Relief for councils after landmark Supreme Court ruling on social services duty

Westminster City Council hailed a “crucial precedent” for local authorities today after the Supreme Court clarified the scope of their duty to provide accommodation to vulnerable individuals.

The case of SL v Westminster City Council [2013] UKSC 27 concerned the scope of the obligation of local authorities under s. 21(1)(a) of the National Assistance Act 1948 to provide residential accommodation to those in need of “care and attention” which is “not otherwise available” to them.

According to s.21(1A) of the 1948 Act, accommodation may not be provided under s.21(1)(a) to persons subject to immigration control if their need for care and attention has arisen solely because they are destitute or because of the physical effects, or anticipated physical effects, of destitution.

The respondent is an Iranian national. He arrived in the UK in 2006. His asylum claim was based on his fear of persecution on account of his sexual orientation.

In January 2007, his claim was refused. He became homeless in October 2009. In December 2009, apparently after learning of the death of his partner in an Iranian prison, he attempted to kill himself. He was admitted to a mental health unit. He was discharged on 27 April 2010, diagnosed as suffering from depression and post-traumatic stress disorder.

The respondent argued that, on discharge from hospital in April 2010, he required accommodation and support from Westminster City Council social services.

Since approximately August 2010, the respondent has had weekly meetings with a care co-ordinator, Mr Wyman, employed by the appellant local authority, who offers him advice and encouragement, and generally monitors his condition and progress. Mr Wyman has arranged contact with counselling groups and the respondent’s “befriender”.

SL brought a judicial review challenge over Westminster's refusal to provide accommodation. However, the claim was rejected by Burnett J in the  High Court.

In March 2011 SL was granted indefinite leave to remain. He has since been eligible for a range of state benefits, including accommodation under the Housing Act 1996.

The Court of Appeal, which decided nevertheless to hear the case because of its wider importance, overturned the decision of Burnett J in August 2011.

Ruling in favour of the respondent, it found that the services SL was receiving from his mental health social worker did amount to ‘care and attention’, and therefore led to the duty to accommodate. SL was also receiving services he could not provide himself, the court found.

Westminster appealed. The council maintained that it had no duty to provide SL with accommodation. Westminster claimed that the respondent was not in need of “care and attention” for the purposes of s. 21(1)(a) as the meetings with the social worker were only a means of monitoring what, if any, “care and attention” SL might need in the future.

The local authority also argued that any assistance that SL might need was, in any event, “otherwise available” for the purposes of s.21(1)(a) because it was available to him regardless of his accommodation arrangements. The National Asylum Support Service (NASS) accepted that, if s.21(1)(a) was not applicable in this case, it would have an obligation to provide SL with accommodation.

The Supreme Court has unanimously found in favour of Westminster, saying it did not owe SL a duty to provide accommodation.

Lord Carnwath, who gave the judgment of the court, highlighted the three cumulative conditions which must be satisfied before s.21(1)(a) of the 1948 Act was applicable and accommodation must be provided. These were:

1. the person in question must be in need of "care and attention";
2. the need must arise by reason of age, illness, disability or other circumstances; and
3. the care and attention which is needed must not be available otherwise than by the provision of accommodation under s.21.

Only the first and third conditions were in issue in this case and Lord Carnwath said Westminster was reasonably entitled to take the view that they were not satisfied on the facts.

The judge said: “The national scheme [NASS] is designed to be a scheme of ‘last resort’. The regulations require the Secretary of State, in deciding whether an asylum seeker is destitute, to take into account any other support available to the asylum seeker, including support available under section 21 of the 1948 Act…. Conversely, the local authority, in answering the questions raised by that provision, must disregard the support which might hypothetically be available under the national scheme.”

Lord Carnwath rejected the wide approach advocated by SL’s counsel, warning that if adopted there was a danger that ‘care and attention’ would cover all forms of social care and any form of practical assistance.

“This could lead to absurd results,” the judge argued. Citing Lord Neuberger, he said “care and attention” did not involve the “mere provision of physical things, “even things as important as food and accommodation”.

Lord Carnwath said: “What is involved in providing ‘care and attention’ must take some colour from its association with the duty to provide residential accommodation. Clearly, in light of the authorities…., it cannot be confined to that species of care and attention that can only be delivered in residential accommodation of a specialised kind but the fact that accommodation must be provided for those who are deemed to need care and attention strongly indicates that something well beyond mere monitoring of an individual’s condition is required.”

The judge meanwhile said it was clear that the words “not otherwise available” governed “care and attention” and not “accommodation”.

Westminster had been entitled to conclude that the services provided to SL were available otherwise than by the provision of accommodation under s. 21.

“The services provided by the council were in no sense accommodation-related,” said the judge. “They were entirely independent of his 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.”

Lord Cornwath concluded that the Court of Appeal was wrong to read the word “available” in s.21(1)(a) as meaning not merely available in fact but also available in a manner that is reasonably practicable and efficacious.

“Such a loose and indirect link [with the provision of accommodation] is not justified by the statutory language [of s.21(1)(a)],” the judge said.

He added that whether the criterion of “not otherwise available” was satisfied in any particular case was “best left to the good judgement and common sense of the local authority and will not normally involve any issue of law requiring the intervention of the court”.

Commenting on the ruling, Cllr Melvyn Caplan, Westminster City’s cabinet member for finance, said: “I am relieved Westminster Council has won this case, which establishes a crucial precedent for local authorities across the land. We will always help those in genuine need, but nobody should be entitled to taxpayer-funded accommodation simply because they have a mental condition that requires very little social care support. 

“This case has established that, to qualify for accommodation under social services legislation on the grounds of health needs, a person must require more intense support than simply being ‘kept an eye on.’”

Cllr Caplan added: “In this particular case Westminster City Council tried to cater for this condition with offers of support, only to be rewarded by a completely unnecessary and expensive court process, funded by the taxpayer. However, common sense has been upheld and I hope this ruling closes a loophole which is clearly open to exploitation.”