R (SG) v London Borough of Haringey (decided in early August, as publicised by Community Care) (SO sorry for first saying it was Hackney! Am losing capacity from Care Act craziness….)
This case decided at least three important things:
- Absence of Independent funded Advocacy where the right has been triggered, or could not reasonably be denied to have been triggered, renders an assessment invalid (see earlier post);
- There is a legal need – at the care PLANNING stage under the Care Act – to consider (correctly, in terms of legal precedent) whether eligible needs are ‘accommodation-related’, in the case of someone who may be prohibited from such assistance by reason of immigration status;
- The old law on what constitutes ‘accommodation-related’ eligible needs, should be regarded as still correct, and should be followed on the same principles as before.
The claimant was an asylum seeker, both before and after the coming into force of the Care Act. By the time of the hearing, she had been granted asylum, but she challenged two decisions, one made in January 2015 and one made in May, ie one under the National Assistance Act and one made under the Care Act, that she had needs for care and attention (which counted as eligible needs under the Care Act) but was not entitled to accommodation through these social care functions.
An earlier post considers the significance of the advocacy part of the judgement but this posting analyses the harder part – the issue related to whether the woman needed to be provided with accommodation or just other non-accommodation services IN her NASS provided accommodation, whilst still an asylum seeker.
The judge declined to make a decision about the pre-Care Act January decision because as soon as a person has had a Care Act review, then they are to be provided for (if both eligible and owed a duty) under the latter Act, making looking back into the past generally a redundant exercise.
The post-Care Act May decision was firstly made on the basis that the claimant was not entitled to receive accommodation under the Care Act, because she had accommodation available to her (the NASS provided accommodation). The old law had always been that one had to ignore the accommodation provided by NASS when deciding whether care and attention was otherwise available under the NAA.
This judge held that that is STILL the law, under the Care Act. The council had conceded that point, however, at the hearing.
Haringey asserted that since this was a service provision dispute only the pre-action protocol at paragraph 3.1 suggested that there was an adequate remedy for this under the Council’s complaints procedure. The judge said that ‘in my view, it is not adequate to deal with contested interpretation of legislation’, which has always been the preferred analysis by public lawyers.
The contested issue
The claimant had a wide range of signficant inabilities under the eligibility criteria, and she had Care Programme Approach needs as well. Although they described her as not eligible, the council seemingly accepted a clear duty to provide services, both before and after the May decision, but not by way of accommodation through its new Care Act powers.
The meaning of NAA ‘care and attention’ (and what needed to be considered for people potentially prohibited from receiving services by reason of their immigration status unless not solely needy through destitution)
The old case law under the National Assistance Act was to the effect that the need for care and attention had to be at least accommodation-related – not just a need for a fridge, or other physical assistance, for instance. It did not mean that the care and attention could ONLY be the kind that could be provided by a specialist setting such as a care home. But the old case law established that a need for ‘care and attention’ simply had to mean something more than ‘accommodation’ – section 21(1)(a) was not ever intended as a general power to provide housing. The natural and ordinary meaning of the words ‘care and attention’ in this context was ‘looking after’, meaning doing something for the person being cared for which he could not or should not be expected to do for himself: it might be household tasks which an old person could no longer perform; it might be protection from risks which a mentally disabled person could not perceive; it might be personal care, such as feeding, washing or toileting…The input had at least to be care and attention of a sort which is normally provided in the home (whether ordinary or specialised) or would be effectively useless if the claimant had no home.
Having summarised the old law, the judge said these principles continued to apply under the Care Act, in his opinion:
(a) the services provided by the council must be accommodation-related for accommodation to be potentially a duty;
(b) in most cases the matter is best left to the good judgment and common sense of the local authority;
(c) “accommodation-related care and attention” means care and attention of a sort which is normally provided in the home or will be “effectively useless” if the claimant has no home.
The public law mistake
The real failure on the part of Haringey was that it failed to ask itself the right questions. The judge found no evidence at all that the defendant ever asked itself whether, even if the necessary services could have been provided in a non-home environment, they would have been rendered effectively useless if the claimant were homeless and sleeping on the street. “This is so despite the fact that it was acknowledged that it was “agreed that [the claimant] would benefit from some structured activities to minimise her PTSD symptoms but before that she needs help with the very basic practical support before she can be referred for more structured activities.” I thus think that the care plan has to be redone.”
So, this is the first care plan struck down for failing to consider all relevant considerations or for error of law, as well as having been derived from an invalid assessment for want of mandatory advocacy….
The judge quashed the council’s decision such that it would have to re-assess and re-care plan. But he gave his view that only two of the various services being given to the woman were accommodation-related. All the other council provided services were to do with learning support, counselling, advice, escorting, language support, and management of appointments. However, she was already being
- visited at home by an officer and her home environment was checked;
(b) assisted with domestic and practical tasks in the home by other women who lived there and by the officer;
Interestingly, notwithstanding those two aspects, the judge thought it could still be lawfully within the discretion of the local authority to decide that it was not appropriate to meet needs through the provision of accommodation.
He did not tell the council how to go about articulating that sort of conclusion, though!
The judge ordered Haringey to accommodate the woman in suitable accommodation at least until a number of days after a decision would be re-taken by the Haringey Vulnerable Adults team, in respect of the woman as a legitimate asylum grantee (the idea being that she would in all probability now be accommodated in supported living services because of her mental health needs).
This would be done under Housing functions under the 1985 or 1996 legislation, as a vulnerable adult, (if she had capacity to make an application for public housing), or through the power to provide accommodation, pending a concluded s9 assessment, under the Care Act.
Finally, the judge ordered Haringey to pay 75% of the claimant’s costs so the legal aid she had been funded through, was paid back, in large part.
The case of R (MT) v Oxford City Council  EWHC 795 has been decided this summer too, and establishes that an incapacitated person with a deputy CANNOT apply for public housing, and can ONLY rely on the social services function of provision of accommodation (ie via a placement, not a tenancy signed by the deputy).
We are not sure, but we think that this must be seen by housing policy makers, as a judgement which drives a coach and horses through joint working between housing and social services – eg in relation to very many severely cognitively impaired young people who have been decanted from NHS accommodation and who now HAVE deputies, or single orders from the Court of Protection with regard to the signing of tenancies in housing association accommodation, to which they were directed through housing legislation.
If a deputy can sign an ordinary tenancy outside of housing legislation nomination or introduction, and an incapacitated person can get housing benefit, based on the doctrine of necessaries, (Wychavon) it seems to me to be essential for maximisation of income and normalised lifestyles, and minimisation of expenditure through LOCAL authority funds, as opposed to Housing Benefit, that a deputy CAN make an application for public housing, as homeless or by way of joining the ordinary housing list. Yet the judge refused leave to appeal.
NB Belinda won’t be blogging at this length on every case under the Care Act, please note. These sorts of notes go into the free legal database on www.careandhealthlaw.com, but she was so ecstatic that there’d even been one, that she could not stop herself, just this once.