R (M) v Slough Borough Council [2008] UKHL 52

This was an appeal against the decision by the Court of Appeal in 2006 that the respondent local authority was responsible for providing the applicant (M) with accommodation and support under s.21 National Assistance Act 1948 [‘NAA’]. M was subject to immigration control having overstayed a visitor’s visa. He was originally from Zimbabwe, and had discovered since entering the UK that he was HIV positive. His original application for assistance to the local authority had been refused following an assessment which had concluded that as his needs were limited to medication, which were required to be kept in a refrigerator, and to see a GP on a three monthly basis.  The authority had argued that as these needs were met by the National Health Service he had no further need for care and attention, further that even if this were to amount to a need for care and attention M would be excluded from support under s.21 of the NAA by virtue of s.21 (1A) NAA which excluded those subject to immigration control from support under s.21 if their need for care and attention had arisen purely because of their destitution or the anticipated effects of their destitution.

Both the High Court and Court of Appeal rejected the ‘narrow interpretation’ given by the local authority of the term ‘need for care and attention otherwise unavailable’ as inconsistent with the approach of the Courts since the legislative changes following R v Westminster City Council, R v Westminster City Council ex parte M (1997). The matter for the House of Lords to consider was whether the local authority was obliged under s.21 NAA to arrange for accommodation for those subject to immigration control who were HIV positive but whose needs, over and above the need for accommodation and subsistence, were limited to medication and a fridge to keep this in.

The House of Lords, by unanimous decision, concluded that M’s needs did not amount for a need for care and attention within the meaning of s.21(1)(a) NAA. In their assessment the need which was otherwise not met must be for care and attention and not accommodation. The House of Lords accepted that a ‘need for care and attention’ was not restricted to those requiring personal or nursing care but stated that in essence the applicant would need to show that they required some element of external assistance because there were things that they could not be expected to do for themselves. Whilst provision of accommodation under this section would be permissible to prevent illness as well as caring for those who were ill, s.21 NAA was not a general power to provide housing and therefore the applicant would need to show a need for care and attention over and above a need for accommodation.  The House of Lords interpreted the term’ need for care and attention’ as a need to be ‘looked after’ i.e. tasks that the applicant could not be expected to perform for themselves or could only do so with great difficulty, personal care or protecting a person suffering from mental illness from unperceived risk. As a benchmark the Lords suggested that the act of looking after should be of such a nature that the individual would still require this intervention even if they were wealthy. The House of Lords drew attention to the express exclusion within s.21(8) NAA of provision by the local authority of medical care as this was of a nature expected to be provided by the NHS.

The Lords accepted that there had to be a distinction between the able-bodied person subject to immigration control who would be destitute and the infirm as the former feel to be assisted by the legislative regime set out in Immigration and Asylum Act 1999 whilst the latter would still rightly qualify for support from the local authority under s.21NAA. they felt this definition was entirely consistent with the authorities in  R (on the application of Westminster City Council) v National Asylum Support Service (2002), R v Wandsworth LBC Ex p O (2000), and R (on the application of Mani) v Lambeth LBC (2003).

The Lords concluded that M’s needs did not met this definition, his health needs were met in full by the NHS and he required no further intervention from the local authority other than the provision of accommodation and subsistence. As such he was not in need of care and attention that was otherwise unavailable and therefore there was no reason to consider whether he would be excluded from support by virtue of s.21 (1A) NAA.

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