R (M) v Slough Borough Council
| Jurisdiction | UK Non-devolved |
| Judge | LORD BINGHAM OF CORNHILL,LORD SCOTT OF FOSCOTE,BARONESS HALE OF RICHMOND,LORD BROWN OF EATON-UNDER-HEYWOOD,LORD NEUBERGER OF ABBOTSBURY |
| Judgment Date | 30 July 2008 |
| Neutral Citation | [2008] UKHL 52 |
| Date | 30 July 2008 |
| Court | House of Lords |
[2008] UKHL 52
Appellate Committee
Lord Bingham of Cornhill
Lord Scott of Foscote
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
Lord Neuberger of Abbotsbury
HOUSE OF LORDS
Appellants:
John Howell QC
Kelvin Rutledge
(Instructed by Slough Borough Council)
Respondent:
David Pannick QC
Stephen Knafler
(Instructed by Hackney Community Law Centre)
My Lords,
I have had the benefit of reading in draft the opinion of my noble and learned friend Baroness Hale of Richmond. I am in complete agreement with it, and would, for the reasons which she gives, allow the Council's appeal.
My Lords,
I have had the advantage of reading in draft the opinion of my noble and learned friend Baroness Hale of Richmond and, for the reasons she gives, with which I am in full agreement, I too would allow this appeal.
My Lords,
The issue before us is whether a local social services authority is obliged, under section 21(1)(a) of the National Assistance Act 1948, to arrange (and pay for) residential accommodation for a person subject to immigration control who is HIV positive but whose only needs, other than for a home and subsistence, are for medication prescribed by his doctor and a refrigerator in which to keep it. The answer to that issue turns on the meaning of the words "in need of care and attention which is not otherwise available to [him]" in section 21(1)(a). But there is also an issue as to whether, if he does need care and attention, that need arises solely because of his destitution, in which case section 21(1A) provides that the local authority is not obliged to accommodate him. If the local authority is not so obliged, it is common ground that, in this particular case, his needs for housing and subsistence will be met by the National Asylum and Support Service (NASS).
The facts and these proceedings
M is 42 years old, a citizen of Zimbabwe, where his wife and children still live. He arrived here as a visitor in 2001 and was given six months leave to enter. He has remained here without leave ever since that leave expired in May 2002. In November 2002 he was diagnosed HIV positive. In 2003, he applied to the local authority for an assessment of his needs. The local authority concluded that he needed medication, which had to be kept in refrigerated conditions, and to see a doctor once every three months. The National Health Service provided the medical checks and the medication. Otherwise his illness did not affect him and he was able to look after himself. His only other need was for accommodation if he did not have it. Accordingly, the local authority took the view that he was not currently owed any duty under section 21(1)(a) of the 1948 Act because he had no current need for care and attention; and that if later such a duty might arise, it would be excluded by section 21(1A) because the need would arise solely from his destitution.
M's proceedings to challenge the local authority's decision have been going on since December 2003. The authority was ordered to provide him with accommodation in January 2004, and in April 2004, Mr Justice Collins granted his application for judicial review: [2004] EWHC 1109 (Admin), [2004] LGR 657. In his view, the fact that medication and regular medical attention were required was sufficient to show a need for care and attention. That need arose from a combination of destitution and illness and not solely from destitution. The Court Appeal dismissed the local authority's appeal in May 2006: [2006] EWCA Civ 655, [2007] LGR 225. Care and attention could extend to the provision of shelter, warmth, food and other basic necessities. If the need was made "more acute" by some other circumstance than mere lack of accommodation and funds, it did not arise "solely" from destitution and the local authority was responsible. The local authority now appeals to this House.
In the meantime, the Secretary of State and the immigration appellate authorities have been seized of M's claim that his rights under article 3 of the European Convention on Human Rights would be infringed if he were to be returned to Zimbabwe. We understand that those proceedings are still continuing and for that reason the respondent would be entitled to NASS accommodation and support if the local authority is not obliged to accommodate him under section 21(1)(a).
Section 21(1)(a)and the other responsibilities of local social services authorities
It is fair to say that, until 1996, it would not have occurred to anyone that section 21(1)(a) might cover this sort of case. There was no need for it to do so. And it was not designed to do so. As originally enacted, section 21(1) imposed a duty on every county and county borough council to provide two kinds of accommodation: "(a) residential accommodation for persons who by reason of age, infirmity or any other circumstances are in need of care and attention which is not otherwise available to them;" and "(b) temporary accommodation for persons who are in urgent need thereof … "Paragraph (a) was principally used to provide old people's homes, while paragraph (b) was used to house those homeless people who qualified for help. The post- World War II welfare state never purported to provide housing, as opposed to the means of obtaining it, for all. Accommodation could be provided in premises managed by the local authority, or by another local authority (s 21(4)), or by a voluntary organisation (s 26(1)), and, after 1968, in privately run care homes (Health Services and Public Health Act 1968, s 44). Local authorities were and remain also required to provide a range of welfare services for disabled people under section 29 of the 1948 Act and for old people under section 45 of the Health Services and Public Health Act 1968.
Under the Local Authority Social Services Act 1970, these local authority welfare services for the old, the disabled and the homeless were combined with their child care services into generic social services departments. Following the Local Government Act 1972, there was power to provide all of these services with ministerial approval and the duty to do so to such extent as he might direct: ministerial approvals and directions under section 21 and 29 of the 1948 Act were first given in Department of Health and Social Services Circular No LAC 13/74 and under section 45 of the 1968 Act in DHSS Circular No 19/71.
Separately from these welfare services, local health authorities used to provide a variety of health services, such as midwifery, health visiting and district nursing, under Part III of the National Health Service Act 1946. These included, in section 22, the duty to make arrangements for the care of expectant and nursing mothers and children under five; in section 28, the provision of services for the prevention of illness, the care of people suffering from illness or "mental defectiveness", or the after-care of such persons; and in section 29, the power to provide domestic help for certain households. Section 28 was replaced and expanded by section 12 of the Health Services and Public Health Act 1968, which made it clear that there was power to provide residential accommodation for this purpose. This power was used to provide homes for mentally ill and mentally handicapped people. These services were also transferred to the new social services departments in 1970, except to the extent that it was proper for them to remain part of the National Health Service (1970 Act, ss 2(1)(a), (3), (4), and Schedule 1). The relevant ministerial approval and directions were first given in Department of Health and Social Security Circulars Nos LAC 19/74 and LAC ( 74)28. LAC 19/74 specifically approved the provision of residential accommodation for people who were or had been suffering from mental disorder. All three were later consolidated in the National Health Service Act 1977, Schedule 8, and again in the National Health Service Act 2006, Schedule 20. The other functions of local health authorities were transferred to the National Health Service under the National Health Service Reorganisation Act 1973.
In 1974, therefore, local social services authorities had power to provide residential accommodation for people needing care and attention and temporary accommodation for people in urgent need, both under section 21 of the 1948 Act; and for expectant and nursing mothers and young children under section 22 of the 1946 Act; they shared with the health service the power to provide residential accommodation for the prevention, care and after care of illness, and were specifically required to take this responsibility for people with mental disorders. And they were required to provide a range of welfare services for disabled people, under section 29 of the 1948 Act as expanded by the Chronically Sick and Disabled Persons Act 1970, for old people, under section 45 of the 1968 Act, and home help services under section 29 of the 1946 Act.
The next step was to remove their responsibility for providing temporary accommodation for homeless people. A joint circular from the Department of the Environment (Circular 18/74) the Department of Health and Social Security (Circular 4/74) and Welsh Office (Circular 34/74) signalled that henceforth the responsibility for housing the homeless should be undertaken as a housing rather than a social services function. This was followed by the Housing (Homeless Persons) Act 1977 which repealed section 21(1)(b) of the 1948 Act and imposed specific statutory duties upon local housing authorities. In areas where there were two tiers of local government, these were the district rather than...
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