View source for ICLR SL v Westminster City Council (2011) EWCA Civ 954

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===Catchwords===
LOCAL GOVERNMENT — Powers — Asylum seekers — Claimant asylum seeker granted indefinite leave to remain in United Kingdom — Claimant suffering from depression and mental health difficulties — Local authority providing claimant with programme of assistance through social care co-ordinator — Whether local authority obliged to provide claimant with permanent residential accommodation — National Assistance Act 1948, s 21(1)(a) (as inserted by Immigration and Asylum Act 1999, s 116)

===Headnote===
Regina (SL) v Westminster City Council (The Medical Foundation and another intervening)

[2011] EWCA Civ 954;  [2011] WLR (D)  275

CA:  Laws, Richards, Rimer LJJ:  10 August 2011

On the true meaning of section 21(1)(a) of the National Assistance Act 1948, as amended, an asylum seeker suffering from depression and mental health difficulties who had been granted indefinite leave to remain was entitled to residential accommodation if the local authority had provided a programme of assistance and support to him through a care co-ordinator, since such provision of assistance would be otiose without the additional provision of housing.

The Court of Appeal so stated in allowing the appeal of the claimant, SL, from the decision of Burnett J sitting in the Administrative Court on 15 November 2010 [2010] EWHC 3182 (Admin) when he granted the claimant permission to proceed with his claim for judicial review but dismissed the claim. The claimant, who suffered from depression and mental health difficulties, had been granted indefinite leave to remain in the United Kingdom. The local authority refused to provide permanent accommodation although they had provided a programme of assistance through a careworker while he was living in temporary accommodation granted by the local authority.

National Assistance Act 1948, section 21(1), provides as amended: “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 aged eighteen or over 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 …”

LAWS LJ said that on the proved or admitted facts the claimant was, and at all material times had been, in need of care and attention within section 21(1)(a) of the 1948 Act, subject however to the second question of interpretation (the meaning of “not otherwise available”). His Lordship acknowledged that the question was to some extent a matter of impression; and also that the claimant should show that the local authority’s determination was not open to a reasonable decision-maker. But that test was met. The support provided by the local authority to the claimant qualified as care and attention. The second question was what was meant by the expression “care and attention … which is not otherwise available”. And this was altogether more problematic. Some of the learning, with great respect, did little more than repeate the words of the statute; and his Lordship had found much of it convoluted and sometimes difficult to unravel. The turf war between central and local government had perhaps focused attention more on the policy of the material provisions than on the statutory language. The turf war’s genesis was to be found in section 21(1A) of the 1948 Act. There was, so to speak, no undistributed middle between the two subsections. The Court of Appeal in R (Mani) v Lambeth London Borough Council [2004] LGR 35 had rejected the local authority’s submission that care and attention in section 21(1)(a) meant “care and attention of a kind calling for the provision of residential accommodation”. The judge in the present case had understated the nature of the support provided to the claimant. On the view of the law which his Lordship favoured the question was whether it would be reasonably practicable and efficacious, for the purpose in hand, to supply these services without the provision of accommodation; and in asking the question the assumption had to be made that the claimant was destitute. Approaching the matter thus, the question admited of only one sensible answer. Given the evidence of the claimant’s condition which was before the local authority it would, as counsel for the claimant had submitted, 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”.

RICHARDS and RIMER LJJ agreed.

Appearances: Stephen Knafler QC and Jonathan Auburn (instructed by Pierce Glynn) for the claimant; Hilton Harrop-Griffiths (instructed by Creighton & Partners) for the local authority; the interveners did not appear and provided written submissions only.

Reported by: Ken Mydeen, Barrister.

© 2011. The Incorporated Council of Law Reporting for England and Wales.
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