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Section 21 Accommodation: Care and attention must be “accommodation-related”

In SL (FC) v Westminster City Council [2013] UKSC 27, the Claimant was a failed asylum-seeker who became homeless in the UK. He was admitted to hospital following an attempted suicide and diagnosed as suffering from depression and post-traumatic stress disorder. Following his discharge from hospital, the Claimant was assessed to require regular sessions with mental health professionals, counselling groups and a social worker.

Section 21(1)(a) of the National Assistance Act 1948 provides that a local authority may provide residential accommodation for persons who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them. As a person subject to immigration control, the Claimant had to show firstly that his need for care and attention had not arisen solely because he was destitute (s. 21(1A) NAA 1948) or in other words, that his need arose because he was infirm and destitute and would have required care and attention even if he was wealthy.
Lord Carnwarth reaffirmed that the proper approach to section 21(1)(a) NAA 1948 required three questions to answered:

(1) Is the person in need of care and attention?

(2) Has the need arisen by reason of age, illness, disability or any other circumstances?

(3) Is the case and attention needed otherwise available than by the provision of accommodation under section 21?

Only the first and third questions were in issue in the case. What was said by Lord Carnwarth in respect of the third question is particular significant.

Question 1: Is the person in need of care and attention?

In respect of whether a person is "in need of care and attention", the court upheld the approach taken by Lady Hale in R (M) v Slough Borough Council [2008] UKHL 52 where she said [at 33] 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..."

Question 3: Is the care and attention needed otherwise available than by the provision of accommodation under section 21?

The Court of Appeal (in R (Mani) v Lambeth LBC [2003] EWCA Civ 836) had previously held that, in respect of the third question, it was not necessary for the care and attention to be "care and attention of a kind calling for the provision of residential accommodation". As such, the duty to provide residential accommodation could arise even if the kind of care and attention that was required was in no way related to the provision of accommodation.

Lord Carnwarth held (although strictly obiter) that this approach was not correct and that "the care and attention obviously has to be accommodation-related. This means that it has at least to be care and attention of a sort which is normally provided in the home (whether ordinary or specialised) or will be effectively useless if the claimant has no home."

In this case, therefore, the fact that the services that were being provided to meet the identified need for care and attention were entirely independent of his actual accommodation, and could have been provided in the same place and in the same way, whether or not he had accommodation at all meant that a duty under s. 21(1)(a) could not arise. This therefore means that there will be a class of people who do have a need for care and attention which is made more acute by circumstances other than the lack of accommodation and funds but who nevertheless do not qualify for accommodation under section 21(1)(a).

This judgment effectively places an additional burden on those persons seeking section 21 support. Unless the services they require are "accommodation-related" then no duty to provide accommodation will arise. The Court did not give any exhaustive guidance in relation the sorts of needs which would give rise to a section 21 duty and said that this was best left to the judgment and common sense of the local authority. While a need for care in attention in relation to the tasks of daily life such as washing, cleaning and toileting are likely to be "accommodation-related" insofar as such services are usually provided in the home, there is likely to be further litigation in individual circumstances to determine the precise scope of the duty.