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

Section 21(1)(a) of the National Assistance Act 1948 concerns a need for care and attention, not a general need for housing. The statutory test is directed to present need. Early intervention is permissible in progressive physical or mental illness, but only where some current need for care and attention exists. An ongoing illness or episodic risk does not automatically create an ongoing statutory need. The same approach applies to physical and mental illness. Where several options can meet a need, an authority may allow a capable person to choose between them. The appeal was dismissed.

Mr Amir Nassery, who had mental health problems and a history of self-harm, sought supported accommodation from Brent under section 21(1) of the National Assistance Act 1948. Brent assessed his needs under section 47 of the National Health Service and Community Care Act 1990 and concluded that he could perform essential daily tasks and seek medical help when required. The High Court dismissed his judicial review claim: [2010] EWHC 2326 (Admin). The appeal concerned whether Brent had unlawfully focused on his current condition and failed to account for sporadic future episodes of mental illness and self-harm. The central issue was whether he had a present need for care and attention.

Appeal dismissed. Arden LJ delivered the substantive judgment, with which Moore-Bick and Ward LJJ agreed.

1. Section 21(1)(a) of the National Assistance Act 1948 is concerned with the need for services. It is not a general power to provide housing, and accommodation alone is insufficient. The obligation is not confined to persons lacking financial resources, as illustrated by R (Westminster City Council) v National Asylum Support Service, [2002] 1 WLR 2956.
2. The meaning of care and attention is informed by R (M) v Slough BC, [2008] 1 WLR 1808. It means looking after a person by doing something which he cannot, or should not be expected to, do for himself. The concept includes household tasks, protection from risks and personal care, but excludes medical care.
3. The statutory test focuses on present need. Flexibility is permitted where a person is in the early stages of progressive physical or mental illness, provided that some present need for care and attention already exists. The same approach applies to mental and physical illness. An ongoing illness does not necessarily create an ongoing need; the answer depends on the circumstances.
4. Brent was entitled to accept the assessment that Mr Nassery could manage his current condition, had insight into when help was needed and could seek assistance if an emergency arose. Its conclusion that the risk of death by misadventure was not then likely was not perverse. Counselling or psychotherapy was a medical service available through appropriate channels, rather than care and attention under section 21.
5. Where more than one course is capable of meeting a need, an authority may allow a capable person to choose between them. The court did not decide whether care and attention must be provided through the accommodation itself. The newly advanced need for regular conversation had not been presented to Brent in that form, so the proper course was to seek a fresh assessment and decision. The availability of accommodation under homelessness legislation was accepted to be irrelevant.

• Court of Appeal (Civil Division): On 11 May 2011, the appeal was dismissed.
• High Court of Justice (Queen's Bench Division, Administrative Court): HHJ Robinson, sitting as a deputy High Court judge, dismissed the judicial review claim by order dated 30 July 2010: [2010] EWHC 2326 (Admin).