Looked-after needs

October 23rd, 2019

R (Aburas) v Southwark LBC (2019) EWHC Civ 2754 (Admin) was, as the Judge put it, a claim for judicial review is found on that part of the legal map where there is an intersection between (i) local authority functions of assessing and meeting adult needs for care and support under Part I of the Care Act 2014 (CA14) and (ii) human rights arguments invoking the Convention rights in Article 3 (protection from inhuman and degrading treatment) and Article 8 (right to respect for private and family life) of Schedule 1 to the Human Rights Act 1998 (HRA98).   The essence of the claimant’s argument was that, linked to but wider than being destitute and in need of accommodation and subsistence, he had a ‘looked-after need’ of support by a social worker to access food and medication, which support required for its effective delivery the provision of accommodation, refusing which supported accommodation had consequences so serious as to breach his Convention rights. The essence of the Council’s’ defence of the claim was that, even if (which was not accepted) the claimant was destitute and in need of accommodation and subsistence, it is to the Home Secretary through Asylum Support that he must look for human rights-compatible action, the Council having lawfully discharged its statutory ‘looked-after needs’ functions under CA14 read with HRA98.Turning to the statutory scheme as it affected the Council’s functions, the Judge described it by asking and answering some key questions, as follows:-

“5.       …  First, what are relevant needs for the purposes of CA14? The answer is that they are ‘looked-after needs’. CA14 is a statutory scheme for the assessing and meeting “needs for care and support”. These are in the nature of needs to be ‘looked-after’…

  1. Secondly, what is the relationship between CA14 and duties to provide accommodation? The answer is that the need for accommodation is not itself a ‘looked-after need’, but the provision of accommodation may be called for under CA14 so as to secure effective care and support for a ‘looked-after need’. In other words, accommodation may be assessed to be the necessary and appropriate conduit for the practical and effective delivery of care and support for the relevant ‘looked-after needs’. It is important to look at accommodation needs through that prism, for the purpose of the CA14 statutory functions. …
  2. Thirdly, what are “eligible needs” and “non-eligible needs”, to which the Assessment referred? The answer is that “eligible needs” are statutorily-prescribed and trigger a CA14 statutory duty, while “non-eligible needs” are a residual category which trigger a CA14 statutory power. The difference between these two categories of need engages an important structural point about CA14, highly relevant in securing Convention rights so far as ‘looked-after needs’ are concerned. Parliament made dual provision as to the care and support needs of a person who is “ordinarily resident in the authority’s area or present in its area but of no settled residence”. In such a case Parliament has imposed a statutory duty under CA14 section 18(1) and it has conferred a statutory power under CA14 section 19(2). The statutory duty (s.18(1)) is a duty to meet an adult’s eligible care and support needs (“needs for care and support which meet the eligibility criteria”); the statutory power (s.19(1)) is a power to meet non-eligible care and support needs (“needs for care and support”) being those not covered by the statutory duty but appropriately met by the local authority. It is ‘eligible’ care and support needs, triggering the section 18 duty, which are the subject of particular prescribed criteria. ‘Non-eligible’ care and support needs are the subject of a broad power, which brings flexibility and discretion.”

“9.       The essentials as to how CA14 is structured can I think be encapsulated as follows:

i) There is a first stage at which the local authority must ask itself whether the adult “may have needs for care and support” (section 9(1)), regardless of the authority’s view of the level of those needs or the adult’s financial means (section 9(3)). Where that threshold test is satisfied, the needs assessment duty is triggered.

ii) At the assessment stage the authority is must assess whether, and if so what, needs the adult has (section 9(1)), arriving at a determination on (a) whether the adult has needs for support and if so (b) whether they are eligible needs for support (section 13(1). Detailed provisions apply to the assessment and how it is approached. They include the duty to assess: (i) how any care and support needs impact on nine statutorily-specified ‘well-being’ matters (section 9(4)(a) and section 1(2)); and (ii) whether and how provision of care and support could contribute to the adult’s desired day-to-day living outcomes (section 9(4)(b) and (c)).

iii)       The question whether needs for care and support are “eligible” needs for care and support is answered by applying eligibility criteria specified in regulations made by the Secretary of State (section 13(7)(8) and section 125). The eligibility criteria are set out in the Care and Support (Eligibility Criteria) Regulations 2015, under which eligible care and support needs are those (a) from physical or mental impairment or illness (b) which render unachievable two or more of ten statutory-specified outcomes (c) producing a significant well-being impact.

iv) There is then a stage regarding the meeting of needs. As I have explained, a determination that there are “eligible” care and support needs triggers a statutory duty to meet those needs (CA14 section 18(1)); a determination that there are “non-eligible” care and support needs triggers the statutory power to meet those needs (CA14 section 19(1)).

10. Fourthly, how do human rights arguments relating to ‘looked-after needs’ fit with the structure of CA14? The answer is that Convention rights which relate to ‘looked-after needs’, if not met through the section 18 duty and “eligible needs”, must be secured through the exercise of the section 19 power. …

    1. Fifthly, how does CA14 deal with those who, like Mr Aburas, have irregular immigration status? The answer is that, leaving aside destitution-based situations because those are for the Home Secretary and Asylum Support, compatibility with Convention rights in relation to ‘looked-after needs’ is secured by an exception to an immigration exclusion. …
    1. Sixthly, what are the relevant standards to be applied under the human rights case-law? The answer is that, at least in a case such as the present, the Limbuela case can be looked to for appropriate guidance, remembering always the discipline of the ‘looked-after needs’ prism. …”

Analysing the legal merits, the Judge said:-

“14.    The evidence in this case raises concerns which go to the question of homelessness, destitution and subsistence. But these do not constitute the ‘looked-after need’ focus of the claim against Southwark. They are matters for the Home Secretary, and for Asylum Support. So far as they are concerned, in my judgment Southwark correctly identified the legally appropriate response in the Assessment: “the best course of action is to apply for Asylum Support”.

  1. The ‘looked-after needs’ … were the need of social worker support in order to take medication (and in order to access food, in turn to be able to take medication), and the need of accommodation so that this social worker support could effectively be provided.
  2. Reading the evidence before the Court carefully and as a whole, this is not a case which crosses the threshold for the refusal or social worker support. … The evidence does not establish that Mr Aburas needs the support of a social worker to prompt him to take his medication, or to prompt him to eat so as to take his medication. The evidence does not establish, moreover, that Mr Aburas needs accommodation in order to have the support of a social worker. Nor does the evidence establish that missing taking the medication gives rise to serious suffering. Overall, the evidence does not establish that there is an imminent prospect of serious suffering caused or materially aggravated by the refusal to provide supported accommodation.”

“21.    In my judgment, the highest it can be put is that these materials would support the view that Mr Aburas may be facing circumstances of destitution and need of support and subsistence, depending on what other support is available to him, and especially with the onset of winter. These are matters for the Home Secretary and Asylum Support, as Southwark has consistently pointed out. What the evidence does not support is the conclusion that there is a ‘looked-after need’ for social worker support, requiring the provision of accommodation, the refusal of which is a breach of Mr Aburas’s Convention rights. On an objective assessment, the evidence does not establish that there is an imminent prospect of serious suffering caused or materially aggravated by the refusal to provide accommodation so as to secure the support of a social worker. The evidence does not establish that the claimant has a need of social worker support – nor of accommodation to deliver that support – so as to take his medication, nor access and consume food so as to be able to do take his medication. Nor does it establish that the refusal of social worker support (with accommodation) does, in these ways, deny him a basic necessity of life. The Article 3 claim fails. For the reasons explained in Anufrijeva, Article 8 does not materially add to the analysis in the present case (unlike Bernard where it and not Article 3 held the day) …”

“25.    For the reasons explained above, I am satisfied that Southwark did not act unlawfully in this case and the claim for judicial review will be dismissed. In short, Southwark were right that it is for the Home Secretary and Asylum Support to address his needs if satisfied that he presents to them as a destitute failed asylum-seeker in need of accommodation and subsistence. …”

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