When is providing accom​modation under the Care Act a duty rather than discretion?​

17 May 2017 

Question of meeting accommodation-related needs unanswered by Court of Appeal 

The Court of Appeal has recently given judgment on the appeal of SG , R (on the application of) v London Borough of Haringey & Ors [2017] EWCA Civ 322​

SG was an asylum seeker who had been accommodated by the Home Office whilst her asylum, claim was being determined. She had several serious mental health conditions and requested housing from social services. This was refused although she was provided with support for her care needs. She was re-assessed after the Care Act 2014 came into force and was still found to be ineligible for accommodation but continued to receive a care package. 

SG challenged the local authority’s refusal to provide accommodation and the High Court ruled that the decision had been flawed because the local authority had failed to consider whether SG had accommodation-related needs, as it incorrectly failed to disregard the asylum support she was receiving from the Home Office. The local authority was ordered to re-do SG’s care plan but the court did not order the local authority to provide accommodation, having appeared to find that where accommodation-related needs are identified, it is at the discretion of the social worker to decide whether accommodation can be provided. Read more about the High Court’s decision here

SG appealed to the Court of Appeal on the basis that the Judge had identified that she had accommodation-related needs (in paragraph 53) and therefore the local authority should be under a duty to provide accommodation, rather than being allowed to decide this on a discretionary basis as the local authority maintained it could. The Court of Appeal did not pass judgement on this point because the matter was now academic (SG had been granted refugee status and was provided with accommodation), and it was not possible to consider this issue given that the local authority had failed to determine whether SG had accommodation-related care and support needs in the first place. 

However, the Court of Appeal was clear that paragraphs 52 and 53 of the High Court’s findings, where the Judge had appeared to state that it would be at the local authority’s discretion as to whether accommodation-related needs can be met by providing accommodation, can no longer be relied on.

Commentary

The question of when accommodation can be provided to meet care and support needs under the Care Act 2014 is of great significance to local authorities because people requesting care and support, who are excluded from mainstream benefits and housing services due to their immigration status, will often have very insecure or non-existent housing options.  

Where a person with no recourse to public funds (NRPF) has accommodation-related care and support needs, the local authority will incur significant costs when it decides to meet their needs by providing accommodation, whether this is a care home placement or ordinary property in which care can be provided. The complexity of these cases means that staff time and expertise is required to conduct assessments correctly and help the person to establish a sustainable pathway out of destitution. 

The Care Act 2014 is clear that it is for the local authority to decide what support or services are provided to each person who has eligible care and support needs, and that needs may be met by the provision of accommodation. The Court of Appeal case reiterates the importance of correctly identifying accommodation-related needs within assessments and, where such needs are determined, giving consideration as to whether accommodation can be provided to meet the person’s care and support needs. ​

Local authorities must comply with public law principles in their decision making, so must not make a decision which is unlawful, unreasonable, irrational, or which is likely to lead to a breach of a person’s human rights. It is therefore difficult to see how a local authority would be able to lawfully refuse to provide accommodation where accommodation-related needs have been identified and the person has no alternative housing available to them. With homelessness increasing across the UK and destitute adults with NRPF facing significant service gaps, it remains essential that local authorities correctly apply the Care Act to reduce, prevent and delay future care and support needs of this vulnerable group.  

We are currently updating our practice guidance to incorporate this and other recent case law developments: