London borough successfully defends judicial review claim as judge considers interaction between local authority obligations under Care Act 2014 and Housing Act 1996

A High Court judge has dismissed a judicial review claim over the London Borough of Ealing’s decision to withdraw its funding of the claimant’s temporary bed and breakfast accommodation. The application concerned the interaction between the local authority’s obligations under the Care Act 2014 and its obligations under the Housing Act 1996.

In Campbell, R (On the Application Of) v London Borough of Ealing [2023] EWHC, Judge O'Connor said the essence of the claimant’s case was that he has, “at all material times, had a need for care and support under the Care Act, which requires the provision of accommodation for its effective delivery”.

The grounds of challenge were:

• Ground 1: By withdrawing funding for the provision of accommodation, the Defendant erred in concluding either that it did not owe a duty to provide, or fund the provision of, accommodation under the Care Act, or in failing to conduct a proper assessment addressing the issue of whether it owed a duty to provide such accommodation.
• Ground 2: a) The Decision was also irrational, took account of irrelevant matters and failed to take account of relevant matters. b) It was additionally submitted that the Decision was taken for an improper purpose, and c) it was taken in breach of the Equality Act 2010 (“Equality Act”) in that it amounted to victimisation contrary to section 27 of that Act.

Outlining the background to the case, the judge said that the claimant suffers from Retinitis Pigmentosa, a condition which is progressive. He is partially sighted. It is also recorded that he suffers from obsessive compulsive disorder and depression. He is unemployed.

The claimant was accommodated in the defendant’s area by the London Borough of Hillingdon pursuant to its duty under Part VII of the Housing Act. The claimant subsequently failed to pay his rent and was evicted. Thereafter, Hillingdon placed the claimant in temporary accommodation in a hotel in Southall. Hillingdon treated its housing duty as having been discharged on 3 February 2016.

As the claimant was a “disabled man who was at imminent risk of being made homeless” the defendant took over the funding of the claimant’s accommodation at the hotel on the 4 February 2016.

The judge stated that in its Detailed Grounds of Defence, the defendant council indicated that the abovementioned accommodation was provided to the claimant “pursuant to the exercise of its discretion under section 19(3) of the Care Act, pending completion of an assessment which had begun on 2 February”.

The assessment, dated 17 February 2016, concluded that the claimant had “eligible domiciliary needs”. The defendant proposed to meet those needs by making direct payments.

On 18 July 2016, the hotel gave notice to the claimant that he must leave and on 20 July 2016 the defendant arranged for the claimant to move to a guest house. The claimant’s allocated social worker and a sensory and visual impairment worker concluded that this accommodation was too small for the claimant, and he was subsequently moved to private rented sector temporary accommodation.

Following a re-assessment of the claimant’s needs, discussions took place between the claimant and his social worker regarding the claimant’s housing situation, including discussions regarding previous assistance provided to the claimant to make bids for housing using Locata, a system operated by the defendant to facilitate bids for accommodation under Part VI of the Housing Act.

The judge said the defendant had at all times funded the temporary accommodation.

The claimant considers the temporary accommodation to be “unsuitable to meet his housing needs”.

The judge noted that the claimant is on the defendant’s housing register with a Band B (the second highest) priority under the housing allocation scheme adopted by the defendant pursuant to Part VI of the Housing Act.

In a letter dated 28 February 2022, the defendant informed the claimant’s solicitors that it had taken the decision to withdraw funding of the temporary accommodation, such decision to take effect from 25 April 2022. This was the decision under challenge.

The council provided an explanation for the withdrawal of funding, alongside a summary of the housing circumstances that had been presented to the claimant that he had rejected.

The explanation was as follows:  

“My client department has been funding your accommodation … for more than 5 years on the understanding that you would, through Ealing Council’s Housing Allocation System, bid for properties for which you were eligible.   

“You have recently issued court proceedings against my client department and their Housing colleagues.  

“You indicated in your claim that you are dissatisfied with the temporary accommodation, which my client department has been funding on your behalf for 5 years.  

“You have made it clear that you wish to live elsewhere, and it had been anticipated given your view about your current accommodation that you would be eager to take steps to bid for properties and pursue other measures available to you to resolve your permanent housing situation.

“My client department has done its best to assist you to avail yourself of the resources available to you to resolve your housing issues.   

“My client department have referred you to agencies to assist you in this regard.  

“However, you have rejected these offers of assistance and agencies that were initially prepared to assist you have withdrawn their help.”   

A notice of withdrawal of funding was issued on 25th April 2022 to the claimant by the defendant.

The last sentence stated: “For the avoidance of doubt, I would make clear that your current accommodation was not funded by my client department because of any duty to provide care and support to you under the Care Act 2014”.

Judge O'Connor considered the interplay between the defendant’s obligations and duties under the Housing Act and its duties under the Care Act as the legal background to the case.

Quoting the Care Act 2014, the judge said: “Section 8 of the Care Act gives examples of what may be provided to meet needs for care and support. These include accommodation “in a care home or in premises of some other type” (section 8(1)(a)); (b) care and support at home or in the community; (d) goods and facilities and (e) information, advice, and advocacy. Examples of how the local authority may meet an individual’s needs are provided in section 8(2) and include: providing a service, by arranging for a person other than it to provide a service and by making direct payments.”

He continued: “There is, however, specific provision at section 23 (which is headed “exception for the provision of housing etc”) to the effect that an authority:

“may not meet needs under sections 18-20 by doing anything which it or another local authority is required to do under - (a) The Housing Act 1996, or …”

In his discussion of grounds 1 & 2 (a), the judge noted that the defendant had been funding the claimant’s accommodation since 4 February 2016.

On behalf of the defendant, a team manager in Ealing’s Independent Living Service confirmed in her witness statement that funding for the accommodation was provided “under powers under the Care Act 2014” (judge’s emphasis).

Judge O’Connor said: “As identified above, the Decision under challenge of 28 February 2022 states that the temporary accommodation was not funded by the Claimant “because of any duty to provide care and support to you under the Care Act 2014” (judge’s emphasis).

“In her statement of the same date [the Head of Service at Ealing’s Independent Living Service] asserts, in relation to the temporary accommodation, that, “It was clearly an error and perhaps unlawful for Ealing to have continued to fund [the Claimant’s] accommodation….” 

Analysing relevant case law, the judge noted: “There is only one decision before me on the application and interpretation of section 23 of the Care Act, and that is the decision in Idolo. I can see no reason to depart from, and agree entirely with, the conclusion therein (at [47]) that there is an intention in section 23 to give a measure of priority to the general scheme of the Housing Act over the specific scheme of the Care Act.”

He continued: “In the circumstances of the instant case, this leads me to conclude that if section 23 is of application, the Defendant has no power or duty under the Care Act to meet the Claimant’s care and supports needs with the provision, or funding, of accommodation under the Care Act.”

Counsel for the claimant contended in the alternative that section 23 “does not bite on the facts of the instant case” because the defendant does not presently owe the claimant a duty to provide him with accommodation under the Housing Act.

The judge noted that counsel for the claimant “seeks to draw a distinction” between a duty on a local authority to provide accommodation under the Housing Act, and the duty under Part VI of the Housing Act to “appropriately prioritise the claimant for adapted accommodation through its allocation system, which it is accepted is a duty owed to the Claimant”.

In response, counsel for Ealing declared that the claimant was not entitled to accommodation under the Care Act because he was eligible for housing under either Part VI or Part VII of the Housing Act.

The judge rejected counsel for the claimant’s submission. He said in his analysis: “The Defendant’s housing allocation, and prioritisation, scheme discharges the duty under section 166A of the Housing Act and it is not said that the scheme is unlawful. As the Court identified in Idolo, at [48], section 23 ensures that the Care Act does not cut across that duty or the scheme of priority.

On Ground 1, the judge said: “The Defendant is, and was at the material time, required to provide the Claimant with housing under the Housing Act. The Claimant is a qualifying person under Part VI of the Housing Act, as supported by the fact that he has been put on the Defendant’s housing register and is still on that register. The Defendant’s housing allocation scheme takes account of reasonable preference to be given to certain categories of people. In March 2019, the Claimant was allocated to Band B of the scheme, the second highest banding category, after a successful challenge to an earlier banding decision. The Claimant has made a number of unsuccessful bids for accommodation. Since January 2022, the Defendant has also made four direct offers of accommodation to the Claimant outside of the usual bidding process. The Claimant rejected those offers on the basis that he considered the properties to be unsuitable. The fact the Defendant has not yet provided accommodation to the Claimant under Part VI of the Housing Act does not mean that it is not ‘required’ to do so.”

The judge rejected the claimant’s contention that the defendant had an ongoing duty under Part I of the Care Act to provide him with, or to fund his, accommodation. He therefore concluded that Ground 1 ‘must fail’.

Furthermore, the judge noted: “The Defendant’s conclusion that it did not owe the Claimant a duty to provide accommodation under the Care Act in order to meet his accommodation related needs was not made in error.”

He continued: “The Defendant did not err in failing to carry out a care and support assessment addressing the question of whether it owed a duty to provide accommodation in order to meet the Claimant’s accommodation related needs, because there was no such duty.”

Ground 2(a) was also disposed of by the judge, for the “same reasoning” – given his finding that the defendant neither had a duty nor a power under the Care Act to provide the claimant with accommodation, or to fund the claimant’s accommodation, the decision to withdraw funding “cannot be said to have been irrational”.

On grounds 2(b) & 2(c), counsel for the claimant contended that the Decision was taken for an improper purpose, namely: (i) in response to his decision to issue a claim against the Defendant for breach of the Equality Act 2010; and/or (ii) to deter him from pursuing that Claim; and/or (iii) putting pressure on him to source alternative accommodation independently.

On Ground 2(c), the claimant submitted that the Decision amounts to “victimisation of the Claimant”, contrary to section 27 of the Equality Act 2010.

The defendant’s pleaded case was summarised in its Skeleton Argument:

69. The reality is that the Country Court proceedings brought C’s case into focus and D realised it was under no legal obligation to continue to pay for his accommodation.

70.  While it is accepted that the letter informing C that the funding was being terminated could have been worded better that does not mean that D did not follow a legitimate course of action given that C had no right to be accommodated indefinitely at public expense.

71.  It is also significant that D has agreed to extend the funding pending the outcome of these proceedings.

A witness statement from the Head of Service at Ealing’s Independent Living (15 August 22) was outlined by the judge as “relevant evidence as to the reason for the decision to withdraw funding of the Claimant’s accommodation”.

It stated:

16. It is recorded that at an Independent Living Team ILT Panel meeting on 12th September 2019. Minutes 12/09/2019: “Noted in Panel - LH to write to DC informing him 4 weeks’ notice is given for end of B&B funding. He is to be advised to bid for accommodation on Locata or seek himself a B&B which will take Housing Benefit.”

17. The withdrawal of funding was not in retaliation for Mr Campbell issuing disability discrimination proceedings but to encourage him to pursue the options available to him to obtain alternative accommodation which is what he maintains he wants.”

The legal framework considered by the judge for the analysis of Ground 2(b) was section 27 of the Equality Act which reads:

“(1) A person (A) victimises another person (B) if A subjects B to a detriment because —

(a)  B does a protected act, or

(b)    …

(2) Each of the following is a protected act –

(a) bringing proceedings under the Act

(b) - (d) …”

Discussing Ground 2(c), the judge said: “The Claimant’s case is that the Decision speaks for itself and makes clear that the decision to withdraw funding of the Claimant’s accommodation (the detriment) was significantly influenced by the Claimant lodging the Discrimination claim in the County Court (the protected act).”

He continued: “An analysis of the Decision identifies that under the heading “Why the Council is doing this?”, information is provided to the Claimant as to why the Defendant’s Adult Social Care Service made the decision to withdraw funding of the Claimant’s accommodation. The second paragraph of this rationale reads, “you have recently issued court proceedings against my client department and their Housing colleagues”.

The judge noted that read on its own, the sentence provides supporting evidence for the contention that the issuing of the discrimination claim did have an influence on the decision to withdraw funding. However, he stated that the single sentence “cannot be read in isolation”.

On Ground 2(c), the judge said: “In my conclusion, when the Decision is read as a whole it is not inconsistent with the evidence provided by [the Head of Service at Ealing’s Independent Living Service] that, “The withdrawal of funding was not in retaliation for Mr Campbell issuing disability discrimination proceedings but to encourage him to pursue the options available to him to obtain alternative accommodation which is what he maintains he wants.”

He continued: “I am satisfied that the Defendant did not withdraw funding of the Claimant’s accommodation because of the Claimant lodging the Discrimination claim. The Claimant’s claim of victimisation under the Equality Act, pleaded as Ground 2(c), must therefore fail.”

The judge finally rejected Ground 2(b) of the claim, saying: “I reject the Claimant’s contention that the decision to withdraw funding was taken for an improper purpose. […] I have accepted the evidence provided by [the Head of Service at Ealing’s Independent Living Service] as to the purpose of the Decision, which was to encourage the Claimant to pursue the options available to him under the Housing Act to obtain alternative accommodation.

“I do not accept, looking at the facts of this matter as a whole, that the Claimant has established that this was an ‘improper purpose’ such that the Decision should be quashed. In particular, and in any event, for the reasons I have set out above, the Defendant had no duty or power to maintain funding of the Claimant’s accommodation under the Care Act and the resolution of the Claimant’s housing issue was properly to be addressed under the Housing Act.”

The judge dismissed the application for judicial review, noting that he was satisfied that the London Borough of Ealing’s decision of 28 February 2022 to withdraw its funding of the claimant’s temporary accommodation was not unlawful.

Lottie Winson