Residential care

(and a placement in a nursing home) are covered by statutory provisions which have been in force since 1948. The relevant statutory function has proved wide enough to cater for last resort provision for asylum seekers (until statute transferred this responsibility to a central services called NASS) and for the homeless with community care needs. It has often been the subject of litigation and no more so than in the last year. The cases have focused on the following questions:

In what circumstances can s21 be relied upon for the provision of ordinary housing, without additional care and attention? (See Bristol City Council ex p PenfoldWigan MBC ex p TammadgeIslington LBC ex p BatantuKensington & Chelsea ex p Muriqi Kujtim and Newham LBC ex p PlastinTower Hamlets LBC ex p Wahid)

Is it lawful to use the concept of ordinary residence as a filtering criteria for assessment for s21 services? (See Berkshire County Council ex p Parker)

In what circumstances can s21 be relied upon for the provision of care and attention without accommodation? See Newham LBC ex p Gorenkin – or simply for cash? See Secretary of State for Health, ex p Hammersmith and Fulham LBC, M and K.

Does s21 give rise to a duty or to a discretion? See Sefton MBC ex p Help the Aged and KujtimTammadge and (re the Scots equivalent) South Lanarkshire v MacGregor

Is there a duty to provide s21 accommodation where a mentally incapacitated client has a pending personal injuries claim which will provide the means for privately purchased long term care – see Bell v Todd & South Tyneside MBC

Is there still a s21 duty owed to asylum seekers who have community care needs? See NASS ex p Westminster City Council

Do local authorities have to retain their own Part III NAA homes or can they contract out all of their provision to the private sector? See Wandsworth LBC ex p Beckwith no.1

Are private contractors providing residential care beds able to be sued for a breach of human rights under the UK’s own Human Rights Act? See Leonard Cheshire and Servite Houses.

Can people elect to stay at home, even though an authority has assessed a need as only being appropriately met in residential care? See Southwark LBC ex p Khana


The main features of s21/26 of the National Assistance Act 1948

Section 21

imposes a duty regarding provision to some client groups, and a discretionary power in relation to providing it to others (through the interface between the section and circular guidance – >LAC 93 10 (see below for translation))

services’ lawful provision does not depend on the client having ordinary residence in the area

service recipients must be aged 18 or over, apart from expectant and nursing mothers.

service provision attracts mandatory charging under s22, associated regulations and CRAG

In paragraph 2 of Appendix 1 of LAC 93/10, the Secretary of State has specifically dealt with the need for arrangements for providing residential and temporary accommodation for people who are ordinarily resident, people who reside elsewhere than in the area where they are when the need arises, people of no settled residence, people who are in urgent need, people suffering from mental disorders, drug or alcohol dependency, expectant mothers, people suffering from illness and those who have so suffered in the past in these respects, or are about to suffer once again. Duties are owed to some, and powers may be exercised in relation to others sorts of client.

The instructions in LAC 93 10, translated into basic terms, have the following effect: there are both duties and mere discretions to provide residential or nursing care to people, depending on their categorisation. But there are also basic hurdles to qualifying at all.

A person has to be all of the following (subject to minor exceptions involving drug/alcohol dependent people and expectant mothers):

  1. a) aged 18 or over
  2. b) assessed as beingin needof care and attention (by whatever lawful criteria are in force in the particular LA)
  3. c) in that need ‘by reason of age, illness, disability or other circumstances’
  4. d) and not having that care and attentionotherwise available

Actual statutory duties are triggered if the applicant for the service is all of the above, and s/he is either

  1. Ordinarily residentin the authority’s area; or
  2. In urgent need (even if the person counts as ordinarily residentelsewhereor is of no settled residence); or
  3. In urgentunforeseenneed (ie for temporary accommodation) regardless of where the person’s ordinary residence is, or even if they have none; or
  4. Where it mightpreventmental disorder, or where the applicant is or has been mentally disordered in the past, so long as the client is ordinarily resident in the area, OR is of no settled residence, but is physically in the area at the moment of having the need.


S21 NAA powers arise (ie a discretion short of a duty, and therefore a function which does not have to be exercised, and which might be the subject of an ongoing policy which took budget shortages into account) in the following circumstances:

– assuming the applicant is able to meet all of the basic hurdles to qualification, s/he can theoretically qualify (and therefore is entitled at least to be assessed) for a s21 service, if s/he is either:

  1. Of no settled residence (without any particularly urgent need or mental disorder underpinning the problem); or
  2. If the applicant counts as ordinarily resident elsewhere (if it is considereddesirablefor the on-the-spot authority to make the arrangements instead), so long as that other authority consents to the accommodation arrangements being made on the spot (NB if the person concerned is in urgent need, the on-the-spot authority has a duty anyway – see above); or
  3. If the person concerned is or ever has been mentally disordered, or might be about to become mentally disordered, then whatever the reason for the need, a power to place arises if the person is formally ordinarily residentelsewhere, but has been discharged from hospital andis now living in the on-the-spot area (so long as the previous authority consents) or
  4. If you are an expectant mother, regardless of your age, and regardless of your place of ordinary residence; or
  5. If you are >drug/alcoholdependent, (with no particularly urgent need) then regardless of your place of ordinary residence; or
  6. If you are someone who meets the basic statutory criteria who needs accommodation to preventillnessor as aftercare for illness, (and regardless of their place of ordinary residence).

Since all these scenarios give rise to powers, and all depend on the person also being assessed as being in need when measured against the authority’s own discretionary criteria, there will inevitably be some authorities where people in these service categories will not qualify for the exercise of a discretionary power under s21.

Where the power to place depends on the consent of another authority, (B and C) the on-the-spot authority could (and should, in our view, given its fiduciary duty to tax-payers) make exercise of its discretion subject to agreement between it and the other authority to reimburse the placing authority for the cost of care management and any shortfall between the client’s contribution and the full cost of the service.

It might not be thought necessary to do this if reciprocal agreements are in place as between two authorities, but coastal and rural areas, where a disproportionate number of people go for holidays, can end up bearing the financial brunt of illness befalling people when away from home.


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