for better mental health

Aburas v Southwark [2019] EHWC 2754

Social care in England is largely provided under the Care Act 2014. The Act provides a duty to assess people who may be in need of support, eligibility criteria to work out if their eligible, and a duty to provide support to meet those eligible needs. One of the specific ways that support can be provided is through accommodation, though the primary housing duties sit under different legislation and with local authorities' housing departments. When someone is ineligible for mainstream housing, as in the present case, they may present to social services requesting accommodation as part of a social care package. The extent to which social services legislation provides a duty to accommodate is therefore important to people falling through gaps in support, and has a long line of case law. Which brings us to Mr Aburas.

Mr Aburas had been diagnosed with bipolar disorder and depression. He had made an unsuccessful application for asylum but it was accepted that for the time being there were barriers to his proposed removal to Kuwait. Due to his immigration status Mr Aburas was ineligible for mainstream housing support. Instead, accommodation would be provided, if at all, by the Home Office under the Immigration and Asylum Act 1999.

Mr Aburas claimed to have needs for care and support, specifically the support of a floating social worker to ensure that he took is medication, and accommodation to enable that support to happen. Southwark assessed Mr Aburas and found that he did not have eligible needs, and that any non-eligible needs should be met by the Home Office.

The judgment

Following on from the case law prior to the Care Act, the judge explained that some needs are 'looked-after needs' and some are not. These are needs that cannot effectively be provided without accommodation. As such, accommodation must be provided as part of a social care package where necessary to meet a 'looked-after need'. The judgment referred to this as a need being 'accommodation-plus'. Lost yet?

The local authority must therefore:

  1. Assess needs and work out if there are any eligible needs;
  2. Work out if any of those needs are 'looked-after needs' or there is a need for 'accommodation plus';
  3. If a person has eligible needs 'looked-after needs', meet those needs and provide accommodation necessary to do so;
  4. If those needs are not eligible, consider whether to meet them anyway (using its power under section 19). Where a failure to exercise the power would lead to a breach of someone's human rights that power must be used;
  5. Check a person's immigration status – if they are 'a person present in breach of immigration control' and those needs have arisen solely from destitution the Care Act cannot be used to meet those needs and Home Office support may be the only option.

Mr Aburas fell at the first hurdle:

"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."

Southwark's decision to refuse accommodation was therefore lawful and the claim was dismissed.

Our thoughts

This is a hefty judgment, which helpfully goes back-to-basics on accommodation under the Care Act and the dividing line between social services, housing and asylum support. It's a must read for anyone working in the area – I've only skimmed the main points here.

Ultimately the line needs to be clear and seamless so that people like Mr Aburas get the support they need without being passed from pillar-to-post or falling through gaps created by disjointed support.

Having concluded that Mr Aburas in fact had no eligible needs there wasn't any need to factually explore what 'looked-after' needs are or what sort of services are unable to be provided without accommodation. If he had needed a social worker to help him with his medication is this something that comes with a place to live or does this happen on a street corner? Some of that has been answered in previous judgments, but I think there's more to come.

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