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Duty to provide
accommodation under s21 National Assistance Act 1948R v Tower Hamlets London BC ex parte Abdul Wahid QBD
23.8.01
Mr Wahid (“W”) suffered from
schizophrenia and in the past had been admitted as an in-patient for treatment.
His health was managed by community support.
W lived
with his wife and their 8 children in a two-bedroom flat in a large block owned
by the council. He was on the council waiting list for a house with 4 or 5
bedrooms but had been informed that the chances of obtaining such a property
were “zero”.
An
assessment of W’s needs were made pursuant to Section 47 of the National Health
Service and Community Care Act 1990
which concluded that “his mental stability
can only be safely maintained by his transfer into a more congenial and relaxed
environment”. W claimed that he needed a housing transfer because of his medical
condition and the local authority had a duty to provide such accommodation as
the accommodation he needed was not otherwise available to him
pursuant to
section 21 National Assistance Act 1948. W alleged that his situation was
indistinguishable from R v Islington London Borough Council ex parte Bantantu
and R v Bristol City Council
ex parte Alice Penfold and the council was under a
duty to provide the accommodation irrespective of the council’s own
resources.
HELD
There was
a clear and binding authority that meant the meaning of  “residential accommodation” could
include housing accommodation. If an applicant was in need of care and attention
that was not otherwise available to him
the local authority were under a duty
to provide the accommodation as assessed.
However

in W’s case the council had not assessed him as having a need for such care. He
was mentally stable and was receiving the care and attention he required. The
risk that he might become ill exasperated by his unsuitable accommodation
was
not a present need for care and attention. The need was not urgent and therefore
the local authority did not have a duty arising under S.21.Home for life - another case
Frank Cowl & Oths v Plymouth City Council 14.9.01
(unreported)
Granby residential home was owned
and run by the council. The residents of the home were aged between 66 and 92

frail and in poor health. Social services had overspent on their budget and as
part of the council’s cutback they approved the closure/transfer of specified
residential units for older people
which was subject to consultation.
In November 2000
two homes were selected
for closure
one of which was Granby. The Council wrote to the residents stating
that: -

No decision would be made until full consultation with
them and their relatives had taken place;

Services would continue until after the consultation
process was completed and a decision had been made; And

In the event that Granby was to close each resident
would be involved in the selection of a suitable alternative home.

During the consultation process
the council asked the residents and their families whether they had been
promised a home for life. In January 2001
the Director for Social and Housing
Services produced a report
which confirmed that the needs of the residents
could be met at other homes and there was no evidence other than assumptions
that the residents would have a home for life. On this the Director recommended
that the home should be closed. The full council agreed with the recommendation
as to the closure of Granby (and the other home) selected for closure.
Three of the residents submitted
a claim that they had a legitimate expectation that Granby would be their home
for their life
following express assurances from council employees. They also
claimed that the decision to close the home was an infringement of their rights
under Articles 2
3 and 8 of the European Convention on Human Rights.
HELD
The council were aware of the
need to consider whether the residents had been promised a home for life and had
asked the residents about this. The council had full information of each
resident including background
health and their abilities and had up to date
care plans in respect of those residents.
Although not absolutely
essential
there was no documentary evidence to support the claim of legitimate
expectation of a home for life. No evidence was produced which was clear or
precise to form an actionable representation made by council employees. The
evidence did not establish a home for life promise on which the residents could
rely and the council had not been irrational in making their decision.
The Court could not interfere in
local authority decisions regarding expenditure and budgets where the decisions
were lawful
in particular as the consultation by the council was adequate
The claims under the Convention of Human Rights
did not need to be considered until each resident’s case had been considered in
the context of a full needs assessment and against the alternative available
accommodation. The Convention did not give a right to a home. The council had to
balance the right to family life under Article 8 with the financial decisions to
close the home
something
which the council was answerable to the
electorate.The deceased
had been trading from the property as an Indian restaurant when he purchased the
freehold at the same time as completion he entered into the trust deed.

The deceased died in July 1997 and his estate was
partially insolvent. The deceased had purchased various properties out of
business profits that he had not declared to the Revenue hence their interest in
his estate. There was evidence that the deceased had wanted to provide for his
son but there was no direct evidence that the deed was to put the property
beyond the reach of creditors. However from the Revenue’s investigation into the deceased’s entire
businesses it
could be inferred
that putting the asset beyond creditors reach was
one of the purposes.
The Court held:

(1)   The deceased was aware
that the transaction put the property beyond creditors reach;
(2)   The motive to defeat
creditors and the motive to provide for Omar co-existed. There was no
overwhelming evidence that the deceased intended to benefit Omar at the date of
the Trust deed and therefore the dominant purpose was to ensure the asset was
not part of his estate. As such the transaction was to be set aside.
Home was not transferred as a deliberate
disposal of avoidance of care fees.PR’s of
Christopher Beeson v Dorset County Council and the Secretary of State for
HealthQBD 30.11.01
Christopher Beeson aged
90 suffered a stroke in March 1997.
He was discharged from hospital in early April to his own home
where he
received intensive levels of home care. (Since 1989 he had been receiving 3
hours per week of home help care.) He was on income support and his home was his
only major asset.
About a week after returning home he transferred his home to
his only child
his son. This was due to a concern on his part that following
the breakdown of his son’s marriage
his son might become homeless; he wanted
his son to have somewhere to move should it be necessary. Mr Beeson wanted to
live and die in his home and continued to live independently there with
community support for two more years
when in April 1999 he was admitted to
hospital in a state of collapse and exhaustion. He returned home in May but
after a fall was admitted back in to hospital in August.
In September 1999 he was assessed as needing residential
care. The council treated the house as notional capital for the purpose of
Regulation 25 of the National Assistance (Assessment of Resources) Regulations
1992. At the time of the transfer the council had not discussed with Mr Beeson
the possibility of residential care
however the council in making their
decision took the view that residential care was inevitable and as such was Mr
Beeson’s motive in the transfer.
The PR’s challenged the decision on the grounds that the
council had misdirected itself in law when reaching their decision and that the
decision infringed Mr Beeson’s Human Rights under Article 6(1) (the right to a
fair trial) and Article 14 (prohibition of discrimination)
of the European
Convention on Human Rights
which is now embodied within our domestic law.
HELD
(1) The
council had failed to apply the correct test
which was to determine the
subjective purpose of the disposal. When making the decision the council
must have material from which to draw its conclusions that there was a
deliberate deprivation of capital for the purpose of reducing liability for
accommodation fees. The council had failed to consider properly the
circumstances of the disposal and as such had not applied the subjective test in
concluding that the motive was a deliberate deprivation. The council’s decision
was quashed.
(2)
The decision by the council under regulation 25 was an issue involving Mr
Beeson’s civil rights and obligations within the scope of Article 6 (1)
as the
council had a statutory duty to provide accommodation and to make a financial
assessment of Mr Beeson. The internal complaints procedure was not impartial or
independent
with no right of appeal to an independent tribunal. Judicial review
was not adequate to ensure that the council’s procedures complied with Article
6(1) as the court could not substitute a decision only quash a decision.

(3) The claim of discrimination against Mr Beeson failed.
(Further and detailed analysis of this case will be
in the next edition of this journal)

compiled by Caroline
Bielanska
Solicitor
Lecturer and freelance consultant
.

6 February 2002

Case digest

Duty to provide accommodation under s21 National Assistance Act 1948
R v Tower Hamlets London BC ex parte Abdul Wahid QBD 23.8.01

Mr Wahid (“W”) suffered from schizophrenia and in the past had been admitted as an in-patient for treatment. His health was managed by community support.

W lived with his wife and their 8 children in a two-bedroom flat in a large block owned by the council. He was on the council waiting list for a house with 4 or 5 bedrooms but had been informed that the chances of obtaining such a property were “zero”.

An assessment of W’s needs were made pursuant to Section 47 of the National Health Service and Community Care Act 1990 which concluded that “his mental stability can only be safely maintained by his transfer into a more congenial and relaxed environment”. W claimed that he needed a housing transfer because of his medical condition and the local authorit...

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