Court of Appeal test case on S21 of the National Assistance Act

The Court of Appeal delivered judgment this morning in a test case regarding access to community care: SL v Westminster City Council [2011] EWCA Civ 954 available at

Freedom from Torture intervened in the case with pro bono representation from Victoria Pogge von Strandmann at Maxwell Gillott solicitors and Adrian Berry at Garden Court Chambers. Mind also intervened in the case.

The appeal was allowed, clarifying that:

1.       Mental health problems associated with trauma are capable of meeting the definition of ‘care and attention’ in section 21 of the National Assistance Act; and that
2.       Where this definition is satisfied, local authorities have a duty to provide accommodation where it would not be ‘reasonably practicable and efficacious’ to meet the person’s needs in the absence of accommodation.

Meaning of ‘care and attention’

The case is important in curing an ambiguity in the law stemming from the House of Lords judgment in R (on the application of M) (FC) v Slough Borough Council [2008] UKHL 52.

When giving examples of what a need for ‘care and attention’ looks like in practice, the House of Lords in the Slough case failed to acknowledge needs arising from mental health problems (aside from the need to protect people with mental disabilities from risks they cannot perceive) and this has been used by local authorities to withhold section 21 support from many vulnerable people requiring support due to mental health problems.

Today’s judgment makes clear that mental health problems associated with trauma can meet the definition, and this should open up section 21 eligibility for many Freedom from Torture clients and other traumatised asylum seekers. The Court stressed that the Act ‘does not envisage any particular intensity of support in order to constitute care and attention’.

The duty to accommodate

In terms of when a need for ‘care and attention’ will lead to a duty to provide accommodation, the Court of Appeal has developed a new test. Accommodation needs to be provided where it would not be ‘reasonably practicable and efficacious’ to meet the person’s needs without it.

‘Care and attention’ provided by voluntary sector providers?

The Court of Appeal also remarked in passing that the ‘care and attention’ does not need to be provided by the local authority which implicitly recognises the role that voluntary sector providers such as Freedom from Torture can play in helping to meet the need for ‘care and attention’ in particular cases (with the local authority providing the rest of the support including accommodation).

For further information on the case please contact:

Sonya Sceats, Senior Policy and Advocacy Officer at Freedom from Torture: or 020 7697 7766
Victoria Pogge von Strandmann, Maxwell Gillott Solicitors: or 020 7754 5613

Press releases are available as follows:

Freedom from Torture:
Maxwell Gillott Solicitors:
Garden Court Chambers: