GS, R (On the Application Of) v London Borough of Camden (Rev 1)

A need for accommodation alone is not a need for care and support under the Care Act 2014. Section 8 gives examples of how eligible needs may be met; it does not create a general housing power. The eligibility outcomes assume an existing home, and accommodation already supplied need not be disregarded. The Localism Act 2011 general power may nevertheless be available where the Care Act contains no express post-commencement limitation on it. Where statutory exclusions apply, that power must be exercised to the extent necessary to avoid a Convention breach. Homelessness may cross the high article 3 threshold identified in [2005] UKHL 66 where it creates an imminent prospect of serious suffering. The authority’s failure to consider and exercise that power was unlawful.

The claimant was a wheelchair-dependent Swiss national with physical and mental health conditions. She sought judicial review of the defendant local authority’s 26 October 2015 assessment under the Care Act 2014. The authority concluded that she had no need for care and support, treating her need as accommodation alone, and considered that statutory exclusions prevented assistance. By the hearing she received personal independence payment, but no suitable affordable accommodation had been identified.

The issues were whether accommodation alone fell within the Care Act, whether the general power in the Localism Act 2011 was available despite the statutory exclusions, whether the assessment contained errors of law, and whether support was necessary to avoid breaches of articles 3 or 8 of the Convention.

1. Care Act. A need for accommodation alone is not a need for care and support under the Care Act 2014. Section 8(1)(a) gives an example of accommodation as a way of meeting eligible needs. It does not define the needs which qualify. The eligibility outcomes in the Care and Support (Eligibility Criteria) Regulations 2015/313 concern a person’s ability to function in an existing home and do not require the provision of a home. The court followed R(SG) v London Borough of Haringey [2015] EWHC 2579 and applied the reasoning in M v Slough [2008] UKHL 52. Accommodation must be distinguished from accommodation-related care services. There was no obligation to disregard accommodation already provided when applying the eligibility criteria. The challenges under sections 18, 19 and 24(2) therefore failed.
2. Assessment. The social worker had recorded and considered the claimant’s mental health, including the connection between her delusional disorder and a possible return to Switzerland. Applying the contextual approach in Ireneschild v Lambeth London Borough Council [2007] EWCA Civ 234, the court found no requirement for a social-work assessment to be drafted as a legal determination. The physical-functioning challenge also failed. The assessor recorded the information supplied at the time, considered the earlier assessment, and was not required to anticipate later evidence or interrogate answers which the claimant had presented positively.
3. Localism Act. The general power in section 1 of the Localism Act 2011 was available. The Care Act 2014 contained no express post-commencement limitation on that power. R (on the application of MK) v Barking and Dagenham London Borough Council [2003] EWHC 3486 was distinguished because it concerned a pre-commencement limitation. The distinction between the scope of a power and a statutory restriction on its exercise, identified in R (Khan) v Oxfordshire County Council [2004] EWCA Civ 309, was preserved.
4. Convention rights and outcome. The claimant proved that suitable affordable accommodation was unlikely to be available and that homelessness, viewed against her physical disability, pain, mental illness, vulnerability and social isolation, would create serious suffering. Applying Limbuela v Secretary of State for the Home Department [2005] UKHL 66, withdrawal of the existing accommodation would create an imminent breach of article 3. Article 8 did not require separate analysis. Under section 6 of the Human Rights Act and paragraph 3 of Schedule 3 to the Nationality, Immigration and Asylum Act 2002, the Localism Act power became a duty to the extent necessary to avoid that breach. The decision not to exercise the power was unlawful.