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

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51.  In the light of that meaning of “residential accommodation", it seems to me that, on either interpretation, section 21(1) is engaged where a person is without the care and attention which he needs. However, if the closing words of section 21(1)(a) refer to “residential accommodation", then section 21 would also be engaged where such a person has all the care and attention that he needs, but is without accommodation. That would have rendered otiose section 21(1)(b), which was repealed by the Housing (Homeless Persons) Act 1977. Section 21(1)(b) empowered, and, subject to the Secretary of State’s directions, required, a local authority to provide “temporary accommodation for persons who are in urgent need thereof".

52.  Quite apart from this, the closing words of section 21(1)(a) have been consistently treated as referring to “care and attention” rather than “accommodation". There is some, albeit pretty limited, force in the point that, if the legislature had been unhappy about this, there would have been ample opportunities to amend section 21(1)(a) accordingly. As already mentioned, there have been many amendments made to section 21(1) since 1948. Perhaps more significantly, section 21(2A), which was added by the Community Care (Residential Accommodation) Act 1998, opens with the words “In determining … whether care and attention are otherwise available to a person….". Accordingly, it appears clear that, in 1998, the legislature amended section 21 on the assumption that the traditional interpretation of section 21(1)(a) was correct (and, in contrast with the original drafting, it used the plural “are” rather than the singular “is”).

53.  I turn, then, to the second, and principal, question raised in relation to section 21(1)(a), namely the meaning of “are in need of care and attention", and, in particular, whether on the facts of the present case, M was “in need of care and attention".

54.  As a matter of ordinary language, while reformulation of a statutory expression can be dangerous, “are in need of” means much the same as “currently require". “Need” is a more flexible word than it might first appear. “In need of” plainly means more than merely “want", but it falls far short of “cannot survive without". Particularly bearing in mind the multifarious circumstances in which section 21(1)(a) might be invoked, I do not think it would be sensible or helpful to indulge in further generalised exegesis. In the great majority of cases, I would have thought that the words should not present a problem.

55.  As for the word “are", it seems to me that, unless the contextual imperative to the contrary is very powerful indeed, the use of the present tense excludes the future, let alone the future conditional. It would seem wrong to extend a duty owed to a person who satisfies a statutory requirement to a person who currently does not satisfy the requirement simply because he will or may do so in the future. I should add that, as a matter of practicality, humanity and common sense, this cannot mean that a local authority is required to wait to act under section 21 until a person becomes seriously in need, however close and inevitable that serious need may be, and however much the authority reasonably wants to assist at once. The section must contemplate that a local authority can act, where it reasonably considers it right to do so, as soon as a person can be said to be in need of some care and attention, even to a relatively small degree.

56.  As for “care and attention", while again it is right to caution against the risks of reformulating the statutory language, it appears to me that Hale LJ was right to say that “in this context", the expression means “looking after” and that “ordinary housing is not in itself ‘care and attention’” - see Wahid [2002] EWCA Civ 287; [2003] HLR 13, para 32. I do not consider that “care and attention” can extend to accommodation, food or money alone (or, indeed, together) without more. As a matter of ordinary language, “care and attention” does not, of itself, involve the mere provision of physical things, even things as important as a roof over one’s head, cash, or sustenance. Of course, if a person has no home or money, or, even more, if he has no access to food, he may soon become in need of care and attention, but, as already explained, that is beside the point.

57.  Quite apart from the language of section 21(1)(a), I think it is unlikely that the legislature would have intended the section to apply to a person simply because he had no home. It would mean that the section imposed a power and potential obligation on a local authority to house all the homeless. In the first place, this would have rendered redundant section 21(1)(b), discussed above. People falling within section 21(1)(b) would be within section 21(1)(a) if it applied to someone who had no home. The notion that homelessness could, of itself, bring someone within section 21(1)(a) would also be inconsistent with the 1977 Act (which replaced section 21(1)(b)), and with Parts VI and VII of the Housing Act 1996 (which replaced the 1977 Act).

58.  It would also be surprising if there was a potential obligation to provide “residential accommodation” to a person solely because he has no money. Further, as explained by Lady Hale, Part II of the 1948 Act provided for financial help for the poor or destitute in the form of national assistance, replaced by supplementary benefit under the Ministry of Social Security Act 1966, which was in turn replaced by income support under what is now the Social Security Contributions and Benefits Act 1992.

59.  So far as food is concerned, imposing an obligation on government to feed the starving, or to ensure that they have access to food, would be eminently proper. Hence, no doubt, the existence of provisions such as those in Part II of the 1948 Act. However, if all someone needs is food, it does not appear to me to be particularly rational to require him to be housed. Of course, it would almost certainly be different if a person is starving because he suffers from physical or mental disability: in such a case, he may well need care and attention because of his disability; partly, indeed, because it will often no doubt be the case that it is the disability which causes him to starve.

60.  It seems to me to follow from this analysis that M is not “in need of care and attention” simply because he is without accommodation. However, in addition to being without accommodation, he is HIV-positive (and may have AIDS), he consequently must take medication which is provided to him by the NHS, he requires the use of a refrigerator in which to keep the medication; and he needs access to a medical practitioner four or five times a year. However, his illness does not otherwise affect him, and he can look after himself. The absence of somewhere to live, coupled with the requirement for medication, refrigerator use and access to a doctor, even taken together, cannot, in my view, be said to amount to a need for care and attention, as a matter of ordinary language. M simply does not need looking after.

61.  The conclusion that M’s medical condition and consequent requirements do not serve to bring him within the ambit of section 21(1) is strongly reinforced by the duty imposed two years before the 1948 Act, by the National Health Service Act 1946, now re-enacted (with modifications) in section 3(1) of the National Health Service Act 2006. Section 3(1) of the 2006 Act requires the Secretary of State for Health to provide “to such extent as he considers necessary to meet all reasonable requirements", inter alia, (a) “hospital accommodation", (b) “other accommodation … “, (c) “medical [and] nursing… services", (e) “such other services or facilities for … the care of persons suffering from illness … as he considers are appropriate as part of the health service", and (f) “such other services or facilities as are required for the … treatment of illness". In this connection, “illness” includes mental disorder, and any injury or disability requiring medical treatment or nursing - see section 275 of the 2006 Act.

62.  The “sharp distinction” between “treatment” and “care” in the 1946 Act was discussed by Denning LJ in Minister of Health v Royal Midland Counties Home for Incurables [1954] Ch 530, 547. This distinction has been adopted in two subsequent decisions of the Court of Appeal, White v Chief Adjudication Officer (1993) R(IS) 18/94; 17 BMLR 68 and Botchett v Chief Adjudication Officer (1996) R(IS) 10/96; 32 BMLR 153, where the issue arose because the amount payable to a claimant depends on whether he receives “treatment” in a hospital, or “care” in a residential or nursing care home. In this case, M, with his HIV-infection, and possible AIDS, clearly needs treatment (albeit not in a hospital), but he does not need care (or, indeed, attention), although I accept, of course, that the time may come when, as a result of his medical condition, he does so.

63.  In the instant case, Maurice Kay LJ said that he found this line of argument “logical", but nonetheless felt constrained to hold that M was within section 21(1)(a), in the light of previous decisions and observations of the Court of Appeal- see [2007] LGR 225, para 15. He considered that authority established that “care and attention” in that section “could extend to the provision of shelter, warmth, food and other basic necessities". He rested this view on the reasoning in R v Hammersmith and Fulham London Borough Council ex p M, P, A and X (1997) 30 HLR 10, and on dicta in R v Wandsworth London Borough Council ex p O [2000] LGR 591, 600 and R (Mani) v Lambeth London Borough Council [2003] EWCA Civ 836, [2004] LGR 35, paras 18 to 21.

64.  I am not convinced that the reasoning of Lord Woolf MR in Ex p M (1997) 30 HLR 10 required such a conclusion, but I do not find the reasoning on this point entirely clear, in that there are aspects of the analysis on p. 19 which are somewhat hard to reconcile with observations on the following page. Ex p O [2000] LGR 591 and Mani [2004] LGR 35 were not ultimately concerned with the meaning of “care and attention", although Maurice Kay LJ’s reliance on the dicta he cited from those cases is hard to quarrel with. I have read what Lady Hale and Lord Brown say about those dicta. I agree with them, and it would not be profitable for me to say any more on the topic, save that the dicta were readily comprehensible given that they were made before this House had established the principle decided in R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396.

65.  Another part of the reasoning of M, P, A and X (1997) 30 HLR 10, however, does merit further consideration. At (1997) 30 HLR 20, Lord Woolf stated that people who are without accommodation or money “can as a result of their predicament … reach a state where they qualify under the subsection because of the effect upon them of the problems under which they are labouring.” That is unexceptionable; as was said on the previous page, sleeping rough and going without food “can bring about illness and disability which can result in [a need for] care and attention". However, the observations at (1997) 30 HLR 20 to 21, that homeless asylum-seekers will “inevitably” come to need care and attention and that local authorities can act under section 21(1) before a person has a need for care and attention are more problematic. They apparently mean, and have been taken to mean, that local authorities have to act under section 21(1)(a), at least in relation to some people, before they actually need care and attention (see e.g. per Collins J at first instance in this case, [2004] LGR 657, paras 10 to 20.) In my view, this is not correct. As already explained, section 21(1)(a) only apply to a person who is in present need of care and attention, albeit that a local authority may act under the section once satisfied that there is such a need, even if it is currently not very pressing, especially where the situation appears likely to deteriorate.

66.  So far, other than agreeing with the description of “looking after", I have been more concerned with identifying what is not, rather than what is, “care and attention” within the meaning of section 21(1)(a). In that connection, while it is strictly unnecessary to address that issue further, it is right to say that I agree with Lady Hale’s observations at paras 31 to 33 of her opinion.

67.  As M is unable to rely on section 21(1)(a), it must follow that this appeal must be allowed. It also follows that it is unnecessary, indeed that it would be somewhat difficult, to decide whether, if he was within the scope of section 21(1)(a), he would nonetheless be excluded from the ambit of section 21(1) by the provisions of section 21(1A).

68.  For these reasons, in addition to the reasons given by Lady Hale with which I fully agree, I would allow this appeal.

 
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