Case Comment: SL v Westminster City Council  UKSC 27
11 Tuesday Jun 2013
The Supreme Court has allowed Westminster City Council’s appeal against the decision of the Court of Appeal as to the proper interpretation and scope of a local authority’s duty to provide accommodation under the National Assistance Act 1948, s 21(1)(a).
The issue in the case was whether a depressed young man who had been refused asylum, suffered from post traumatic stress disorder, and been discharged from hospital was entitled to residential accommodation under the terms of s 21 of the 1948 Act. His entitlement to this only arose if, by reason of age, illness, disability, or other circumstances, the Appellant was in need of ‘care and attention . . . not otherwise available [to him]’.
It was not in dispute that SL was ill, but the Council appealed against the Court of Appeal’s decision that he was thereby in need of ‘care and attention’, or, if he was, that this was ‘not otherwise available’, other than by provision of residential care.
The Supreme Court held that the Council had been entitled to decide that the Appellant’s weekly meetings with his social worker were not themselves ‘care and attention’, but only a means of monitoring what care and attention he may require in future. In other words, as a matter of fact and degree, such counselling and advice was outside the ambit of ‘looking after’ someone – which is how Baroness Hale had defined ‘care and attention’ in M v Slough BC  UKHL 52 (para 33).
As to the third question, the Court had earlier held in the Slough case that the words ‘not otherwise available . . . ‘ qualified the ‘care and attention’ and not ‘accommodation’. SL supported by the two interveners, Mind and Freedom from Torture, argued that good mental health care could not be provided to a person who lacked residential accommodation. The corollary was that if a person needed mental health care and attention, and was unintentionally homeless, and – by reason of his immigration status – was not entitled to require the local authority to house him under homelessness legislation – the local authority would be obliged to provide such housing as is reasonably required in order for care to be furnished in a way which fully meets the claimant’s needs.
The Court of Appeal held that the local authority was obliged to provide accommodation under s 21(1)(a) if it would not be reasonably practicable and efficacious to supply such care and attention without the provision of accommodation.
The Supreme Court started its judgment with an explanation of how this issue had arisen. As a result of the Immigration and Asylum Act 1999, homeless asylum seekers were not entitled to be housed by the local authority by reason only of their destitution. They were only entitled to be housed under a national ‘scheme of last resort’ administered by the National Asylum Support Service. By virtue of s 21(1A) of the 1948 Act, introduced by s 115 of the 1999 Act, such people were also removed from application of s 21, if their needs for care and attention arose solely from destitution or the physical effects or anticipated physical effects of being destitute. However, by virtue of s 21(8) of the 1948 Act, nothing in s 21 is to be taken as authorising or requiring provision authorised or required to be made under any other enactment.
The consequence was a ‘turf war’ between local authorities and national government as to who had authority for particular asylum seekers. Although that did not arise in the present case, it did make construction of s 21(1)(a) a charged issue – particularly since national provision could be made anywhere in the country, under a policy of dispersal.
The Supreme Court did not follow the Court of Appeal’s construction of the phrase ‘otherwise available’. Assuming that the advice provided by the Council’s social worker was ‘care and attention’, it held (albeit obiter) at paras 45ff that this care and attention was available independently of his accommodation, however that accommodation was provided or however his need for it arose. It preferred to construe the concept of ‘care and attention not otherwise available’ narrowly – i.e that the duty to accommodate under that section only arose where the necessary care and attention could not be given without the provision of residential accommodation. It therefore held that the local authority was entitled to hold that SL had no right to accommodation under s 21 of the 1948 Act even if the services provided were care and attention, because those services were available to him regardless of his living arrangements, and similar support services could be provided anywhere in the country.
This case is an example of the Supreme Court affording a wide interpretative discretion to the decision-making authority as to what, in practical terms, it must do to comply with a potentially onerous and far-reaching statutory duty. It is clear that the Court regards the responsibilities imposed by s 21 of the 1948 Act as having been stretched and bent out of shape as a result of the superimposition of the 1999 Act and the ‘unseemly turf war’ between national and local providers’ responsibilities to accommodate asylum seekers.