AR, R (on the application of) v London Borough of Hammersmith and Fulham

A local authority cannot use the Care Act 2014 to provide stand-alone accommodation or subsistence. Eligibility for care and support depends on needs arising from physical or mental impairment or illness, rather than homelessness alone. The general power in section 1 of the Localism Act 2011 cannot be used to circumvent a statutory prohibition on providing housing assistance to an ineligible person. Support may nevertheless be required where necessary to avoid a breach of Convention rights, but Articles 3 and 8 impose obligations to provide welfare support only in exceptional circumstances. A person’s return to a country where basic welfare and healthcare are available may prevent such a breach.

The claimant, a Lithuanian citizen with significant medical problems and a history of homelessness, sought judicial review of the defendant local authority’s assessments and refusal to provide accommodation or support. The authority concluded that he was not eligible for care and support under the Care Act 2014 and was ineligible for housing assistance under Part 7 of the Housing Act 1996 because he lacked a right to reside. The claimant argued that accommodation could be provided under the Care Act or the general power in the Localism Act 2011, and that refusal would breach his Convention or EU Treaty rights. The central issues were the scope of the statutory powers and whether support was necessary to prevent a breach of Articles 3 or 8.

1. The application for judicial review was dismissed. The Care Act assessment was lawful. The assessor had considered the claimant’s communication, medical history, earlier personal independence payment assessment and relevant outcomes. The court would not subject the record of the assessment to minute scrutiny or infer error merely because the claimant disagreed with its conclusions.

2. Following and applying R (GS) v Camden LBC [2017] PTSR 140, accommodation is not to be disregarded when applying the eligibility criteria. The relevant needs must arise from impairment or illness, not lack of accommodation. A stand-alone need for accommodation, subsistence, or both is not a need for care and support under the Care Act, and the authority had no power to provide accommodation alone.

3. Section 185 of the Housing Act 1996 was a pre-commencement limitation for the purposes of section 2(2)(a) of the Localism Act 2011. Applying the reasoning in R(J) v London Borough of Enfield [2002] HLR 38 and R (Khan) v Oxfordshire County Council [2004] HLR 41, the general power could not be used to do something expressly prohibited by another statute. The court therefore did not follow the contrary conclusion in R (GS) v Camden LBC concerning the Localism Act.

4. The claimant had not shown a right to reside under the Immigration (European Economic Area) Regulations 2016. His short periods of work and jobseeking did not establish that he was a worker, and there was no evidence of permanent incapacity or five years’ qualifying residence.

5. The court assessed Convention rights for itself and could consider post-decision evidence, applying R (de Almeida) v Royal London Borough of Kensington and Chelsea [2012] EWHC 1082 (Admin). The evidence did not approach the Article 3 threshold. In any event, return to Lithuania, where basic welfare and healthcare were available, avoided any breach. Any interference with Article 8 was justified by the defendant’s scarce resources and the claimant’s limited connection with the United Kingdom.