1. In the R (L) v Westminster City Council  UKSC 27,  1 WLR 1445, the Supreme Court revisited the circumstances in which a person from abroad will be entitled to residential accommodation under section 21 of the National Assistance Act 1948 (“section 21”).
2. This is the third occasion on which the House of Lords/Supreme Court has considered this issue. In R (Westminster City Council) v National Asylum Support Service [2002[ UKHL 38,  1 WLR 2956, the House of Lords decided that the role of asylum support under Part 6 of the Immigration and Asylum Act 1999 (“the 1999 Act”) was residual and that, when assessing whether or not a person subject to immigration control required care and attention for the purposes of section 21, it was necessary to disregard the potential availability of support under Part 6 of the 1999 Act. In R (M) v Slough Borough Council  UKHL 52,  1 WLR 1808, the House of Lords decided that a person needed “care and attention”, for the purposes of section 21, if he needed looking after, in the sense of needing something doing for him that he could not, or could not be expected to do, for himself.
3. In L, the Court looked more closely at what was meant by “care and attention” and also considered in what circumstances a need for care and attention could be described as “not otherwise available” than by the provision of residential accommodation, so as to entitle a person to accommodation under section 21.
4. The facts on which the Supreme Court based its decision are at paragraphs 10 to 13 of the judgment and were that L (i) suffered from post-traumatic stress disorder, depression and anxiety, but (ii) was an intelligent and creative young man, (iii) was at some risk of self harm because of an emotionally immature and histrionic personality, (iv) did not need “looking after” in any form of specialist housing, but rather (v) needed practical assistance in arranging various day-time activities and monitoring of his mental state at weekly appointments at his social worker’s office, where advice and encouragement were offered.
5. The Court rejected the local authority’s submission that “care and attention” was limited to personal care of a close and intimate nature (paragraph 41) and L’s submission that it included all forms of social care and practical assistance (paragraph 42). The Court went on to hold that what is involved in providing care attention must take some colour from its association with the duty to provide residential accommodation, which “strongly indicates that something well beyond mere monitoring of an individual’s condition is required” (paragraph 44). So, by this stage, the Court seems to have accepted the local authority’s case that the only relevant service provided to L, for the purposes of the appeal, was the weekly monitoring of his mental state at meetings with his social worker. It is left to be inferred that the other services provided did not go “well beyond” monitoring, so as to, cumulatively, amount to the provision of care and attention.
6. The Court then went on to decide that, even if the monitoring addressed a need for care and attention, this need was available otherwise than by the provision of accommodation under section 21 because “The services provided by the council were in no sense accommodation-related. They were entirely independent of [L’s] actual accommodation, however provided, or his need for it. They could have been provided in the same place and in the same way, whether or not he had accommodation of any particular type, or at all” (paragraph 45).
7. The Court then gave guidance as to how to approach section 21, in the future, saying that “the care and attention obviously has to be accommodation-related. This means that it 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” (paragraph 48).
8. From this, it appears that people who need help with getting up, getting dressed, cooking, cleaning the house – and so on – need care and attention. If they are persons from abroad, and their need does not arise solely because of destitution, they will qualify for accommodation under section 21: see Westminster v NASS.
9. The same applies to people who need different types of assistance, that normally are not provided in a person’s home, but that are provided in specialist accommodation. So if a person subject to immigration control, with a mental health condition, needed to live, for example, in a group environment where there was relatively intense monitoring, support and companionship, they would also qualify and such accommodation would have to be provided to them as residential accommodation even if, normally, it would be provided to a UK citizen in supported housing.
10. The situation of people who need assistance that is not normally provided in either ordinary or specialised accommodation may be more difficult. The Court of Appeal, in L, considered that there was a sufficient link between the need for care and attention, and the provision of accommodation, in a case where the necessary care and attention was not available “in any reasonably practicable and efficacious way” unless residential accommodation was also provided (see paragraph 32 of the Supreme Court judgment). The Court rejected that, in favour of the ostensibly more stringent criteria that the necessary care and attention would have to be “effectively useless” unless residential accommodation was provided (paragraph 48).
11. One might think that, in the case of many – and quite possibly most, or even all - mentally ill persons, any social care and attention needed by them would be “effectively useless”, unless residential accommodation was also provided, as a “stable base” (bearing in mind that, in these cases, because of Westminster v NASS the local authority and the court must disregard the availability of accommodation under Part 6 of the Immigration and Asylum Act 1999 i.e. the question is whether the social care and attention needed by a homeless and destitute mentally ill person would be “effectively useless” if they remained homeless and destitute and were not also provided with accommodation). That would be a matter for assessment and, possibly, expert evidence, on a case by case basis but it is foreseeable that, in many and possibly even most, or all, cases, the provision of social care to mentally ill persons will be “completely useless” if they are to remain homeless and destitute.
12. So, why did L lose? The short answer would seem to be that the evidence in the case did not demonstrate that, in L’s particular case, the social care he needed would be “effectively useless” unless he also had accommodation. Also, the Court seems to have understood the submission made to it, on behalf of L, as amounting to the slightly limited submission that “in L’s case the provision of accommodation was a critical part of his social rehabilitation”. There seems to be, therefore, a significant (but possibly rather small) distinction between a case where accommodation is “critical” to the efficacy of care and attention and a case where it is “essential” so that, without accommodation, the care and attention provided will be “effectively useless”.
13. So there one has it. In future, in this type of case, that is, the type of case where the care and attention needed is not of the type that is usually provided in ordinary or specialist accommodation but, for example, is provided at the social worker’s offices or round and about, it will not be enough for the evidence to show that the necessary care and attention will not be “reasonably practicable and efficacious” without accommodation, or that accommodation is a “critical part” of what is needed – the evidence will have to show, as no doubt it often will, in the case of mentally ill individuals, that without accommodation the provision of care and attention will be “effectively useless”.
STEPHEN KNAFLER QC
30 June 2013