TMX, R (on the application of) v London Borough of Croydon & Anor

Where an adult has eligible care and support needs that can be met effectively only in suitable accommodation, the Care Act 2014 may require the local authority to provide that accommodation, including for an asylum seeker. Support under the Immigration and Asylum Act 1999 is a residual, last-resort safety net. A local authority must therefore disregard current or prospective s.95 accommodation when assessing accommodation-related needs. Prolonged failure to provide suitable accommodation may breach Articles 3 and 8 where the applicable severity, culpability and proportionality requirements are met. Financial needs raised during an assessment must also be considered, although no relief was granted on that ground.

The claimant was an asylum seeker with progressive multiple sclerosis and substantial care needs. He lived with his wife and children in a single room in asylum accommodation that was inaccessible and prevented effective toileting, washing, mobility and personal care. The Council accepted responsibility for his care and support but maintained that any accommodation-related need was the Secretary of State’s responsibility under s.95 of the Immigration and Asylum Act 1999. The claimant challenged the Council’s assessments and its failure to provide suitable accommodation, financial support and protection under Articles 3 and 8. The central issues were the allocation of accommodation responsibility, the assessment of financial needs, and whether the living conditions breached Convention rights.

1. Ground 1 succeeded. The Council’s duty under the Care Act 2014 included meeting accommodation-related care needs. Accommodation could be provided under s.8 where care and support was normally provided in the home or would otherwise be effectively useless. The duty was not confined to residential or specialist accommodation. The reasoning in R (Westminster City Council) v National Asylum Support Service [2002] UKHL 38, R (O) v Barking and Dagenham London Borough Council [2011] 1 WLR 1283 and R (L) v Westminster City Council [2013] UKSC 27 supported that conclusion.
2. Support under s.95 of the Immigration and Asylum Act 1999 was residual. The Council was required to ignore accommodation which was being provided, might be provided or might be offered by the Secretary of State when assessing whether the claimant had an accommodation-related care need. The Council’s assessments were therefore legally flawed. In any event, the existing accommodation was plainly unsuitable and prevented the effective provision of care.
3. Ground 2 succeeded only in part. The Council should have considered the claimant’s disability-related financial needs when assessing and reviewing his needs. Local authorities retain a broad discretion as to how needs are met. No relief was necessary or proportionate because a fresh assessment would follow the claimant’s move to suitable accommodation.
4. Ground 3 succeeded. Applying the high Article 3 threshold described in R (Limbuela) v Secretary of State for the Home Department [2005] UKHL 66 and R (Aburas) v Southwark LBC [2019] EWHC 2754 (Admin), the claimant’s prolonged confinement, inability to toilet or wash privately, physical suffering and loss of dignity constituted degrading treatment. The Council was responsible because it knowingly and intentionally left him in unsuitable accommodation. Its ignorance of the legal duty was no defence.
5. Article 8 was also breached. The accommodation substantially interfered with the claimant’s physical and psychological integrity and personal development. The Council’s prolonged failure involved significant culpability, and the interference was neither necessary nor proportionate. A declaration was granted for breaches of Articles 3 and 8 lasting seven months. An interim order required the Council to provide suitable accommodation.

High Court (Administrative Court): The claim was issued on 31 August 2023. Bright J granted permission, refused interim relief before the substantive hearing and directed an expedited hearing. Following the substantive hearing, the Deputy High Court Judge granted a declaration concerning Articles 3 and 8 and made an interim order requiring the Council to provide suitable accommodation.