10.14R (Khana) v Southwark LBC (2001) 4 CCLR 267, CA
A local authority may be entitled to treat its duties as discharged if an applicant refuses an offer of services assessed as meeting their needs
Facts: Mrs Khana was elderly and disabled. Her elderly husband was her primary carer and they lived together with their daughter in a one-bedroom flat. They wished to be re-housed under section 21 of the National Assistance Act 1948 in a two-bedroom flat, where the husband and daughter could continue to care for Mrs Khana. Southwark’s assessment, however, concluded that such an arrangement would not meet Mrs Khana’s needs; she needed residential accommodation (where her husband could also reside) where 24-hour care was available.
Judgment: the Court of Appeal (Henry and Mance LJJ, McKinnon J) held that Southwark had taken into account, as legislation and guidance required, the family’s preferences and the need to preserve the independence of elderly people in the community for as a long as possible. It was, also, the case that Southwark had power to provide ‘ordinary accommodation’ under section 21 of the Nationality Assistance Act 1948. Ultimately, however, Southwark had reached a rational conclusion on the facts. This was not a case of Mrs Khana having a ‘psychological need’, as in
R v Avon CC ex p M (at para
8.53 above) but of insisting on her preferences. Nor was this a case of Southwark choosing an alternative way of meeting needs to conserve resources (where evidence of a resources difficulty could be required), nor was it a case of Southwark choosing between one of two alternative way of meeting needs, which could give rise to different issues: Southwark had positively concluded that the provision of larger ordinary accommodation, where the family remained Mrs Khana’s primary carers, would not meet her needs, in important ways. If necessary, Southwark would be entitled to treat its duties towards Mr Khana as discharged, if she chose not to accept the offer of residential accommodation:
57. Further, although I do not consider that the case requires analysis in these terms, I would, if necessary, also treat Mrs K’s refusal of the offer of residential home accommodation – the only course that would meet her assessed needs – as unreasonable in the sense intended by Potter L.J., when he was considering in ex p Kujtim what would discharge a local authority from any further duty for so long as such refusal was maintained. Her position has, it is true, received some strong support from distinguished sources, but the local authority’s assessment of her needs, the appropriateness of their offer and the inappropriateness (in terms of meeting all Mrs K’s needs) of Mrs K’s position are not ultimately challenged.
58. If this had been a case where Mrs K’s assessed needs could be met in different ways, then, on the authorities already cited, Southwark would have been entitled to take into account its resources in deciding which way to adopt. Mrs Justice Hallett in her judgment seems at certain points to have taken the view that a question of resources did arise in this case. For my part, I would agree with Mr Drabble that any problem of resources would require to made out by evidence, and cannot be assumed to be present. There is no material enabling comparison between the cost of a two bedroom ground floor flat provided by the authority – with or without further community care services – and the costs of living in a residential home.