Judgments - R (On The Application of M) (Fc) V Slough Borough Council

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25.  The issue came before the Court of Appeal in R v Wandsworth London Borough Council, Ex parte O, R v Leicester City Council, Ex parte Bhikha [2000] 1 WLR 2539. The applicants were not asylum seekers but over-stayers who had stayed here long after they should have returned to their home countries. When they approached their local authorities for assistance under section 21(1)(a), neither was entitled either to social security benefits or to asylum support (Mrs O was later granted Exceptional Leave to Remain and therefore became entitled to benefits). But both had quite serious health problems. The local authorities refused to assess their needs, initially on the ground that their presence here was unlawful. The Court of Appeal held that they were not entitled to refuse assistance on this ground. But the case also raised the issue of whether they were excluded from section 21(1)(a) by the new section 21(1A).

26.  The local authorities argued that “it is only if an applicant would still need assistance even without being destitute that he is entitled to it". The applicants argued that “if an applicant’s need for care and attention is to any material extent made more acute by some circumstance other than the mere lack of accommodation and funds, then . . . he qualifies". Lord Justice Simon Brown, at p 2548, unhesitatingly preferred the latter: “The word ‘solely’ in the new section is a strong one and its purpose there seems to me evident. . . . If there are to be immigrant beggars on our streets, then let them at least not be old, ill or disabled". I said, at p 2557, “Parliament might have gone even further in denying such services completely, but chose to limit that denial to those whose need arose ‘solely’ from destitution. This must leave it open to those whose need arises also from other cause to seek such assistance. . . . It makes no sense for the old, the sick or the disabled to be eligible for hospital and other health services but not for the community care services they need.” Lord Justice Kay agreed with us both.

27.  This decision proved more problematic than we had expected. We had assumed that the new national asylum support scheme would provide for destitute asylum seekers even if they were especially vulnerable, if the care and attention they needed could be provided for them in the accommodation provided by the new scheme. This would leave only those asylum seekers with the sort of care needs which could only be met in specialised accommodation, and people like Mrs O and Mr Bhikha who fell outside the asylum scheme altogether, to be catered for under section 21(1)(a). But this was wrong. The Secretary of State was determined that the national scheme would indeed be a last resort. The regulations required him, in deciding whether an asylum seeker was destitute, to take into account any other support which was available to the asylum seeker: Asylum Support Regulations 2000, reg 6(4)(b). So if support was available under section 21(1)(a), it would not be available under the national scheme.

28.  This led to what has been called an “inverted and unseemly turf war between local and national government” (J A Sweeney, “The Human Rights of Failed Asylum Seekers in the United Kingdom” [2008] PL 277, 285), culminating in the decision of this House in R (Westminster City Council) v National Asylum Support Service [2002] 1 WLR 2956. Mrs Y-Ahmed was an asylum seeker who suffered from spinal cancer. She and her daughter were assessed as needing self contained accommodation of at least two rooms near the hospital where she had been treated, accessible by wheel-chair and to community care services. She needed care and attention, but it could have been provided in her own accommodation if she had had any. It was only because of the lack of her own accommodation that the care and attention she needed was “not otherwise available to [her]” without the provision of accommodation under section 21(1)(a).

29.  The House held, consistently with Ex parte M, that this brought her within section 21(1)(a). Ex parte M was not challenged and Lord Hoffmann observed that “I do not think it would be open to [counsel] to do so, because the whole of Part VI of the 1999 Act proceeds on the assumption that it is correct” (para 43). The House also held that she was not excluded by section 21(1A). Lord Hoffmann, at para 29 drew, a distinction between “the able-bodied destitute” and “the infirm destitute". He thought that the existence of the latter class “may have escaped notice” in the aftermath of Ex parte M (para 29). Nevertheless, as he explained, at para 32,

“The use of the word ‘solely’ makes it clear that only the able bodied destitute are excluded from the powers and duties of section 21(1)(a). The infirm destitute remain within. Their need for care and attention arises because they are infirm as well as because they are destitute. They would need care and attention even if they were wealthy. They would not of course need accommodation, but that is not where section 21(1A) draws the line.”

The House declined to express a view on whether the exact test adopted by Lord Justice Simon Brown in Ex parte O was correct, because it also affected people who were not entitled to asylum support. The case had been argued throughout on the basis that Mrs Y-Ahmed had a need for care and attention which had not arisen solely because she was destitute but also (and largely) because she was ill.

This case

30.  My Lords, it might appear that this case too is part of the “inverted and unseemly turf war” between central and local government, but although the Secretary of State intervened on a different issue in the Court of Appeal, he has not intervened on the issues before us. The main issue is the precise meaning of the words “in need of care and attention which is not otherwise available to them". It may well be that those who drafted section 21(1)(a) in 1948 assumed that it only applied to people who needed extra care and attention which could not be provided in their own homes. They undoubtedly drew a distinction between the ordinary homeless, who were catered for under what was then section 21(1)(b), and those with special needs, who fell within section 21(1)(a). Be that as it may, we are required, by the NASS case, to accept that people who need care and attention which could be provided in their own homes, if they had them, can fall within section 21(1)(a). But that does not answer the question in this case.

31.  Mr Howell adopts the three conditions which I suggested in R (Wahid) v Tower Hamlets London Borough Council [2002] EWCA Civ 287, [2003] HLR 13, para 30, and Lord Hoffmann found helpful in the NASS case at para 26:

“first, the person must be in need of care and attention; secondly, the need must arise by reason of age, illness, disability or ‘other circumstances’ and, thirdly, the care and attention which is needed must not be available otherwise than by the provision of accommodation under section 21".

Mr Howell argues that there must be some meaningful content in the need for care and attention. He was at first disposed to argue that it must mean care and attention to physical needs, such as feeding, washing, toileting and the like, and not simply shopping, cooking, laundry and other home help type services. But he accepted that it had also to cater for people who did not need personal care of this sort but did need to be watched over to make sure that they did not do harm to themselves or others by what they did or failed to do. The essence, he argued, was that the person needed someone else to look after him because there were things that he could not do for himself. The respondent does not need care and attention of this sort. He is perfectly capable of looking after himself. He needs his medication, but that is supplied by the National Health Service and under section 21(8) the local authority is not allowed to provide him with anything which is authorised or required to be provided under the National Health Service Act 2006. Medical treatment has always been provided for separately in the National Health Service legislation. The need for a fridge in which to keep his medication cannot be described as a need for care and attention.

32.  My Lords, a test as strict as that proposed by Mr Howell might not even include Mrs Y-Ahmed, let alone Mrs O and Mr Bhikha. It might not include a great many people who have been accommodated in old people’s homes over the years since 1948. Our ideas of when people need to be in residential care have changed a good deal since then. Much of the care which used to be provided in a residential setting can now be provided at home. Furthermore, section 26(1A) requires that if arrangements are made under section 21(1)(a) for accommodation “together with nursing or personal care” for people who are or have been ill, people who have or have had a mental disorder, people who are disabled or infirm, or people who are or have been dependent on alcohol or drugs, then in effect the home must be registered under the Care Standards Act 2000. Thus accommodation may be arranged under section 21(1)(a) without including either nursing or personal care. So the “care and attention” which is needed under section 21(1)(a) is a wider concept than “nursing or personal care". Section 21 accommodation may be provided for the purpose of preventing illness as well as caring for those who are ill.

33.  But “care and attention” must mean something more than “accommodation". Section 21(1)(a) is not a general power to provide housing. That is dealt with by other legislation entirely, with its own criteria for eligibility. If a simple need for housing, with or without the means of subsistence, were within section 21(1)(a), there would have been no need for the original section 21(1)(b). Furthermore, every homeless person who did not qualify for housing under the Housing Act 1996 would be able to turn to the local social services authority instead. That was definitely not what Parliament intended in 1977. This view is consistent with Ex parte M, in which Lord Woolf emphasised, at p 20, that asylum seekers were not entitled merely because they lacked money or accommodation. I remain of the view which I expressed in Wahid, at para 32, that the natural and ordinary meaning of the words “care and attention” in this context is “looking after". Looking after means doing something for the person being cared for which he cannot or should not be expected to do for himself: it might be household tasks which an old person can no longer perform or can only perform with great difficulty; it might be protection from risks which a mentally disabled person cannot perceive; it might be personal care, such as feeding, washing or toileting. This is not an exhaustive list. The provision of medical care is expressly excluded. Viewed in this light, I think it likely that all three of Mrs Y-Ahmed, Mrs O and Mr Bhikha needed some care and attention (as did Mr Wahid but in his case it was available to him in his own home, over-crowded though it was). This definition draws a reasonable line between the “able bodied” and the “infirm".

34.  This construction is consistent with all the authorities, including R (Mani) v Lambeth London Borough Council [2003] EWCA Civ 836, [2004] LGR 35. That case was argued on the assumption that the claimant did have a need for care and attention, but not a need which required the provision of residential accommodation. Mr Mani had one leg which was half the length of the other. He had difficulty walking and when in pain he could not undertake basic tasks such as bed-making, vacuum cleaning and shopping. He did need some looking after, going beyond the mere provision of a home and the wherewithal to survive.

35.  The only passage which might cast any doubt upon this approach is Lord Woolf’s statement in Ex parte M, that the authorities could “anticipate the deterioration which would otherwise take place” and intervene before a person’s health had been damaged. He did not, however, say that they could intervene before there was a need for care. There has to be some sensible flexibility here. Section 21(1)(a) requires that the person “are in need of care and attention” so that the primary focus must be on present rather than future needs. But if there is a present need for some sort of care, then obviously the authorities must be empowered to intervene before it becomes a great deal worse. Section 21(1A) reflects this by referring to the anticipated physical effects of destitution. It was possible to meet the present needs that Mrs Y-Ahmed already had, for without that she would have needed a great deal more. It would be possible to meet the need for care of an HIV positive person who is beginning to get sick before he becomes a great deal worse. But there must still be a need for some care and attention for section 21(1)(a) to apply at all.

36.  Although the respondent is HIV positive, his medical needs are being catered for by the National Health Service. So even if they did amount to a “need for care and attention” within the meaning of section 21(1)(a) he would not qualify. But for the reasons given above, I do not think that they do amount to such a need. There may of course come a time when they do, but people with the virus can now live normal lives for many years and we must hope that the respondent is able to do so. As he does not fall within section 21(1)(a) it is unnecessary to decide whether he would be excluded by section 21(1A). Unless and until one knows what care and attention a claimant needs, one cannot sensibly ask whether his need for it arises solely from destitution or its actual or anticipated effects.

37.  For these reasons, and in agreement with the additional reasons of my noble and learned friends, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury, I would allow this appeal and set aside the order quashing the local authority’s decision.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

38.  I have had the advantage of reading in draft the opinion of my noble and learned friend Baroness Hale of Richmond and I am in full agreement with it. Since, however, I was myself closely involved with this area of the law for many years in the Court of Appeal, I wish to add a few paragraphs of my own which I hope may further clarify and not cloud the position now arrived at. In doing so I gratefully adopt my Lady’s exposition of the relevant facts, and legislation.

39.  As Lady Hale has explained, the ultimate question arising in all these cases is: who ultimately is responsible for meeting the housing and subsistence needs of destitute people subject to immigration control (mostly but not exclusively asylum-seekers)? Is it local authorities under section 21(1)(a) of the National Assistance Act 1948 or is it central government in the form of NASS, now under section 95 of the Immigration and Asylum Act 1999 (or otherwise pursuant to the state’s obligation not to breach article 3 of the European Convention on Human Rights—see R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396)?

40.  Part of the answer was provided by the House in R (Westminster City Council) v National Asylum Support Service [2002] 1 WLR 2956: NASS is responsible for the “able-bodied destitute"; local authorities for the “infirm destitute". Given, however, that the asylum-seeker there, Mrs Y-Ahmed, was agreed by all to be an “infirm destitute” with “a need for care and attention which has not arisen solely because she is destitute but also (and largely) because she is ill", it was unnecessary for the House to consider in depth either (i) what constitutes a need for care and attention within the meaning of section 21(1)(a) or (ii) whether any such need has arisen “solely… because he is destitute” (or because of the actual or anticipated physical effects of destitution) so as to fall within section 21 (1A). I turn, therefore, to these two questions.

(i)  What constitutes a need for care and attention such as (subject to section 21(1A)) to entitle a person to section 21 residential accommodation?

I agree with Lady Hale’s analysis. A person must need looking after beyond merely the provision of a home and the wherewithal to survive —beyond, therefore, the needs able to be met by NASS for suitable accommodation and subsistence. The looking after required does not have to be for either nursing or personal care. It must, however, be of such a character as would be required even were the person wealthy. It is immaterial that this care and attention could be provided in the person’s own home if he had one (as he would have if he were wealthy). All that is required is that the care and attention needed must not be available to him otherwise than by the provision of section 21 accommodation. In   the case of someone subject to immigration control who is destitute, inevitably only the provisions of section 21 accommodation will enable his need for care and attention to be met. But that does not exclude him under section 21(1A): that provision only excludes those whose need for care and attention (not whose need for accommodation) has arisen solely because of destitution. As Lord Hoffmann said in NASS para 32):

“The use of the word ‘solely’ makes it clear that only the able-bodied destitute are excluded from the powers and duties of section 21(1)(a). The infirm destitute remain within. Their need for care and attention arises because they are infirm as well as because they are destitute. They would need care and attention even if they were wealthy. They would not of course need accommodation, but that is not where section 21(1A) draws the line.”

As Lady Hale explains, the respondent (unlike the two claimants in R v Wandsworth London Borough Council Ex parte O; R v Leicester City Council Ex parte Bhikha [2000] 1 WLR 2539 (“Ex parte O“), Mrs Y-Ahmed in NASS, and Mr Mani in the later case of R (Mani) v Lambeth London Borough Council [2004] LGR 35) fails at this initial hurdle: M needs no looking after beyond medical care which is provided by the NHS and thus excluded from consideration by section 21(8).

(ii)  Should the person’s need for care and attention be regarded as having arisen “solely because he is destitute"?

This question only arises once it is established that the person has a need to be looked after—a need beyond merely the provision of a home and the means of survival. If a person reaches that state purely as a result of sleeping rough and going without food, as envisaged in R v Hammersmith and Fulham London Borough Council, Ex parte M (1997) 30 HLR 10 (“Ex parte M“) at p.19, then clearly the need for care and attention will have arisen solely from destitution. If, however, that state of need has been accelerated by some pre-existing disability or infirmity—not of itself sufficient to give rise to a need for care and attention but such as to cause a faster deterioration to that state and perhaps to make the need once it arises that much more acute—then for my part, consistently with the views I expressed in the earlier cases, I would not regard such a person as excluded under section 21(1A).

41.  Given, however, that the real dispute in the vast majority of cases is, as stated, between local authorities and NASS, and given too the House’s decision in Limbuela, it seems to me unlikely that in practice this point will now arise. Surely the question to be asked is rather whose responsibility it is to provide accommodation and subsistence to destitute asylum-seekers before any such deterioration occurs and by reference, therefore, only to whatever particular disability or infirmity the person already suffers. Only if they already need section 21 care and attention is the local authority responsible; otherwise the responsibility falls on central government.

The Court of Appeal’s decision

42.  It would be wrong to reverse the Court of Appeal’s decision here without recognising my own part in their mistaken approach. Paragraph 15 of the judgment (of Maurice Kay LJ, concurred in by Ward LJ and Sir Peter Gibson) accepted the respondent’s argument that it was implicit in Ex parte M that “'care and attention’ . . .could extend to the provision of shelter, warmth, food and other basic necessities". In support of this view paragraph 19 of the judgment cited a passage from my own judgment in the Court of Appeal in Ex parte Mani: “. . . [A]s is apparent from [Ex parte M], all destitute asylum-seekers, unless they are explicitly excluded by section 21(1A), would be entitled to accommodation under section 21 . . .” That this was indeed my opinion of the matter was implicit also in my judgment in Ex parte O and in my view (expressed in my judgments in the Court of Appeal both in the NASS case, [2001] EWCA Civ 512, para 44, and in Ex parte Mani, para 21) that a blind asylum-seeker would fall to be supported by the local authority rather than by NASS. Perhaps, moreover, I was not alone at that time in taking this view. Lady Hale, besides agreeing with my judgment in Ex parte O, said in R (Wahid) v Tower Hamlets London Borough Council [2003] HLR 13, para 32: that the words “care and attention” in section 21 (1)(a) “must be given their full weight. Their natural and ordinary meaning in this context is ‘looking after': this can obviously include feeding the starving, as with the destitute asylum-seekers in [Ex parte M]".

43.  I am now persuaded, however, that it would not be right to regard all destitute asylum-seekers as in imminent need of care and attention. I had originally based this view on the final passage at p.21 of the report of Ex parte M (quoted by Lady Hale at para 21) combined with section 21(1A)’s reference to the “anticipated physical effects” of destitution. Now, however, I respectfully agree with Lady Hale’s analysis, not least at para 35 of her opinion.

44.  For these reasons, which substantially mirror those more fully given by Lady Hale, I too would accordingly allow this appeal.

LORD NEUBERGER OF ABBOTSBURY

My Lords,

45.  This appeal, brought by Slough Borough Council, raises two issues of interpretation of section 21(1)(a) of the National Assistance Act 1948, and, at least contingently, an issue of interpretation of section 21(1A) of that Act.

46.  I have had the benefit of reading in draft the opinions of my noble and learned friends, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood. Lady Hale has explained the facts giving rise to this appeal, and has also provided an authoritative history of the directly and indirectly relevant legislation, and I gratefully adopt what she says.

47.  The principal issue which arises in relation to section 21(1)(a) is the meaning of the expression “are in need of care and attention". However, it is first appropriate to consider another issue which arose during the course of argument. That issue concerns the identification of the expression referred to by the closing words of section 21(1)(a), “which is not otherwise available to them". Do they refer, as appears to have always been assumed in previous cases on section 2, to “care and attention” (see e.g. Steane v Chief Adjudication Officer [1996] 1 WLR 1195, 1202), or do they refer, as was suggested as a possibility during the hearing, to “accommodation"?

48.  On a purely syntactical analysis, there is something to be said for each of the two interpretations. The word “which” normally refers back to the noun or set of nouns immediately preceding it (i.e. “care and attention”), but it can be read, if the context so indicates, as referring back to an earlier noun (i.e. “accommodation”) or set of nouns. On the other hand, the singular verb “is” suggests that the word “which” normally refers to a single noun (i.e. “accommodation”), but it would not be a misuse of language to regard some combination of nouns (such as care and attention) as a singular concept.

49.  Decisions on questions of interpretation, whether of a contract or a statute, are often influenced by the impression conveyed by the words concerned to the particular reader. There can therefore be a danger of post hoc rationalisation when it comes to justifying a particular interpretation. This is such a case. It is therefore only right to acknowledge that the impression conveyed to me when I first read the section was that the closing words of section 21(1)(a) referred to “care and attention", and I remain of the view that that is the more natural reading. (Having said that, it not infrequently happens that a more detailed and careful linguistic and contextual analysis convinces one that a departure from the primary impression is appropriate - although it is at least equally likely to confirm, or at least not to undermine, that impression.)

50.  On closer analysis, it seems to me that the reading which the words seem to bear as a matter of impression appears to comply somewhat better with the purpose of section 21(1). In this connection, it is pertinent to mention that it is common ground that “residential accommodation” extends not merely to premises to live in, but also to the care and attention of which the person concerned has need. That seems clear from section 21(5), which states that references to accommodation provided under Part III of the 1948 Act are to be construed as extending to “board and other services, amenities and requisites provided in connection with the accommodation except where in the opinion of the authority managing the premises their provision is unnecessary". As Hale LJ said in R (Wahid) v Tower Hamlets London Borough Council [2002] EWCA Civ 287; [2003] HLR 13 para 32, residential accommodation “is simply the means whereby the necessary care and attention can be made available if otherwise it will not….”

 
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