On 28 & 29 January 2013, a Supreme Court consisting of Lords Neuberger, Mance, Kerr, Carnwarth and Lady Hale will hear Westminster City Council’s appeal against the decision of the Court of Appeal ([2011] EWCA Civ 954, Laws, Richards, Rimer LLJ) 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).

S 21 of the 1948 Act

S 21(1)(a) of the 1948 Act permits (and by virtue of directions made by the Secretary of State under it, requires) local authorities “to make arrangements for providing residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or other circumstances are in need of care and attention which is not otherwise available to them”. S 21(8) excludes care and attention which is provided by the NHS, and s 21(1A) (inserted by the Immigration and Asylum Act 1999, s 116), excludes from s 21(1)(a) a series of categories of foreign nationals including those who have exhausted their immigration appeal rights and have no lawful basis to remain,  if the need for care and attention arises solely because of destitution

The Facts

The appellant came to the United Kingdom in 2006, at the age of 16, and sought asylum based on his fear of persecution in Iran on account of his sexual orientation. His claim was refused in 2007 and he became homeless in October 2009. In December 2009, apparently after learning of the death of his partner in an Iranian prison, he tried to kill himself, and was admitted to a hospital mental health unit as an inpatient. He was later discharged, but diagnosed as suffering from depression and post traumatic stress disorder.

The decision under challenge was the decision of Westminster City Council that SL did not need ‘care and attention’ within the meaning of s 21(1)(a) but should be encouraged to live independently. In consequence, Westminster decided it owed SL no duty to provide residential accommodation. SL’s social worker acted as a care co-ordinator, and at weekly meetings, offered advice, encouragement, monitored SL’s mental state, and arranged contact for SL with counselling groups and a befriending service.

The issue was whether these services provided by Westminster to SL amounted to ‘care and attention’ within the definition of s 21(1)(a) such as to attract the consequent duty to accommodate.

The first instance judge (Burnett J) refused the application. The Court of Appeal unanimously allowed the appeal, and Westminster City Council now appeals against that conclusion.

The Issues

The first issue in the case is what is meant by ‘care and attention’, a phrase not defined by the Act.

The second is the nexus between the care and attention of which the claimant is (in Laws LJ’s words) ‘putatively in need’ and the provision of accommodation.

The construction of s 21 is the subject of considerable authority, including two House of Lords decisions, Westminster CC v NASS  [2002] 1 WLR 2956, [2002] UKHL 38 and M v Slough BC  [2008] 1 WLR 1808, [2008] UKHL 52. In M v Slough BC,  Lord Neuberger (who will preside over the Supreme Court in SL) held (at paras 47-52) that the subordinate clause ‘which is not otherwise available’ qualifies the phrase ‘care and attention’ not ‘accommodation’, and Lady Hale (at para 33) said that in the context of s21, the natural and ordinary meaning of the words ‘care and attention’ was ‘looking after’, in the sense of doing something for a person which he cannot or should not be expected to do for himself.

In the present case the issue is whether it must be shown, for a right to accommodation to exist under s 21(1)(a), that the necessary care and attention cannot be given without the provision of residential accommodation; or whether the statutory language should be construed to mean that the provision of accommodation is reasonably required in order for care to be furnished in a way which full meets the claimant’s needs; or whether the statutory language has some other meaning.

The second construction was that contended for by SL in the Court of Appeal (supported by The Medical Foundation and Mind, intervening). Differing from the first instance judge, but not entirely adopting the construction contended for by SL however, the Court of Appeal held that the things SL’s social worker did for him did amount to care and attention in the sense of looking after; and held that this care and attention was ‘not otherwise available’ (other than under s 21(1)(a)) in the sense that it would not be reasonably practicable and efficacious for the local authority to supply it without the provision of accommodation (paras 38, 39). It held (para 44) that it would not be reasonably practicable to supply these services without stable accommodation, and that the provisions of the Immigration & Asylum Act 1999, s 95 meant that potentially available NASS accommodation must be ignored.

These issues now fall finally to be determined by the Supreme Court. As the Court of Appeal noted, the wider the concept of care and attention, and the looser the nexus between the care and attention needed and the provision of accommodation, the more onerous will be the duty of local authorities under s 21(1)(a).