2010 11 Adult Care

Wednesday 1 December 2010

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R (on the application of L) v Westminister City Council (2010) QBD (Admin) Burnett J, extempore judgment, 15/11/2010: Judicial review related to a decision of the defendant local authority refusing to provide him with accommodation pursuant to the National Assistance Act 1948 s21(1)(a). L was a failed asylum seeker who suffered mental health problems and had been admitted to hospital. The needs assessment showed that he had been supported by the mental health team before being admitted to hospital and should continue to be so supported upon discharge. The assessment also concluded that by reference to s21(1)(a) that L did not need to be ‘looked after’, thus no accommodation duty arose under s21. Medical evidence showed that L should be able to live independently as he had previously done, and that he should receive limited support from the local authority as too much intervention could be counter-productive. There was no dispute between the local authority and the National Asylum Support Service upon whom the duty to accommodate L fell. NASS accepted the duty and provided accommodation. HELD: (1) The structure of s.21 made it plain that the first question to be considered was whether the applicant fell within s.21(1)(a). If the answer was yes, the next issue for consideration was whether the exclusions within s.21(1A) applied. If care and attention was required the next issue for consideration was whether it was available other than by way of the provision of accommodation. If the answer was yes then the local authority had no duty under s.21(1)(a) and the question of exclusions under s.21(1A) would not arise. The evidence showed that assistance was available other than by way of accommodation provided by the local authority. Further, there was no chance of L becoming homeless as NASS had accepted responsibility for providing accommodation. R (Westminster CC) v NASS [2002] UKHL 38 considered but found not to be applicable in the instant case on the facts. In the circumstances, there was no duty upon the local authority to provide a failed asylum seeker with residential accommodation as the support required and provided did not amount to care and attention within the meaning of s21(1)(a) of the NAA: R (M) v Slough [2008] UKHL 58 applied.

R (Elaine McDonald) v Kensington and Chelsea RLBC [2010] EWCA Civ 1109 (Rix and Wilson LJJ, Sir David Keene): the local authority was in breach of statutory duty in so far as it had failed to provide the claimant with services to meet her need, which it had assessed as being a need for “assistance to use the commode at night” i.e. a need for a night-time carer. However, the local authority was not in breach of Article 8 of the Convention: it had made a mistake as to the scope of its legal duties, in its anxiety to balance the claimant’s needs against those of others, in the context of its limited resources and it had not manifested any lack of respect for the claimant’s private life. Further, the local authority had then acted lawfully by re-assessing the claimant’s need as being for the management of her incontinence by the use of incontinence pads: that decision was “a reasonable decision” given the local authority’s “limited resources”; there had not been any breach of section 21E(2) the Disability Discrimination Act 1995. Click here for the transcript.

R (Savva) v Kensington and Chelsea RLBC [2010] EWCA Civ 1209 (Maurice Kay, Longmore, Patten LJJ): the local authority had acted lawfully by using a RAS (resource allocation scheme) as the starting point for determining a lawful budget. It had continued to act lawfully by not treating the results of the application of the RAS as determinative, but approaching the case on the basis that once it had assessed the applicant’s eligible needs, it was under an absolute duty to provide her with the services that would meet those needs or a personal budget with which to purchase them. In principle, social services authorities were under a duty to give reasons explaining how a personal budget has been calculated. Whether that duty could be discharged, strictly, by providing reasons “on request”, instead of automatically, was a difficult issue: but in practice the court would reject an application for judicial review based on a failure to provide reasons, where reasons had been requested and thentimeously provided. Click here for transcripR (Savva) v Kensington and Chelsea RLBC [2010] EWCA Civ 1209 (Maurice Kay, Longmore, Patten LJJ): the local authority had acted lawfully by using a RAS (resource allocation scheme) as the starting point for determining a lawful budget. It had continued to act lawfully by not treating the results of the application of the RAS as determinative, but approaching the case on the basis that once it had assessed the applicant’s eligible needs, it was under an absolute duty to provide her with the services that would meet those needs or a personal budget with which to purchase them. In principle, social services authorities were under a duty to give reasons explaining how a personal budget has been calculated. Whether that duty could be discharged, strictly, by providing reasons “on request”, instead of automatically, was a difficult issue: but in practice the court would reject an application for judicial review based on a failure to provide reasons, where reasons had been requested and thentimeously provided. Click here for transcript.

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