R SG v London Borough of Haringey
| Jurisdiction | England & Wales |
| Judge | John Bowers |
| Judgment Date | 04 August 2015 |
| Neutral Citation | [2015] EWHC 2579 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1534/2015 |
| Date | 04 August 2015 |
[2015] EWHC 2579 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
John Bowers QC
(Sitting as a Deputy High Court Judge)
CO/1534/2015
Mr Jamie Burton (instructed by Wilson Solicitors) appeared on behalf of the Claimant
Ms Sarah Okafor (instructed by London Borough of Haringey) appeared on behalf of the Defendant
(As approved)
THE DEPUTY JUDGE:
This case is mainly, but not entirely, concerned with the provision of accommodation to the claimant, who was until very recently an asylum seeker. She has now been granted asylum on 3 July 2015. As far as the parties are aware, this is the first case to be heard on the accommodation provisions under the Care Act 2014. I am grateful to both counsel not only for their submissions at the hearing but further detailed written submissions after it, all of which I have taken into account.
The claimant seeks to review the defendant's decisions of 28 January 2015, by which it refused to accommodate the claimant pursuant to section 21 of the National Assistance Act 1948, and 20 May 2015, by which the defendant decided the claimant was not eligible for care and support under the Care Act 2014 (save in limited respects) and in particular was not entitled to be provided with accommodation under the 2014 Act. Two different Acts are therefore involved.
It came before me as a rolled-up hearing because the issues as they were presented at the time of the order on 7 April 2015 led Andrews J to form the view that:
"The question whether the respondent's duty under section 21 National Assistance Act is engaged and whether the care and attention provided by the complex care team is adequate for her needs is highly fact-specific. It needs to be resolved sooner rather than later … it may be that the respondent's assessment that her need for care and attention can be met by means other than the provision of residential accommodation cannot be disturbed and that complaints about her current accommodation should be addressed elsewhere."
These are, in my view, very prescient observations.
I should say that the Home Office as interested party has expressed no wish to make representations at any stage.
The facts
The claimant is an Afghan national who arrived in the UK in October 2013. Her name has been anonymised throughout. She has seven children. She does not know the whereabouts of her children or her husband.
Having applied for asylum, the claimant was provided with, and continues to be provided with, asylum support pursuant to section 95 of the Immigration and Asylum Act 1999. By this route she has accommodation together with four other women and some limited financial assistance. Since February 2014, however, representations have been made that she should be housed by the local authority.
The claimant is a victim of torture, rape and emotional and physical abuse. She suffers from severe mental health problems, including complex PTSD, insomnia, depression and anxiety. She speaks no English and is illiterate. She is in need of services to meet her needs for care and support. I refer to part of the letter from JS Medical Practice dated 5 January 2015 at I14 in the bundle:
"[The claimant] faces significant limitations with her activities of daily living due to her post-traumatic stress disorder and resulting anxiety and depression. She struggles with all manner of basic tasks, including self care, preparing and eating food, management of simple tasks and even struggles to take her medication. There is no doubt that she requires significant support to ensure good concordance with taking her medication and achieving a good level of nutrition as some days she simple doesn't eat. She has lost a significant amount of weight in the last few months."
The defendant has filed helpful statements from the claimant's care coordinator Ms Beegun (D53 to 57 of the Bundle) and the social worker Ms Tekyi (D75 to 81), which disclosed amongst other things the intensity of the support they and others are providing to the claimant and why it is and has been beneficial to her to receive this support. Ms Beegun for example states at paragraph 9 that "since the claimant has been provided with support that she receives from this team … she has been able to feel secure, there has been a definite improvement in her presentation". She describes the accommodation she has as "reasonably spacious … clean and tidy". At paragraph 18 she says she is making "steady albeit slow progress". There was also an impressive witness statement from a volunteer at the North London asylum seeker drop-in centre, Anna Mohr-Pietsch, who dealt with attending appointments with her (A44 and J1-9). Her statement makes clear graphically how isolated the claimant is. Further evidence was obtained from the claimant's GP, which the claimant submits is consistent with the claimant being a vulnerable person in need of care and support.
The defendant completed a section 9 Care Act assessment and an adult care and support plan providing, together with a care programme approach plan set out by Dr Gupta, how the claimant's ancillary social care needs are to be met.
The issue
I will have to delve further into the submissions of the parties below, but it is helpful to see at this stage how battle is joined between them. The Care Act came into force on 1 April 2015 and there was simultaneous amendment of section 21 of the National Assistance Act 1948. Before that there was a relatively clear distinction that destitute asylum seekers who had a need for accommodation-related care and attention which did not arise solely because of destitution or its anticipated effects must be "looked after" by the relevant local authority, whereas able-bodied asylum seekers who did not have such a need remained the responsibility of the Home Secretary. The amendment was only made for England.
The claimant maintains that at the date of the January 2015 decision the defendant was under a duty to provide her with accommodation pursuant to section 21 of the 1948 Act as she has need for accommodation-related care and assistance. She further contends that in any event at the date of the decision of May 2015 she was entitled to care and support, including accommodation, from the defendant under the Care Act 2014.
The claimant also says that, as was the case under section 21 of the 1948 Act, in determining whether or not accommodation must be provided under the Care Act 2014 the defendant was obliged to ignore altogether the fact that she had accommodation under the 1999 Act: R (on the application of Westminster City Council) v National Asylum Support Service [2002] UKHL 38. The defendant questioned this at the hearing but concedes it in further written submissions. Furthermore and in any event, the claimant contends the May 2015 decision was unlawful on four distinct grounds, only three of which were pursued before me.
In response to the claimant's pre-action protocol letter, the defendant contended in its letter of 10 February 2015 that the claimant did not have a need for accommodation-related care and attention and was therefore not entitled to accommodation under the National Assistance Act. With respect to the position under the Care Act, the defendant maintains that the claimant's current community care package was adequate and therefore there is "no entitlement to having [her] needs met through the provision of accommodation" (C9 paragraph 30). The defendant also denies that the decision of May was unlawful under any of the grounds advanced by the claimant.
The law
It is necessary first to consider the National Assistance Act then the Care Act, since the former governs the first decision under challenge and the latter the second. I then discuss the preliminary points taken by the defendant effectively to resist permission to proceed for judicial review, the three substantive points of contention, and then the most contentious point of provision of accommodation.
I should say at once that I am not prepared to grant relief under the National Assistance Act because I do not think the transitional provisions apply, but I consider it necessary to consider its terms in some detail, not least to contrast its provisions with the relevant provisions of the Care Act, and also to explain why not all of the statements in the leading cases are still authoritative.
National Assistance Act
Section 21 of this Act states:
"Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing—
(a) residential accommodation for persons aged eighteen or over who reason by reason of … disability or any other circumstances are in need of care and attention which is not otherwise available to them."
Approvals and directions under subsection (1) were made by the Secretary of State in LAC (93) 10 which "directs local authorities to make arrangements under section 21(1)(a) of the Act in relation to persons who are ordinarily resident in their area."
The leading cases are R (M) v Slough Borough Council [2008] UKHL 52 and R (SL) v Westminster City Council [2013] UKSC 27. One of the issues between the parties is the extent to which the guidance therein is...
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