Tim Baldwin summarises a recent noteworthy High Court decision on housing and support for a terminally ill individual
In R (Adalberto Jesus de Almeida) v Royal Borough of Kensington & Chelsea the High Court considered a challenge by a terminally ill individual to the local authority’s refusal to provide him with housing and support. The decision provides a welcome re-affirmation of the importance of the duty to care for the particularly vulnerable.
The Claimant was a Portuguese national who had lawfully entered the United Kingdom. He was terminally ill with AIDS and highly susceptible to life-limiting infections. He suffered from skin cancer and had a short life expectancy. Unsurprisingly, he was too ill to work and became unable to pay the rent for his own accommodation. He moved into a hostel and applied to the local authority for assistance. The local authority assessed the claimant and decided that he was independent in all aspects of daily living. It accordingly decided that he was not entitled to accommodation or support under s 21 of the National Assistance Act 1948 and, further, that his human rights would not be breached if he was returned to Portugal.
The Claimant challenged this decision on two bases. First that the refusal to provide accommodation and support was irrational as he was unable to attend to his daily living needs. Second, that the refusal to assist him violated his rights under Articles 3 and 8 of the European Convention on Human Rights.
The High Court upheld the claim for judicial review. It held:
1. The local authority had indeed acted irrationally in concluding that the claimant was not in need of “care and attention” under the 1948 Act. It had not followed the guidance given by the House of Lords in R (M) v Slough BC and had instead applied too high a threshold. The claimant’s circumstances were such that he was plainly in need of “care and attention”.
2. Since the claimant’s needs fluctuated the local authority had misdirected itself in the course of the assessment process. It was not a pre-requisite of eligibility under the 1948 Act that a person applying for assistance was incapable of performing a domestic task for himself. It was enough for the claimant to establish that, as a result of his fragile condition, he reasonably required support with domestic tasks such as shopping, cleaning and cooking. Furthermore, the nature of the claimant’s illnesses meant the level of his fatigue, weakness, pain and secondary infections varied from time to time. As a consequence it followed that the Claimant’s ability to look after himself also fluctuated which was not an unusual feature of long-term illnesses.
3. The refusal to provide accommodation and support was incompatible with the claimant’s rights under Articles 3 and 8 of the European Convention of Human Rights. It would constitute “inhuman treatment” to send him to an undignified and distressing end in Portugal. The claimant’s case was exceptional because he was at the end of his life (see N v Secretary of State for the Home Department; D v United Kingdom). On Article 8, the local authority cited financial considerations as justifying the interference with the claimant’s private life. However, any potential saving to the public purse was minimal and did not reasonably justify a decision which would have such severe consequences for the claimant.