N, R (on the application of) v Coventry City Council

A person unlawfully present in the United Kingdom may receive accommodation under National Assistance Act 1948, section 21 only where three conditions are met: the person needs care and attention; that need did not arise solely from destitution; and provision is necessary to avoid a breach of Convention rights. “Care and attention” means looking after the person by doing something which he cannot, or should not be expected to, do for himself. The provision of medical treatment alone is insufficient.

Where the person can return to his home country without legal or practical obstruction, ending local-authority support will not ordinarily be necessary to avoid an Article 3 breach merely because continued residence in the United Kingdom may expose him to hardship. In that context, the stringent removal-case threshold applies, or the same result follows from the statutory requirement of necessity.

The claimant, a South African national whose asylum claim and appeals had been exhausted, sought judicial review of Coventry City Council’s assessments under section 47 of the National Health Service and Community Care Act 1990 and its refusal to provide accommodation and support under section 21 of the National Assistance Act 1948.

He suffered from HIV and residual effects of serious illness. The Council concluded that he could manage the activities of daily living, had no eligible care needs, and was unlawfully present. Interim accommodation and support had been provided pending determination of the claim. The central issues were the meaning of “care and attention”, the effect of the destitution exclusion, and whether withdrawal of support would breach Articles 2, 3 or 8 of the Convention.

1. Claim dismissed. Permission to appeal was refused. The claimant was ordered to pay the Council’s costs, subject to detailed assessment and not to be enforced pending assessment.
2. The statutory scheme required the claimant to establish three preconditions: a need for care and attention under section 21(1)(a) of the National Assistance Act 1948; a need which had not arisen solely from destitution or its physical effects under section 21(1A); and provision necessary to avoid a breach of Convention rights under paragraph 3 of Schedule 3 to the Nationality, Immigration and Asylum Act 2002. The order in which a local authority considers those questions may matter in practice.
3. Applying R (M) v Slough Borough Council [2008] UKHL 52, “care and attention” meant looking after the person by doing something which he could not, or should not be expected to, do for himself. It could include household tasks, protection from risks, or personal care, but did not include medical care alone. The claimant could manage the activities of daily living, and no essential task was identified as beyond him. Coventry had therefore applied the correct test and reached a conclusion reasonably open to it.
4. The Council was not required to obtain a further cognitive assessment. The assessors had visited the claimant, considered his medical evidence, observed his functioning and assessed him at different times. Nor was Coventry required to investigate services available in South Africa, since section 47 concerned services which Coventry might provide, unless overseas services affected his present needs.
5. The court considered the relationship between R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396 and N v Secretary of State for the Home Department [2005] UKHL 31. The apparent difference between the Article 3 approaches reflected the contexts of domestic support and removal, rather than different Article 3 standards. In any event, because the claimant could return to South Africa, Coventry’s support was not necessary within paragraph 3 of Schedule 3. There was no legal or practical obstruction to return, and he was not dying or at a critical stage of illness.
6. Article 2 added nothing on these facts. Article 8 was not engaged: the claimant’s family and private-life connections in the United Kingdom were modest, his presence was unlawful, and he was physically capable of returning to South Africa. The exceptional positive-obligation principle identified in Anufrijeva v Southwark London Borough Council [2003] EWCA Civ 1406 did not apply.

First-instance judicial review in the Administrative Court. The court refused permission to appeal on the basis that there were no reasonable prospects of success.