R (SG) by her litigation friend the Official Solicitor v London Borough of Haringey 
Keywords: Care Act, Advocacy, Accommodation
The claimant was an asylum seeker, both before and after the coming into force of the Care Act. By the time of the hearing, she had been granted asylum, but she challenged two decisions, one made in January 2015 and one made in May, ie one under the National Assistance Act and one made under the Care Act, that she had needs for care and attention (which counted as eligible needs under the Care Act) but was not entitled to accommodation through these social care functions.
At the start of the case she was receiving accommodation under s95 Immigration & Asylum Act 1999 through NASS. The council had taken that into account when doing her original assessment under the old law, before the Care Act came into force.
The judge declined to make a decision about the pre-Care Act January decision because as soon as a person has had a Care Act review, then they are to be provided for (if both eligible and owed a duty) under the latter Act, making looking back into the past generally a redundant exercise. It was conceded by the council that this accommodation should have been disregarded for the purposes of assessing SG’s eligibility for accommodation.
Haringey asserted that since this was a service provision dispute only the pre-action protocol at paragraph 3.1 suggested that there was an adequate remedy for this under the Council’s complaints procedure. The judge said that ‘in my view, it is not adequate to deal with contested interpretation of legislation’, which has always been the preferred analysis by public lawyers.
The claimant was a victim of torture, rape and emotional and physical abuse. She suffered from severe mental health problems, including complex PTSD, insomnia, depression and anxiety. She spoke no English and was illiterate. She struggled significantly with activities of daily living including self care, preparing and eating food and taking medication. The local authority were providing support to SG in her NASS accommodation, but an assessment of her needs under the Care Act concluded that her needs could be met by inputs other than the provision of accommodation.
The claimant’s first ground of challenge was the assessment was unlawful because the local authority had failed to arrange for an independent advocate. The defendant explained that demand for such services outstripped supply, suggesting that that was the reason she had not been given one. It was held that the local authority was under a clear duty to provide an independent advocate (the facts of this case being describe as a paradigmatic example of an individual with substantial difficulty). The assessment was therefore quashed.
The claimant’s second contention was that the “suitability of living accommodation” aspect of the s.1 Care Act ‘wellbeing’ definition supported the claimant’s case for needing accommodation, but Bowers J did not consider that this general duty took the claimant very far, since the local authority was accorded a great deal of discretion in care planning.
The old case law under the National Assistance Act (and what needed to be considered for people potentially prohibited from receiving services by reason of their immigration status unless they were not solely needy through destitution) had been to the effect that the need for care and attention had to be at least accommodation-related – not just a need for a fridge, or other physical assistance, for instance.
It did not mean that the care and attention could ONLY be the kind that could be provided by a specialist setting such as a care home. But the old case law established that a need for ‘care and attention’ simply had to mean something more than ‘accommodation’ – section 21(1)(a) was not ever intended as a general power to provide housing. The natural and ordinary meaning of the words ‘care and attention’ in this context was ‘looking after’, meaning doing something for the person being cared for which he could not or should not be expected to do for himself: it might be household tasks which an old person could no longer perform; it might be protection from risks which a mentally disabled person could not perceive; it might be personal care, such as feeding, washing or toileting…The input had at least to be care and attention of a sort which is normally provided in the home (whether ordinary or specialised) or would be effectively useless if the claimant had no home.
Having summarised the old law, the judge said these principles continued to apply under the Care Act, in his opinion:
(a) the services provided by the council must be accommodation-related for accommodation to be potentially a duty;
(b) in most cases the matter is best left to the good judgment and common sense of the local authority;
(c) “accommodation-related care and attention” means care and attention of a sort which is normally provided in the home or will be “effectively useless” if the claimant has no home.
The public law mistake
The real failure on the part of Haringey was that it failed to ask itself the right questions. The judge found no evidence at all that the defendant ever asked itself whether, even if the necessary services could have been provided in a non-home environment, they would have been rendered effectively useless if the claimant were homeless and sleeping on the street. “This is so despite the fact that it was acknowledged that it was “agreed that [the claimant] would benefit from some structured activities to minimise her PTSD symptoms but before that she needs help with the very basic practical support before she can be referred for more structured activities.” I thus think that the care plan has to be redone.”
So, this is the first care plan struck down for failing to consider all relevant considerations or for error of law, as well as having been derived from an invalid assessment for want of mandatory advocacy….
However, Bowers J concluded that it was still open to the local authority to conclude that the needs could be met appropriately without the provision of accommodation. He gave his view that only two of the various services being given to the woman were accommodation-related. All the other council-provided services were to do with learning support, counselling, advice, escorting, language support, and management of appointments. However, she was already being
- visited at home by an officer and her home environment was checked;
- assisted with domestic and practical tasks in the home by other women who lived there and by the officer;
Despite these inputs, the judge thought it could still be lawfully within the discretion of the local authority to decide that it was not necessary to meet needs through the provision of accommodation. He did not tell the council how to go about articulating that sort of conclusion, though!
The judge ordered Haringey to accommodate the woman in suitable accommodation at least until a number of days after a decision would be re-taken by the Haringey Vulnerable Adults team, in respect of the woman as a legitimate asylum grantee (the idea being that she would in all probability now be accommodated in supported living services because of her mental health needs).
This would be done under Housing functions under the 1985 or 1996 legislation, as a vulnerable adult, (if she had capacity to make an application for public housing), or through the power to provide accommodation, pending a concluded s9 assessment, under the Care Act.