B & Anor, R (on the application of) v Hackney

For a person subject to immigration control, destitution alone cannot justify residential accommodation under National Assistance Act 1948 section 21. The relevant question is whether the person’s need for care and attention, arising from destitution, is made more acute by an additional circumstance such as illness. A local authority must assess the individual’s needs and apply that statutory test rationally. It may rely on existing medical evidence where a social-work assessment provides a sufficient understanding of the person’s current needs. Where its published policy promises review by a senior manager, a properly construed request for reconsideration engages that legitimate expectation. The authority must conduct the review, even where the original decision is not quashed.

Two Jamaican nationals living with HIV, and treated in law as asylum-seekers, challenged the London Borough of Hackney’s decisions to withdraw accommodation and related support previously provided under section 21 of the National Assistance Act 1948. They alleged that the Council had failed to obtain adequate medical information, give reasons, and conduct a promised review.

The Council’s social worker concluded that their needs related only to accommodation and food, and that their illnesses did not make them more vulnerable than persons suffering destitution alone. The central issues were whether the statutory test had been applied, whether the assessment was irrational or procedurally defective, and whether the Council had to review the decisions under its own policy.

The claim succeeded to the limited extent that the Council was required to review the decisions, although the decisions themselves were not quashed.

1. Statutory test. Under section 21(1)(a) and section 21(1A) of the National Assistance Act 1948, a person subject to immigration control must both need care and attention not otherwise available and have that need arising from something other than destitution alone. The test in R v Wandsworth London Borough Council ex p O [2000] 1 WLR 2539 was the applicable test: if destitution and illness combine to make the need for care and attention more acute, section 21(1A) does not exclude assistance.
2. The Council’s policy adequately summarised that test. Its reference to illness, age and disability failed to reproduce the wider statutory words concerning “any other circumstances”, but that omission was immaterial because the claimants relied on illness. The social worker’s reasoning, read as a whole, showed that she had considered whether their medical conditions made them more vulnerable than persons whose needs arose from destitution alone. Her conclusion was reasonably open to her on the material available.
3. The social worker was entitled to decide that updated medical reports were unnecessary. The existing reports were sparse and dated, but she had visited the claimants, observed their living conditions, discussed their difficulties and assessed their functional abilities. Medical evidence should explain the condition, symptoms, treatment, physical needs and prognosis; the assessment of care and attention is principally for social workers.
4. The reasons given to the first claimant after the decision, and supplied to the second claimant with the decision, were sufficient. Although the policy required written reasons, the conclusions were value judgments which did not require further analytical elaboration.
5. The solicitors’ letters requesting reconsideration were, properly construed, requests for the senior-manager review promised by the Council’s policy. The Council’s failure to conduct that review frustrated the claimants’ legitimate expectation. A senior officer had to make an independent review in light of the existing findings, the representations, and any relevant updated medical evidence. The review had to consider whether illness made the care-and-attention need arising from destitution more acute.

The withdrawal of support was therefore directed to be reviewed. Costs and any application for permission to appeal were left subject to further application.

First-instance judicial review. No prior appellate decision is stated in the judgment.