-sensitive, and the obiter guidance leaves some scope for argument in borderline cases.

Verdict: The Supreme Court unanimously allowed Westminster City Council’s appeal and restored the order of Burnett J dismissing SL’s claim for judicial review, holding that the council was reasonably entitled to decide that SL was not in need of “care and attention” within section 21(1)(a) of the National Assistance Act 1948 and that, in any event, any such care and attention was otherwise available.

Source: SL v Westminster City Council [2013] UKSC 27