Wahid v London Borough of Tower Hamlets

Under section 21(1)(a) of the National Assistance Act 1948, a duty to provide residential accommodation arises only where a person has an unmet need for care and attention arising from age, illness, disability or other circumstances, and that need is not otherwise available.

Ordinary housing may be residential accommodation for this purpose. It is not, however, itself care and attention. A housing problem which would improve a person's wellbeing does not necessarily establish the statutory need.

The local social services authority assesses whether the conditions are met. Its decision is reviewable only on ordinary judicial-review grounds. A rational assessment that care and attention is not presently needed prevents the duty from arising.

The appellant, who had schizophrenia, lived with his wife and children in seriously overcrowded accommodation owned by the respondent council. Community mental-health staff considered that improved housing would benefit his mental health. The council's team manager nevertheless concluded that he did not currently need care and attention within section 21(1)(a) of the National Assistance Act 1948.

Stanley Burnton J refused the appellant's application for judicial review, reported at (2001) 4 CCLR 455. The appellant contended that the council had misapplied the statutory test and that its assessment was irrational. The central issue was whether overcrowding and the risk to his mental stability required the council to provide better accommodation as community care.

1. The appeal was dismissed unanimously. Pill LJ gave the principal judgment. Hale LJ agreed, adding observations on the statutory scheme, and Mummery LJ agreed with both judgments.
2. Section 21(1)(a) of the National Assistance Act 1948 requires three inter-related conditions: a need for care and attention; a causal connection between that need and age, illness, disability or other circumstances; and the unavailability of that care and attention otherwise than through residential accommodation under that power. The condition of need for care and attention is a necessary threshold.
3. Residential accommodation may include ordinary housing. That conclusion did not assist the appellant. Ordinary housing is not, without more, care and attention; it is only a possible means by which necessary care and attention may be made available. A person may therefore have serious housing needs without engaging section 21.
4. It was for the local social services authority, rather than the court, to assess whether the statutory conditions were met, subject to ordinary judicial-review scrutiny. The assessment under section 47(1) of the National Health Service and Community Care Act 1990 used material relevant to the section 21 decision. No separate assessment under a differently labelled provision was required.
5. The team manager was entitled to evaluate all the evidence, including the community nurse's concerns and his own specialist experience. The appellant's mental health was then stable, his existing care was being provided by his family and the community mental-health team, and the assessed risk of deterioration from overcrowding was relatively small. It was rational to find that he did not currently need care and attention and that the section 21 duty had not been triggered.
6. The court did not decide the wider questions concerning section 21(8), the availability of housing powers under Parts VI and VII of the Housing Act 1996, or whether section 21 accommodation is a residual or exceptional means of meeting ordinary housing needs.

• Court of Appeal (Civil Division) — dismissed the appeal in [2002] EWCA Civ 287, affirming the refusal of judicial review.
• Administrative Court — Stanley Burnton J refused the application for judicial review; the decision was reported at (2001) 4 CCLR 455.