Mooney, R (on the application of) v London Borough of Southwark

A need for suitable housing does not, without more, trigger the duty under section 21(1)(a) of the National Assistance Act 1948. The claimant must have a need for care and attention, arising from age, illness, disability or another circumstance, which is unavailable otherwise than through residential accommodation under that provision. The local authority assesses whether those conditions exist, subject to ordinary judicial review principles. Section 21(8) prevents the duty being used where the relevant provision can be made under another enactment, including the housing allocation provisions of the Housing Act 1996. Children’s housing needs cannot trigger a section 21 duty. Section 17 of the Children Act 1989 confers a power, not a duty, to rehouse a family.

The claimant, a disabled single parent, lived with her three sons in unsuitable Council accommodation. Community care and children’s assessments identified a need for more suitable housing, including separate bedrooms and accommodation accessible to the claimant. The Council made a priority housing nomination under its allocation policy but had not secured suitable accommodation.

The claimant sought judicial review and a mandatory order, principally alleging breach of section 21 of the National Assistance Act 1948. She also relied alternatively on section 17 of the Children Act 1989. The central issue was whether the assessments established a statutory duty to provide accommodation under section 21.

1. The claim was dismissed. The Council had not incurred a duty under section 21(1)(a) of the National Assistance Act 1948.
2. There is a substantial distinction between a need for housing and a need for care and attention triggering section 21. The statutory conditions are inter-related: the person must need care and attention; the need must arise from age, illness, disability or another circumstance; and the care and attention must not otherwise be available. The local authority decides whether those conditions are met, subject to judicial review on ordinary grounds of irrationality or other legal error.
3. The assessments identified genuine and significant housing and family needs, but did not find that the claimant required care and attention unavailable otherwise than through section 21 accommodation. They instead recommended additional support and a priority housing nomination. That approach was contemplated by section 47(3) of the National Health Service and Community Care Act 1990.
4. The availability of suitable accommodation through Part VI of the Housing Act 1996 also engaged section 21(8), which prevented section 21 from imposing the claimed obligation. The Council was rationally entitled to conclude that the claimant’s needs could be addressed through its housing allocation arrangements.
5. The decisions in R v Wigan MBC ex parte Tammadge and R v Islington London Borough Council, ex parte Batantu were distinguishable on the facts and statutory analysis. The reasoning in R(Wahid) v Tower Hamlets LBC, approved in R(Westminster City Council) v National Asylum and Support Service and applied in R(O) v Haringey LBC, confirmed the distinction between housing need and a section 21 care need.
6. The children’s needs could not trigger a section 21 duty. Section 17 of the Children Act 1989, as explained in R(G) v Barnet LBC, conferred a power rather than a positive duty to rehouse the whole family. No mandatory order was therefore available.