The Risk Factor: Homelessness, hospitals and the law

Social workers can be forgiven for accepting decisions taken by other professionals on the basis of complex law. But this was not for Zita Noone who took on a council’s lawyers to gain services for her client.  Graham Hopkins reports

CASE NOTES
The name of the sevice user has been changed

Practitioner: Zita Noone, medical social worker.
Field: Hospital social work.
Location: St Bartholomew’s Hospital, City of London.
Client: Ricardo Gomes, 55, is a Portuguese citizen who has been resident in the UK since 2002. He had been diagnosed with throat cancer, for which he underwent surgery and radiotherapy. He does not speak English.

CASE HISTORY: Although he has been in England for five years, Gomes has only worked for two days – as a domestic – due to ill health. He had been in receipt of jobseeker’s allowance (JSA) – half of which he gave to a family he was lodging with. He was admitted to Bart’s hospital in August last year because of severe weight loss and an inability to swallow. He also has cataracts on both eyes. However, while in hospital the family he was living with were moved on. It transpired they were living in temporary accommodation. Gomes did not know which borough had placed the family or where they went. Indeed, he didn’t even know their family name. They had also taken all his possessions with them.

Dilemma: Noone was unable to convince Gomes’s home local authority to take responsibility for him.

Risk factor: With no accommodation Gomes was at risk of being street homeless upon discharge, which could see his health deteriorate dangerously.

Outcome: Three months after admission, the local authority accommodated Gomes in a sheltered housing block and now provides some financial support.

Legal knowledge is an integral part of social work practice. But often clients’ needs stretch beyond social care – housing, immigration and employment, for example. Undoubtedly, there are times when social workers are “fobbed off” by other professionals whose legal decisions, comments or advice are taken at face value.

However, part of social work is also to act as a protector – regardless of what legal hocus-pocus is brewed up to fog the view. Indeed, it was the tenacity of medical social worker Zita Noone that saw her successfully take up the case and cause of Ricardo Gomes, a Portuguese national. Gomes had been admitted to Bart’s hospital in the City of London because of severe weight loss and an inability to swallow. While in hospital, the family he had been living with in a London borough had disappeared. Not only had he lost his home, they took all his possessions with them as well.

“Once he was ready for discharge I requested the homeless persons unit from his local authority to assess Ricardo in hospital,” says Noone. “Sheltered housing wouldn’t get involved before a homelessness assessment was completed.”

The homeless persons unit refused to support Gomes as the Allocation of Housing and Homeless Eligibility Regulations 2006 requires European nationals to be in work in order to qualify for housing assistance. “Although Ricardo was a jobseeker, he was not considered to be economically active and thus not entitled,” says Noone. The local authority added that as Gomes did not need support with personal care, he was not entitled to “care and attention”.

Noone agreed that Gomes could look after his own personal care, including his RIG (radiologically-inserted gastrostomy) system – where he attaches himself to a machine that pumps food into his stomach overnight. However, the tube could become blocked. “He needed to be in a clean and warm environment to reduce risk of infections and he needed the district nurse. He also only weighed 45kg.”

Clearly he could not manage this system if he was homeless and, without adequate nutrition, his health would deteriorate, inevitably requiring hospital treatment.

Noone faxed her assessment to the local authority requesting that Gomes be accommodated under section 21 of the National Assistance Act 1948. Under this section, local authorities are under a duty to make arrangements to provide accommodation for people ordinarily resident in their area or other people in urgent need of care and attention. “The request was refused verbally on the grounds that Gomes did not have any social care needs apart from housing and they did not have a duty to support with housing.”

But while others may have given up, Noone persisted. “I spoke to a team manager, who was condescending, and who said the authority had no responsibility because Ricardo had not paid council tax. But I said Ricardo was entitled to support from them as he had a GP in the borough and had proof of his address – a bank account. Crucially, he spent the night in their borough before he was admitted to hospital. I checked the law in my books and knew that this made Ricardo the responsibility of that local authority.”

Noone then contacted a local law centre. “The solicitor allocated to Ricardo was excellent. She sent a ‘letter before action’ to the local authority’s legal section stating that Ricardo did in fact meet the requirements of assistance under the National Assistance Act, citing case law in support, and that he was entitled to an urgent assessment under section 47 of the NHS and Community Care Act 1990 including his need for accommodation.”

Noone continues: “It said Ricardo would be destitute and homeless on discharge and because of his medical condition he was in need of care and attention. He had no means of support from welfare benefits, local authority housing or friends.”

The solicitor also drew attention to a recent Court of Appeal decision [R v Slough Borough Council (2006) EWCA CIV 655] that held that “care and attention” should not be interpreted narrowly. It states that “a person who is chronically ill and who therefore needs continuing medical care and continual provision of medicines is, by that very fact, properly to be said to be in need of care and attention”.

Following this, and further exchanges, Gomes was eventually discharged three months after admission, to a temporary sheltered flat in the local authority, which also gave him a small weekly allowance. A further sting in the tail for the authority came in the shape of a £2,000 fine under the Community Care (Delayed Discharge) Act 2003. 

Arguments for risk

● Gomes was, to all intents and purposes, homeless and destitute. The family, whose name he doesn’t even know and who had been taking half his jobseeker’s allowance, had left and taken all his possessions. Gomes had only the clothes he wore upon admission. Indeed, Noone bought some clothes for him paid for from the hospital’s Samaritan fund. Turning him out on to the streets would see his health deteriorate dramatically and could even result in his death.

● With no friends, family or ability to speak English – and with a radiologically-inserted gastrostomy feed – Gomes was a vulnerable adult isolated and alone.

● It was clear that, even if he wanted to, Gomes could not return to Portugal. First, he did not have the fare second, because his health and care support would need to be organised in advance of any departure finally, he did not have a home or family member to live with there.

Arguments against risk

● It was recognised that European nationals are excluded from assistance by provisions in the Nationality Immigration and Asylum Act 2002 requiring that a European Economic Area national who cannot look after themselves without help be returned to their home country. “However, the solicitor argued that social services has a duty to assist EEA nationals and to refuse would be a breach of European Treaty Rights or the European Convention of Human Rights,” adds Noone.

● As the Social Care Institute for Excellence’s knowledge review on teaching, learning and assessment of law points out: “If social workers do not know relevant law and how to apply it there can be serious consequences for service users, practitioners and managers. Social workers also need to be able to question procedures, roles and the social impact of law. They must be critical thinkers as well as skilled technicians.” In this case, Noone was interested in law and that served her well. Gomes was fortunate.

Independent Comment

Over recent years, several acts of parliament have incorporated immigration status within the eligibility criteria for social welfare services, writes Ed Mitchell. This means that the correct (lawful) social work response in such cases depends as much on the law as it does on the application of professional social work expertise. Ricardo Gomes was fortunate to be represented by a social worker who appreciated that, in order to do the best for her client, she needed to understand this complex area of law and show that her client’s human rights called for him to be provided with accommodation.

A UK citizen in Gomes’s position would probably have been entitled to accommodation under the homelessness legislation. Gomes was unable to access social housing provision because that is entirely closed off to most European nationals (or other non-UK citizens) who are not “workseekers” under European law. This explains why his social worker had to turn to the welfare state “safety net” that is the National Assistance Act 1948. In fact, he was somewhat lucky.

Accommodation under the 1948 act is available only where no other means of providing for a person’s care and attention are available. Many authorities assume that there must be accommodation in an EU national’s home country and refuse assistance for that reason. This case also illustrates that even today the 1948 act continues to perform the “safety net” function that Beveridge had in mind when his reports in the 1940s led to the establishment of the welfare state.

Ed Mitchell is a solicitor, editor of Social Care Law Today and Community Care’s legal expert

Contact the author
Graham Hopkins

This article appeared in the 8 March issue under the heading “I fought the law and won”