GS, R (On the Application Of) v London Borough of Camden (Rev 1)

This is a challenge by way of judicial review of the Defendant's decision of 26 October 2015. The Claimant is an adult and a Swiss National who suffers from physical and mental health problems and she challenges the Defendant's decision following an assessment under the Care Act 2014 that she did not have a need for care and support, in particular a need for accommodation. The Defendant's position is that the need for accommodation is not a need for care and support within the Care Act 2014 and that it has no power under statute to provide for such a need. In addition, the Defendant's position is that as a matter of fact the Claimant’s situation is one that does not put her at risk of a breach of her rights under the European Convention on Human Rights (the Convention).

Mr Burton represented the Claimant and Mr Parkhill the Defendant and I had the benefit of their written submissions, a lever arch file of evidence and 2 lever arch files of authorities. I have considered all materials, even though I may not mention all of them in this judgement. The Claimant has the benefit of an anonymity order and having issued proceedings started to receive the personal independence payment benefit. As a result Sir Stephen Silber permitted the Claimant to rely on amended statement of facts and grounds by order dated 16 December 2015.

The Claimant is 49 years old and she was born in Afghanistan. She has physical and mental health problems and is wheelchair dependent. She initially, with the assistance of United Nations, relocated to Iran and then to Switzerland in 1992 where she lived in Zurich and received accommodation and support from the Swiss authorities. The Claimant obtained Swiss citizenship in 2006.

In 2011 it seems the Claimant believed that she had been discriminated against, that she had been raped on two occasions and suffered other forms of adverse treatment. As a result she became voluntarily homeless and spent some time sleeping in Zurich airport. The Claimant arrived in the United Kingdom from Switzerland in June 2013 and lived in Heathrow airport for approximately 6 months. She was admitted to hospital suffering with mental health problems but subsequently, with assistance from her adoptive mother who lives in Canada, the Claimant moved into a hostel.

In July 2014 the Claimant received assistance from a charity and applied to the Defendant for temporary support and accommodation and this was agreed to in August 2014. During this period the Claimant was assessed by her general practitioner and the North Camden Crisis Team. On 12 September 2014, following an assessment by the Defendant, a decision was made that she was ineligible for support under section 21 of the National Assistance Act 1948. That Act is the predecessor to the Care Act 2014 and its relevance and the significance of the two Acts will become apparent further on in this Judgment. As a result of this conclusion the Claimant was offered money to return to Switzerland and required to leave her accommodation.

During 2014 the Claimant was assessed by a consultant psychiatrist, Dr Robertson, instructed by her solicitors and various reports were produced. The Claimant's own general practitioner and the mental health team from Camden and Islington NHS Foundation Trust assessed the Claimant as well as Dr Jeffreys, consultant psychiatrist and Rachel Duffield, social worker. The psychiatrists essentially agreed that the Claimant had a persistent delusional disorder of the paranoid type and a severe and enduring mental illness. They agreed that the Claimant did not have the mental capacity to decide whether to return to Switzerland or to consent to treatment for her mental disorder.

On 19 February 2015 the Claimant's solicitors sent a pre-action protocol letter to the Defendant seeking an assessment under section 21 of the National Assistance Act 1948. In March, the Defendant provided the Claimant with accommodation and support and in particular accepted her return to Switzerland was not available because of the Claimant's mental health condition. At the end of March the Claimant served a further pre-action protocol letter to the Defendant claiming that what was being provided was insufficient and in particular that the Claimant was in bed and breakfast accommodation, which was not wheelchair accessible. The Claimant's mental health deteriorated around this time and she was admitted as an emergency to Charing Cross Hospital 25th of March 2015.

At this point the Claimant wished to go to Canada to visit her adoptive mother and she was assisted by the Defendant to undertake this trip. The Claimant returned from Canada in July 2015 and booked herself into a backpackers’ hostel. The Defendant was asked to reassess the Claimant. Another pre-action protocol letter was sent to the Defendant on 30 July 2015 again saying that the accommodation was not suitable. Following a further assessment the Defendant moved the Claimant to a hotel in Hendon where she stayed until 16 October 2015 when she moved to an enablement flat. However the Defendant made it clear to the Claimant that she only had a licence to remain at the flat and was not a tenant.

In August the Claimant submitted a claim for the personal independence payment (PIP) to the Department of Work and Pensions, it having been refused initially March 2015 (the Claimant is not entitled to any other benefits because of her nationality, including housing benefit). Again the Claimant's mental and physical health deteriorated and she sought help from the mental health professionals in Camden.

On 23 October 2015, Mr Wright, social worker, conducted a needs assessment under the Care Act 2014 and that was provided to the Claimant on 26 October 2015. This communication represents the decision that is under challenge in this case. The outcome of that assessment was that the Claimant did not have any need for care and support within the meaning of the Care Act 2014.

The Claimant sent another pre-action protocol letter dated 3 November 2015 claiming that the assessment was unlawful and that her article 3 rights under the Convention would be breached in the absence of support. The Defendant responded on 10 November 2015 maintaining that its assessment was lawful. There was then further correspondence between the parties which essentially left the position unchanged.

The claim was issued on 2 December 2015 and on the same day interim relief was granted by Mr Justice Ouseley in the form of accommodation and a weekly subsistence payment. However, the Claimant was awarded PIP subsequently and as a result the Defendant agreed to continue to provide accommodation but ceased to provide the weekly subsistence payment. Amended grounds of challenge were ordered by Sir Stephen Silber, in light of this development.

Mr Burton stated that the money the Claimant receives is insufficient for her to secure accommodation and meet her needs. Therefore, it was necessary for the Defendant to provide assistance. The Claimant makes the following challenges to the decision of 26^th October 2015:

I will deal with these in detail below. It was not in dispute that the Claimant was in the United Kingdom lawfully and as a Swiss national she was to be considered legally as an EEA national. It was not in dispute that the Claimant could not be returned to Switzerland. In similar circumstances the Defendant would be able to discharge its obligations to a person from an EEA state by offering to pay for them to return to their country where they would then have the availability of support of their own state. However, that was not available because of the Claimant's mental condition. The Claimant was not entitled to any benefits in the United Kingdom apart from the PIP payment.

Before I turn to the individual Grounds I think it is helpful to deal with a central issue in this case which is whether a need for accommodation is capable of amounting to a “need for care and support” under the Care Act 2014. In essence, Mr Burton says it does and Mr Parkhill says it does not. It is necessary to set out the relevant extracts from the Care Act to deal with this issue.

I was referred to the general scheme of the Act, in particular section 1 the general duty to promote an individual’s well-being and section 2 aimed at preventing a need for care and support.

“Meeting needs for care etc

8 How to meet needs

(1)

The following are examples of what may be provided to meet needs under sections 18 to 20--

(a)

accommodation in a care home or in premises of some other type;

(b)

care and support at home or in the community;

(c)

counselling and other types of social work;

(d)

goods and facilities;

(e)

information, advice and advocacy.

….

Assessing needs

9 Assessment of an adult's needs for care and support

(1)

Where it appears to a local authority that an adult may have needs for care and support, the authority must assess--

(a)

whether the adult does have needs for care and support, and

(b)

if the adult does, what those needs are.

(2)

An assessment under subsection (1) is referred to in this Part as a "needs assessment".

…

13 The eligibility criteria

(1)

Where a local authority is satisfied on the basis of a needs or carer's assessment that an adult has needs for care and support or that a carer has needs for support, it must determine whether any of the needs meet the eligibility criteria (see subsection (7)).

(2)

Having made a determination under subsection (1), the local authority must give the adult concerned a written record of the determination and the reasons for it.

…

(6)

Regulations may make provision about the making of the determination under subsection (1).

(7)

Needs meet the eligibility criteria if--

(a)

they are of a description specified in regulations, or

(b)

they form part of a combination of needs of a description so specified.

(8)

The regulations may, in particular, describe needs by reference to--

(a)

the effect that the needs have on the adult concerned;

(b)

the adult's circumstances.”

The relevant regulations are the Care and Support (Eligibility Criteria) Regulations 2015/313. In particular Regulation 2 states:

“Needs which meet the eligibility criteria: adults who need care and support

(1)

An adult's needs meet the eligibility criteria if--

(a)

the adult's needs arise from or are related to a physical or mental impairment or illness;

(b)

as a result of the adult's needs the adult is unable to achieve two or more of the outcomes specified in paragraph (2); and

(c)

as a consequence there is, or is likely to be, a significant impact on the adult's well-being.

(2)

The specified outcomes are--

(a)

managing and maintaining nutrition;

(b)

maintaining personal hygiene;

(c)

managing toilet needs;

(d)

being appropriately clothed;

(e)

being able to make use of the adult's home safely;

(f)

maintaining a habitable home environment;

(g)

developing and maintaining family or other personal relationships;

(h)

accessing and engaging in work, training, education or volunteering;

(i)

making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and

(j)

carrying out any caring responsibilities the adult has for a child.

(3)

For the purposes of this regulation an adult is to be regarded as being unable to achieve an outcome if the adult--

(a)

is unable to achieve it without assistance;

(b)

is able to achieve it without assistance but doing so causes the adult significant pain, distress or anxiety;

(c)

is able to achieve it without assistance but doing so endangers or is likely to endanger the health or safety of the adult, or of others; or

(d)

is able to achieve it without assistance but takes significantly longer than would normally be expected.

(4)

Where the level of an adult's needs fluctuates, in determining whether the adult's needs meet the eligibility criteria, the local authority must take into account the adult's circumstances over such period as it considers necessary to establish accurately the adult's level of need.”

The duty and power under the care act are set out in paragraphs 18 and 19 as follows:

“Duties and powers to meet needs

18 Duty to meet needs for care and support

(1)

A local authority, having made a determination under section 13(1), must meet the adult's needs for care and support which meet the eligibility criteria if--

(a)

the adult is ordinarily resident in the authority's area or is present in its area but of no settled residence,

…

19 Power to meet needs for care and support

(1)

A local authority, having carried out a needs assessment and (if required to do so) a financial assessment, may meet an adult's needs for care and support if--

(a)

the adult is ordinarily resident in the authority's area or is present in its area but of no settled residence, and

(b)

the authority is satisfied that it is not required to meet the adult's needs under section 18.

…’

The way the Care Act works is as follows. Where it appears to a local authority that an adult may have need for care and support a care “needs assessment” must be carried out by the local authority under section 9. Having carried out that assessment, the local authority must go on to consider whether the assessed person has any eligible needs under section 13 and the Care and Support (Eligibility Criteria) Regulations 2015/313 (the ‘Eligibility Regulations’). If the person assessed has eligible needs, the local authority is under a duty to provide support by section 18. If the assessed needs are not eligible needs then the local authority has a power under section 19 to meet those needs. Section 8 contains examples of how the assessed needs may be met.

It is agreed between the parties that the effect of schedule 3 of the Nationality, Immigration and Asylum Act 2002, in particular paragraphs 1 (ka) and 5, is that the Claimant in this case is not eligible for support and assistance under Part 1 of the Care Act (which includes the relevant sections). However, those paragraphs do not prevent the exercise of a power or the performance of a duty if, and to the extent that, its exercise or performance is necessary for the purposes of avoiding a breach of a person’s rights under the Convention (paragraph 3 of schedule 3).

Mr Parkhill submits that based on the authorities arising out of the predecessor legislation to the Care Act 2014, namely the National Assistance Act 1948 in particular section 21(1), a need for accommodation alone is not a “need for care and support.” Mr Burton submits that the cases under the National Assistance Act are no longer relevant and that “care and support” has a different meaning to “care and attention”, which is the relevant phrase under the National Assistance Act. He says that the case R(SG) v London Borough of Haringey [2015] EWHC 2579 is wrongly decided and I do not have to follow it. The phrase used in the Care Act is broad enough to include a need for simple accommodation, was how the case for the Claimant was put. I was not referred to the explanatory notes or other materials to explain why the phrase may have been changed from the 1948 Act to the 2014 Act.

The relevant extract from s21(1) National Assistance Act states that a local authority may make arrangements for providing:

“..residential accommodation for persons aged 18 or over who are by reason of…disability, or any other circumstance are in need of care and attention which is not otherwise available to them.”

Various cases arose over whether this obliged local authorities to provide accommodation to people who were destitute, but otherwise without any infirmities. The House of Lords set out its conclusions in M v Slough [2008] UKHL 52 a case in which it was held that providing a fridge to an HIV positive man to keep his medication in was not care and attention. Baroness Hale’s judgment included the following:

“33.

.But "care and attention" must mean something more than "accommodation". Section 21(1)(a) is not a general power to provide housing. That is dealt with by other legislation entirely, with its own criteria for eligibility. If a simple need for housing, with or without the means of subsistence, were within section 21(1)(a), there would have been no need for the original section 21(1)(b). Furthermore, every homeless person who did not qualify for housing under the Housing Act 1996 would be able to turn to the local social services authority instead. That was definitely not what Parliament intended in 1977. This view is consistent with Ex parte M, in which Lord Woolf emphasised, at p 20, that asylum seekers were not entitled merely because they lacked money or accommodation. I remain of the view which I expressed in Wahid [Wahid v London Borough of Tower Hamlets [2002] EWCA Civ 287], at para 32, that the natural and ordinary meaning of the words "care and attention" in this context is "looking after". Looking after means doing something for the person being cared for which he cannot or should not be expected to do for himself: it might be household tasks which an old person can no longer perform or can only perform with great difficulty; it might be protection from risks which a mentally disabled person cannot perceive; it might be personal care, such as feeding, washing or toileting. This is not an exhaustive list…. “

In the same case Lord Neuberger stated:

“56.

As for "care and attention", while again it is right to caution against the risks of reformulating the statutory language, it appears to me that Hale LJ was right to say that "in this context", the expression means "looking after" and that "ordinary housing is not in itself 'care and attention'" - see Wahid [2002] EWCA Civ 287; [2003] HLR 2, para 32. I do not consider that "care and attention" can extend to accommodation, food or money alone (or, indeed, together) without more. As a matter of ordinary language, "care and attention" does not, of itself, involve the mere provision of physical things, even things as important as a roof over one's head, cash, or sustenance. Of course, if a person has no home or money, or, even more, if he has no access to food, he may soon become in need of care and attention, but, as already explained, that is beside the point.”

In SG referred to above, John Bowers QC sitting as a Deputy High Court Judge analysed the case law arising from the National Assistance Act 1948, in particular M v Slough and SL v Westminster City Council [2013] UKSC 27 and whether the principles derived from them applied to the Care Act 2014. The case concerned the provision of accommodation to someone who, until shortly before the hearing, was an asylum seeker. The assessments have straddled the repeal and coming into force of the relevant parts of the two pieces of legislation. At paragraph 47 of the Judgment the Judge stated:

“I first reiterate that the authorities already considered stand for these propositions, which I think continue to apply under the Care Act:

(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.”

Mr Burton submitted that I did not have to follow SG because it had been wrongly decided. I was referred to R v Greater Manchester Coroner ex parte Tal [1985] QB 67 in which Goff LJ stated:

“If a judge of the High Court sits exercising the supervisory jurisdiction of the High Court and it is, in our judgement, claimed that the relevant principle of stare decisis is the principle applicable in the case of a judge of first instance exercising the jurisdiction of the High Court, viz, that he will follow a decision of another judge of first instance, unless he is convinced that judgement is wrong, as a matter of judicial comity;”

I am not convinced that the judgment in SG is wrong for the reasons that follow. Mr Burton also sought to distinguish the case from the one before me. However, I do not accept that there is any relevant distinction. Paragraph 13 of the judgment makes it clear that SG was about the local authority's refusal to provide accommodation under the National Assistance Act because she 'did not have the need for accommodation related care and attention' and under the Care Act that there was ‘no entitlement to having [her] needs met through the provision of accommodation’. This is the issue that is before me.

Furthermore, I am of the view that 'a need for care and support' does not include a need for accommodation for the following reasons:

I am therefore of the view that a 'need for care and support' does not include a need for accommodation alone. I agree with the conclusion reached in SG on the applicability of the authorities under the National Assistance Act 1948 in relation to the meaning of 'need for care and attention.' It excludes a need for accommodation alone and this applies to the phrase 'need for care and support,' as it appears in the Care Act 2014. Of course, 'need for care and support' is a different phrase and may mean something different to a ‘need for care and attention’, but in my judgement, it does not include a need for accommodation alone, for the reasons that I have given.

Various matters turn on this conclusion, which I will deal with when dealing with the individual grounds of challenge.

Mr Burton says that the Defendant did not record or consider the effect of the Claimant's mental health disorder when it made decisions about her needs. The assessor is said not to have acknowledged that her delusional beliefs, preventing her return to Switzerland, were the reason for her being at risk of being homeless and without finances. The assessment dated 23-10-2015 includes the following entries:

Mr Parkhill pointed out to me what Hallet LJ said in Ireneschild v Lambeth London Borough Council [2007] EWCA Civ 234at 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.”

Bearing this statement in mind, in my judgment, there was no error of law by Mr Wright, the social worker in this case, in considering the Claimant’s mental health disorder, as can be seen as a matter of fact from the extracts above. The impact on the Claimant in England and in Switzerland was reviewed and the extract in point (iii) above clearly relates an exacerbation of the disorder to a return to Switzerland, even though the issue may not have been exactly formulated as Mr Burton says it should have been.

As I have already indicated above, when conducting an assessment of whether needs meet the eligibility criteria the local authority must go through a three stage test (regulation 2 (1) (a – c)). The second limb of the test is whether, as a result of the adult's needs, he/she is unable to achieve two or more 'specified outcomes'. Regulation 2 (3) states:

“For the purposes of this regulation an adult is to be regarded as being unable to achieve an outcome if the adult--

is unable to achieve it without assistance;

…”

I was referred to the statutory guidance that was relevant at the time and in particular paragraph 6.105 onwards to paragraph 6.119. This part of the guidance amplifies the process under regulation 2. Mr Parkhill drew my attention in particular to paragraph 6.119 which is as follows:

“Considering needs met by carers in eligibility determinations

The eligibility determinations must be made based on the adult's needs and how these impact on their well-being. Authorities must only take consideration of whether the adult has a carer, or what needs may be met by a carer after the eligibility determination when a care and support plan is prepared. The determination must be based solely on the adult's needs and if the adult does have a carer, the care they are providing will be taken into account when considering whether the needs must be met.…”

Mr Burton's argument was that Mr Wright, the assessor, failed to disregard what the Defendant was already providing to the Claimant, namely accommodation and money. Mr Burton refers to this as 'support' in the detailed grounds and states that it is only this support that means she is able to maintain, for example, her personal care, cook and mobilise in her wheelchair. He states that the Claimant's need for accommodation is an eligible need because it meets the three limbed test that I have referred to above.

Mr Parkhill disagrees and submits that the statutory guidance (paragraph 6.102) emphasises that the adult's needs for care and support should be due to physical or mental impairment or illness and not caused by other circumstantial factors. He relies on paragraph 6.119, quoted above as making no reference to a need to disregard accommodation and on the decision in SG.

I note that regulation 2 (3) (a) uses the word ‘assistance’ which is part of the phrase in the National Assistance Act 1948 rather than the word ‘support’. I have already concluded that SG represents the law on the meaning of ‘care and support’ and I am of the view that there is no legal obligation to disregard accommodation when considering the application of the eligibility criteria. Where accommodation-related services are provided it is the services that are to be disregarded not the accommodation per se. I am also of the view that this is consistent with what the specified outcomes are seeking to identify. As I have already referred to above, in my judgement those outcomes are seeking to identify whether adults can undertake various activities, such as maintaining a habitable home environment (Regulation 2 (3) (f)) or ‘accessing and engaging in work, training, education or volunteering’ (Regulation 2 (3) (h)) rather than, using the same examples, the provision of accommodation or work. This reinforces my view that there is no obligation to disregard accommodation. Accordingly, I reject this ground of challenge.

Mr Burton submits that the assessor did not appear to have taken into account how much longer the Claimant needed to undertake certain tasks or the level of pain she experienced in doing so. For example washing, getting dressed and cleaning her home. He says the assessor should have questioned the Claimant about this. In particular he relies upon the earlier assessment from September 2014. He says it is unclear how the issues were approached or on what basis the assessor concluded differently between the 2 assessments. Mr Parkhill said those criticisms were without merit and in so far as the Claimant alleges irrationality it should be rejected.

The assessment dated 19 September 2014 includes the following:

The assessment dated 23rd of October 2015 includes the following:

There are other examples within these documents and I have considered all of them but I do not think it is necessary for me to set out every single one in order to show how I have reached my conclusion.

In addition my attention was drawn to an assessment carried out by the Department of Work and Pensions (DWP) in order to determine whether the Claimant was eligible for ‘PIP’. The letter confirming the outcome of the claim is dated 10 December 2015 and included within the bundle. It is not entirely clear to me whether the information provided to the DWP by the Claimant was through a self-assessment process or whether there was an actual interview. In any event I do not think that matters. The letter 10 December 2015 includes the following:

“You said you have difficulties with preparing food, washing and bathing, toilet needs or incontinence and dressing and undressing. I agree you have difficulties. You said you have difficulties with engaging with other people face-to-face. I have decided you can engage with other people unaided. The evidence indicates your medical conditions cause you substantial difficulties with moving around…”

The letter then goes on to detail certain activities and the associated outcomes and scoring that goes to determine whether or not the Claimant receives the benefit. I do not think it is necessary for me to set those out here, but I have read them.

In the Claimant's witness statement, when commenting upon her assessments 2015, she states:

“12… When I came from Canada in July 2015 Bill Wright came to see me at the hostel. He asked me if I was able to do such things as cleaning my house and I said yes. At the time I thought that if I said yes to everything then I would be less trouble for Camden and they might give me somewhere to live. I thought that if I sounded too dependent they would think I was too much trouble…

…

14… Mr Wright told me that he was carrying out the assessment and that he would ask me questions about my ability to live independently. I told Mr Wright that I have always lived independently, even in Switzerland. I have always tried to manage on my own and not depend on anyone. Even though I have significant physical disabilities, I can do most things on my own, such as washing and looking after myself. I know that it takes me a lot longer to do these things than other people, but I prefer to do these things myself, taking my own time.

15.

Mr Wright agreed with me that I am an independent person. He asked me about washing myself and I said I could do it. He did not ask me how I do it and how long it takes me to do it. When I take a shower, it takes about two hours from start to finish. It has taken me much longer and it is much slower because of the physical pain I have in my body and because depression makes me feel so exhausted. He did not ask me about how my pain slows me down. I told him that I can do everything and that is the truth, because I have always had to rely on myself and no one else.”

The statement continues to explain that the Claimant in fact has considerable difficulties in cleaning her accommodation and requires help with heavy shopping.

In reaching my conclusions on this ground, I have in mind the quotation from Ireneschildthat I have referred to above. It is clear from the Claimant’s evidence that it is not disputed that Mr Wright has correctly recorded what she told him. It also appears that the Claimant put forward a more positive picture of her abilities in July and it would seem by implication in October 2015 as well, than she now says is the case. Mr Burton says that Mr Wright should have asked questions to ascertain the ‘real’ position. However, I do not agree. The assessor took into account the information that he was given at the time of the assessment and the assessor has also recorded that he had taken into account the assessment from September 2014. The Claimant was trying to put forward a position of being ‘less trouble’ in any case. The DWP letter of 10 December does not help because this was not information available to Mr Wright at the time of his assessment. What the Claimant says now about her situation is also not relevant as it was not available to Mr Wright. 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. Mr Burton did not explicitly say that the assessment was ‘irrational’ but for the avoidance of doubt I do not think it can be considered to be irrational or perverse in light of the evidence. Therefore I reject this ground of challenge.

There are two aspects to this ground of challenge first, a challenge under the Care Act 2014 and secondly a challenge under section 1 of the Localism Act 2011. Mr Burton’s submissions are that the Defendant's decision is plainly wrong in law in its conclusion that there is no eligibility to services under the Care Act and therefore no question of avoiding a breach of Convention rights. He submits that the Defendant plainly has a power under section 1 of the Localism Act 2011. I shall deal first with the Care Act 2014.

In light of my conclusions on the needs assessment, the Defendant was right to conclude that the Claimant’s requirement was for accommodation alone, which is not a need for care and support. Both sections 18 and 19 of the Care Act refer to meeting an adult’s needs for care and support, subject to criteria on residency and cost, neither of which are relevant to this matter. Section 18 places a duty on the local authority and section 19 confers a power on the local authority. However, as I have already concluded above that a need for accommodation is not a need for care and support I reject this aspect of the ground challenge.

Section 24(2) of the Care Act provides that where a needs assessment has been carried out by a local authority, but there is no duty to meet needs under section 18 or it decides not to exercise its power under section 19 it must, amongst other matters, give help and advice on meeting or reducing needs. For the same reasons I have given above, I reject the challenge. In the absence of anything amounting to a need for care and support, there is no obligation on the Defendant under this section.

The relevant parts of the Act to which I was referred are sections 1 and 2. They are reproduced below.

“1 Local authority’s general power of competence

(1)

A local authority has power to do anything that individuals generally may do.

(2)

Subsection (1) applies to things that an individual may do even though they are in nature, extent or otherwise--

(a)

unlike anything the authority may do apart from subsection (1), or

(b)

unlike anything that other public bodies may do.

(3)

In this section "individual" means an individual with full capacity.

(4)

Where subsection (1) confers power on the authority to do something, it confers power (subject to sections 2 to 4) to do it in any way whatever, including--

(a)

power to do it anywhere in the United Kingdom or elsewhere,

(b)

power to do it for a commercial purpose or otherwise for a charge, or without charge, and

(c)

power to do it for, or otherwise than for, the benefit of the authority, its area or persons resident or present in its area.

(5)

The generality of the power conferred by subsection (1) (“the general power”) is not limited by the existence of any other power of the authority which (to any extent) overlaps the general power.

(6)

Any such other power is not limited by the existence of the general power (but see section 5(2)).

(7)

[not relevant]’

2 Boundaries of the general power

(1)

If exercise of a pre-commencement power of a local authority is subject to restrictions, those restrictions apply also to exercise of the general power so far as it is overlapped by the pre-commencement power.

(2)

The general power does not enable a local authority to do—

(a)

anything which the authority is unable to do by virtue of a pre-commencement limitation, or

(b)

anything which the authority is unable to do by virtue of a post-commencement limitation which is expressed to apply--

(i)

to the general power,

(ii)

to all of the authority's powers, or

(iii)

to all of the authority's powers but with exceptions that do not include the general power.

…

(4)

In this section—

‘post-commencement limitation’ means a prohibition, restriction or other limitation expressly imposed by a statutory provision that--

(a)

is contained in an Act passed after the end of the Session in which this Act is passed, or

(b)

is contained in an instrument made under an Act and comes into force on or after the commencement of section 1;

‘pre-commencement limitation’ means a prohibition, restriction or other limitation expressly imposed by a statutory provision that--

(a)

is contained in this Act, or in any other Act passed no later than the end of the Session in which this Act is passed, or

(b)

is contained in an instrument made under an Act and comes into force before the commencement of section 1;

‘pre-commencement power’ means power conferred by a statutory provision that--

(a)

is contained in this Act, or in any other Act passed no later than the end of the Session in which this Act is passed, or

(b)

is contained in an instrument made under an Act and comes into force before the commencement of section 1.”

It is agreed between the parties that the effect of schedule 3 of the Nationality, Immigration and Asylum Act 2002, in particular paragraphs 1 (ka) and 5 mean that the Claimant is not eligible for support or assistance under the Localism Act section 1. However, those paragraphs do not prevent the exercise of a power or the performance of a duty if, and to the extent that, its exercise or performance is necessary for the purposes of avoiding a breach of a person’s rights under the Convention (paragraph 3 of Schedule 3). The issues that therefore follow are:

The parties were agreed that the Care Act 2014, which came into force after the Localism Act 2011, does not contain within it a post-commencement limitation on the exercise of the section 1 power. Therefore the restrictions in section 2 (2) do not apply. I was not referred to any other pre-or post-commencement limitation that might affect the Localism Act in the circumstances of this Claimant.

However, Mr Parkhill’s submissions were that I should follow the decision in R (on the application of MK) v Barking and Dagenham London Borough Council [2003] EWHC 3486, which is a decision of Judge Bidder QC (sitting as a deputy High Court Judge). This case concerned a decision to refuse to provide the Claimant with accommodation and subsistence support. The Claimant came to the UK as a child and lived with her aunt and her aunt's children. At the time of the decision she was an adult and an over stayer with no leave to remain. One of the arguments was whether the local authority had an obligation to the family under section 17 of the Children Act and she should be given a licence to live with her Aunt and her children. The judge concluded that section 17 (3):

“was not intended by Parliament to allow local authority’s children's services department to bypass a clear statutory scheme intended to exclude Claimants such as this from a whole range of benefits including accommodation and cash support.”

The issue that arose under the Localism Act section 1 was whether the Children Act included a 'pre-commencement limitation'. It is important to note that the Children Act came into force before the Localism Act. The judge noted that the pre-commencement limitation was identical with the limitation included in the Local Government Act 2000, which is the predecessor to the Localism Act 2011 and referred to the case of R (Khan) the Oxfordshire County Council [2004] EWCA Civ 309.

Judge Bidder QC quotes from Lord Justice Dyson, as he then was, in Khan as follows:

“30.

It is common ground that there is a distinction between the definition of the scope of power and the imposition of a prohibition, restriction or limitation on the exercise of power… The definition of the scope of power by reference to particular criteria does not involve the imposition of a prohibition, restriction or limitation on the doing of an act in respect of the person outside the scope of the criteria. Rather, the fact that the authority cannot do the act in such circumstances reflects the fact that it has not been given the power to act, and not that it has been prohibited from doing so, or subjected to any limitation or restriction.”

At paragraph 80 Judge Bidder QC concludes:

“in my judgement, section 17 (3) does contain an express pre-commencement limitation, that is a restriction or limitation on its exercise, in that it must be provided with a view to safeguarding or promoting the welfare of a child in need.…”

At paragraph 81:

“That restriction, explicitly imposed by the wording of section 17 (3) equally prevents use of section 1 of the Localism Act being used instead. It is not a restriction in the scope of the power but a restriction on its exercise. Effectively, therefore, section 1 of the Localism Act adds nothing to section 17 (3) of the Children Act in this case.”

The Claimant's submissions went further claiming that the section 1 powers could be used because there was no prohibition under the National Assistance Act 1948, because the Claimant was not in need of care and attention (that arose out of the Khan case) and she was not caught by a prohibition in the Housing Act 1989. Judge Bidder QC rejected those submissions and said:

“the wider answer is that an individual is not able to provide part III Children Act services nor part VII Housing Act services nor public money which comprise the services and things which the Claimant is, in fact, seeking. Those functions may only be exercised by a local authority. Section 1 of the Localism Act is an enabling section which, for example, gives the local authority the power to enter into contracts or leases. It was not intended by Parliament as a means of overriding a clear statutory scheme prohibiting the provision of benefits of all kinds to those unlawfully in the UK.”

The Judge then referred to the words of Lord Justice Dyson from Khan at paragraph 43 namely: 'it is clear from section 3 (of the 2000 Act) that Parliament did not intend to override legislative schemes that already existed.'

Mr Burton has urged me to conclude that the MK case was wrongly decided and therefore I may form a different conclusion. However, whilst I do not agree with Mr Burton’s submission on that point I do agree with him that section 1 of the Localism Act is available to the Defendant in this case. The MK case related to a pre-commencement limitation and the circumstances that are before me are different. As noted above, in relation to a post commencement limitation, by virtue of regulation 2 (2) (b) the general power does not enable a local authority to do anything which is ‘expressed [my emphasis] to apply’ to the general power. That phrase 'expressed to apply' does not appear in the definition of a pre-commencement limitation in regulation 2 (1). As I have already stated, the parties have agreed there is no express limitation in the Care Act 2014. The difference in wording between pre-commencement and post-commencement limitations will be to preserve the effect of Khan but Parliament must have intended that any post-commencement limitation on the section 1 general power would be specifically stated. Furthermore, the effects of the paragraphs 3 and 5 in Schedule 3 of the Nationality, Immigration and Asylum Act 2002, in this case removing the bar on support or assistance under the Localism Act to avoid a breach of a person's Convention rights (as discussed above) would be unnecessary, if my conclusion was not correct. I do not believe that Judge Bidder QC’s reference to spending public money is to be read as a general prohibition on spending public money under section 1 of the Localism Act. The whole paragraph needs to be read in context, which is that it was not lawful to ‘get around’ pre-commencement limitations to provide what the Claimant was seeking in that case.

Section 1 of the Localism Act does give the local authority power to do anything that an individual generally may do and it may exercise that power in any way whatever including for the benefit of persons resident or present in its area (sections 1 (1) and 1(4)(c)). I therefore conclude that the Defendant in this case does have a power under section 1 of the Localism Act that it could, potentially, exercise in the Claimant's favour. It is therefore necessary to go on to consider whether the power has been converted into a duty and whether or not it is necessary to exercise that power or perform that duty to provide support and assistance for the purpose of avoiding a breach of the Claimant's Convention rights.

Mr Burton's submissions were that the Defendant was under a duty to prevent breaches of the Claimant’s article 3 and/or article 8 rights in the event that they did not provide support to her, notwithstanding the fact that she was now in receipt of the PIP as it was insufficient to provide her with accommodation and leave her enough money to deal with other expenses. Mr Parkhill for the Defendant accepted if its failure to act were to cause a breach of the Claimant’s Convention rights then it would have to act. However, he submitted, that there would not in fact be any breach of the Claimant’s Convention rights.

I was referred to a number of authorities but I think it is only necessary to refer to 2 in detail. First, Limbuela v Secretary of State for the Home Department [2005] UK HL 66 and secondly Anufrijeva v London Borough of Southwark [2003] EWCA Civ 1406.

Article 3 of the Convention is an absolute right and there can be no interference by the State. The text is as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 8 of the Convention is a qualified right and accordingly, in certain circumstances, set out in paragraph 2 of the Article, there may be an interference with it. The text is as follows:

“Right to respect for private and family life

1.

Everyone has the right to respect for his private and family life, his home and his correspondence.

2.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

In Limbuela, Lord Bingham reviewed the principles of article 3 at paragraphs 7 and 8:

“7.

May such treatment be inhuman or degrading? Section 55(5)(a) [of the Nationality, Immigration and Asylum Act 2002, the section under consideration in the case] assumes that it may, and that assumption is plainly correct. In Pretty v United Kingdom (2002) 35 EHRR 1, the European Court was addressing a case far removed on its facts from the present, but it took the opportunity in para 52 of its judgment (which Lord Hope has quoted, and which I need not repeat) to describe the general nature of treatment falling, otherwise than as torture or punishment, within article 3. That description is in close accord with the meaning one would naturally ascribe to the expression. 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 late 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. It is not necessary that treatment, to engage article 3, should merit the description used, in an immigration context, by Shakespeare and others in Sir Thomas More when they referred to ‘your mountainish inhumanity’.

8.

When does the Secretary of State’s duty under section 55(5)(a) arise? The answer must in my opinion be: 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.”

Baroness Hale, at paragraph 78, included the following when considering the degree of suffering prohibited by article 3:

“It might be possible to endure rooflessness for some time without degradation if one had enough to eat and somewhere to wash oneself and one’s clothing. It might be possible to endure cashlessness for some time if one had a roof and basic meals and hygiene facilities provided. But 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.”

In Anufrijeva which concerned allegations that there was a failure to take positive action to avoid breaches of article 8 rights by denying benefits to the Claimants. The Court of Appeal stated at paragraph 43:

“… We find it hard to conceive, however, of a situation in which the predicament of an individual will be such that Article 8 requires him to be provided with welfare support, where his predicament is not sufficiently severe to engage Article 3. Article 8 may more readily be engaged where a family unit is involved. Where the welfare of children is at stake, Article 8 may require the provision of welfare support in a manner which enables family life to continue…”

The burden of proving any breach of Convention rights rests on the Claimant (L v Manchester City Council [2001] EWHC admin 707) and the Defendant has to justify any interference with article 8. However, the Defendant in this case says there are no convention breaches and therefore no justification for any interference with article 8 is put forward. I should also consider all of the evidence before me and not just the material that was available to the decision-maker in October 2015.

Mr Burton submits that notwithstanding the fact that the Claimant is in receipt of PIP the Claimant's article 3 and article 8 rights will be interfered with because the amount of money provided by PIP is insufficient to provide her with suitable accommodation and enough money to deal with the basic necessities of life. Mr Parkhill submits that the Claimant's funds are sufficient to avoid any breaches of the Claimant's Convention rights. Before considering the evidence concerning the adequacy of the PIP payments it is necessary to set out some other facts so that the Claimant's whole situation can be taken into account.

In my view relevant evidence is as follows:

Turning then to the question of whether the Claimant could find accommodation on the basis of the PIP benefit that she is currently receiving the following evidence was before me. The Claimant's receives £112.20 per week amounting to an income of £486.20 per calendar month. The parties had 'traded' witness statements in order to assert and rebut their different contentions. Julie Cornes, the Claimant's solicitor produced statements dated 6^th January 2016, 18th of April 2016 and 25th of April 2016. Amie Brackfield, a paralegal assisting Ms Cornes produced a statement dated 5 February 2016. I had an undated statement from Mr Wright and a statement from Leslie Morson, an operations manager employed by the Defendant, dated 5 April 2016.

Mr Wright had identified nine properties that he said were available at a cost of around £200 per month. Miss Brackfield had researched these properties further and identified that some of the properties were not available but it seems the Defendant accepts that they had not taken into account the need to find a property that was suitable for someone with physical disabilities. Leslie Morson produced a more detailed statement asserting that he believed the Claimant could afford to spend up to £350 per month on accommodation, which would leave her with £34 per week for food and other essentials. Leslie Morson acknowledges that 'often, disabled people do face higher costs for certain things… However, I consider the cost of meeting the Claimant's basic needs… Will not be significantly greater'. Mr Burton pointed out that PIP is a benefit to help disabled people with additional costs. Leslie Morson also importantly included within the searches those properties that he believed would be suitable for someone such as the Claimant. In her third witness statement (the last one in the series provided by the parties) Ms Cornes reviews the identified properties and in essence identifies that each one is unsuitable for this Claimant because of various factors, either alone or in combination, which are:

From my review of this statement and exhibits that does indeed appear to be the case. I am not in a position to form a view about the availability of rental accommodation for disabled people in the market as a whole. However, I am satisfied that the Claimant has proved that it is likely that there is no accommodation available that is suitable for her within the price ranges put forward by the Defendant. As can be seen from the authorities referred to above, the lack of accommodation alone is not necessarily enough to result in a breach of article 3. However, I particularly have in mind the medical evidence is that the claimant is vulnerable and social stressors around accommodation and finances exacerbate her mental condition, including suicidal ideation. 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. In my judgement, this is ‘serious suffering’ and the Claimant gets over the high threshold in Limbuela and the treatment of her would be inhuman and degrading. In the absence of evidence of available and affordable accommodation, my view is that it would be an imminent breach if the current accommodation were to be withdrawn. There is no evidence of any other means of financial support apart from the PIP. The claimant might be able to put all the funds from PIP into accommodation but this would leave her unable to fund other necessities, much in the way described by Baroness Hale in paragraph 78 of Limbuela. I do not think in this case it is helpful to analyse article 8 on its own (family life is not relevant but I believe her private life would be), as Mr Burton encouraged me to do, because I think it is the totality of the Claimant's position that is important, in other words her social isolation and her accommodation issues in the context of her physical and mental health go to the breach of her Convention rights (as per Anufrijeva).

The Defendant has not considered the question of any potential breaches of the Claimant’s Convention rights because it did not believe it had any power to act. However, in this Judgment I set out why it does have the power to act. In fact as the Defendant accepts, it has a duty to act (by virtue of the effect of section 6 of the Human Rights Act in combination with the relevant paragraphs of schedule 3 of the Nationality, Immigration and Asylum Act 2002 referred to above) to the extent that it is necessary for the purpose of avoiding a breach of the Claimant Convention rights.

The Claimant had also raised issues about the Equality Act but this was not pursued in a great deal of detail and in light of my conclusions I do not think it is necessary to deal with it.

Accordingly, the Defendant’s decision not to exercise the power available to it under section 1 of the Localism Act was unlawful.