Dwaine Campbell, R (on the application of) v London Borough of Ealing

The Care Act 2014 provides a single statutory scheme for the provision of social care to adults. It replaces previous powers under the National Assistance Act 1948. The scheme is made up of the 2014 Act itself, regulations, and the Care and Support Statutory Guidance.

Part I of the Act establishes a framework of duties for local authorities in relation to adult social care. Section 1 imposes a general duty “in exercising a function” in relation to an individual under Part I of the Act, “to promote that individual’s well-being”.

Section 1(2) defines someone’s “well-being” in terms of its relation to any of the following: personal dignity (including treatment of the individual with respect); physical and mental health and emotional well-being; protection from abuse and neglect; control by the individual over day-to-day life (including over care and support, or support, provided to the individual and the way in which it is provided); participation in work, education, training or recreation; social and economic well-being; domestic, family and personal relationships; suitability of living accommodation; and the individual's contribution to society.

Section 9 imposes the duty to undertake a “needs assessment” where it appears to a local authority that an adult may have needs for care and support. In such circumstances, the authority must assess whether the adult does have such needs and, if so, what they are.

If a local authority is satisfied on the basis of such a needs assessment that an adult has needs for care and support, it must determine, under section 13(1), whether any of the needs meet the eligibility criteria specified in the Care and Support (Eligibility Criteria) Regulations 2015.

Regulation 2 of the 2015 Regulations provides that an adult’s needs will meet the eligibility criteria if they arise from or are related to a physical or mental impairment or illness; as a result of which the adult is unable to achieve two or more specified outcomes; and as a consequence, there is, or is likely to be, a significant impact on the adult’s well-being. Those specified outcomes include: managing and maintaining nutrition; maintaining personal hygiene; being appropriately clothed; making use of the home safely; and maintaining a habitable home environment. Information on the care the individual is receiving must not influence the eligibility determination.

Section 18(1) of the 2014 Act provides that a local authority must meet the adult’s needs for care and support which meet the eligibility criteria if, amongst other things, they are ordinarily resident in the authority’s area or are present in its area but of no settled residence. However, under s 18(7), the local authority is not required to meet any needs which are being met by a carer.

Section 24 provides that where a local authority is required to, or decides to meet an adult’s needs, it must prepare a “care and support plan”. Under section 25 of the Act, this plan must specify the needs that the local authority is going to meet and how it is going to meet them. The plan must be proportionate to the needs to be met. The plan must be kept under review (s 27).

Section 19 confers on local authorities the power to meet an adult’s needs for care and support where there is no established duty to do so under s 18. Section 19(3) provides:

“(3)

A local authority may meet an adult's needs for care and support which appear to it to be urgent (regardless of whether the adult is ordinarily resident in its area) without having yet—

(a)

carried out a needs assessment or a financial assessment, or

(b)

made a determination under section 13(1).”

Section 8 of the 2014 Act gives examples of what may be provided to meet needs for care and support. These include: “accommodation in a care home or in premises of some other type” (s 8(1)(a)); care and support at home or in the community; counselling and other types of social work; goods and facilities; and information, advice and advocacy (s 8(1)(b)-(e)). Examples of the ways in which a local authority may meet an adult’s care and support needs are provided in s 8(2) and include providing a service by arranging for a person other than the local authority itself to provide a service, and making direct payments.

The 2014 Act therefore provides for a sequential approach to the provision of care and support for adults in need in the local authority’s area. The local authority is required to carry out a needs assessment (s 9); assess whether any established needs are eligible needs under the 2015 Regulations (s 13); meet identified “eligible needs” unless these are being met by a carer (s 18); consider whether to exercise its discretion to meet identified needs which are not “eligible needs” (s 19) including where a need for care and support is urgent (s 19(3)); and draw up a care and support plan (ss 24-25), which is to be kept under review (s 27).

The critical provision in this case is s 23, headed “exception for provision of housing etc”, which states that:

“(1)

A local authority may not meet needs under sections 18 to 20 by doing anything which it or another local authority is required to do under—

(a)

the Housing Act 1996, or

(b)

any other enactment specified in regulations.”

Part VI of the Housing Act 1996 deals with the allocation of housing accommodation by local housing authorities. Section 159 requires the authority to comply with the provisions of Part VI when allocating housing accommodation. Section 166A, added by the Localism Act 2011, requires the authority to have an allocation scheme for determining priorities in the grant of housing and to give reasonable preference to particular groups, including people who are homeless, and “people who need to move on medical or welfare grounds (including any grounds relating to a disability)” (s 166A(3)(d)). Applicants for housing are placed on the local housing authority’s register and properties are allocated in accordance with the allocation scheme as properties become available.

Part VII of the 1996 Act imposes duties in respect of those who are homeless or threatened with homelessness. Under Part VII, when a person presents as homeless to a local authority it is under a duty to make inquiries (s 184) to determine whether that person is indeed: (a) homeless or threatened with homelessness (as defined by s 175); (b) eligible (i.e., not within a class of persons specified as ineligible under ss 185-187); (c) in priority need (s 189); and (d) not intentionally homeless (s 191). The definition of homelessness under s 175 includes people who do have accommodation, but where that accommodation is such that it would not be reasonable for them to continue to occupy it (s 175(3)).

Persons having a priority need are defined to include “a person who is vulnerable as a result of old age, mental illness or handicap or physical disability…” (s 189(1)(c)). An interim duty may be owed pending the outcome of these inquiries in cases of apparent priority need (s 188). A local housing authority is required to provide suitable accommodation where it has determined following enquiries that the main housing duty is owed (s 193). There is a procedure of internal reviews under Part VII (s 202) and ultimately a right to appeal to the County Court on a point of law (s 204).

In his decision handed down on 10 January 2023 [2023] EWHC 10 (Admin) the judge summarised the Claimant’s case and grounds for judicial review at paragraph 2 of the judgment. It was argued that the Claimant needed care and support under the Care Act 2014, which required the provision of accommodation for its effective delivery (sometimes called “accommodation plus” needs). The Claimant contended that by withdrawing funding for the provision of accommodation, the Defendant erred in concluding that it did not owe a duty to provide, or fund the provision of, accommodation under the Care Act, or in failing to conduct a proper assessment addressing the issue of whether it owed a duty to provide such accommodation. The decision was also said to be irrational, to have taken account of irrelevant matters, to have failed to take account of relevant matters, and to have been taken for an improper purpose. Finally it was alleged that the decision was taken in breach of the Equality Act 2010 in that it amounted to victimisation contrary to s 27 of that Act.

The Defendant’s defence, summarised at paragraph 3 of the judgment, was that the Claimant was not entitled to the provision of accommodation under the Care Act 2014 because he was eligible for housing under either Part VI or Part VII of the Housing Act 1996. The Claimant had never been assessed to have a care and support need for accommodation, and his care and support needs were not accommodation related. The Equality Act claim was the subject of ongoing proceedings in the County Court. The decision to withdraw funding of the Claimant’s accommodation was not taken for an improper purpose, nor did it amount to victimisation.

The judge held as follows:

“50.

It is clear that although the need for accommodation is not a need for care and support under the Care Act, local authorities have a power to provide accommodation under the Care Act in circumstances where accommodation is required to effectively deliver care and support. This follows from the decision in [R (Aburas) v London Borough of Southwark [2019] EWHC 2754 (Admin)] and also flows from the decision of the Court of Appeal in R (SG) v London Borough of Haringey and the Secretary of State for the Home Department [2017] EWCA Civ 322. This power is not however unfettered, and the difficulty the Claimant faces is in establishing that this power extends to scenarios in which section 23 of the Care Act bites.

51.

Both Aburas and SG were cases involving Claimants who were excluded from the provision of accommodation under the Housing Act by virtue of their immigration status…

52.

Insofar as the Court in Aburas sought to extend the ‘accommodation plus’ principle to cases which engage section 23 of the Care Act, this was plainly obiter dicta and, in my conclusion, I do not regard it as precedent on the interpretation of section 23, and I do not follow it.

53.

There is only one decision before me on the application and interpretation of section 23 of the Care Act, and that is the decision in [R (Idolo) v Bromley LBC [2020] EWHC 860 (Admin); [2021] HLR 17]. I can see no reason to depart from, and agree entirely with, the conclusion therein (at [47]) that there is an intention in section 23 to give a measure of priority to the general scheme of the Housing Act over the specific scheme of the Care Act. Housing needs, even if identified through the Care Act route, cannot shortcut the detailed system of balanced priorities within Housing Act schemes, but must find their proper place within those schemes.

54.

In the circumstances of the instant case, this leads me to conclude that if section 23 is of application, the Defendant has no power or duty under the Care Act to meet the Claimant’s care and support needs with the provision, or funding, of accommodation under the Care Act.

…

57.

The Defendant is, and was at the material time, required to provide the Claimant with housing under the Housing Act. The Claimant is a qualifying person under Part VI of the Housing Act, as supported by the fact that he has been put on the Defendant’s housing register and is still on that register........ The Claimant has made a number of unsuccessful bids for accommodation. Since January 2022, the Defendant has also made four direct offers of accommodation to the Claimant outside of the usual bidding process. The Claimant rejected those offers on the basis that he considered the properties to be unsuitable. The fact the Defendant has not yet provided accommodation to the Claimant under Part VI of the Housing Act does not mean that it is not ‘required’ to do so.

58.

It may also be the case that the Claimant became homeless within the terms of section 175(3) of the Housing Act, in the sense that the accommodation in which he was living was not accommodation which it was reasonable for him to continue to occupy. Ms McGibbon contends that this is speculative in that the Claimant has never been found to be statutorily homeless by the local authority so as to give rise to a duty. I observe that the Claimant has made three unsuccessful applications under Part VII of the Housing Act……..Each of the applications was closed by the Defendant, not because the Defendant concluded that the Claimant was not owed a duty under Part VII of the Housing Act, but rather because the Claimant indicated that he wanted a particular housing solution that was unavailable under the Part VII process, and his preference was to continue to pursue suitable accommodation under the Part VI process.

59.

Drawing this together, I reject the Claimant’s contention that the Defendant had an ongoing duty under Part I of the Care Act to provide him with, or to fund his, accommodation. The consequence of this finding is that the Claimant’s Ground 1 must fail.”

Having therefore found that the Defendant had neither a duty nor a power under the Care Act to provide the Claimant with accommodation, or to fund his accommodation, the judge further concluded that the decision to withdraw funding was not irrational.

The judge found, on the evidence, that the Defendant’s decision to withdraw funding of the Claimant’s accommodation had not been significantly influenced by the Claimant lodging the discrimination claim and therefore the Claimant had not been victimised within the meaning of s 27 of the Equality Act 2010.

The judge accepted the Defendant’s evidence that the decision had been made to encourage the Claimant to pursue the options available to him under the Housing Act to obtain alternative accommodation. He did not accept that the Claimant had established that this was an “improper purpose” for the reasons that the Defendant had no duty or power to maintain funding of the Claimant’s accommodation under the Care Act; and the resolution of the Claimant’s housing issue was properly to be addressed under the Housing Act.

The Claimant sought to advance three grounds of appeal. These were:

By order dated 24 May 2023, Males LJ granted permission to appeal on Grounds 1 and 2 only, refusing permission to appeal on Ground 3. His reasons were:

“1.

Ground 1, concerned with the impact of section 23 of the Care Act 2014, raises a point which merits consideration by this court.

2.

Ground 2 is closely related to, and follows from the court's decision on ground 1.

3.

As to ground 3, the judge was entitled on the evidence to conclude that the Council's decision was not made because of the applicant's Equality Act claim. That is a conclusion of fact with which this court will not interfere. An appeal on this ground would therefore have no real prospect of success.”

The Defendant’s evidence is that from October 2020 Mr Campbell made numerous bids for accommodation through the Locata system and that he received and rejected several direct offers. Following a bid made on Locata in November 2022, he was offered a property by Notting Hill Genesis, a housing association, in December 2022. He viewed this accommodation in January 2023 and signed a tenancy agreement and received keys on or around 14 February 2023. He remained living in the temporary accommodation beyond this date, awaiting arrangements for the acquisition and delivery of furniture and white goods for the new property. He was given notice to vacate the temporary accommodation on 6 March 2023, which expired on 5 April 2023.

Further reviews of Mr Campbell’s care and support needs were carried out by Ealing on 22 November 2022 and 2 February 2023. These indicated no material changes in his physical or mental health and corresponding support needs since the assessment carried out on 26 November 2020. While Mr Campbell’s partner previously visited him on a daily basis to provide him with care, she no longer does so: his family are assisting as much as they can instead.

At some point in the summer of 2023 (counsel’s instructions from their respective clients were not in accord as to the date) Mr Campbell took up the tenancy with Notting Hill Genesis. It was suggested by Ms Ward that the Claimant remains at least theoretically liable for any arrears of rent: Mr Swirsky did not accept this, but at any rate it is common ground that no enforcement action has been taken or threatened. Although it was at one stage stated in correspondence that from the point of view of Mr Campbell himself the appeal may be academic, we indicated at the outset that the wider importance of the issue as to the correct interpretation of s 23 of the Care Act 2014 justified the appeal being heard, and Mr Swirsky did not contend otherwise.

Ealing’s compliance with its obligation to operate an allocation scheme in accordance with Part VI of the Housing Act 1996 has not been challenged in these proceedings. The Claimant has for some years been on the register/waiting list for an allocation under the scheme, with a priority of ‘Band B’. However, Ealing was not required under any provision of Part VI to ensure that he was provided with accommodation under the allocation scheme, within any particular time frame or at all. At the date of the judgment below the Claimant had not obtained accommodation via Part VI despite bidding over a period of several years; this is not an unusual position given the shortage of social housing and the length of waiting lists, particularly in London boroughs.

Ealing was similarly, Ms Ward argues, not ‘required to’ provide the Claimant with accommodation under Part VII of the 1996 Act. The only obligation owed to him under Part VII was the duty to accept an application for homeless assistance should he make one. It does not follow automatically from the fact that the Claimant is eligible for assistance that he would be entitled to be provided with accommodation.

Ms Ward submits that the decision in Aburas is authority for the proposition that accommodation can be provided under the Care Act 2014 to meet needs which fall into the “accommodation-plus” category, and was relied on in support of this principle only. By contrast, Idolo addresses the different situation of an individual who already has accommodation but wishes to be prioritised for a move to specially adapted accommodation. It was held that s 23 prevents such prioritisation from being determined under the Care Act because a local authority is ‘required to’ operate a scheme for prioritisation under Part VI of the Housing Act. As the Claimant does not in these proceedings challenge his prioritisation for adapted accommodation, Idolo is not directly on point.

Ms Ward goes on to argue that the judge in the present case appears to have distinguished the decision in Idolo from that in Aburas on the basis that the claimant in Idolo was eligible for assistance under the Housing Act. This distinction, she says, is misplaced and leads to perverse consequences. The effect of the judgment below appears to be that a homeless person with ‘accommodation-plus’ needs who is not subject to immigration control (and so is eligible both to be added to the housing register under Part VI and to make an application for assistance under Part VII), is barred from the provision of accommodation under the Care Act by virtue of s 23. This is so even where that person has not in fact secured accommodation through the Part VI allocation scheme, and may not be entitled to be provided with accommodation under Part VII (for example because he is not in priority need, or is intentionally homeless). By contrast, a homeless person with the same ‘accommodation-plus’ needs who is subject to immigration control, and is thus ineligible for a Part VI allocation, and ineligible to make a Part VII application, can secure accommodation under the Care Act to ensure that his “accommodation-plus” needs are met. Insofar as that is the consequence of the decision in Idolo, that case was wrongly decided and this Court should say so.

Ms Ward submitted that if the Defendant’s contentions are right the result will be that many disabled claimants will be homeless and without a remedy. She submits that unless the local housing authority has accepted a duty to ensure that an individual is provided with accommodation (and has notified that decision in writing pursuant to s 184 of the Housing Act), s 23 of the Care Act has no application.

In a supplementary written submission lodged on the eve of the hearing and in oral argument Ms Ward and Ms McGibbon placed much reliance on R v Bristol CC ex p. Penfold (1998) 1 CCLR 315, a decision of Scott Baker J. Section 21(1)(a) of the National Assistance Act 1948 imposed a duty on local authorities to provide residential accommodation for adults “who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them”. Section 21(8), however, provided that:-

“Nothing in this section shall authorise or require a local authority to make any provision authorized or required to be made (whether by that or by any other authority) by or under any enactment not contained in this Part of this Act or required to be provided under the National Health Service Act 2006.”

In his judgment in Penfold, Scott Baker J accepted the argument that s 21(8) of the 1948 Act did not preclude the provision of ordinary residential accommodation, as opposed to a place in a care home or assisted living accommodation, when it is a function of the applicant’s needs. This was cited and followed by Henriques J in R v Islington LBC ex p Batantu (2001) 33 HLR 76. Ms Ward and Ms McGibbon submitted that these decisions were still applicable, or at least persuasive, in cases under the 2014 Act.

Ealing accepts that Part VI of the 1996 Act does not have a mechanism for providing emergency accommodation. It is a means by which people can obtain permanent accommodation. Within Part VI there are in-built preferences to ensure people like the Appellant, who have a disability, are favoured in the bidding process.

Homelessness is dealt with by Part VII. This provides a mechanism by which homeless people can be accommodated if they meet the four statutory criteria. Interim (i.e., emergency) accommodation is provided under s 188. It was under a Part VII duty that Hillingdon placed Mr Campbell in the Respondent’s area.

Mr Swirsky submitted that accommodation cannot be provided under the CA 2014 so as to interfere with either the scheme of prioritisation or the homelessness duty under Parts VI and VII of the 1996 Act. This would subvert the scheme of the 1996 Act and would mean that making a homelessness application when one was in priority need “as a result of old age, mental illness or handicap or physical disability” would be pointless.

Mr Swirsky relies on the decision in R (Idolo) v Bromley LBC [2020] EWHC 860 (Admin) to which I shall return later. He also prays in aid observations of Mr Fordham KC in Aburas where the judge said:-

“There is a distinct statutory scheme for the principled and orderly approach to local authority housing, including local authority duties owed to those who are homeless. That distinct scheme is to be found in the Housing Act 1996, and there are boundaries between the statutory schemes (see too the Care Act 2014 section 23). It would undermine the integrity of a coherent statutory framework if CA 2014 became a 'back-door' route to claims based on accommodation needs, circumventing the scheme of HA 96 and jumping the homelessness queue.”

Mr Swirsky submits that the Appellant has never been assessed as having a care and support need for “accommodation plus”. Mr Campbell has a need for accommodation just like anyone else, but neither at the relevant time nor now does he need any particular kind of accommodation. His care needs could be met in any accommodation he was provided with. (In any event, as set out above, he is now residing in general accommodation provided to him under the 1996 Act.) He is not entitled to the provision of accommodation under the Care Act because he is eligible for housing under either Part VI or Part VII of the Housing Act. It would be unlawful for Ealing to provide him with accommodation under the 2014 Act by reason of s 23.