SL, R (on the application of) v City of Westminster Council

Section 21(1)(a) of the National Assistance Act 1948 requires a sequential analysis. The applicant must first need care and attention arising from age, illness, disability or other circumstances, and that care must not otherwise be available without section 21 accommodation. Only then is it necessary to consider the exclusion in section 21(1A).

“Care and attention” means more than accommodation and ordinarily involves looking after a person by doing something which he cannot, or should not be expected to, do for himself. Regular medical treatment and limited social-work monitoring may fall short of that threshold. Where the necessary care is available through the NHS or social-work services and accommodation is available from another source, the local authority owes no duty under section 21(1)(a).

The claimant, a young Iranian man with serious mental-health difficulties, sought judicial review of Westminster City Council’s refusal to provide residential accommodation under section 21(1)(a) of the National Assistance Act 1948. The Council considered that he did not need “care and attention” and that any support required was available without section 21 accommodation.

The claimant was receiving NHS mental-health care and weekly social-work support. The National Asylum Support Service had accepted responsibility for providing his accommodation. The central issues were whether the claimant fell within section 21(1)(a), whether the care he needed was otherwise available, and whether section 21(1A) therefore arose for consideration.

1. Permission and outcome. Permission to apply for judicial review was granted, but the claim was dismissed. The Council’s decision was lawful. An order for costs was made in the usual form for a publicly funded claimant, and anonymity was continued. Permission to appeal was refused.

2. Sequential statutory scheme. The court applied the analysis in R (Westminster City Council) v NASS [2002] 1 WLR 2956 and R (M) v Slough London Borough Council [2008] 1 WLR 1808. The first question is whether section 21(1)(a) is satisfied. The relevant conditions are that the person needs care and attention, that the need arises from an identified statutory circumstance, and that the care and attention is unavailable otherwise than through section 21 accommodation. Section 21(1A) is considered only if those conditions are met.

3. Availability of care. The claimant’s NHS treatment met the substantial part of his needs. His social-work support consisted principally of weekly meetings at the Abbey Road Centre. That support was available without providing accommodation under section 21. The possibility that his needs might increase if he became street homeless did not affect the result because NASS had accepted responsibility for accommodating him.

4. Meaning of care and attention. Following the approach of Lady Hale in R (M) v Slough London Borough Council, “care and attention” means something more than accommodation and involves looking after the person, including doing something which he cannot or should not be expected to do himself. The examples given were non-exhaustive, but the claimant’s circumstances did not meet the threshold. Weekly monitoring and support, although important to his well-being, amounted to “keeping an eye on him”, not care and attention within section 21(1)(a).

5. The distinction between infirm and able-bodied destitute persons, discussed in R (Westminster City Council) v NASS, becomes relevant only after an applicant has first qualified under section 21(1)(a). The related authorities, including R (Mani) v the London Borough of Lambeth [2003] EWCA Civ 836 and R v Hammersmith and Fulham London Borough Council ex parte M 30 HLR 10, did not require a different conclusion because their facts or legal arguments were materially different.

Not stated in the judgment.