Nassery, R (on the application of) v London Borough of Brent

Whether a person needs care and attention under section 21 of the National Assistance Act 1948 is primarily for the local authority’s expert assessment. The court reviews the decision only on ordinary public law grounds and does not substitute its own view.

The relevant question is whether there is a present need for looking after which is not otherwise available. A continuing risk arising from mental health problems may be relevant, but does not automatically establish such a need. The authority must consider prevention and management of risk, as well as crisis response, but may conclude that counselling or access to medical services is not care and attention. It need not refer to every consideration in its reasons, provided it explains its conclusions on the principal controversial issues.

The claimant sought judicial review of the London Borough of Brent’s decision that he was not in need of care and attention under section 21 of the National Assistance Act 1948, and therefore did not qualify for accommodation and related support. He relied principally on longstanding mental health problems, suicidal ideation, self-harm and the risk of future violence or self-harm. He also argued that his mental health affected his ability to cook and that he needed assistance to access medical and other services.

The authority reassessed his needs during the proceedings and made a further decision on 8 July 2010. The parties agreed that this decision superseded the earlier decisions. The central issues were whether the authority had properly assessed the claimant’s present need for care and attention, including the prevention and management of risk, and whether its enquiries and reasons were legally adequate.

1. The claim was dismissed. The defendant’s latest decision was lawful, and the claimant’s application for permission to appeal was refused. Interim relief was discharged. The claimant was ordered to pay the defendant’s costs, subject to detailed assessment.

2. Decisions under section 21 of the National Assistance Act 1948 involve expert assessment by social workers. The court may intervene only on public law grounds and must not substitute its own judgment. The applicable framework was identified in R(M) v Slough Borough Council [2008] 1 WLR 1808: the person must need care and attention, the need must arise by reason of age, illness, disability or other circumstances, and the required care must not otherwise be available.

3. The statutory question focuses on present need, although the authority must consider the implications of an underlying and continuing condition. The defendant had considered the claimant’s mental health history, professional reports, ongoing stress, self-harm risk, medication, ability to seek help and access to medical services. It was rationally entitled to conclude that the continuing risk of future harm did not amount to a present need for care and attention.

4. The defendant had also considered prevention and management of risk, including what the claimant would do in a crisis. Its enquiries fell within the range reasonably open to it. Applying R v Royal Borough of Kensington and Chelsea ex parte Bayani [1990] 2 HLR 406, the court would interfere only if no reasonable authority could have been satisfied with the enquiries made.

5. The need to speak to someone for emotional support was properly treated as a need for counselling or psychotherapy, which was medical care rather than care and attention under section 21. Assistance in accessing services was also unnecessary on the evidence, since the claimant could contact his GP, collect medication and seek medical help.

6. The authority was not required to refer to every material consideration in its decision letter. It was required to give reasons for its conclusions on the principal important controversial issues, consistently with South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953. The cooking challenge failed because the available assessments recorded that the claimant could cook and contained no reliable evidence that his mental health prevented him from doing so.

This was a first-instance judicial review in the Administrative Court. The court refused permission to appeal, leaving any renewed application to the Court of Appeal.