SB & Anor, R (on the application of) v London Borough of Newham & Anor

A local authority assessing eligible care and support needs must determine independently whether those needs are accommodation-related. Accommodation may be required where the care and support is normally provided in the home, or would be effectively useless without a home. The authority must make that assessment by reference to the person’s wellbeing, circumstances and eligible needs, without treating asylum support under Immigration and Asylum Act 1999 as the answer in advance. Specialist accommodation or residential care is not required. The exclusion in section 23 of the Care Act 2014 applies only where the authority would be doing what it or another authority is required to do under the Housing Act 1996. A decision failing to address these questions is unlawful and may be quashed.

The claimants, Bangladeshi asylum seekers, challenged Newham’s decision to terminate accommodation and financial support provided while assessments were undertaken under the Care Act 2014. The first claimant had learning disabilities and other mental health conditions. His assessment identified eligible needs involving nutrition and maintaining a habitable home, while the second claimant was his carer.

Newham relied on the availability of asylum support under section 95 of the Immigration and Asylum Act 1999, the absence of specialist accommodation needs, and section 23 of the Care Act 2014. The central issues were whether the authority had lawfully decided that the identified needs were not accommodation-related, whether it could rely on asylum support before making that assessment, and whether section 23 applied.

1. Claim succeeded. The decision dated 5 May 2023 was unlawful and was quashed. The court did not decide that the claimants were entitled to accommodation. The question of provision remained for Newham.
2. The assessment, read fairly and as a whole, identified eligible needs requiring active support in the home, particularly in relation to nutrition and maintaining a habitable home. Those needs were not adequately met by the second claimant and were not carried through into the recommendation for four hours’ community support.
3. The authority had not addressed the legally relevant question: whether the identified care and support was of a sort normally provided in the home, whether ordinary or specialised, or would be effectively useless if the first claimant had no home. It was not enough to conclude that he did not require specialist accommodation or residential care.
4. The authority also acted unlawfully by treating the availability of accommodation under section 95 of the Immigration and Asylum Act 1999 as decisive. Local authority duties under the Care Act 2014 had to be considered first and independently. Asylum support was a residual, last-resort scheme.
5. Section 23 of the Care Act 2014 did not apply. The claimants were excluded from assistance under the homelessness provisions of the Housing Act 1996 because of their immigration status. The authority’s reliance on section 23 was therefore material legal error.
6. The availability of an alternative application for asylum support did not justify refusing judicial review. The two statutory schemes had different purposes. The quashing order restored the position before the unlawful decision, leaving Newham to decide what provision, if any, was required under section 18 of the Care Act 2014.

First-instance judicial review. No appellate history was stated in the judgment.