Okil, R (on the application of) v London Borough of Southwark

Under section 21(1)(a) of the National Assistance Act 1948, “care and attention” means looking after a person by doing things which he cannot or should not be expected to do for himself. It requires more than accommodation, but does not require intensive support. Medical care is excluded by section 21(8). Whether a person needs relevant care and attention is fact-sensitive. An assessment may lawfully focus on diagnosis and treatment where the assessor reasonably concludes that the person manages daily life and that distress or challenging behaviour does not create a need for the relevant kind of care or monitoring. Support provided during an assessment does not necessarily demonstrate a statutory need.

The claimant, an Algerian national and failed asylum seeker, sought judicial review of Southwark’s community care assessment and its decision to end accommodation provided under section 21(1)(a) of the National Assistance Act 1948. He relied on evidence of PTSD, depression, self-harm, distress and dependence on tranquillisers, arguing that he required monitoring and emotional support which could only be provided with accommodation.

The Council concluded that he did not require care and attention of the statutory kind and could obtain accommodation through the National Asylum Support Service. The central issue was whether the assessment was lawful and rational, particularly in light of the Court of Appeal’s decision in SL v Westminster City Council [2011] EWHC Civ 954.

1. Claim dismissed. The Council’s assessment and decision were lawful and rational. The court proceeded on the agreed basis that Schedule 3 to the Nationality, Immigration and Asylum Act 2002 did not apply; any remaining eligibility issue would have required a further hearing.
2. Section 21(1)(a) of the National Assistance Act 1948 concerns care and attention other than medical care. Applying the explanation in R (M) v Slough Borough Council [2008] 1 WLR 1808, the relevant question was whether the claimant needed looking after by another person in dealing with matters he could not or should not be expected to manage himself.
3. The assessment’s emphasis on diagnosis and psychiatric treatment did not show that the wrong question had been asked. The team reasonably concluded that the claimant managed the practicalities of daily life, that his outbursts and threats of self-harm were responses to his immigration circumstances, and that they did not disclose a need for care or monitoring of the statutory kind.
4. SL v Westminster City Council [2011] EWHC Civ 954 was distinguishable. There, weekly monitoring formed part of a care plan following psychiatric in-patient treatment and was required to prevent a real risk of relapse. The claimant’s circumstances did not involve monitoring of that character. Support from the assessment team, Project London and Detention Action did not itself establish a statutory need.
5. The team’s involvement in prescribing and reducing tranquillisers was medical care within section 21(8), and there was no evidence that it had to identify a separate need for non-medical care. Accommodation therefore remained the responsibility of the National Asylum Support Service. The interim injunction was discharged from 9 am on 27 April 2012, and the usual order for costs was made, subject to publicly funded costs protection.

First-instance judicial review proceedings. No lower-court decision was stated in the judgment. Permission to appeal was refused, with any application to be made to the Court of Appeal.