Council looks to Supreme Court after s.21 ‘care and attention’ test case defeat

Claimant solicitors have hailed a Court of Appeal ruling on the circumstances in which social services departments owe a duty to provide accommodation and support to vulnerable adults in need of care and attention.

In the case of SL v Westminster City Council [2011] EWCA Civ 954, ‘SL’, an Iranian failed asylum seeker, became homeless in October 2009. In December 2009, after learning of the death of his partner in an Iranian prison, he attempted suicide and was admitted to hospital as an in-patient where he was diagnosed as suffering from depression and post-traumatic stress disorder.

SL argued that, on discharge from hospital in April 2010, he required accommodation and support from Westminster City Council social services. Under section 21 of the National Assistance Act 1948, local authorities must make arrangements for the provision of residential accommodation for adults in need of care and attention which is not otherwise available to them.

Overturning a High Court decision of last year, the Court of Appeal held that the services SL was receiving from his mental health social worker amounted to ‘care and attention’ as his social worker was monitoring his mental state at weekly meetings and arranging for him to receive counselling and the services of a befriender, services he could not provide for himself.

Lord Justice Laws pointed out that ‘care and attention’ within the legislation was not limited to acts done by the local authority’s employees or agents. He added that the legislation also did not envisage any particular intensity of support in order to constitute ‘care and attention’.

The judge suggested that ‘care and attention’ is not ‘otherwise available’ unless it would be “reasonably practicable and efficacious to supply it without the provision of accommodation”.

Lord Justice Laws said it would be absurd for Westminster to provide a programme of assistance and support without also providing the “obviously necessary basis of stable accommodation”.

Law firm Pierce Glynn, which acted for SL, said: “This is a very significant and helpful decision which will assist many vulnerable people, particularly those with mental health problems, to access accommodation and support.”

Maxwell Gillott solicitors and Adrian Berry of Garden Court Chambers acted pro bono for the Freedom from Torture and Mind charities, which gained permission to intervene in this case.

Victoria Pogge von Strandmann, solicitor for Freedom from Torture, said: “This judgment clarifies that local authorities owe a duty to accommodate and support those who need looking after as a result of mental health problems, including trauma resulting from torture, where accommodation is necessary in order for that care and attention to be effective."

SL was granted indefinite leave to remain in the UK during the course of the case, which made him eligible for accommodation under the Housing Act 1996, but the Court of Appeal decided to hear the case because of its wider importance.

John Bolton, Westminster council’s interim strategic director of adult social care, said: “While we respect the Court’s decision we do not believe it is the right one and we will now look at the option of appealing to the Supreme Court.”

Mark Smulian and Philip Hoult