Pajaziti & Anor, R (on the application of) v London Borough of Lewisham

In a “destitute plus” case under the National Assistance Act 1948, the authority must first decide whether the applicant satisfies section 21(1)(a), and then whether section 21(1A) excludes assistance. NHS treatment for psychiatric illness does not answer the separate question whether the need for shelter and warmth is materially more acute because the illness must be endured on the streets. The authority must assess that question on the hypothesis that no alternative accommodation is available. A court conducting judicial review should not substitute its own needs assessment. Where the authority asks the wrong question, the usual remedy is to quash and remit, unless only one lawful answer is possible.

Rasim and Hylkije Pajaziti, asylum seekers from Kosovo, sought accommodation and assistance from the London Borough of Lewisham under section 21 of the National Assistance Act 1948. Lewisham concluded that neither had qualifying care and attention needs. After psychiatric reports identified major depressive episodes, Lewisham maintained its refusal, relying on the availability of NHS treatment.

Newman J refused judicial review on 31 July 2007. The appeal concerned whether Lewisham had unlawfully or irrationally assessed the appellants’ “destitute plus” claim, particularly whether their psychiatric conditions made the need for shelter and warmth materially more acute despite available NHS treatment, and whether a mandatory order should be made.

1. Disposition. The appeal was allowed. The order of Newman J was set aside, Lewisham’s decision letter was quashed, and the matter was remitted to Lewisham for reconsideration. The court declined to make the requested mandatory order.
2. Statutory approach. Section 21(1)(a) of the National Assistance Act 1948 requires a need for care and attention, arising from age, illness, disability or other circumstances, which is not otherwise available except through the provision of residential accommodation. It is a provision of last resort. Where section 21(1A) may apply, the authority must first consider qualification under section 21(1)(a), and then consider the exclusion in section 21(1A). The assessment proceeds on the basis that, absent section 21 assistance, the applicants are homeless and on the streets.
3. “Destitute plus”. The guidance in Regina v Wandsworth London Borough Council, Ex parte O [2000] 1 WLR 2539, requires consideration of whether the need for shelter and warmth is made materially more acute by an illness or other circumstance beyond mere lack of accommodation and funds. The availability of effective NHS treatment for psychiatric illness does not eliminate that separate need. The reasoning in R v Hammersmith and Fulham London Borough Council, Ex p M (1997) 30 HLR 10 and R (on the application of M) v Slough Borough Council [2006] EWCA Civ 655 supported treating basic shelter and warmth as capable of constituting care and attention.
4. Error of law. Lewisham had ostensibly asked the correct question but answered a different one. It treated the appellants’ needs as solely medical and focused on the effectiveness of NHS treatment, while overlooking their separate need for shelter and warmth and whether their depressive disorders made that need more acute. The judge repeated the same error by focusing on psychiatric treatment outside London and the availability of NASS accommodation.
5. Remedy. The failure was a failure to address the correct question, rather than an irrational answer to the correct question. Following the approach identified in Wahid v Tower Hamlets London Borough Council [2002] EWCA Civ 287, the assessment had to be made by the local authority. A mandatory order would have been appropriate only if the evidence permitted no lawful answer other than one favourable to the appellants. Maurice Kay LJ agreed. Sedley LJ agreed without reservation with the reasons and concurred in remission.

• Court of Appeal (Civil Division) — Appeal allowed. The order of Newman J was set aside, Lewisham’s decision was quashed, and the matter was remitted for reconsideration.
• Administrative Court — Newman J refused the appellants’ application for judicial review of Lewisham’s refusal to provide accommodation and assistance under section 21 of the National Assistance Act 1948.