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Social Welfare Update: No looked-after needs under Care Act 2014 in absence of objective evidence of requirement for social worker support

Tuesday 3 December 2019

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SA was a failed asylum-seeker who had been diagnosed with bi-polar disorder and depression. He was referred to the local authority, the London Borough of Southwark, for an assessment under the Care Act 2014 (“CA 2014”). Southwark’s assessment concluded that he had no eligible or non-eligible needs and therefore no support, or accommodation, would be provided.  It concluded that his requirements were for accommodation and subsistence which could be met by an application to Asylum Support. 

By way of an application for judicial review, SA challenged Southwark’s assessment on the grounds that it was incompatible with his rights under the European Convention on Human Rights (“the Convention”). SA argued that he had a need for social worker support to access food and medication and that this need could only be effectively delivered via the provision of accommodation. His case was that the denial of this would breach his Convention rights.   

Michael Fordham QC, sitting as a Deputy High Court Judge, dismissed SA’s application for judicial review. He noted that relevant needs for the purposes of the CA 2014 were needs for care and support or “looked-after needs” (§5). A need for accommodation was not in itself a looked-after need but it may be appropriate to provide accommodation under the CA 2014 where there is a looked-after need for care and support which can only be effectively delivered via the provision of accommodation (§6).  

He summarised the assessment process under the CA 2014 as follows (§9):

i. The local authority must first ask itself whether the adult in question may have needs for care and support. If so, the duty to carry out an assessment arises.

ii. The assessment process requires the authority to determine whether the adult has needs for support and, if so, whether they are eligible or non-eligible needs. Eligible needs are those: which result from a physical or mental impairment or illness; which render two or more (of ten) statutorily-specified outcomes unachievable; and which produce a “significant well-being impact”.  

iii. The authority will be under a statutory duty under section 18 CA 2014 to meet any eligible needs. It has a power under section 19 CA 2014 to meet any non-eligible needs.

Where the adult has a need for care and support which is not an eligible need (and is therefore not subject to the duty under section 18 CA 2014), but not meeting the need would be incompatible with his or her Convention rights, then the need must be met by the authority exercising its power under section 19 CA 2014.  A refusal to exercise that power would breach the authority’s duty, imposed by section 6 of the Human Rights Act 1998, to act compatibly with Convention rights (§10).  The Deputy Judge noted (at §22) that Southwark’s proforma assessment document appeared to envisage that Convention rights could only be relevant to eligible needs, which was incorrect, although the point did not take SA anywhere in this case.

Where a person who is subject to immigration control has needs which arise solely from destitution (or from the actual or anticipated physical effects of destitution) the authority cannot meet those needs under the CA 2014. His or her needs would fall to be met by the Home Secretary. However, a person present in breach of immigration control, and failed asylum-seekers such as SA, may receive care and support under the CA 2014 if (and only if) to do so is necessary to avoid a breach of his or her Convention rights (§11).

In order to determine whether or not support was necessary to avoid a breach of SA’s Convention rights, the relevant question was (§12):

…is there an imminent prospect of serious suffering caused or materially aggravated by the refusal to provide accommodation so as to secure the support of a social worker?

This was a question which the Court should determine objectively for itself (§13).

The Deputy High Court Judge held that this case did not cross the required threshold (§16):

The evidence does not establish that Mr Aburas needs the support of a social worker to prompt him to take his medication, or to prompt him to eat so as to take his medication.  The evidence does not establish that missing taking the medication gives rise to serious suffering. Overall the evidence does not establish that there is an imminent prospect of serious suffering caused or materially aggravated by the refusal to provide supported accommodation.

The Judge gave substantial weight to the views of Southwark’s social worker, noting that it was not contradicted by any professional judgment and there was no “clear objective evidence” supporting SA’s case (§19). SA’s evidence had consisted of witness statements from two friends and a Legal Organiser of an NGO, together with a report by his GP which referred to the adverse effects of homelessness on him.  

The Deputy Judge found that, at its highest, the evidence supported the view that SA may be facing destitution and required support and subsistence. However, these were matters for the Home Secretary (§21).

SA had also invoked section 1 of the Localism Act 2011, which gives local authorities the general power to “do anything that individuals generally may do”. He relied on the case of R (GS) v Camden London Borough Council [2016] EWHC 1762 (Admin),  in which a duty had been held to arise under this section. GS was, however, doubted in the subsequent case of R (AR) v London Borough of Hammersmith and Fulham [2018] EWHC 3453 (Admin). The Deputy Judge held that where there is said to be a looked-after need, as in this case, section 1 was not needed, but even had this been a case where the only need was for accommodation, he would have followed AR and rejected the claim as based on the Localism Act 2011(§23).  

The claim was therefore dismissed.

Comment

This case provides a useful reminder of the importance of objective expert evidence specifically addressing the matters in issue. It is also notable for being another case in which GS v Camden is doubted (albeit obiter).  

The judgment is available on Bailii: R (Aburas) v London Borough of Southwark [2019] EWHC 2754 (Admin)

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