SG, R (on the application of) v London Borough of Haringey & Ors [2017] EWCA Civ 322

Local authorities cannot rely on High Court judgment to deny housing under the Care Act 2014 to homeless people with mental health problems who have accommodation related needs.

SG concerned the question of whether, when an individual is assessed as having accommodation related needs under the Care Act 2014 (the CA 2014), the local authority has a duty or merely a discretionary power to provide accommodation. Although the Court of Appeal did not determine this question, it has clearly indicated that the first instance decision of the Administrative Court observing that there was a power and not a duty, is not to be followed.

Under the CA 2014 where it appears to a local authority that an adult may have needs for care and support it must assess whether he or she has needs and what these are. The local authority must then determine whether those needs meet the eligibility criteria set out in regulations. Finally, if they do meet the eligibility criteria then the local authority must, under section 18, meet those needs.

SG was an asylum seeker with severe mental health problems. In May of 2015 the local authority assessed her as having eligible needs for care and support under the CA 2014 but declined to provide her with accommodation to meet those needs. SG sought judicial review of this decision.

The judge at first instance concluded that the local authority’s decision-making was flawed 1) as SG had not been supported by an independent advocate as she was entitled, and 2) because the local authority had not asked itself the correct questions during the assessment process, in particular by failing properly to consider her accommodation related needs. As a result the judge quashed the local authority’s decision. The judge indicated that two of SG’s needs were accommodation related but went on to observe that “in any event I think it is still within the discretion of the local authority to decide that notwithstanding these services it is not appropriate to meet needs through the provision of accommodation”.

It was against this observation that SG appealed. Mind intervened as it was concerned that this judgment would be used by local authorities as a ready way of closing down a route to housing under the CA 2014 for homeless people with mental health problems who have accommodation related needs.

Our position is that where a duty to meet eligible needs arises, the local authority must ensure that these needs are met. If the ability to meet eligible needs depends on the individual having adequate accommodation, the local authority must ensure that the individual has adequate accommodation. We introduced evidence on the link between homelessness and mental health and the difficulty of meeting social care needs in the absence of accommodation. 

The Court of Appeal, however, took the view that the judge’s indication that there was merely a power and not a duty to meet accommodation related needs by the provision of accommodation was not actually part of the judicial reasoning in the case. The judge had ruled that the local authority’s assessment had been defective and so had not had to rule on the question of whether there was a power or a duty, he was just making an unreasoned observation. The Court of Appeal therefore took the view that it could not determine the issue that SG had appealed.

Comment

It is unusual for a judgment that does not determine the issues under appeal to be of particular importance. However, the Administrative Court’s decision in SG was the first to consider these particular provisions of the CA 2014 and its observations about the nature of the powers/duties that local authorities have was likely to influence local authority policy in this area.

Mind’s lawyers impressed upon the Court of Appeal that the Administrative Court’s view on this issue could not be allowed to stand as binding precedent. The Court of Appeal agreed and stated that the relevant paragraphs of the Administrative Court’s judgment “are, therefore, plainly obiter dicta. They could not, and should not, be regarded in any manner as authority or precedent on the interpretation of CA 2014, s.18. If a court in the future has cause to consider the interpretation of CA 2014, s.18 it should, in my view, do so without any regard to paragraphs 52 and 53 of the first instance judgment in this case, but should embark upon the task of interpretation with, as it were, an entirely clean sheet”.

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