"Accommodation-related" needs: a tentative sideways step in the law

If an adult is assessed as having needs for care and support, a local authority must identify which of those needs are eligible for such care and support (Care Act 2014, s.13; see also the Care and Support (Eligibility Criteria) Regulations 2015 for the criteria for determining whether a particular need is an eligible need).   In the context "accommodation-related" needs an argument has developed between authorities and applicants about whether there is a duty, or merely a discretion, to provide accommodation in order to meet such needs.  

In R(SG) v Haringey LBC  [2015] EWHC 2579 (Admin), the High Court appeared to find that only a discretion arose and that it was a matter for the authority whether it could meet those needs through the provision of accommodation or in some other way.  SG appealed that decision, although it proceeded as an academic appeal given that she was provided with accommodation in the interim.  The 'duty or discretion' point raised in SG was of sufficient importance to attract an intervention from Mind.

Yesterday, the court of appeal declined to pass judgment on the issue, having taken the view that SG was not the right case on which to decide the point ([2017] EWCA Civ 322; see judgment here).  Notwithstanding the dismissal of the appeal as academic, two points points of note arise from the judgment:

1. The high court decision in SG, which had appeared to suggest at [53] that whether to meet 'accommodation-related' needs through the provision of accommodation was a matter of discretion for the authority, can no longer stand as authority for that proposition.  The court of appeal explained that the judge at first instance had not been attempting to make that assertion.  It follows that although the issue remains a live one for practitioners, there is no current authority, even at first instance, on the answer to the conundrum;
2. The court of appeal appeared to be mindful of the submissions from Mind that the issue was an important one on which judicial authority was required.  At [28] MarFarlance LJ recorded:  'The court is grateful to MIND for the evidence and submissions that it has filed. The interpretation of Part 1 of CA 2014 and its impact upon those individuals who have mental health difficulties are matters of pressing concern to MIND. Mr Christopher Buttler, acting for MIND, whilst understandably making no direct submissions as to the outcome of this particular appeal, urged the court to note the importance of these matters to MIND and record that organisation's willingness to assist by way of intervention any court in the future which has to grapple with these important matters.'

Whilst declining to decide the extent of a local authority's obligations where eligible accommodation-related needs for care and support are identified, the court would nevertheless appear to have signalled the importance of that issue and its expectation that it will need to consider it in the near future.

Jamie Burton and Sam Jacobs appeared for SG in the appeal.