30th July 2008

 

For a person to be in “need of care and attention” for the purposes of s.21(1)(a), National Assistance Act 1948, it is necessary for him to need “looking after”, which means doing something for a person which he cannot or should not be expected to do for himself (household tasks or personal care). This case finds that an HIV-positive asylum seeker was not entitled to residential accommodation under the Act.

 

National Assistance Act 1948

Local authorities are under a duty to make arrangements for the provision of residential accommodation for people over 18, who, because of their age, illness, disability or any other circumstances are “in need of care and attention which is not otherwise available to them” (s.21(1)(a), National Assistance Act 1948; DoH Circular No. LAC (93)(10) pp.1).

An asylum seeker may not be provided with residential accommodation under s.21(1)(a) if his need for care and attention arises solely from destitution or because of the physical  effects of his being destitute: s.21(1A).

 

Facts

M was a Zimbabwean asylum seeker who was HIV positive. He applied to the local authority for an assessment of his needs with a view to being accommodated under the National Assistance Act 1948. The authority concluded that he needed medication, which needed to be refrigerated, and had to see a doctor once every three months. 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.

The local authority therefore determined that he was not owed any duty under s.21(1)(a) because he had no current need for care and attention and were such need to arise later, the duty would be excluded by s. 21(1A).

M successfully challenged the decision by way of judicial review. The authority appealed to the Court of Appeal, who dismissed the appeal: [2006] EWCA Civ 655. It was held that the authority had construed “care and attention” too narrowly and it extended to the provision of shelter, warmth, food and other basic necessities. If the need was made

“more acute” by some other circumstances than mere lack of accommodation and funds, it did not arise “solely” from destitution and the authority were responsible.

 

The authority appealed to the House of Lords who unanimously allowed the appeal. Baroness Hales gave the leading judgment. The Committee held  that M’s medical condition and consequent requirements did not serve to bring him within the ambit of s.21(1)(a), National Assistance Act 1948. The Committee held that accommodation could be arranged under s.21(1)(a) without including either nursing or personal care and could be provided for the purpose of preventing illness as well as caring for those who are ill. However, a need for “care and attention” had to mean more than just a need for accommodation. Section 21(1)(a) was not a general power to provide housing. The provision

of housing was dealt with by other legislation entirely with its own criteria for eligibility.

 

The natural and ordinary meaning of the words “care and attention” in the context of the Act meant “looking after” which in turn meant doing something for the person being cared for which he cannot or should not be expected to do for himself, e.g. household tasks, personal care or protection from risk. The provision of medical care was expressly excluded Although M was HIV positive, his medical needs were being catered for by the NHS.


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