The High Court has decided that a local authority applied too high a threshold when deciding that an applicant for accommodation under section 21 of the National Assistance Act 1948 was not “in need of care and attention”. Moreover, it held that the authority’s refusal to provide section 21 accommodation breached the applicant’s rights under Article 3 of the ECHR, and was a disproportionate interference with his rights under Article 8 of the ECHR.
The Claimant was a Portugese national who was terminally ill with severe AIDS. He also suffered from depression and skin cancer. His life expectancy was less than a year. Upon carrying out a needs assessment, the authority nonetheless concluded that he was independent in all aspects of daily living and in areas where he experienced some difficulty, he could identify solutions. It therefore determined that he did not qualify for support under section 21. It also considered that non-provision of support would not breach his human rights, since he could return to Portugal and receive care services there.
Section 21
Lang J found that the authority’s conclusion that he was not “in need of care and attention”, and therefore did not fulfill the criteria in s.21(1)(a), was irrational (paragraphs 62, 67). She referred to the decision of the House of Lords in R (M) v Slough BC [2008] UKHL 52, [2008] 1 WLR 1808 that the threshold for fulfillment of the criteria in s.21(1)(a) is “relatively low”; “’in need of’ means more than merely ‘want’ but it falls far short of ‘cannot survive without’” (at paragraph 55 of M per Lord Neuberger).
· She found that the authority had erred by finding it a pre-requisite of eligibility under s.21(1)(a) that the person was “incapable” of performing a domestic task himself. Someone might be eligible under s.21(1)(a) even if he simply has “greatdifficulty” performing domestic tasks himself (paragraph 65).
· She rejected the authority’s argument based on fluctuation of the Claimant’s needs and the assertion that, when his needs were assessed, he was not in need of care and attention. She stated: “A fluctuating need does not necessarily take a person outside the scope of s.21(1)(a)… [I]t will be a question of fact in each case whether a person’s condition is such that he should be treated as ‘in need of care and attention’ even though the extent of his need for care and assistance fluctuates from time to time.” In the Claimant’s case, his ongoing and serious symptoms meant that the authority’s conclusion was irrational, albeit his needs did fluctuate (paragraphs 66 to 67).
· The authority’s use of Fair Access to Care Services criteria (criteria used for deciding on the provision of discretionary community care services) was inappropriate for assessing whether the Claimant was eligible under section 21(1)(a) (paragraph 68).
Human rights: standard of review
Pursuant to Schedule 3 of the National Asylum and Immigration Act 2002, the Claimant’s immigration status rendered him ineligible for support or assistance under section 21 save insofar as such support or assistance was necessary to avoid a breach of his Convention rights. Lang J rejected a submission by the authority that, in assessing whether there had been a breach of the Claimant’s human rights, the “traditional judicial review” standard of review applied; rather, it was for the Court to reach its own conclusion as to whether there had been a breach of the Claimant’s human rights, and for this purpose the Court was entitled to take into account evidence relating to the Claimant’s current medical condition, post-dating the authority’s decision (paragraphs 74 to 85).
Article 3
Lang J concluded that sending the Claimant to an undignified and distressing end in Portugal — the likely practical result of refusing him care services — would amount to “inhuman treatment”, so breach his Article 3 rights. A decision to remove an ill person to another country where he will receive inferior medical treatment may breach Article 3 only in “very exceptional cases” (N v UK App. No. 26565/05, ECtHR). Following D v UK (1997) 24 EHRR, Lang J held that this was a very exceptional case, because the Claimant was at the end of his life (paragraph 116); and, even though Portugal has a health and welfare system, the practical reality was that returning him to Portugal would have led to an undignified and distressing death, facing delay and difficulty in obtaining accommodation and benefits, and parted from his existing support network of friends and healthcare professionals (paragraphs 117, 122).
Article 8
It was common ground that refusal of assistance, which in practice meant that the Claimant would have to return to Portugal, would interfere with the Claimant’s Article 8 private life in the UK. Bearing in mind the relatively small cost saving to be gained from returning the Claimant to Portugal (the cost of caring for him in the UK was limited by his short life expectancy, and returning him to Portugal would itself involve various costs to the authority), Lang J found that the interference was not justified (paragraphs 136 to 141).