R (On the Application of GS) v London Borough of Camden [2016]

Keywords: EEA, Accommodation, Care Act, Localism Act

This case was a judicial review of a local authority’s refusal to provide accommodation to GS.

GS (49), a female Swiss citizen of Afghan origin, had physical and mental health problems and was wheelchair dependent. She had arrived in the UK from Switzerland in June 2013 and lived in Heathrow airport for approximately 6 months, before being admitted to hospital with mental health problems. On discharge, with assistance from her adoptive mother who lived in Canada, she moved into a hostel. Following an application made with assistance from a charity, the local authority provided her with temporary accommodation for 3 months in 2014, but then decided that she was ineligible for support under s.21 NAA, withdrew the accommodation and offered her money to return to Switzerland. Following assessments in late 2014 by both an NHS mental health team and a psychiatrist instructed by GS’s solicitor, the local authority accepted that she had a persistent delusional disorder of the paranoid type which constituted a severe and enduring mental illness, and lacked capacity to decide whether to return to Switzerland (and to consent to treatment). Consequently, the local authority again provided temporary accommodation.

In October 2015, the local authority conducted a needs assessment of GS under the Care Act 2014 and concluded that she did not have “any need for care and support within the meaning of the Care Act 2014.”. Unfortunately, the published judgement is quite limited in the degree to which it sets out details of GS’s condition, and the local authority’s reasoning.

The case put forward on behalf of GS was:

(1) That the assessment was unlawful because of:

  • failure to consider the risks posed by GS’s mental health;
  • failure to disregard support already being provided by the local authority
  • errors in the assessment of GS’s physical functioning;

(2) That the local authority decided not to exercise its power to provide care and support for non-eligible needs under either s. 19 of the Care Act 2014 or s.1 of the Localism Act 2011;

(3) That the local authority failed to provide advice and information about meeting needs as required by s.24(2) Care Act, when deciding that an adult does not have eligible needs.

(4) That the local authority had failed to consider the impact on GS’s human rights of the refusal to provide her with accommodation

Central to the case and essential, before any of the above issues could be addressed was the question:

Is a need for accommodation capable of amounting to a “need for care and support” under the Care Act 2014?

Both parties agreed that, as a national of an EEA state other than the UK, GS was ineligible for public support under a wide range of legislation (as a result of s.5 Nationality, Immigration and Asylum Act 2002 Schedule 3). Therefore she was ineligible to have any needs she may have for care and support met by the Local Authority under the Care Act except if her human rights would be breached by not doing so and, even then, only to the extent necessary to avoid a breach of her human rights (s.3 Nationality, Immigration and Asylum Act 2002 Schedule 3).

GS’s legal team argued that the Care Act term “care and support” has a different, wider meaning than “care and assistance” (which was the key phrase under the NAA) and is broad enough to include a need merely for accommodation. They suggested that the first reported Care Act judicial review, R(SG) v London Borough of Haringey [2015] EWHC 2579, which decided that the Care Act should be interpreted in the same way as the NAA had been interpreted in earlier case law, was wrongly decided.

Marquand J rejected this argument and agreed with the decision in SG that a need for accommodation cannot, by itself, amount to a need for care and support under the Care Act. He set out the following reasons:

1) In his view, the ordinary meaning of ‘care and support’ does not include accommodation on its own;

2) The list given in s.8 Care Act (which includes “accommodation in a care home or in premises of some other type”) is not a list of examples of what is “a need for care and support”, but rather a list of examples of the sorts of things which might be provided to meet needs for care and support. Further, the inclusion of “a care home” indicates clearly that the Care Act is about more than merely a roof over someone’s head, since accommodation in a care home includes provision of caring services.

3) The Care Act eligibility criteria regarding the adult’s ability to achieve the outcomes of “being able to make use of the adult’s home safely” and “maintaining a habitable home environment.” are not consistent with the idea of accommodation as a “need” – they envisage accommodation that exists. The question is whether the individual is able to maintain a habitable home environment not whether a home needs to be provided so that they can maintain a habitable home environment.

4) The need for accommodation alone is provided for under Housing legislation. Therefore, parliament did not intend the Care Act to meet that need.

5) The use of the word “support” in ss. 95 & 96 Immigration and Asylum Act 1999 in a definition which includes the provision of accommodation as a means of support cannot be read across as meaning that “care and support” in the Care Act includes accommodation by itself. The Immigration and Asylum Act was explicitly designed to provide accommodation to those who do not have it. That is not the purpose of the Care Act.

Therefore, he concluded the case law regarding accommodation which developed under the NAA continues to apply under the Care Act. That earlier case law established that:

  • the services provided by the council (under the outcome-focussed Care Act, this can be reinterpreted as “the adult’s eligible needs {i.e. arising from a physical or mental impairment or illness} for care and support”) must be accommodation-related for accommodation to be potentially a duty

and

  • “accommodation-related care and attention” means care and attention (now “care and support”) of a sort which is normally provided in the home or will be “effectively useless” if the Claimant has no home.

Errors of Law in the Care Act Assessment

The risks posed by the Claimant’s mental health

Although the social worker’s assessment may not have been perfectly formulated in legal terms, care should be taken not to subject a frontline social worker’s assessment to detailed legal analysis. The social worker did record and consider the impact of GS’s mental health disorder on her. This ground was dismissed.

Failure to disregard support already provided

The court considered whether the Care Act process of disregarding the input of a carer when considering eligibility required the local authority to disregard GS’s current accommodation (given that her current temporary accommodation was provided by the council) and consider what outcomes GS would be able to achieve if she were without accommodation. Marquand J noted that the eligibility regulation requires the assessor to consider whether the adult is unable to achieve the outcome “without assistance” and that those outcomes are the activities described (such as “maintaining a habitable home” rather than a related object itself (such as the “home”). He concluded that:

“Where accommodation-related services are provided it is the services that are to be disregarded not the accommodation per se.” [para. 38]

Errors in the assessment of the Claimant’s physical functioning

(1) GS’s legal team argued that the assessor had failed to consider the length of time taken or the pain experienced by GS in achieving some outcomes and failed to explain the basis on which the two assessments reached different conclusions regarding GS’s eligibility for social care (under the NAA in late 2014 that she was eligible and, under the Care Act In Oct 2015, that she was not).

(2)  On behalf of GS, it was argued that she had put forward an overly positive view of her capabilities during both assessments and that the assessor should have asked more questions to ascertain the ‘real’ position.

Both arguments were dismissed by Marquand J.

It is notable that he did not find the differing result of the two assessments to automatically render one irrational, despite reaching different conclusions about the same person without a substantial change in circumstances:

“I do not believe that two different assessments coming to different conclusions automatically means that one of the assessments is wrong as a matter of law. Both may be lawful even though the conclusions are different, provided that the process has been carried out lawfully. “ [para.47}

On the limited information about GS’s condition and abilities contained in the judgement, it is difficult to consider detailed issues of eligibility against specific criteria. However, it should be noted that, in this case, this point appears to have been considered purely from the standpoint of whether the conclusions of the assessment as to eligibility were irrational on the basis of the evidence available to the assessor. The judgement does not explicitly address the issue of whether the Oct 2015 assessment properly considered the full Care Act definition of “unable” by considering whether GS was able to achieve outcomes without “significant pain” or taking “significantly longer than would normally be expected.”. There is also no reference was made to para 6.14 Care Act guidance which states that:

“The local authority must also consider whether the individual’s needs impact upon their wellbeing beyond the ways identified by the individual.”

This may well be because, in this instance, GS’s status as an ineligible EEA state citizen rendered these issues largely of only theoretical interest, since GS may well have been ineligible to have such needs met anyway (unless not doing so would infringe her human rights). Therefore, caution should be used in assuming from this judgement that assessors need not be too concerned with the full definition of ‘unable’ in the eligibility regulations (the aspects of taking additional time and causing pain in particular) or that assessors do not need to be concerned about the courts overturning eligibility decisions if they fail to look beyond merely what the client is telling them where the client may be underestimating their needs. It seems likely that both of those issues might be subject to greater scrutiny in future cases involving clients with full entitlement have their needs met under the Care Act.

That said, the judgement reinforces previous case law in emphasising the reluctance of the courts to second guess social workers where the assessment process has been followed with reasonable diligence, quoting Hallet LJ in Ireneschild v Lambeth London Borough Council [2007] EWCA Civ 234 at paragraph 57:

“…one must always bear in mind the context of an assessment of this kind. It is an assessment prepared by a social worker for his or her employers. It is not a final determination of a legal dispute by a lawyer which may be subjected to over zealous textual analysis. Courts must be wary, in my view, of expecting so much of hard pressed social workers that we risk taking them away, unnecessarily, from their front line duties.”

However, it is also important to note that the standard of adequacy referred to in this judgement is that there is no “error of law” [para.33]. Thus it remains vital that assessors are legally literate.

Providing information and advice and using the s. 19 Care Act power to meet ineligible needs

As a result of the finding that GS’s need was for accommodation only and that this did not amount to a “need for care and support”, it was held that the local authority was not obliged to provide information and advice on reducing or preventing needs, nor was the s.19 power to meet needs available to the local authority. This decision, therefore, limits the scope of the s.24(2) duty to provide information and advice following an assessment to those to whom it decides not to provide services under either s.18 or s.19 to those who, the assessment decides, do have needs for care and support (even though those needs may not reach the eligibility threshold). This clarifies that local authorities are not required to provide pesronalised advice and information about preventing and reducing needs to anyone they assess as not actually having ANY needs for care and support within the scope of the Care Act.

Providing accommodation under the Localism Act 2011

Under s.1 Localism Act 2011 local authorities have the power to do anything that an individual generally may do, and they can exercise this power in any way, including for the benefit of residents. Maquand J found that, since the Care Act 2014 was passed after the Localism Act and does not contain an explicit limitation on the use of the power in s.1 Localism Act for the benefit of those excluded from Care Act provision, this power could potentially be exercised to provide GS with accommodation.

He then considered whether the local authority was compelled to exercise this power to provide GS with accommodation to avoid a breach of GS’s human rights (under the European Convention on Human Rights). The rights at stake were Article 3 – the prohibition on inhuman or degrading treatment (which is an absolute right which may not be infringed) and Article 8 – the right to lack of interference by the state with private, family life and the home (which is a qualified right which can be infringed for limited, specified purposes).

In considering Article 3, Marquand J quoted Lord Bingham in Limbuela v Secretary of State for the Home Department [2005] UK HL 66:

“Treatment is inhuman or degrading if, to a seriously detrimental extent, it denies the most basic needs of any human being. As in all article 3 cases, the treatment, to be proscribed, must achieve a minimum standard of severity, and I would accept that in a context such as this, not involving the deliberate infliction of pain or suffering, the threshold is a high one. A general public duty to house the homeless or provide for the destitute cannot be spelled out of article 3. But I have no doubt that the threshold may be crossed if a[n]… applicant with no means and no alternative sources of support, unable to support himself, is, by the deliberate action of the state, denied shelter, food or the most basic necessities of life. …”

and goes on to consider when the state is obliged to act to prevent a breach of Article 3

“when it appears on a fair and objective assessment of all relevant facts and circumstances that an individual applicant faces an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food or the most basic necessities of life. Many factors may affect that judgment, including age, gender, mental and physical health and condition, any facilities or sources of support available to the applicant, the weather and time of year and the period for which the applicant has already suffered or is likely to continue to suffer privation.” [paras 7 & 8]

He went on to quote Baroness Hale, in the same case, commenting that while both being without a roof over one’s head or being without any cash might each be tolerable for limited periods under some circumstances:

“to have to endure the indefinite prospect of both, unless one is in a place where it is both possible and legal to live off the land, is in today’s society both inhuman and degrading.” [para.78]

With regard to Article 8, Marquand J’s analysis of existing case law in this area concluded that Article 8 was unlikely to be engaged in circumstances which were insufficiently severe to engage Article 3, except where children were involved and the issues of family life arose. Consequently, in this case, the issue was essentially limited to whether the circumstances to which GS would be consigned if the local authority failed to provide her with accommodation would amount to “inhuman or degrading treatment”.

Marquand J concluded that, in GS’s case, where her only income was Personal Independence Payment (PIP) which was insufficient to both fund accommodation and meet other basic needs and she would become homelessness if the local authority accommodation were withdrawn, there would be an infringement of her Article 3 rights:

“Taking into account the entirety of the Claimant’s circumstances including her potential social isolation, physical disabilities, pain, mental health condition and the physical difficulties that she encounters it is my judgement that if she were to become homeless then there would be a breach of article 3.” [para.75]

Consequently, the local authority’s decision not to provide accommodation using its power under s.1 Localism Act 2011 was unlawful.

Further commentary

This case importantly reinforces the conclusion from  R (SG) by her litigation friend the Official Solicitor v London Borough of Haringey [2015] that a need for accommodation alone is not “a need for care and support” under the Care Act and further clarifies that it, not only does not require a local authority to fulfil its s.18 duty, but also does not empower a local authority to use its s.19 power.

There is no requirement to disregard accommodation when undertaking a Care Act assessment, only to disregard input from a carer and/or any services which are being provided to meet needs for care and support.  From one point of view, it can be argued that this should not affect the outcome of an assessment, since eligibility is determined on the basis of the adult’s ability to achieve the 10 outcomes. On the other hand, however, it is difficult to ignore the reality that those outcomes would be more difficult to achieve in circumstances of homelessness. This begs the question of whether, if an adult (who, unlike in this case, was otherwise eligible for Care Act provision) .at risk of homelessness were found not to have needs which met the eligibility threshold, a local authority might not be obliged to reassess them once living in circumstances of homelessness (because the duty to assess kicks in wherever the local authority has knowledge of the appearance of need) and reach a different conclusion as to eligibility on the grounds that, in those circumstances, they were unable to achieve two or more outcomes because the outcomes themselves were more difficult to achieve (rather than as a result of any worsening in the adult’s condition).

The judgement does not contain much detail about GS’s difficulties and needs. Her physical and mental conditions were highly relevant to the conclusion that her human rights would be breached if accommodation were not provided. This seems a problematic conclusion in a situation where those same physical and mental conditions did not produce needs which would rise to the threshold of Care Act eligibility. As discussed earlier, it seems likely that a detailed analysis of GS’s profile against the detail of the Care Act eligibility regulations is absent from this case as a result of her immigration status. So questions of the lawfulness of an assessment which fails to take into account the full scope of the definition of “unable” or which fails to look beyond the adult’s immediate statements will have to await future cases. It also seems, from the information available in the published judgement, that the assessment was (rightly) evaluated by the court on the basis of information available to the assessor at the time it was carried out, but that when reaching conclusions regarding human rights, the judge took into account later information which suggested a greater level of need than had been apparent at the time of the assessment. If so, then it cannot be safely concluded that a further assessment of GS, taking into account the later information, would not have found her to have eligible needs for care and support (under the Care Act criteria)..

Full transcript at: http://www.bailii.org/ew/cases/EWHC/Admin/2016/1762.html

Leave a Reply

Your email address will not be published.