Aburas, R. (on the application of) v London Borough of Southwark

The essence of Ms Mallick’s argument was that, linked to but wider than being destitute and in need of accommodation and subsistence, Mr Aburas has a ‘looked-after need’ of support by a social worker to access food and medication, which support requires for its effective delivery the provision of accommodation, refusing which supported accommodation has consequences so serious as to breach Mr Aburas’s Convention rights.

The essence of Ms Rowlands’ defence of the claim was that, even if (which is not accepted) Mr Aburas is destitute and in need of accommodation and subsistence, it is to the Home Secretary through Asylum Support that he must look for human rights-compatible action, Southwark having lawfully discharged its statutory ‘looked-after needs’ functions under CA14 read with HRA98.

Mr Aburas is aged 58. He is an apparently stateless Palestinian who came to the United Kingdom from Kuwait, arriving in 1996. He has mental health issues and has been diagnosed with bi-polar disorder and depression. He is a failed asylum-seeker without regular immigration status. He is a person in the category ‘no recourse to public funds’. He is a ‘person subject to immigration control’ for the purposes of CA14 section 21. He is present in the United Kingdom as a ‘person in breach of immigration control’ for the purposes of Schedule 3 paragraphs 1 and 7(1)(a) to the Nationality Immigration and Asylum Act 2002 (NIAA02). He faces barriers to a proposed removal to Kuwait.

Southwark’s acceptance that Mr Aburas is a person facing barriers to removal has the consequences that removal is not the human rights solution; nor is it the human rights problem. As to the human rights solution, Mr Aburas’s needs for care and support cannot be said to be met by his going to Kuwait and being looked-after there. In some cases that can be an answer to human rights arguments: see R (AR) v London Borough of Hammersmith and Fulham [2018] EWHC 3453 (Admin) at §42. As to the human rights problem, no issues as to the human rights-compatibility of the act and implications of removal from the United Kingdom arise for consideration, as they do in some cases. These consequences explain why various human rights topics relating to the human rights implications of removal appeared in Southwark’s Assessment document and why they were filled in as ‘not-applicable’.

Mr Peter Bondzie is a social worker employed by Southwark who has dealt with Mr Aburas’s case. Mr Bondzie issued a No Recourse to Public Funds Adults Assessment on 14 January 2019, which Mr Bondzie then revised on 4 February 2019, within which a Manager review was added by Mr Jermine Nuby on 6 February 2019. It was common ground that the original assessment, the revisions and the review together and as a whole constitute the relevant CA14 section 9 needs assessment (the Assessment). The Assessment was a negative one: Southwark decided that there were no relevant needs for care and support and that no action was needed.

Mr Brian Dikoff is the Legal Organiser at the non-governmental organisation Migrants Organise (MO). It was Mr Dikoff who had referred Mr Aburas’s case to Southwark. MO works primarily with vulnerable migrants and refugees, typically those with ongoing mental health issues. Mr Aburas had been referred to MO in June 2018, as a person without regular immigration status and who was homeless. Initially, MO had referred Mr Aburas to homelessness charities and charities who could arrange private hosting (short-term stays in spare bedrooms), to the Waterloo Multi-Ethnic Counselling Service, to a GP, and to its own weekly counselling sessions. Such were the concerns about Mr Aburas by the autumn of 2018 that Mr Dikoff became involved and made a referral to Southwark’s Adult Social Care Team, requesting a CA14 assessment of care and support needs.

Central to MO’s concerns about Mr Aburas’s need for a proper assessment as to care and support in relation to ‘looked-after needs’ were issues regarding Mr Aburas’s vulnerability, physical and mental health conditions, a lack of insight and uncomplaining nature, problems with not taking medication linked to a lack of support, not eating and not being able to take medication on an empty stomach. What MO has consistently said is Mr Aburas is someone needing care and support, which care and support would for effective delivery require accommodation. I read and heard submissions on the evidence before the Court relating to these and other concerns about Mr Aburas and his well-being.

So it was that Southwark received a reasoned written referral from MO on 9 November 2018. Mr Bondzie then conducted a two-hour meeting with Mr Aburas on 14 January 2019, which meeting was also attended by Mr Dikoff who followed up the same day with an email containing matters he wished to bring to Mr Bondzie’s attention. On 24 January 2019 Mr Dikoff provided detailed written representations. It was on receipt of those representations that the Assessment included the revisions dated 4 February 2019. For transparency, the Assessment was written up in a way which showed what text had been added by those revisions.

The Assessment recorded and was reasoned on the basis that Mr Aburas is “a current asylum seeker”. That would have meant that the Home Secretary has the function through Asylum Support of providing appropriate accommodation and subsistence support in accordance with IAA99 section 95, including a duty to do so in order to secure compatibility with Convention rights to protect against destitution. The position for Mr Aburas, as explained by Ms Mallick in her skeleton argument, accepted by Ms Rowlands in post-hearing submissions, is that Mr Aburas is a failed-asylum seeker. That would mean that the Home Secretary had the statutory function through Asylum Support of providing appropriate accommodation and subsistence support in accordance with IAA99 section 4 (which Ms Mallick’s post-hearing submissions told me has been replaced by equivalent provision under Immigration Act 2016 Schedule 10 paragraph 9), including a duty to do so in order to secure compatibility with Convention rights to protect against destitution. Nobody submitted that the difference between current and failed asylum-seeker was material in this case and, ultimately, it was accepted that Mr Aburas is a failed asylum-seeker. It was common ground that Mr Aburas has in the past been accommodated by the Home Office under section 4 of IAA99. It was also accepted that, in principle, he would stand to be so accommodated again if he approached the Home Office and if he met the relevant test as to accommodation and subsistence support were met.

Southwark considered that the availability of human rights-compatible protection in relation to destitution from the Home Office provided the answer in this case, so far as accommodation and subsistence is concerned. The Assessment said this:

“The council believes that Mr Aburas is able to make representation to Asylum Support for support with accommodation and subsistence … This would meet his current needs around accommodation and subsistence.”

Ms Mallick accepted that this would be the legally legitimate answer, if this case were solely about accommodation and subsistence needs and about protection from destitution. Her case is that none of this is an answer if this case is more than that, because Mr Aburas (a) has a ‘looked-after need’ for social worker support (b) whose effective delivery requires accommodation (c) the denial of which has such serious consequences as to breach his Convention rights.

The Assessment addressed Mr Aburas’s current situation, background and health issues. It set out functional assessments, by reference to headings reflecting the criteria for ‘eligible needs’ under the legislative scheme. It then addressed risks, as to homelessness, mental health issues and malnutrition. A ‘human rights’ section, concerned with the question of immigration removal and its human rights implications, recorded that there were barriers to return. There was an eligibility determination by reference to wellbeing criteria, followed by a summary of well-being. The outcome was that there was no relevant ‘looked-after need’, the Assessment concluding as follows: “The council does not believe that Mr Aburas has eligible needs under its duties of the Care Act 2014 nor non-eligible needs that require the Council to use its powers under the Care Act 2014.”

Convention rights, it being agreed that this is the sole issue for which permission for judicial review was granted and the sole issue for me to decide. The case therefore proceeded on the footing that, leaving aside compatibility with Convention rights, the Assessment was a valid and lawful CA14 needs assessment applying the CA14 criteria. The case also proceeded on the basis, in circumstances where the Home Secretary was not a party to these proceedings and no refusal by Asylum Support is before the Court, I am not deciding whether Asylum Support would owe Mr Aburas a duty to provide accommodation and subsistence on grounds of destitution. There may well be such a duty, especially as winter approaches.

It was Lady Hale who explained the ‘looked-after needs’ point in R (M) v Slough Borough Council [2008] UKHL 52 [2008] 1 WLR 1808 at §33:

“… 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. ”

Parliament made clear (CA14 section 8(1)) that ‘looked-after needs’ may come to be met by the provision by the local authority of accommodation in a care home, or accommodation of some other type. Parliament also recognised (CA14 section 21) that ‘looked-after needs’ could, in principle, arise out of destitution or the effects of destitution. It is well-established that the need for accommodation is not a “need for care and support” for the purposes of CA14: see R (GS) v Camden London Borough Council [2016] EWHC 1762 (Admin) [2017] PTSR 140 at §29; R (AR) v London Borough of Hammersmith

Counsel were agreed as to when it is, in essence, that accommodation comes to be appropriately provided pursuant to CA14. They agreed that this is so where the person has a ‘looked-after need’ of care and support whose effective delivery requires accommodation. Ms Mallick described that situation, where accommodation is required to deliver effective care and support for a ‘lookedafter need’, as ‘accommodation-plus’. In that language the ‘plus’ constitutes specific action addressing the ‘looked-after need’ for care and support, and the ‘accommodation’ is required for its effective delivery. That language is not in my judgment inapt, provided that it is remembered that the ‘plus’ is what matters in leading to the ‘accommodation’. The ‘plus’ is not an incidental extra; it is a necessary prism.

This analysis was accepted and this is how the case was argued before me. It follows that what CA14 is not concerned to do is to deal, in any other or more general way, with accommodation or with accommodation needs. To take a practical example from the cases cited to me, I mention R (Bernard) v Enfield London Borough Council [2002] EWHC 2282 (Admin) [2003] HLR 27, decided on equivalent predecessor legislation. In that case the care needs were those of Mrs Bernard, a person with severe disabilities. Addressing those needs gave rise to a statutory duty (under the equivalent legislation) to provide suitably-adapted accommodation (see §10), whose denial was a breach of Mrs Bernard’s Convention rights (at §33).

Maintaining a disciplined focus on ‘looked-after needs’ makes sense. 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 (HA96), and there are boundaries between the statutory schemes (see too CA14 section 23). It would undermine the integrity of a coherent statutory framework if CA14 became a ‘back-door’ route to claims based on accommodation needs, circumventing the scheme of HA96 and jumping the homelessness queue. As Lady Hale said of the predecessor legislation in the M

“Section 9 of the Care Act 2014provides that, where it appears to a local authority that an adult may have needs for care and support, the authority must assess whether the adult does have such needs and, if so, what they are. If the authority is satisfied on the basis of a needs assessment that an adult has such needs it must, under section 13(1), determine whether any of those needs meet the eligibility criteria in accordance with the Care and Support (Eligibility Criteria) Regulations 2015. ”

Regulation 2 of the 2015 Regulations provides that an adult's needs meet the eligibility criteria if: (a) they arise from or are related to a physical or mental impairment or illness; (b) as a result of their needs the adult is unable to achieve two or more of the specified outcomes; and (c) as a consequence there is, or is likely to be, a significant impact on the adult's well-being. The outcomes are:

managing and maintaining nutrition;

maintaining personal hygiene;

managing toilet needs;

being appropriately clothed;

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

maintaining a habitable home environment;

developing and maintaining family or other personal relationships;

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

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

facilities or services; and

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

Section 18(1)of the Act provides that an 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. If the authority is not required to meet needs under section 18(1),section 19(1)provides that it may meet such an adult's needs for care and support.

There is a first stage at which the local authority must ask itself whether the adult “may have needs for care and support” (section 9(1)), regardless of the authority’s view of the level of those needs or the adult’s financial means (section 9(3)). Where that threshold test is satisfied, the needs assessment duty is triggered.

At the assessment stage the authority is must assess whether, and if so what, needs the adult has (section 9(1)), arriving at a determination on (a) whether the adult has needs for support and if so (b) whether they are eligible needs for support (section 13(1). Detailed provisions apply to the assessment and how it is approached. They include the duty to assess: (i) how any care and support needs impact on nine statutorily-specified ‘well-being’ matters (section 9(4)(a) and section 1(2)); and (ii) whether and how provision of care and support could contribute to the adult’s desired day-to-day living outcomes (section 9(4)(b) and (c)).

The question whether needs for care and support are “eligible” needs for care and support is answered by applying eligibility criteria specified in regulations made by the Secretary of State (section 13(7)(8) and section 125). The eligibility criteria are set out in the Care and Support (Eligibility Criteria) Regulations 2015, under which eligible care and support needs are those (a) from physical or mental impairment or illness (b) which render unachievable two or more of ten statutory-specified outcomes (c) producing a significant well-being impact.

There is then a stage regarding the meeting of needs. As I have explained, a determination that there are “eligible” care and support needs triggers a statutory duty to meet those needs (CA14 section 18(1)); a determination that there are “non-eligible” care and support needs triggers the statutory power to meet those needs (CA14 section 19(1)).

In principle, there could be a case with the following features: (1) the individual has a ‘looked-after need’ for care and support; (2) applying the prescribed statutory criteria under the primary and secondary legislation there is no ‘eligible’ need attracting a section 18(1) duty; (3) the denial of care and support in respect of the ‘looked-after need’ would, nevertheless, be incompatible with a Convention right. This could be, for example, where the needs do not relate to a prescribed specified outcome (regulation 2(2)), or where they leave the person seriously unable to achieve one but not two of those outcomes (regulation 2(1)(b)). Whether, based on Convention rights, there was a human rights duty to provide for the ‘looked-after need’ would depend on applying the relevant standards found in the human rights case-law.

If such a case arose, the answer is supplied by section 19 of CA14, which confers a statutory power to provide for a ‘non-eligible need’. The local authority could not in such a case refuse to exercise that statutory power, because it would thereby be breaching the statutory duty imposed on it as a public authority under HRA98 section 6. Put another way, section 19 is read as imposing a duty in such a case in order to secure a Convention rightscompatible interpretation of CA14, in accordance with HRA98 section 3.

This analysis of the inter-relationship between what Parliament said in CA14 and HRA98 has a number of virtues. In the first place, in retaining the necessary focus on ‘looked-after needs’, it respects the clear design of CA14, while securing that Convention rights which arise in respect of ‘looked-after needs’ are complied with in the application of CA14. It avoids HRA98 subverting the clear boundaries of the relevant statutory schemes. For example, it leaves the HRA98-compliant operation of homelessness decision-making to the discharge of HA98 functions. For another example, it leaves the HRA98compliant operation of destitution and subsistence decision-making in the case of failed asylum-seekers to the Home Secretary, as pursuant to IAA99 section

Secondly, it is supported by what Parliament did in making the provision in Schedule 3 paragraph 3 to NIAA02. That provision speaks, in the context of a series of statutes which include CA14, of human rights compatibility being secured through either the exercise of a statutory duty or “the exercise of a power”. The relevant “power” under CA14 is section 19.

Thirdly, a person who is in the United Kingdom in breach of immigration control can rely on Schedule 3 paragraph 3 to invoke Convention rights in the context of ‘looked-after needs’. That achieves parity, so far as Convention rights are concerned, with the position of any United Kingdom national or person with regularised immigration status. Everyone can invoke Convention rights in the context of CA14.

Finally, this approach also means that the legislative criteria for ‘eligible’ needs (section 18) retain their ordinary meaning and application. If respect for Convention rights requires action, beyond that ordinary meaning and application of eligibility criteria, this is achieved through section 19.

In the case of a ‘person subject to immigration control’ whose needs have arisen solely from destitution or solely from the actual or anticipated physical effects of destitution the authority is statutorily prohibited from performing its statutory duty to meet eligible care and support needs, and from performing its statutory duty to meet non-eligible care and support needs (CA14 section 21). The legislation includes no express Convention rights proviso for this situation. That indicates that Parliament proceeded on the basis that the Home Secretary’s functions, such as those which for which provision was made in IAA99 sections 4 and 95, would cater for Convention rights in these destitution-based cases.

A ‘person present in breach of immigration control’ is barred on grounds of statutory ineligibility from receiving any support or assistance under Part I of CA14 (NIAA02 Schedule 3 paragraphs 1(1)(n) and 7), as is a failed asylumseeker (paragraph 6). However, here there is an express human rights proviso. Schedule 3 paragraph 3 (to which I have referred above) operates so that the bar is disapplied in any case where the performance of a statutory duty or the exercise of a statutory power is necessary to avoid a Convention rights breach. This is the statutory human-rights compliant route relied on by Ms Mallick in this case as being applicable to Mr Aburas as a ‘person present in breach of immigration control’, albeit that he is a failed asylum-seeker.

Ms Mallick and Ms Rowlands agreed that the relevant standards were to be found encapsulated in a passage in the judgment of Deputy High Court Judge Peter Marquand in R (GS) v Camden London Borough Council [2016] EWHC 1762 (Admin) [2017] PTSR 140 at §§64-70. From that passage I have extracted the following:

“… In Limbuela's case [2006] 1 AC 396, paras 7–8, Lord Bingham of Cornhill reviewed the principles of article 3 … “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 … 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 [an individual] 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… When does the … duty … 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 of Richmond, at para 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's case [2004] QB 1124, para 43, 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 (Lord Woolf CJ, Lord Phillips of Worth Matravers MR and Auld LJ) stated: “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 …”

Counsel invited me to follow this same guidance, and I am content to do so. I do so having in mind that GS was a case which, although it arose out of a

Having said that, I agree that authoritative guidance as to the relevant level of severity of the implications for the individual can be discerned from the passages citing Limbuela and Anufrijeva. No alternative line of authority was cited to me and no alternative formulation of relevant standards was contended for. The observations in Limbuela can, in my judgment, aptly inform the ‘looked-after needs’ context, if that context is borne in mind. It can be asked, of the relevant ‘looked-after need’, whether the claimant is an individual “with no means and no alternative sources of support, unable to support himself

Aburas “need[s] help to access medical treatment” as a result of which (together with other concerns) “I think that he needs accommodation with the social services support”. In a witness statement from a friend Ms Sara El Sheekh dated 30 July 2019 I am told: “[Mr Aburas] requires someone to help him access medical care and mental health workers. He will not do this himself, he needs pushing to do it. He will also not eat unless he is pushed into doing so…” She concludes: “[He] would benefit from being in one place where he can have the support of a social worker checking up on him, to ensure that he is meeting his care needs, attending the doctor to access treatment, medication etc”. Mr Dikoff’s witness statement describes Mr Aburas as failing to take hismedication and attributing this to his homelessness and, when he has not accessed food, because he cannot take the medication on an empty stomach.

Mr Dikoff tells me “In this case, [Mr Aburas] required a floating social worker or social worker to drop in on him to check that he was accessing his medication and necessary medical assistance, etc”. I do not doubt the genuineness of all of these concerns, nor the views expressed. But they could not, in my judgment, suffice even if they stood alone, which they do not.

In a case where there is said to be a ‘looked-after need’, as was squarely the focus of this case, section 1 of the 2011 Act is not needed. The power under CA14 section 19, read and applied compatibly with HRA98, provides the solution. That solution extends to the provision of accommodation, where delivery of the care and support for the ‘looked after need’ requires accommodation.

If there is no ‘looked-after need’, but if the need is for accommodation, then the provisions of CA14 cannot apply at all, for there is no “need for care and support”: GS at §29 and AR at §18. That is not this case, for Ms Mallick is not contending for a need for accommodation. She expressly accepted that this was not open to her. She is contending for a ‘looked-after need’. As I read GS, the Judge there treated the need as being for accommodation alone (§49), which he held was required to be provided under section 1 of the 2011 Act (§78). As I read AR, the Judge there concluded that the 2011 Act could not be invoked in respect of accommodation needs (§§29, 43), having regard in particular to HA96 section 185 and relevant case-law. The Judge in AR went on to explain why there was in any event – “even if” the 2011 Act had been available to meet an accommodation need – no breach of Convention rights in refusing accommodation (§§31, 41). I was not shown any convincing reason why the analysis in AR at §29 was wrong, in doubting GS. If this case had been put forward as an accommodation need case, invoking the 2011 Act, I would have followed AR and rejected such a claim.

I am conscious that the 2011 Act is one statute within a long list of provisions included within NIAA02 Schedule 3 paragraph 3, which can be relevant to secure Convention compatible action in the case of a person excluded under Schedule 3 paragraph 7. That can be seen to raise the question in what circumstances could the 2011 Act perform that human rights compliance function. It is not necessary or appropriate for me to resolve this point. I am not saying that the 2011 Act never has a role to play in securing Convention rights. Whether and when it has such a role will fall to be analysed as and when an appropriate case arises. It would, in my judgment, be a case concerning neither a need for accommodation, nor a ‘looked-after need’, but something else. As I have explained, this case was squarely one about a ‘looked-after need’ and falls to be analysed under CA14 read with HRA98.