House of Lords

Published September 05, 2008

Regina (M) v Slough Borough Council

Before Lord Bingham of Cornhill, Lord Scott of Foscote, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury

Speeches July 30, 2008

A person’s need for a refrigerator in which to keep his medication was not sufficient to entitle him to residential accommodation.

The House of Lords allowed an appeal by Slough Borough Council from the Court of Appeal (Lord Justice Ward, Lord Justice Maurice Kay and Sir Peter Gibson) ([2007] LGR 225), which had affirmed the grant by Mr Justice Collins ([2004] LGR 657) of an application by M for judicial review of its decision that it owed him no duty under section 21(1)(a).

Section 21(1) of the National Assistance Act 1948, as amended by section 195(6) of, and paragraph 2(1) of Schedule 23 to the Local Government Act 1972, section 108(5) of, and paragraph 11(1) of Schedule 13 to the Children Act 1989 and section 42(1) of the National Health Service and Community Care Act 1990, provides: “a local authority ... shall, make arrangements for providing - (a) residential accommodation for persons ... who by reason of ... illness, disability or any other circumstance are in need of care and attention which is not otherwise available to them...”

Subsection (1A), as inserted by section 116 of the Immigration and Asylum Act 1999, provides: “A person to whom section 115 of the [1999 Act] (exclusion from benefits) applies may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely - (a) because he is destitute; or (b) because of the physical effects, or anticipated physical effects, of his being destitute.”

Subsection (8), as amended by section 66 of, paragraph 5(3) of Schedule 9 to and Schedule 10 to the 1990 Act, provides: “nothing in this section shall authorise or require a local authority to make any provision ... authorised or required to be provided under the National Health Service Act 1977”.

Mr John Howell, QC and Mr Kelvin Rutledge for the council; Mr David Pannick, QC and Mr Stephen Knafler for M.

LADY HALE said that M, a Zimbabwean, had arrived as a visitor in 2001 and been given six months’ leave to enter. He had remained after that leave had expired. In November 2002 he had been diagnosed HIV-positive. In 2003 he had applied to the council for an assessment of his needs.

It had concluded that he needed medication, which had to be kept refrigerated, and to see a doctor every three months. The National Health Service provided the medical checks and medication. Otherwise his illness did not affect him and he was able to look after himself. His only other need was for accommodation if he did not have it.

Accordingly, he was not currently owed any duty under section 21(1)(a) of the 1948 Act as being in need of care and attention which was not otherwise available to him because he had no such current need. If later such a duty might arise, it would be excluded by section 21(1A) because the need would arise solely from his destitution.

The judge had taken the view that the fact that medication and regular medication were required was sufficient to show a need for care and attention. That need arose from a combination of destitution and illness and not solely from destitution.

The Court of Appeal had held that care and attention could extend to the provision of shelter, warmth, food and other basic necessities. If the need was made more acute by some other circumstance than mere lack of accommodation and funds, it did not arise solely from destitution and the local authority was responsible.

In the meantime, the Secretary of State for the Home Department and the immigration appellate authorities had been seised of M’s claim that his rights under article 3 of the European Convention on Human Rights would be infringed if he were to be returned to Zimbabwe. It was understood that those proceedings were still continuing and for that reason M would be entitled to National Asylum and Support Service accommodation and support if the council was not obliged to accommodate him under section 21(1)(a).

It might appear that the case was part of the inverted and unseemly turf war between central and local government (J. A. Sweeney “The Human Rights of Failed Asylum Seekers in the United Kingdom” ([2008] PL 277, 285)), but although the secretary of state had intervened on a different issue in the Court of Appeal he had not intervened on the issues before the House of Lords.

The main issue was the precise meaning of “in need of care and attention which is not otherwise available to them”.

Mr Howell argued that M’s need for a fridge in which to keep his medication could not be described as a need for care and attention. “Care and attention” had to mean something more than “accommodation”. Section 21(1)(a) was not a general power to provide housing. That was dealt with by other legislation.

As her Ladyship had said in R (Wahid) v Tower Hamlets London Borough Council ([2003] HLR 13, paragraph 30), the natural and ordinary meaning of “care and attention” in the context was “looking after”, which meant doing something for the person being cared for that he could or should not be expected to do for himself.

There had to be a need for some care and attention for section 21(1)(a) to apply. But M’s medical needs were being catered for by the National Health Service. So even if they did amount to a “need for care and attention” he would not qualify: section 21(8). In her Ladyship’s view, however, they did not amount to such a need.

Lord Bingham and Lord Scott agreed with Lady Hale. Lord Brown and Lord Neuberger delivered opinions agreeing with Lady Hale.

Solicitors: Miss Dawn Pelle, Slough; Ms Kathy Meade, Hackney.

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