Accommodating people with community care needs

The Supreme Court earlier this month handed down a key ruling on accommodation of people with community care needs, but many questions remain, argues Jonathan Auburn.

On 9 May 2013 the Supreme Court handed down judgment in SL v Westminster CC [2013] UKSC 27. This was the Court’s third decision on community care law in as many years, after McDonald in 2011 and KM in 2012. Like the other two judgments, SL may be something of a missed opportunity. The Court’s sole judgment is very concise, and provides little wider guidance as to the way this difficult area of law should be dealt with in the future.

The main issues the case was to resolve were (a) the meaning of “care and attention” in s 21 of the National Assistance Act 1948, and (b) whether, to be eligible for accommodation under s 21, the individual’s need for care and attention had to be related in some way to the accommodation to be provided. While overall the result was a victory for the local authority, on some key issues the position is far from clear or settled, and there are points on which both sides can draw for the future.

Factual background

SL was a gay Iranian male who had previously been refused asylum, but who made further representations (which, in light of the Supreme Court case of HJ Iran, would now support a strong claim for asylum). He also suffered from mental health difficulties, had attempted suicide, and had recently been cared for within the psychiatric unit of a hospital.

Following his departure from the psychiatric unit SL was receiving assistance from the local community mental health team (CMHT). The CMHT, as is commonly the case, consists of both local authority social workers and NHS psychiatric, medical, and nursing staff. SL had been assessed by a CMHT psychiatrist (ie an NHS employee), and by a social worker.

The most recent assessments found him to be independent of all self-care needs, having no cognitive or motor difficulties, and sociable and able to form positive relationships. SL’s social worker / care coordinator stated that his problems centred around his post-traumatic stress disorder and anxiety, his mental state was fluctuating and he continued to experience genuine emotional distress, including symptoms of depression, anxiety and low confidence, emotional immaturity and histrionic personality symptoms that, combined with his distress, put him at risk of self-harm. The social worker stated that he did not need “looking after” and this would be counter-effective, but he would continue to receive social work support, consisting of practical assistance in arranging activities for him during the day and monitoring his mental state at regular appointments, which did not require visits to his home. The local authority decided he was not in need of care and attention.

The care actually provided or arranged for SL included weekly meetings with a “care coordinator”, a local authority-employed social worker, at the social worker’s office. At these meetings the social worker provided advice and encouragement and monitored his condition and progress. The care coordinator also arranged for SL to have a “befriender”: a service run by the local authority, in which a person met with SL once a week, took him to activities, and provided general support. SL also received counselling support from two non-government organisations who worked with gay men and women.

UKBA had stated its willingness to accommodate SL pending the resolution of his immigration status. Westminster CC was not willing to make a similar offer. In light of his needs arising from his mental health problems, SL’s lawyers considered that he fell within s 21(1) of the 1948 Act, and should be accommodated by the local social services authority, ie Westminster CC. Thus despite the offer of accommodation from UKBA, SL issued a claim against Westminster, seeking to establish that it was Westminster, not UKBA, who was required to accommodate SL.

Decisions of lower courts

In the Administrative Court Burnett J dismissed the judicial review claim, holding that SL did not fall within s 21(1) as he did not have a need for “care and attention”, and any such need was not “accommodation-related”, this being required for a person to receive accommodation pursuant to s 21. On the issue of the meaning of “care and attention” Burnett J held that SL only needed someone “keeping an eye on him”, and this did not amount to “looking after”. On the second issue, Burnett J appeared to distinguish between those provided with assistance in their own homes and those provided with assistance outside of their homes.

The Court of Appeal reversed this decision, holding that SL did have a need for “care and attention” within s 21(1). Laws LJ described the need for care and attention as arising in through the local authority social worker: “monitor(ing) his mental state so as to avoid if possible a relapse or deterioration: principally through their weekly meetings, but also by means of the arrangements for contact with the two counselling groups and the ‘befriender’”. This was doing something for SL which he could not do for himself.

The Court also held that the issue of the link between the need for care and attention and the provision of accommodation was as follows: “the question is whether it would be reasonably practicable and efficacious, for the purpose in hand, to supply these services without the provision of accommodation”. That is, the care and attention needed is not “otherwise available” unless it is “practicable and efficacious” to supply it without also providing accommodation. Westminster CC appealed.

Supreme Court’s judgment

The Court framed the issues before it as whether the local authority was reasonably entitled to take the view is did, that SL was not in need of care and attention, and if he was, it was available otherwise than by the provision of accommodation under s 21.

On the first issue of the meaning of “care and attention”, the guidance given by the Court was limited. Its only positive statements on this issue were:

• that the term “care and attention” takes some colour from its association with the duty to provide residential accommodation,
• that it is not confined to the care and attention that can only be delivered in specialist residential accommodation, and
• “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”: see para 44.

The Court rejected Westminster’s argument, strongly advanced at the hearing, that “care and attention” was limited only to personal care, or services of a close and intimate nature: see para 41. On the other hand the Court also rejected SL’s reliance on Lady Hale’s formulation in M v Slough that “care and attention” involved “doing something” for the person cared for “which he cannot or should not be expected to do for himself”: see para 42.

While the court stated “mere monitoring” would be insufficient, it did not address the boundary between “monitoring” as a species of continuing diagnosis, and treatment. The Court rejected SL’s reliance on Lady Hale’s reference to “watching over”, and in any event appeared to affirm Burnett J’s distinction between “keeping an eye” on a person and “looking after” them: see para 43.

On the second issue, the Court held that the care and attention required was available otherwise than by the provision of accommodation under s 21, stating: “The services provided by the council were in no sense accommodation-related. 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”: para 45.

“The need has to be for care and attention which is not available otherwise than through the provision of such accommodation … 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”: para 48 [emphasis added].

The Court rejected the “practicable and efficacious” test adopted by Laws LJ in the Court of Appeal. The Court also appears to have rejected the proposition from Mani that a person qualifies for assistance under s 21(1)(a) if his need for care and attention is to any extent made more acute by circumstances other than the lack of accommodation or funds.

Discussion

It is regrettable that the Court’s discussion of the meaning of “care and attention” is as brief as it is. The statement that “something well beyond mere monitoring of an individual’s condition is required” gives a measure of guidance, but not a great deal. It is particularly problematic that the Supreme Court did not engage with the fact that Mr Wyman provided “advice and encouragement” to SL, alongside a co-ordinating and “watching over” facility (cf the Court of Appeal’s judgment, para 13, cited at para 13 of the Supreme Court’s judgment). Where does this leave mental health sufferers whose treatment takes the form of abstract advice and encouragement, rather than concrete medical interventions?

The Court’s rejection of Westminster’s attempt to confine the meaning of “care and attention” only to care of an intimate nature again takes the matter a little further forward, but not a great deal further. Previous decisions had not seriously suggested that the concept of “care and attention” was or should be so limited. If the Court had agreed with Westminster on that point, the result would have been remarkable, and would have greatly reduced the scope of s 21.

The boundaries around, or threshold for, the concept of “care and attention” in s 21 are perhaps most acute when dealing with a person whose needs derive from poor mental health. The court was particularly unclear on this point when it addressed the interveners’ submissions. At para 40 Lord Carnwath stated says that he “does not in any way seek to question the evidence of the interveners as to the importance of the services they describe, including stable accommodation … for those with mental health problems. However, acknowledgment of the importance of the services does not compel the view that they fall within the responsibilities imposed on local authorities by section 21(1)(a) … That must depend on the true construction of the words of the section in their context”. However it is not clear why the “context” of s 21(1) did not include (i) a modern medical understanding of the needs of people suffering from mental illness and the type of treatment they receive and; (ii) Art 26 UNCRPD.

It is difficult to apply the Court’s statement at para 44 that the term “care and attention” takes some colour from its association with the duty to provide residential accommodation, at the same time as the Court’s statement immediately following, that “care and attention” in s 21 is not confined to that which can only be delivered in specialist residential accommodation. In relation to a person whose need for care and attention derives from his poor mental health, in what way does the duty to provide accommodation colour the meaning of “care and attention” in s 21, if the latter is not confined to the care and attention that can only be delivered in specialist residential accommodation?

As to the second issue, whilst we now know that there must be some nexus between the services provided and the accommodation sought, and the Court has referred to the services here not having been “accommodation-related”, on the other hand it will suffice if the care and attention “will be effectively useless if the Claimant has no home”. The Court has again given relatively little guidance as to how to apply these apparently divergent statements. This is worsened by the Court’s failure to engage with the submission that SL’s social care regime would be wholly ineffective without the provision of accommodation. If homelessness is not considered to be an obstacle to the effective (or “not effectively useless”) provision of social care, this limb of the Supreme Court’s may have been set in such a manner as to be effectively otiose.

If, as the Court held at para 44, “care and attention” in s 21 is not confined to that which can only be delivered in specialist residential accommodation, then this must mean that it is capable of including care and attention provided whilst a person is in ordinary accommodation. If that is the case, and if services are “accommodation-related” if they “will be effectively useless if the Claimant has no home”, then why is it that the Supreme Court’s approach leads to such a different result than the “practicable and efficacious” test which the Court rejected?

Take the not uncommon situation of a destitute adult with mental health needs, or, for example, learning difficulties. Do the mental health difficulties only give rise to accommodation under s 21 if the individual is so unwell that he or she needs a particular type of accommodation? The Court’s answer would appear to be “no”. If ordinary accommodation suffices, and given that no-one has suggested that care for mental health needs falls outside s 21, then how is the line drawn? Is the individual within s 21(1) so long as the person providing “care and attention” (such as the local authority / CMHT social worker) comes into the home to do her or his job, but outwith s 21 if the person does not come into the individual’s home? If that is the case, then local authorities may reorganise the way they provide services to increase the chances that the authority does not trigger the s 21 power.

Further, the Supreme Court was silent on the status of care and attention provided other than by a local authority. In the Court of Appeal Laws LJ held (at para 22) that “care and attention” within s 21 of the 1948 Act “is not limited to acts done by the local authority's employees or agents” and “the subsection does not envisage any particular intensity of support in order to constitute care and attention”. Thus, in that case, counselling provided by two local organisations for the support of gay people was taken into account. The Supreme Court did not doubt this point made by Laws LJ.

Conclusion

It is too early to judge the impact of the Court’s judgment in SL on the law of adult social care, particularly as we await the changes that will be brought in when the Care and Support Bill is enacted and comes into force. Given the very concise nature of the final analysis by the Court, and the myriad of issues left unresolved, it is likely that lower courts will have to return to these issues sooner rather than later.

Jonathan Auburn is a barrister at 39 Essex Street. He can be contacted by This email address is being protected from spambots. You need JavaScript enabled to view it..