By Victoria Pogge von Strandmann, Maxwell Gillott Solicitors
SL was an asylum seeker from Iran who arrived in the UK in 2006, aged 16. He sought asylum on the grounds of persecution due to his homosexuality. His asylum claim was refused in 2007 at which time his asylum support and accommodation was also terminated. After a period where he relied on the support of friends, he became homeless in October 2009. In December 2009, after learning of the death of his partner in an Iranian prison, he attempted suicide and was admitted to hospital as in-patient where he was diagnosed with depression and post traumatic stress disorder. A fresh claim was subsequently submitted.
These proceedings arose out of SL’s contention that, on discharge from hospital in April 2010, he required accommodation and support from Westminster social services pursuant to s21 of the National Assistance Act 1948. The application was dismissed by Burnett J at a rolled up hearing on 15 November 2010.
On appeal, the Court of Appeal (Laws, Richards and Rimer LJJ) identified two questions for consideration:
1. What is the definition of “care and attention” in s21(1)(a)?
2. What is the meaning of the words “not otherwise available” in the same subsection, i.e. what nexus is required between the care and attention needed and the provision of accommodation?
SL was granted indefinite leave to remain in March 2011. The Court of Appeal nevertheless decided to hear the appeal because of the wider importance of the issues raised. Permission was granted to the Medical Foundation for the Care of Victims of Torture (now called Freedom from Torture) and Mind to submit written interventions.
The Statutory Framework
So far as material, s21 of the National Assistance Act 1948 provides:
(1) 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 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;
…
(1A) 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.
…
(8) Nothing in this section shall authorise or require a local authority to make any provision authorised or required to be made (whether by that or by any other authority) by or under any enactment not contained in this Part of this Act or authorised or required to be provided under the National Health Service Act 2006 or the National Health Service (Wales) Act 2006… [emphasis added]
Meaning of “care and attention”
The Court of Appeal held that:
• SL’s identified needs amounted to a need for care and attention under s21.
• SL’s social worker was “doing something for the appellant which he cannot do for himself: he is monitoring his mental state so as to avoid, if possible, a relapse or deterioration. He is doing it, no doubt, principally through their weekly meetings; but also by means of the arrangements for contact (or the renewal of contact) with the two counselling groups, and with the ‘befriender’.” In reaching this decision, the court held that the judge at first instance, who had found that SL was not in need of care and attention, had understated the nature of the support provided by the local authority through SL’s social worker.
• Care and attention is not limited to acts done by the local authority’s employees or agents, which is why services provided by two counselling groups and by the befriender could qualify as care and attention.
• The legislation does not envisage any particular intensity of support in order to constitute care and attention.
Meaning of “not otherwise available”
The judgment notes that previous cases have identified a division between two classes of asylum seekers, the able bodied and the infirm destitute. All members of the first class are excluded from support pursuant to the provisions of s21(1A). All members of the second class are covered by s21(1)(a) and are eligible for support. There is no middle ground, i.e. no “undistributed middle”.
The court found that not allowing for a middle category would give no weight to the words “not otherwise available” which implies a requirement for a nexus between the need for care and attention and the need for accommodation. The judgment identifies three possible ways in which some force could be given to those words:
1. The necessary care and attention unequivocally requires the provision of residential accommodation so that the need for care and attention must be accommodation-related. This was the interpretation that the court would have preferred, but considered to be ruled out by prior authority.
2. A duty to accommodate arises if provision of residential accommodation is reasonably required in order for the necessary care services to be provided in a way that fully meets that person’s needs. This was the approach urged upon the court by SL which was also supported by the two interveners.
3. The court’s own formulation was that care and attention is not otherwise available unless it would be reasonably practicable and efficacious to supply it without the provision of accommodation.
Approaching the matter in this way, the court found that the question “admits of only one sensible answer”. Citing from SL’s skeleton argument, the court stated that it would be “absurd to provide a programme of assistance and support through a care co-ordinator without also providing the obviously necessary basis of stable accommodation”.
Commentary
Key aspects of the judgment:
• The focus is on those with a need for care and attention arising from mental health difficulties, whereas the majority of previous case law related to those with physical difficulties.
• The services are not limited to those provided by the local authority’s employees or agents, but can include services provided by voluntary organisations (such as, in SL’s case, services from counselling groups and the services of a befriender).
• There is no de minimis for the types of services which would amount to a need for care and attention, i.e. no particular intensity of support is required.
• The test for the necessary nexus between care and attention and accommodation is whether or not it would be reasonably practicable and efficacious to supply the services the person is assessed as needing without the provision of accommodation. In effect, if it would be impracticable to provide the necessary services without the provision of accommodation and if those services would also not be effective without the provision of accommodation, then a duty is triggered. As the court identified, this appears to be little more than a variant of the formulation put forward by SL (version two above).
• The care and attention SL was assessed as needing, namely weekly meetings with a social worker, counselling services and a befriending service, were found by the Court of Appeal to require the provision of accommodation in order that the services could be provided practicably and efficaciously. That gives a clear indication of the threshold at which the Court of Appeal expects this test to be applied in other cases.
It is interesting that the Court of Appeal found there to be a “middle ground”. It is surely arguable that the statutory language makes no provision for this. If the need for care and attention arises solely by reason of the person’s destitution, then that person is ineligible for accommodation by virtue of s21(1A). If the need for care and attention arises because of an individual’s age, illness, disability or any other circumstances not directly arising from destitution, then unless accommodation is otherwise available to him/her, a duty arises. This would mean that if there is a need for care and attention and the person has no accommodation, the duty should be triggered, without needing to perform the analysis about whether the services could be provided practicably and efficaciously without accommodation. However, this approach was rejected.
Could it be argued that despite the finding that there is no threshold of intensity required for “care and attention”, the Court of Appeal has, nevertheless, imported a threshold into the statutory test? By creating a requirement that accommodation must only be provided if it would not be “practicable and efficacious” to provide the care and attention without, does that not amount to a threshold even if that threshold is a low one?
While not referred to specifically in the judgment, the written submissions of Freedom from Torture and MIND included expert evidence which focused, inter alia, on the extent to which many services provided to those with mental health needs are unable to be effective without that individual having stable and safe accommodation. Reference was made to clinical experience and academic research, which demonstrates the link between mental health problems and lack of suitable accommodation. While MIND’s evidence focused on this link in the context of mental health difficulties more generally, the evidence submitted by Freedom from Torture focused specifically on those suffering from trauma as a result of having suffered torture. The evidence sought to demonstrate that there is a need for stable accommodation in order for torture survivors with trauma to be able to cope and improve and that therapeutic input is likely to be ineffective without the provision of suitable and stable accommodation.
See judgment in SL here.
Victoria Pogge von Strandmann is a solicitor practising at Maxwell Gillott and, along with Adrian Berry of Garden Court Chambers, represented Freedom from Torture on a pro bono basis in its written intervention in the Court of Appeal.
Stephen Knafler QC appeared for SL, instructed by Joanna Thomson of Pierce Glynn solicitors.
