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

Under section 21(1)(a) of the National Assistance Act 1948, a need for “care and attention” means a present need to be looked after. It requires something beyond accommodation, food and subsistence. Looking after includes doing tasks which the person cannot, or should not reasonably be expected to, perform personally.

The concept extends beyond nursing or personal care. A local authority may intervene when an existing need is modest but likely to worsen. A predicted future need alone does not suffice. The words “which is not otherwise available” qualify the required care and attention, rather than the accommodation. Medical treatment supplied through the National Health Service is excluded from the local authority’s responsibility.

M, a Zimbabwean overstayer who was HIV positive, sought accommodation from Slough Borough Council under section 21(1)(a) of the National Assistance Act 1948. He could care for himself. His medication and periodic medical checks were supplied by the National Health Service, but he required accommodation and refrigeration for his medication.

Collins J granted judicial review: [2004] EWHC 1109 (Admin); [2004] BLGR 657. The Court of Appeal dismissed the Council’s appeal: [2006] EWCA Civ 655; [2007] BLGR 225. It held that care and attention could extend to shelter, warmth, food and other necessities.

The central issue was whether M presently needed “care and attention which is not otherwise available”. A contingent issue was whether any such need arose solely from destitution and was therefore excluded by section 21(1A).

1. Disposition. The House unanimously allowed the Council’s appeal and set aside the order quashing its decision. Baroness Hale delivered the leading speech. Lord Bingham and Lord Scott agreed completely with it. Lord Brown and Lord Neuberger also agreed and supplied additional reasons.

2. The statutory conditions. Per Baroness Hale, section 21(1)(a) requires: a need for care and attention; a need arising by reason of age, illness, disability or other circumstances; and care and attention which is unavailable otherwise than through residential accommodation. The closing words qualify “care and attention”, not “residential accommodation”. Lord Neuberger considered that construction consistent with the language, purpose and legislative history of section 21.

3. Meaning of care and attention. Per Baroness Hale, care and attention means looking after a person by doing something which that person cannot, or should not reasonably be expected to, do personally. It may include household tasks, protection from risks or personal care. The list is not exhaustive. Section 26(1A) shows that the concept is wider than nursing or personal care. It nevertheless requires more than accommodation, food, money or other means of subsistence. Section 21(1)(a) is not a general homelessness provision.

4. Present need. The claimant must presently require some care and attention. The authority need not wait until that need becomes serious and may respond to a modest existing need before it worsens. Observations in R v Hammersmith and Fulham London Borough Council, Ex parte M (1998) 30 HLR 10 did not permit intervention before any need for care had arisen.

5. Medical treatment. M could look after himself. His medication, medical monitoring and related treatment were provided by the National Health Service. Section 21(8) prevented the Council from providing services authorised or required under National Health Service legislation. Neither those medical requirements nor the need for refrigeration amounted to care and attention under section 21(1)(a).

6. Destitution. Because M failed to satisfy section 21(1)(a), the House did not decide whether section 21(1A) would also exclude him. That enquiry arises only after the claimant’s actual need for care and attention has been identified. Lord Brown added, obiter, that a care need produced purely by rough sleeping and lack of food would arise solely from destitution, whereas a pre-existing infirmity which materially accelerated deterioration could prevent that conclusion.

1. House of Lords: The Council’s appeal was allowed unanimously: [2008] UKHL 52 . The order quashing the Council’s decision was set aside.

2. Court of Appeal: The Council’s appeal was dismissed: [2006] EWCA Civ 655 ; [2007] BLGR 225. The court held that care and attention could extend to shelter, warmth, food and other basic necessities.

3. Administrative Court: Collins J granted M’s application for judicial review: [2004] EWHC 1109 (Admin) ; [2004] BLGR 657. He held that medication and regular medical attention established the relevant need and that it did not arise solely from destitution.