SL v Westminster City Council & Anor

For section 21(1)(a) of the National Assistance Act 1948, “care and attention” means more than accommodation and is wider than nursing or personal care. It includes doing something for a person which they cannot, or should not be expected to, do for themselves, including monitoring and arranging support. No particular intensity is required. The care need need not itself require residential care, but “not otherwise available” requires a practical nexus with accommodation: care is not otherwise available where it would not be reasonably practicable and efficacious to provide it without accommodation. The exclusion for needs arising solely from destitution leaves infirm persons within section 21(1)(a), while residual national support is disregarded where section 21 accommodation may be required.

SL, an Iranian failed asylum seeker suffering from depression and post-traumatic stress disorder, challenged Westminster City Council’s refusal to provide residential accommodation under section 21(1)(a) of the National Assistance Act 1948. The Council provided social-work monitoring, counselling arrangements and befriending support, while medical care was provided through the NHS.

At a rolled-up hearing, Burnett J granted permission for judicial review but dismissed the claim, holding that the support did not amount to care and attention: [2010] EWHC Admin 3182. During the appeal SL obtained indefinite leave to remain, but the Court of Appeal considered the broader questions of principle. The issues were whether the support constituted care and attention, whether it was not otherwise available without accommodation, and whether responsibility instead fell under section 29.

Appeal allowed. Laws LJ gave the leading judgment, with Richards and Rimer LJJ agreeing.

1. Care and attention. The approach accepted in M v Slough BC ([2008] UKHL 52) treats care and attention as more than accommodation or subsistence and wider than nursing or personal care. It means looking after a person by doing something which they cannot, or should not be expected to, do for themselves. The concept is not exhaustive, requires no particular intensity of support, and is not confined to acts performed by local-authority employees or agents. The Council’s weekly monitoring of SL’s mental state, together with arrangements for counselling and a befriender, therefore qualified as care and attention. The public-law threshold was met because no reasonable council could have reached the contrary conclusion on the evidence.
2. Not otherwise available. The power of NASS accommodation was residual, so its potential availability had to be disregarded: Westminster CC v NASS ([2002] UKHL 38). The word “solely” in section 21(1A) of the National Assistance Act 1948 maintains the distinction between able-bodied destitute persons and infirm destitute persons. The test in R v Wandsworth LBC ex p O ([2000] 1 WLR 2539) remained applicable.
3. The care need need not be of a kind which necessarily calls for residential accommodation. Nevertheless, “not otherwise available” requires a nexus with accommodation. The proper question was whether it would be reasonably practicable and efficacious to provide the care without accommodation. Assuming SL was destitute, stable accommodation was plainly necessary to make the support programme effective.
4. Section 29. The support was not properly characterised as arrangements under section 29(1) and (4) of the National Assistance Act 1948. The Council’s refusal was unlawful and the appeal was allowed.

• Court of Appeal (Civil Division): appeal allowed.
• Administrative Court: Burnett J granted permission to seek judicial review at a rolled-up hearing but dismissed the claim: [2010] EWHC Admin 3182.