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

The House of Lords held that a local social services authority is not obliged under section 21(1)(a) of the National Assistance Act 1948 to provide residential accommodation where the claimant's needs consist only of NHS medical treatment (including medicines requiring refrigeration) and ordinary housing and subsistence; "care and attention" in section 21(1)(a) means "looking after" beyond mere accommodation and subsistence.

The Court emphasised that the relevant need must be a present need for care and attention (with sensible flexibility to act before deterioration becomes severe) and that the words "which is not otherwise available to them" refer to care and attention rather than to accommodation. Medical treatment is generally provided under the National Health Service regime and is excluded from section 21(1)(a) by section 21(8). Because M's medical needs were being met by the National Health Service and he did not require looking-after beyond that, the council was not required to provide accommodation under section 21(1)(a).

Background and facts:

• M, a Zimbabwean national present in the United Kingdom without leave since 2002, was diagnosed HIV positive in November 2002. He required prescribed medication that had to be refrigerated and periodic medical review, but otherwise was able to look after himself. He applied to Slough Borough Council for an assessment and accommodation under section 21(1)(a) of the National Assistance Act 1948.
• The council concluded that M's medical requirements were met by the National Health Service and that he had no present need of the sort of care and attention which would attract a duty under section 21(1)(a); it also considered that, if any such need arose, it might be excluded by section 21(1A) if it arose solely from destitution. The Secretary of State's asylum and immigration proceedings were continuing and, if the council had no obligation under section 21, M would be entitled to NASS support while those proceedings proceeded.

Procedural posture:

• High Court (Collins J) quashed the council's decision and ordered accommodation ([2004] EWHC 1109 (Admin)).
• Court of Appeal dismissed the council's appeal ([2006] EWCA Civ 655), holding that care and attention could extend to shelter, warmth, food and other basic necessities and that needs made "more acute" by factors other than mere destitution were not "solely" from destitution.
• The council appealed to the House of Lords, which allowed the appeal.

Issues framed by the House of Lords:

• Whether the phrase "in need of care and attention which is not otherwise available to [him]" in section 21(1)(a) extends to needs consisting only of medication, a refrigerator for medicines and periodic medical review.
• Whether the exclusion in section 21(1A) applies if the claimant's need for care and attention arises solely because he is destitute or because of the anticipated physical effects of destitution (the Court did not decide this point for M because he failed the primary hurdle).

Court’s reasoning and decision:

The Lords adopted the construction that "care and attention" means "looking after" — doing for the person things he cannot be expected to do for himself (which can include household tasks, protection from risk, personal care and other forms of supervision), and is wider than "nursing or personal care" but excludes medical treatment provided under the National Health Service. The phrase "which is not otherwise available to them" refers to the care and attention, not to accommodation. The requirement is a present one: the person must currently be in need of care and attention (with a pragmatic ability to act before very serious deterioration).

Applying that test, the House concluded that M did not require looking-after beyond that supplied by the National Health Service; therefore he did not fall within section 21(1)(a) and it was unnecessary to decide whether section 21(1A) would exclude him.

Appeal allowed. The House held that "care and attention" in section 21(1)(a) means "looking after" beyond mere provision of housing and subsistence, that the phrase "which is not otherwise available to them" refers to care and attention not to accommodation, and that medical treatment provided under the National Health Service is excluded from qualifying as "care and attention" under section 21(1)(a). Because M's medical needs were being met by the NHS and he did not require looking-after beyond that, the local authority had no obligation to provide residential accommodation under section 21(1)(a). It was therefore unnecessary to resolve whether section 21(1A) would have excluded him.

High Court (Administrative Court, Collins J) quashed the council's decision and ordered accommodation ([2004] EWHC 1109 (Admin)). The Court of Appeal dismissed the council's appeal ([2006] EWCA Civ 655). The House of Lords allowed the council's appeal ([2008] UKHL 52).