The Administrative Court has revisited the issue of the denial of social care support to persons subject to immigration control, and the line between local authority social care support under the Care Act 2014, and accommodation and support provided by the Home Office. Jonathan Auburn analyses the ruling.
The case of R (Shehab Aburas) v London Borough of Southwark  EWHC 2754 (Admin) concerned an apparently stateless 58-year-old Palestinian who came to the United Kingdom from Kuwait, arriving in 1996. Mr Aburas had mental health issues and had been diagnosed with bi-polar disorder and depression. He was a failed asylum-seeker without regular immigration status. Southwark determined that he was in the category ‘no recourse to public funds’ as a ‘person subject to immigration control’ for the purposes of section 21 of the Care Act 2014. He was present in the United Kingdom as a ‘person in breach of immigration control’ for the purposes of Schedule 3 paragraphs 1 and 7(1)(a) to the Nationality Immigration and Asylum Act 2002. He faced barriers to a proposed removal to Kuwait.
Southwark determined that support was available from the Home Office, and that this provided the answer to any human rights issue arising from the denial of local government support. Southwark’s assessment stated: “The council believes that Mr Aburas is able to make representation to Asylum Support for support with accommodation and subsistence … This would meet his current needs around accommodation and subsistence.”
The Claimant accepted that this would be the legally legitimate answer, if this case were solely about accommodation and subsistence needs and about protection from destitution. The Claimant contended that was not a sufficient answer because Mr Aburas (a) has a ‘looked-after need’ for social worker support (b) whose effective delivery requires accommodation (c) the denial of which has such serious consequences as to breach his Convention rights.
Michael Fordham QC, sitting as a Deputy Judge, dismissed the claim. He reviewed the authorities, including R (M) v Slough Borough Council  UKHL 52  1 WLR 1808, R (GS) v Camden London Borough Council  EWHC 1762 (Admin)  PTSR 140; R (AR) v London Borough of Hammersmith and Fulham  EWHC 3453 (Admin), and R (Bernard) v Enfield London Borough Council  EWHC 2282 (Admin)  HLR 27.
The Judge held that Southwark could lawfully conclude that the issues as to homelessness, destitution and subsistence did not constitute a ‘looked-after need’ under the Care Act; and that they were matters for the Home Secretary, and the system of Asylum Support. The ‘looked-after needs’ identified on Mr Aburas’s behalf were the need of social worker support in order to take medication (and in order to access food, in turn to be able to take medication), and the need of accommodation so that this social worker support could effectively be provided.
The Judge held that the evidence did not establish that Mr Aburas needed 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. Nor did the evidence establish that Mr Aburas needs accommodation in order to have the support of a social worker. Nor did it establish that missing taking the medication gives rise to serious suffering. Overall, the Judge held that the evidence did not establish that there was an imminent prospect of serious suffering caused or materially aggravated by the refusal to provide supported accommodation.
The Judge concluded at paragraph 21 that: “… the highest it can be put is that … Mr Aburas may be facing circumstances of destitution and need of support and subsistence, depending on what other support is available to him, and especially with the onset of winter. These are matters for the Home Secretary and Asylum Support, as Southwark has consistently pointed out. What the evidence does not support is the conclusion that there is a ‘looked-after need’ for social worker support, requiring the provision of accommodation, the refusal of which is a breach of Mr Aburas’s Convention rights. On an objective assessment, the evidence does not establish that there is 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. The evidence does not establish that the claimant has a need of social worker support – nor of accommodation to deliver that support – so as to take his medication, nor access and consume food so as to be able to do take his medication. Nor does it establish that the refusal of social worker support (with accommodation) does, in these ways, deny him a basic necessity of life”.
The Judge also made three useful further comments.
- First, that it may not be the end point of a human rights assessments to conclude that a person has no eligible social care needs. Southwark’s form apparently was not structured for the input of information relating to human rights considerations beyond the identification of eligible social care needs.
- Second, the Court considered and rejected an alternative argument based on section 1 of the Localism Act 2011.
- Third, separate considerations may arise where a destitute person who is subject to immigration control within section 21 of the Care Act 2014 is neither (a) an asylum-seeker (covered by section 95 of the National Assistance Act 1999) nor (b) a failed asylum-seeker (covered by section 4 of the same Act). The parties differed as to whether local government or the Home Secretary had responsibility in such cases. The Judge declined to rule on the point, as it was not necessary to do so.