Accommodation for Asylum Seekers

October 31st, 2023 by James Goudie KC

R (SB) v NEWHAM LBC and SSHD (2023) EWHC 2701 (Admin) concerns the interaction between a local authority’s obligations under the Care Act 2014 (“CA 2014”) and the obligations of the Secretary of State for the Home Department (“SSHD”) under s.95 of the Immigration and Asylum Act 1999 (“IAA 1999”) in relation to the provision of accommodation to asylum seekers with eligible care needs.

CA 2014 is the applicable statutory scheme for the provision of social care for adults. Section 1 imposes on local authorities a general duty “in exercising a function” in relation to a person under the first part of CA 2014, to promote that person’s wellbeing. Section 1(2) defines a person’s wellbeing. Section 9 imposes a duty on a local authority to undertake a “needs assessment” where it appears to a local authority that an adult may have needs for care and support. In such circumstances, the authority must assess whether the adult does have such need 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 s.13(1), determine whether any of those needs meet the eligibility criteria identified in Regulations.

Section 18(1) provides that a local 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. However, the local authority is not required to meet any needs which are being met by a carer who is willing and able to do so. Section 20 creates a duty to meet a carer’s eligible need for support.

Section 24 sets out that the local authority must prepare a ‘care and support plan’. Section 25 provides that the care and support plan must set out what need are to be met and how the local authority is going to meet them. The local authority must involve the adult for whom it is being prepared and the carer of that adult in preparing a care and support plan. The plan must be proportionate to the need. It must be kept under review.

Section 19 provides the local authority with a power to meet an adult’s needs in circumstances where there is no established duty under s.18. In particular, under s.19(3) a local authority may meet an adult’s needs for care and support which appear to it to be urgent.

There is, specific provision at s.23 (headed “exception for the provision of housing etc”) to the effect that an authority: “may not meet needs under sections 18-20 by doing anything which it or another local authority is required to do under (a) the Housing Act 1996.” Section 21 provides that a local authority may not meet the needs for care and support of an adult to whom s.115 of the IAA 1999 (exclusion from benefits) applies and whose needs for care and support have arisen solely (a) because the adult is destitute, or (b) because of the physical effects, or anticipated physical effects of being destitute. The effect of s.21 and 23 is central to the present case.

The first ground of challenge was that the Council erred in relying on the availability of asylum support under s.95 of the IAA 1999. The Judge said that it was clear that the role of the local authority under the CA 2014 is to address the issue of whether there are eligible needs for care and support which are accommodation related. It should do so focussing on the Claimant’s wellbeing, individual circumstances and eligible needs for care and support without reference to the SSHD’s residual powers. By contrast, in this case the Council relied on the availability of accommodation from the SSHD without lawfully addressing the prior issue of whether the First Claimant had accommodation-related eligible needs for care and support. Applying the legal framework described above to the Council’s decision, it was clear that the Council misdirected itself by treating the availability of accommodation under s.95 of the IAA 1999 as the answer to the request which the Claimants made to meet (what they asserted were) the First Claimant’s accommodation related eligible needs for care and support. It would have been open to the Council to engage with the premise of that contention and decide for itself whether the Claimants had accommodation related needs for care and support (applying the correct legal approach). It did not do so. For these reasons, ground 1 succeeded.

As to the second ground of challenge, the Council did not address the right legal question in considering whether there were accommodation related needs for care and support. The test focusses on whether the care and support is provided in the home or whether it would be rendered ineffective if the Claimant had no home. The Council did not grapple with this question.

It is also clear from the established caselaw that the accommodation need does not have to be met in a specialist institution or be of a specialised nature. In focussing only on the fact that the First Claimant did not require specialist accommodation, the Council took an unduly narrow (erroneous) approach.

The Council misdirected itself in concluding that, as the First Claimant did not require any specialist accommodation, he did not have any accommodation related needs for care and support. That is not the correct approach. Ground 2 therefore succeeded.

Ground 3 focussed on the Council’s reliance on s.23 of the CA 2014. This was erroneous, because the First and Second Claimant had no recourse to the provisions of the Housing Act 1996. Section 23 of the CA 2014 did not apply in the circumstances of this case. This mistaken legal analysis was a material part of the Council decision. Ground 3 therefore also succeeded.

The Council contended that the Claimants had an alternative remedy which is that they could obtain accommodation from the SSHD. The Council relied on the fact that the Claimants had not applied to the SSHD for support as a reason for refusing this judicial review claim. The Judge rejected that contention. The whole essence of the analysis was that CA 2014 imposed a distinct duty on the local authorities to meet eligible needs for care and support and these should be considered separately from and prior to the application of the last resort provisions under IAA 1999. The
provisions have a different focus. The SSHD’s duty under s.95 of the IAA 1999 is a recourse of last resort.

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