M, R (on the application of) v Slough Borough Council

Under section 21(1)(a) of the National Assistance Act 1948, a chronically ill asylum seeker may be in need of care and attention even where he can otherwise look after himself. Destitution may contribute to that need, but the relevant need does not arise solely from destitution where illness makes the claimant more vulnerable to homelessness. The authority must assess both the claimant’s illness and the consequences of losing accommodation. It is unnecessary to wait until homelessness has caused actual physical deterioration. The assessment must also consider whether the required care and attention is available by another means.

The claimant was a Zimbabwean asylum seeker with HIV/AIDS who required continual medication and accommodation with suitable warmth, security and refrigeration. Slough Borough Council accommodated him but assessed that he was not in need of care and attention under section 21(1)(a) of the National Assistance Act 1948. The claimant sought judicial review and an order quashing the assessment.

The central issue was whether his need for care and attention arose solely from destitution, so that responsibility rested with the national asylum-support system, or whether his illness meant that the Council owed the statutory obligation.

1. The assessment was quashed. Slough was required to reassess the claimant in accordance with the principles stated in the judgment. The court did not make a final order requiring accommodation, and the Council remained entitled to investigate whether the claimant was destitute and whether his needs could be met elsewhere.
2. Section 21(1)(a) requires consideration of whether the claimant is in need of care and attention, whether that need arises by reason of illness or other circumstances, and whether the required care and attention is otherwise available. The question is not confined to whether the claimant requires personal care from the local authority.
3. Following the approach in R v Hammersmith and Fulham London Borough Council, Ex p M, destitution may itself produce a need for care and attention where homelessness places a person’s health at risk. It is unnecessary to wait until the anticipated deterioration has occurred.
4. The statutory exclusion in section 21(1A) applies where the need arises solely because of destitution or its physical effects. It does not exclude an asylum seeker whose illness makes him more vulnerable when destitute. The claimant’s need resulted from the combination of destitution and chronic illness, and therefore did not arise solely from destitution.
5. A person who is chronically ill and requires continual medical care and medication may properly be regarded as needing care and attention. The fact that the person can otherwise look after himself does not determine the issue.
6. The court followed the line of authority including R (Westminster City Council) v National Asylum Support Service, R (Wahid) v Tower Hamlets London Borough Council and R on the application of Mani v Lambeth LBC and the Secretary of State for the Home Department. The contrary approach in R on the application of B and H v the London Borough of Hackney did not justify the assessment because it assumed that national asylum support would be responsible.
7. Costs followed the event. The claimant was entitled to a detailed assessment of costs.

First-instance judicial review proceedings. No prior appellate decision in this litigation was stated.