De Almeida, R (on the application of) v Royal Borough of Kensington and Chelsea

Section 21(1)(a) of the National Assistance Act 1948 requires accommodation where a person presently needs care and attention which is otherwise unavailable. The threshold is low: the person need only require some looking after, beyond accommodation and subsistence. The need may concern household tasks, shopping and fluctuating support, and need not involve incapacity or personal care.

FACS risk criteria cannot replace the statutory test. Where an authority’s refusal would expose a seriously ill person to an Article 3 risk, the court must determine the issue itself. For Article 8, the court must make an objective proportionality assessment. On the evidence, withdrawal of support and return to Portugal would breach Articles 3 and 8.

The claimant, a seriously ill Portuguese national living in the United Kingdom, challenged the defendant’s decision that he was not entitled to accommodation and support under section 21 of the National Assistance Act 1948. The decision relied on his asserted ability to live independently, his status under Schedule 3 to the National Asylum and Immigration Act 2002, and the availability of health and welfare services in Portugal.

The claim raised two central questions: whether the claimant was in need of care and attention within section 21(1)(a), and whether refusing support would breach his Convention rights under Articles 3 and 8.

1. The claim succeeded. The defendant’s decision of 27 October 2011 was unlawful.
2. Section 21(1)(a) requires a present need for care and attention, but the threshold is modest. Applying M v Slough Borough Council, the phrase includes looking after a person in a broad sense. It may include household tasks, shopping, meal preparation, cleaning and assistance with mobility. A person need not be incapable of performing the task, and a fluctuating need may qualify.
3. The claimant’s serious illnesses, physical symptoms, frequent hospital admissions and poor prognosis created a continuing need for support in daily living. The defendant applied too high a threshold by treating independence on some days as decisive. It also erred by using FACS risk levels, which concern discretionary community care services and do not determine the mandatory section 21 duty.
4. Although Schedule 3 to the National Asylum and Immigration Act 2002 made the claimant ineligible, paragraph 3 did not prevent support necessary to avoid a breach of Convention rights. The court was not confined to traditional judicial review of the authority’s reasoning. It had to determine compatibility with Article 3 and could consider up-to-date evidence.
5. The claimant’s terminal illness, lack of support in Portugal, vulnerability and the delay and uncertainty of obtaining accommodation and benefits there created an exceptional Article 3 case. Returning him would expose him to an undignified and distressing end. The interference with his Article 8 private life was also disproportionate. Any financial saving was minimal and did not justify the severe consequences.
6. The refusal was incompatible with Articles 3 and 8, contrary to section 6(1) of the Human Rights Act 1998.