Naughty, naughty – breaching orders in the Court of Protection
Jun 6 2024
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A very recent decision by the High Court (27 July 2016) raises some important issues around the interface between the Care Act 2014 and the Localism Act 2011 in the context of claims by a Swiss national who for mental health reasons was unable to return to Switzerland and who was seeking support by way of accommodation from Camden Council.
The facts of R (GS) v London Borough of Camden  EWHC 1762 (Admin) are quite complex but whilst the decision clarifies a number of points it also raises some concerns in particular around the potential obligation on the local authority to use its powers under the Localism Act to provide accommodation where this would not otherwise be available and there would be a potential breach of the claimant's human rights were it not to be provided.
Leaving aside the moral issue of whether the local authority should be under an obligation to provide housing in these circumstances it would appear that the court may have created some problems in this area by mis-applying the relevant law.
The first part of the judgment considers whether a need for accommodation alone is a need for care and support under the Care Act 2014. Perhaps unsurprisingly in the light of the previous authority in relation to the term "care and assistance" in s.21 of the National Assistance Act 1948, the Judge concluded that the change in language did not constitute a change in the application of the law and as such concluded that a mere need for accommodation did not of itself trigger any obligations beyond the obligation to assess under the Care Act. The Judge does not appear to have considered s.23 of the Care Act which excludes matters where the authority or another authority is under a duty to provide under the 1996 Housing Act or other legislation, no doubt because the claimant was not eligible for such support.
It should perhaps be noted in passing that the Judge took the view that the social worker's assessment could not be criticised for reliance on what the claimant had told him at the time and should not be subjected to an over forensic analysis. From what was said in court it would appear that a fresh assessment might have resulted in a different conclusion as to the need for care and support as a matter of fact, but the conclusion of the Council at the time was not susceptible to challenge.
The Judge then considered whether, in the light of the carve out of the bar on support to categories of people under Schedule 3 of the Nationality and Immigration and Asylum Act 2002 where their human rights are at risk, the Council had the power to provide accommodation using its General Power of Competence under section 1 of the Localism Act 2011. The Judge decided the impact of the Convention rights turned the power into a duty to provide accommodation. The Council in this case appears to have accepted that if a failure to act (assuming a power) would cause a breach of convention rights then it would have to act. Whether such a concession of an obligation to take positive steps, as opposed to avoiding active interference with a convention right would be appropriate in other cases may be open to question.
However, at this point the decision seems to be flawed. The Judge considered the question of whether or not there was any pre- or post-enactment limitation of the Localism Act but only in the context of any such post-enactment limitation in the Care Act. This is logically inconsistent if one accepts that the needs were not such as could be met under the Care Act.
The question should surely have been whether there were any limitations under general housing legislation which might be relevant. For some reason the court and indeed counsel do not appear to have considered this. An initial view might suggest that the Housing Act 1996 creates a pre-commencement limitation on the ability to use the Localism Act for housing, both in the form of homelessness assistance and housing allocation. Even in relation to the provision of top ups to the Personal Independence Payment received by the claimant in this case, in order to facilitate access to private rented accommodation, there must at least be some doubt as to whether the provision of such assistance is compatible with the pre-commencement limitations in the Housing Act and/or the housing benefit regime.
Whilst the Housing Acts have been held to comprise a comprehensive statutory scheme, this case law does not necessarily count so far as the Localism Act general power is concerned, since the pre/post-commencement limitations must be expressly contained within an Act or "Instrument made under an Act". The general power may therefore be used to complement existing powers provided there is no express prohibition, restriction or limitation in a particular power that prevents its use in the particular circumstances. In R (MK) v Barking and Dagenham LBC  EWHC 3486 it was held that the housing regime did form a pre-commencement limitation on the powers and the parliamentary intention of Section 1 of the Localism Act did not create a means of circumventing a clear statutory scheme.
The judge in MK also made the point that the authority could potentially use section 1, but was not obliged to, provided it did not exercise the power with a view to circumventing restrictions in the operation of statutory schemes for housing and support even where those restrictions were incompatible with rights under the Convention. The Judge in GS distinguished that on the basis that he was dealing with a post-implementation statute, despite the fact that he had found that the claimant's needs did not fall under the Care Act at all. This has the perhaps surprising effect that general power of competence appears to have been converted into a duty to provide accommodation in this case (even where the power is a power to do anything that an individual may do – rather than a power to fulfil a public authority's duty.
A further point of concern for local authorities may be that the Judge took the view that there is no express limitation in the Care Act which would limit the extent to which Care Act type powers could be provided under section 1 of the Localism Act. In other words the Localism Act general power can be used even where an individual might be ineligible under the Care Act for care and support and once the power is there a local authority may have to consider, lawfully, whether it is appropriate to exercise that power if not to do so would infringe the individual's human rights.
Finally, it is unclear which function (housing or social services) the authority would be exercising in providing assistance to the claimant. The point did not arise in this case because Camden is a unitary authority. However, it is far from clear where responsibility would fall in an area in which those functions are provided by separate district and county councils. The court is likely to have to revisit this issue again soon in order to decide which authority would be under a duty to provide housing where the existence of the duty arises – primarily – from the absence of a post-enactment limitation under the Care Act.
It is as yet unclear if the decision will be appealed. In any event it is likely that these issues will trouble the courts for some time to come.