R (GS) v Camden LBC

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27th July 2016

GS was a Swiss national of Afghanistani origin, who was unlawfully in the UK. She asked to be accommodated by Camden Council under the Care Act 2014, which supersedes the National Assistance Act 1948 as a safety net, or otherwise under S1 of the Localism Act 2011 (general power of local authorities) This case looks at whether Camden's refusal to provide accommodation was in breach of Article 3 of the European Convention of Human Rights.

GS had physical and mental ill health. She came to the UK illegally in 2013, after having slept in Zurich airport for a protracted period, following a rape in her own accommodation. She 'lived' in Heathrow airport for 6 months, then was hospitalised. On discharge she was given a hostel place, and applied to Camden for housing. She applied under the provisions in the National Assistance Act 1948 S21 that deal with duties to provide accommodation. Camden initially found her to be inelligible, and offered financial help with a view to repatriating her to Switzerland. But the eligibility decision was reversed when it was agreed that her mental ill health rendered her unable to decide whether to return to Switzerland - so Camden accommodated her under S21.

In October 2015, however, she was reassessed under the new Care Act 2014. This assessment concluded that, although GS' needs related directly to physical or mental impairment, she was not eligible for care and support. Her needs did not meet the eligibility criteria enshrined in the Care and Support (Eligibility Criteria) Regulations 2015.

It had already been established that a need for accommodation in itself did not constitute a need for care and attention under the National Assistance Act 1948 (the forerunner of the Care Act). The House of Lords and Supreme Court found that there was only a duty to provide accommodation if the applicant had other care needs that could not be provided, other than in a residential setting (M v Slough BC UKHL 52 and R (SL) v Westminster CC UKSC 27). GS' argument, which failed, was that the Care Act 2014 used the wording 'care and support', whilst the National Assistance Act referred to 'care and attention', which meant that the two statutes were fundamentally different.

GS' other argument was Camden should have used its powers (rather than duties) under the Localism Act 2011 S1, in order to ensure that it did not fall fowl of Human Rights legislation, namely Article 3 (no one shall be subjected to torture or to inhuman or degrading treatment or punishment) and Article 8 (right to respect for private and family life). The judge found that the absence of accommodation itself did not mean that GS was subject to inhuman or degrading treatment, but in GS' case, because of her physical and mental state, homelessness was shown to exacerbate her condition, and result in suicidal thoughts.

Camden were therefore required to exercise their Localism Act powers.


 

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