SL v Westminster City Council

Under section 21(1)(a) of the National Assistance Act 1948, a need for “care and attention” means a need for looking after. The concept takes its meaning from the statutory context and requires something well beyond mere monitoring, advice or encouragement.

The need must also be for care and attention which is unavailable otherwise than through the provision of accommodation. The mere need for stable accommodation does not itself constitute a need for care and attention. The statutory scheme therefore includes an intermediate class: people whose infirmity makes their need for care more acute, but whose care remains available independently of accommodation.

A local authority’s assessment of these matters is reviewed on ordinary public law principles. Its evaluative judgment will not ordinarily warrant judicial intervention if reasonably open on the evidence.

SL was a failed asylum-seeker suffering from depression and post-traumatic stress disorder. Westminster City Council provided weekly social-work meetings, monitoring, advice and assistance with contacts involving counselling groups and a befriender. It nevertheless decided that he did not need “care and attention” requiring accommodation under section 21(1)(a) of the National Assistance Act 1948.

Burnett J dismissed SL’s application for judicial review. The Court of Appeal allowed his appeal in [2011] EWCA Civ 954, holding that the support amounted to care and attention and could not be supplied practicably and efficaciously without stable accommodation.

Although SL’s subsequent grant of indefinite leave to remain made the dispute academic for him, the appeal proceeded because of its broader importance. The central questions were whether the council could reasonably find that SL did not need care and attention and, if he did, whether that care was otherwise available without accommodation under section 21.

1. Appeal allowed unanimously. Lord Carnwath, with whom Lord Neuberger, Lady Hale, Lord Mance and Lord Kerr agreed, held that the council was reasonably entitled to decide that SL was not in need of care and attention. Burnett J’s order dismissing the judicial review claim was restored.

2. Section 21(1)(a) of the National Assistance Act 1948 imposes three cumulative conditions: the person must need care and attention; that need must arise from age, illness, disability or other circumstances; and the necessary care and attention must be unavailable otherwise than through accommodation under section 21. The reviewing court applies ordinary judicial review principles to the authority’s assessment.

3. The authoritative guidance in R (M) v Slough Borough Council [2008] UKHL 52 establishes that “care and attention” means looking after. It is wider than nursing or intimate personal care, but its scope cannot be derived from the isolated question whether somebody is doing something which the claimant cannot do. The expression takes colour from its association with residential accommodation. Something well beyond mere monitoring is required.

4. The council could rationally characterise SL’s weekly meetings, monitoring, advice, encouragement and assistance with external contacts as keeping an eye on him rather than looking after him. The professional assessment was that his risk of self-harm did not warrant being looked after and that greater dependency could be counter-therapeutic. The importance of stable accommodation and mental-health support did not determine whether those services fell within section 21(1)(a).

5. On the alternative assumption that the services amounted to care and attention, they were available independently of any accommodation or its location. The Court of Appeal’s requirement that care be “reasonably practicable and efficacious” without accommodation introduced a loose and indirect connection unsupported by the statutory language.

6. The Court of Appeal had taken a wrong turning in R (Mani) v Lambeth London Borough Council [2003] EWCA Civ 836, following R v Wandsworth London Borough Council, ex parte O. Those decisions failed to give proper weight to “otherwise available”. Contrary to their approach, some infirm destitute people need care and attention but remain outside section 21 because that care is available independently of accommodation.

7. Obiter, the required care must be accommodation-related. It must at least be of a kind normally provided in a home, whether ordinary or specialised, or be effectively useless if the claimant has no home. The application of that standard is primarily a matter for the local authority’s good judgment and common sense.

1. United Kingdom Supreme Court: Allowed Westminster City Council’s appeal unanimously and restored Burnett J’s order dismissing the judicial review claim: [2013] UKSC 27.

2. Court of Appeal: Allowed SL’s appeal, holding that the council’s support constituted care and attention and that it could not practicably and efficaciously be supplied without accommodation: [2011] EWCA Civ 954; [2012] PTSR 574.

3. High Court: Burnett J dismissed SL’s application for judicial review, although he wrongly took account of the Secretary of State’s acceptance of responsibility under the national asylum-support scheme.