The interplay between The Care Act 2014 and The Localism Act 2011 in the case of GS

Monday 1 August 2016

The Queen (on the application of GS by her litigation friend the Official Solicitor) v London Borough of Camden [2016] EWHC 1762 (Admin) (DHJ Peter Marquand), 27 July 2016. This is a challenge of the Defendant's decision of 26 October 2015 not to provide the Claimant with accommodation under the Care Act 2014.

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The Queen (on the application of GS by her litigation friend the Official Solicitor) v London Borough of Camden [2016] EWHC 1762 (Admin) (DHJ Peter Marquand), 27 July 2016

This is a case which clarifies the issue as to whether accommodation alone under the Care Act 2014 constitutes a need for care and support. The clear answer from the Judge, in line with previous authority, is that in the absence of other needs it is not.

The case also identifies how, in circumstances of a requirement to prevent a breach of ECHR rights, the Localism Act 2011 enables a local authority to act. It is likely that in the future following the Immigration Act 2016 and restrictions on support for persons from abroad that local authorities will be called on to use their Localism powers and duties more and more.

This is a challenge of the Defendant's decision of 26 October 2015 not to provide the Claimant with accommodation under the Care Act 2014. The Claimant, an adult Swiss National, suffers from physical and mental health problems.

On 23 October 2015, a social worker conducted a needs assessment under the Care Act 2014 and that was provided to the Claimant on 26 October 2015. The outcome of that assessment was that the Claimant did not have any need for care and support within the meaning of the Care Act 2014.

The Claimant sent a pre-action protocol letter dated 3 November 2015 claiming that the assessment was unlawful and that her Article 3 rights under the Convention would be breached in the absence of support. The Defendant responded on 10 November 2015 maintaining that its assessment was lawful.

Nevertheless, the central issue in this case was whether a need for accommodation is capable of amounting to a 'need for care and support' under the Care Act 2014.

The Judge held that a 'need for care and support' does not include a need for accommodation alone on the applicability of the authorities under the National Assistance Act 1948, in relation to the meaning of 'need care and assistance.' It excludes a need for accommodation alone and this applies to the phrase 'need for care and support,' as it appears in the Care Act 2014.

The, 'need for care and support' is a different phrase and may mean something different to a 'need for care and assistance', but it does not include a need for accommodation alone.

The Court went on to examine the Localism Act 2011 It was agreed that the effect of schedule 3 of the Nationality, Immigration and Asylum Act 2002, in particular paragraphs 1 (ka) and 5, mean that the Claimant is not eligible for support or assistance under the Localism Act section 1. However, those paragraphs do not prevent the exercise of a power or the performance of a duty if, and to the extent that, its exercise or performance is necessary for the purposes of avoiding a breach of a person's rights under the Convention (paragraph 3 of Schedule 3).

It was agreed that the Care Act 2014, which came into force after the Localism Act 2011, does not contain within it a post-commencement limitation on the exercise of the section 1 power. Therefore the restrictions in section 2 (2) do not apply.

Section 1 of the Localism Act does give the local authority power to do anything that an individual generally may do and it may exercise that power in any way whatever including for the benefit of persons resident or present in its area (sections 1 (1) and 1(4)(c)). Therefore the Judge concluded that the Defendant in this case did have a power under section 1 of the Localism Act that it could exercise in the Claimant's favour.

The Judge concluded that the Defendant has not considered the question of any potential breaches of the Claimant's Convention rights because it did not believe it had any power to act.

Accordingly, the judge found the Defendant's decision not to exercise the power available to it under section 1 of the Localism Act was unlawful.

A transcript of the judgement can be found here.

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