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Neutral Citation Number: [2002]
EWHC 735 (Admin)
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IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
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Royal Courts of Justice
Strand, London, WC2A 2LL
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18 April 2002 |
B e f o r e :
THE HONOURABLE MR JUSTICE WILSON
____________________
Between:
R. (on the application of MANI)
Claimant
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V
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LONDON BOROUGH OF LAMBETH
R. (on the application of TASCI)
V
LONDON BOROUGH OF ENFIELD
R. (on the application of J)
V
LONDON BOROUGH OF ENFIELD
Defendant
Claimant
Defendant
Claimant
Defendant
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____________________
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
____________________
Mr D. Seddon of Counsel (instructed by Messrs Pierce
Glynn, 1 Trinity Street, London SE1) appeared for the Claimant,
Mr Mani
Mr S. Knafler of Counsel (instructed respectively by Messrs Pierce
Glynn aforesaid and by Messrs Birnberg Peirce & Partners,
14 Inverness Street, London NW1) appeared for the Claimants, Mr
Tasci and Mr J
Mr N. Giffin of Counsel (instructed by Messrs Sternberg Reed Taylor
and Gill, Focal House, 12-18 Station Parade, Barking, Essex) appeared
for the Defendant, The London Borough of Lambeth
Mr B. McGuire of Counsel (instructed by its solicitor) appeared
for the Defendant, The London Borough of Enfield
____________________
HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________
Crown Copyright ©
Mr Justice Wilson :
- Does a local authority have a duty to
provide residential accommodation for a destitute asylum-seeker
who suffers a disability which, of itself, gives rise to a need
for care and attention which falls short of calling for the provision
of residential accommodation? That is the major question raised
by these three applications, which have been heard together, for
judicial review of, in the first case, a decision by the London
Borough of Lambeth and, in the second and third cases, decisions
by the London Borough of Enfield, to refuse to provide accommodation
in such circumstances.
- A second question is common only to two
of the applications, namely those of Mr Mani and Mr Tasci. That
question is: if a local authority is liable to make such provision
for an asylum-seeker in the circumstances identified by the first
question, is it relieved of liability by the fact that the National
Asylum Support Service (“NASS”), operated by the Home Office,
has offered accommodation to him?
- A third and final question is raised only
in the case of Mr Mani: even if the other criteria for provision
to him of local authority residential accommodation are satisfied,
are his connections with Lambeth or other circumstances such as
to make Lambeth responsible for its provision?
- All three claimants are asylum-seekers
who are not only destitute but also suffer varying degrees of
disability.
(a) Mr Mani, who is Algerian, is 24 years old and
suffers a congenital abnormality of the right leg. It is about
one half of the length of his left leg. He seeks to cope with
this disability by the use of crutches but also at other times
by fitting a prosthetic extension to his right leg. But his
mobility is impaired: whichever be his chosen means of movement,
he experiences pain after walking about 100 to 150 metres. The
movement of walking with the prosthesis gives him pain in his
lower back; and he has difficulties at times when he needs to
remove it, such as when washing or taking a bath. On days when
he is in pain he cannot undertake basic tasks such as bed-making
and hoovering; and he needs help in carrying heavy shopping.
He also has a history of mental health difficulties arising
in adolescence and he is vulnerable to psychotic illness which
is likely to result in a reduced capacity to cope at times of
stress. Since August 2001, in response to the issue of his claim,
Lambeth has been providing him with residential accommodation
without prejudice to, and pending determination of, its liability
to do so.
(b) Mr Tasci, who is a Turkish Kurd, is 50 years old
and suffers from severe ankylosing spondylitis with no movement
in his neck and very slight mobility in his lumbar spine. About
a year ago he had both hips replaced. He suffers pain in his
neck, spine, hips and knees; his sight and hearing have deteriorated;
and he suffers from depression. He can move with the aid of
a stick but only for short distances; and stairs are difficult
for him to negotiate. He needs help with bathing, washing, dressing
and going to the lavatory. Since his arrival in the United Kingdom
with his wife and son in July 2001, they have been staying in
overcrowded conditions with his sister. His wife, together with
other family members, seeks to assist him as far as possible
with the day-to-day round of essential functions. But she herself
is also unwell. He takes a variety of medications and receives
out-patient care from a consultant psychiatrist. Enfield has
assessed him as needing ground-floor accommodation, special
equipment in the home and the attendance of a care worker two
or three times a week.
(c) Mr J, who is a citizen of the Dominican Republic,
is 43 years old and is HIV-positive at an advanced stage. That
is why I have directed that he be identified by initial. He
has a number of severe associated conditions including renal
failure, blocked arteries and veins in his arm, encephalitis,
gastro-intestinal bleeding and swollen feet; and he has recently
been diagnosed as diabetic. He takes about 17 different types
of medication and requires dialysis three times a week. Following
his arrival in England in July 2001 he lived with his mother
in Enfield; but she is in poor health and unable to provide
the moderate degree of day-to-day assistance which, being weak
and exhausted, he needs. From September 2001 until January 2002
he was in hospital. Since then Enfield has provided him with
residential accommodation under interim order pending determination
of its liability to do so.
- The argument raised in all three cases
turns upon the proper construction of section 21 of the National
Assistance Act 1948 as amended. This provides:
“(1) [Subject to and in accordance with the provisions
of this Part of this Act, a local authority may with the approval
of the Secretary of State, and to such extent as he may direct
shall, make arrangements for providing] -
(a) residential accommodation for persons [aged
eighteen or over] who by reason of age, [illness, disability]
or any other circumstances are in need of care and attention
which is not otherwise available to them,[and
(aa) residential accommodation for expectant and
nursing mothers who are in need of care and attention which
is not otherwise available to them.]
[(1A) A person to whom section 115 of the Immigration
and Asylum Act 1999 (exclusion from benefits) applies may not
be provided with residential accommodation under subsection
(1)(a) if his need for care and attention has arisen solely
-
(a) because he is destitute; or
(b) because of the physical effects, or anticipated
physical effects, of his being destitute.
(1B) Subsections (3) and (5) to (8) of section 95
of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule
8 to that Act, apply for the purposes of subsection (1A) as
they apply for the purposes of that section, but for the references
in subsections (5) and (7) of that section and in that paragraph
to the Secretary of State substitute references to a local authority.]”
The approvals and directions foreshadowed in what are now the
opening words of subsection (1) are collected in Local Authority
Circular (93) 10 but do not need to be considered until §33
below.
- I need to look at the history behind the
insertion into section 21 of the Act of 1948 of subsection (1A),
which was effected by section 116 of the Immigration and Asylum
Act 1999. The history begins with sections 9 and 11 of the Asylum
and Immigration Act 1996, which deprived asylum-seekers who claimed
asylum any later than at point of entry into the United Kingdom
of entitlement to public housing assistance and to social security
benefits. Four such late able-bodied asylum-seekers reacted by
claiming, in R v. Westminster City Council and others, ex p.
M, P, A and X [1997] 1 CCLR 85, that, thus rendered destitute,
they were entitled to residential accommodation provided by local
authorities under section 21(1)(a) of the Act of 1948. In the
Court of Appeal, as at first instance, their claims succeeded.
At 93 C-E the Court of Appeal said:
“[The local authorities] contend that asylum seekers’ needs
are for food and accommodation and not for care and attention
and consequently asylum seekers cannot avail themselves of section
21(1)(a).
Clearly that proposition is too broadly stated. A
late-claiming asylum seeker who was old, ill or disabled could
certainly rely on the section. But even excepting such asylum
seekers, it is at this final stage that the appellants’ argument
breaks down. The fact that asylum seekers have a need for food
and accommodation which would but for the statutory prohibition
contained in the 1996 Act be met under other statutory provisions
does not mean that they cannot qualify as having a problem which
results in their needing care and attention which is a condition
precedent to their being entitled to rely on section 21(1)(a)
of the 1948 Act.”
- This judgment was soon perceived to have
created problems. In July 1998 the government presented to Parliament
a White Paper (Cm 4018) entitled “FAIRER, FASTER AND FIRMER -
A MODERN APPROACH TO IMMIGRATION AND ASYLUM”. In it the government
proposed a mass of changes to the treatment of asylum-seekers.
In paragraph 8.14 it stated:
“The Court of Appeal judgment relating to the 1948 Act meant
that, without warning or preparation, local authority social
services departments were presented with a burden which is quite
inappropriate, which has become increasingly intolerable and
which is unsustainable in the long term, especially in London,
where the pressure on accommodation and disruption to other
services has been particularly acute.”
In paragraph 8.23 it stated:
“The 1948 Act will be amended to make clear that social services
departments should not carry the burden of looking after healthy
and able bodied asylum seekers. This role will fall to the new
national support machinery.”
- Such was the genesis of the Immigration
and Asylum Act 1999 and the Asylum Support Regulations 2000 (SI
No.704), the relevant provisions of which came into force on 3
April 2000. The Secretary of State for Health was given a discretion
to provide support through NASS (“asylum support”) for destitute
asylum-seekers. Section 95(1) of the Act provides:
“The Secretary of State may provide, or arrange for the provision
of, support for -
(a) asylum-seekers, or
(b) dependants of asylum-seekers,
who appear to the Secretary of State to be destitute
or to be likely to become destitute within such period as may
be prescribed.”
Section 96(1) provides:
“Support may be provided under Section 95 -
(a) by providing accommodation appearing to the Secretary
of State to be adequate for the needs of the supported person
and his dependants (if any);
…”
Accommodation provided by NASS can take a variety of forms
but it is mainly housing stock which it rents from the private
sector, local authorities or housing associations, particularly
in areas outside the south-east of England, to which the asylum-seekers
are “dispersed”.
- Another major feature of the reforms effected
by the Act of 1999 has been to extend the removal of entitlement
to social security benefits to a much wider group than late asylum-seekers.
This extension has been achieved by section 115 of the Act and,
by subsection (2), it applies, with exceptions, “to a person subject
to immigration control”, i.e., by virtue of subsection (9), to
anyone who (in summary) requires leave to enter or remain in the
United Kingdom but does not have it. It is to be noted that subsection
(1A), inserted by section 116 into section 21 of the Act of 1948,
applies to any person to whom section 115 of the Act applies.
Thus, while the power of the Secretary of State under section
96 to provide adequate accommodation relates only to asylum-seekers,
the exclusion by section 21(1A) of the Act of 1948 from eligibility
for local authority accommodation is of a wider category of persons,
namely all those subject to immigration control.
- Although, however, there is a difference
between the categories of person to whom sections 95 and 96, on
the one hand, and section 21(1A), on the other hand, apply, the
provisions have one common denominator, namely destitution. In
this regard the effect of the conjunction of regulation 6(3) with
regulation 23(1) and (3) of the Regulations of 2000 is that, in
their determination of destitution, not only the Secretary of
State but also local authorities are required to ignore any provision
or possible provision of asylum support.
- In June 2000 the Court of Appeal decided
R v. Wandsworth LBC, ex parte O and R v. Leicester City
Council, Ex parte Bhikha [2000] 1 WLR 2539. The two claimants
were subject to immigration control but were not (or at least
were both treated as not being) asylum-seekers. One had severe
psychiatric problems; the other had recurring cancer of the duodenum
which required continuous medical treatment. Although, therefore,
asylum support was not available to them, the local authorities
argued that the insertion of (1A) into section 21 of the Act of
1948 nevertheless made the claimants ineligible under that section.
In the leading judgment Simon Brown LJ said at 2548D to 2549B:
“In what circumstances, then, is it to be said that destitution
is the sole cause of need? The local authorities contend that
the approach should be this. First ask if the applicant has
(a) somewhere to live (“adequate accommodation”) and (b) means
of support (the means to “meet his other essential living needs”):
see section 95(3) of the Act of 1999. Assuming the answer is
“No” to each of those questions, ask next whether, but for those
answers, he would need section 21 assistance. If not, he does
not qualify. In other words, it is only if an applicant would
still need assistance even without being destitute that he is
entitled to it.
The applicants contend for an altogether different
approach. They submit that if an applicant’s need for care and
attention is to any material extent made more acute by some
circumstance other than the mere lack of accommodation and funds,
then, despite being subject to immigration control, he qualifies
for assistance. Other relevant circumstances include, of course,
age, illness and disability, all of which are expressly mentioned
in section 21(1) itself. If, for example, an immigrant, as well
as being destitute, is old, ill or disabled, he is likely to
be yet more vulnerable and less well able to survive than if
he were merely destitute.
Given that both contended for constructions are tenable,
I have not the least hesitation in preferring the latter. The
word “solely” in the new section is a strong one and its purpose
there seems to me evident. Assistance under the Act of 1948
is, it need hardly be emphasised, the last refuge for the destitute.
If there are to be immigrant beggars on our streets, then let
them at least not be old, ill or disabled.
…
As to whether these particular applicants would be
(or, in O’s case, have been) entitled to assistance, that must
necessarily depend upon the local authority’s assessment of
their needs, applying section 21(1A) in the way I have indicated
…”.
- It is clear that in the cases of O
and Bhikha there were grounds for a strong plea ad misericordiam
on behalf of the claimants; and the fact that, in the absence
of rights under section 21, they had, being subject to immigration
control but not asylum-seekers, no hope of asylum support may
to some extent have affected the construction of the new (1A):
see the reference to “immigrant beggars on our streets”.
- Less than a year later, namely in R
on the application of Westminster CC v. NASS [2001] 4 CCLR
143 the Court of Appeal, and in particular Simon Brown LJ himself,
began, as I infer, to consider that the construction of (1A) in
O and Bhikha might produce a less satisfactory result
in the case of those who, like the claimants there, were destitute
and to a degree disabled but, unlike those claimants, were asylum-seekers
with, in principle, recourse to NASS. The case concerned a dispute
between Westminster and NASS as to which should be responsible
for the provision of accommodation and support to Mrs Y-Ahmed
who was destitute and suffering from spinal myeloma. Westminster
had assessed her as requiring accommodation with special facilities
close to St. Mary’s Hospital, Paddington, and extensive assistance
within such a home on the part of a carer. Mr Giffin and Mr McGuire,
who appear in the present proceedings on behalf of Lambeth and
Enfield respectively, are concerned to point out that the contentions
made, as it happens by Mr McGuire himself, on behalf of Westminster
are different from those which they advance before me and which
I will soon address. On behalf of Westminster Mr McGuire advanced
an ambitious argument that, in the light of the availability to
Mrs Y-Ahmed of asylum support, it could not be said, within the
meaning of section 21(1)(a), that the care and attention which
she needed were “not otherwise available to” her. Mr McGuire’s
argument was that the compulsory disregard of NASS support related
only to her classification as “destitute” for the purpose of (1A)
and did not affect the question whether the care and attention
which she needed were otherwise available to her. Thus, according
to him, asylum-seekers were the responsibility of NASS while others
subject to immigration control were the responsibility of local
authorities. At 151C Simon Brown LJ rejected Mr McGuire’s argument
as impossible. The court held that the prior enquiry was whether
the local authority had a duty towards Mrs Y-Ahmed under section
21 of the Act of 1948; that it was only if the answer was negative
that provision might fall to be made for her by NASS; and that,
since the need of Mrs Y-Ahmed for care and attention did not arise
solely because of her destitution but also because of her special
need for community care, she was not excluded from section 21(1)(a)
by (1A) and was thus the responsibility of the local authority.
The result was that, in line with the White Paper, it was only
healthy and able-bodied asylum-seekers for whose accommodation
and support responsibility had been shifted to NASS.
- At the end of his judgment Simon Brown
LJ addressed the decision in O and Bhikha. He stressed
that in that case the court had not been concerned with asylum-seekers.
His judgment continued as follows:
“42. Looking back, I have little doubt that our thinking (or
certainly my thinking) on asylum-seekers was this: those who
without support would deteriorate essentially through destitution
would be entitled to section 95 support irrespective of whether
they were particularly vulnerable through age, ill health or
disablement. Those, however, whose need for care and attention
would exist even if in funds would still be entitled to community
care under the 1948 Act.
43. The difficulty with this approach, however, a difficulty
not I think appreciated by anyone when we decided ex parte
O, is that it involves looking at section 21(1A) differently
depending upon whether the ‘person subject to immigration control’
who is seeking support is or is not an asylum-seeker. If not
an asylum-seeker then clearly the 1948 Act is indeed ‘the last
refuge of the destitute’ and, as ex parte O decided,
section 21(1A) should exclude from relief only the young and
fit. If, however, the applicant is an asylum-seeker, then national
assistance is no longer their last refuge: section 95 has replaced
it.
44. Mrs Y-Ahmed’s case is, it seems to me, a clear one: she,
on any view, appears entitled to 1948 Act assistance and thus
is excluded from section 95 support. What, however, would be
the position of, say, a blind asylum-seeker? [Counsel] for NASS
accepts, indeed submits, that assuming such an applicant, once
provided with suitable accommodation and subsistence under section
95, would not be in need of community care and attention, then
he is entitled to section 95 support. And this, of course, is
consistent with the prescribed application form quoted above.
It is perhaps less easily reconcilable, however, with the approach
to section 21(1A) adopted in ex parte O. Were the blind
applicant to be a non-asylum-seeking immigrant, there can be
little doubt that, for want of section 95 support, he would
be entitled to assistance under the 1948 Act.
45. Clearly none of this can affect the resolution of the legal
issue now before us or the outcome of the present appeal (concerning
as it does Mrs Y-Ahmed’s support). It seems to me necessary,
however, to note a certain tension between ex parte O
and the clearly intended interrelation between the 1948 Act
and the 1999 Act with regard to asylum-seekers. I would end,
therefore, by expressing the hope that NASS will continue to
accept responsibility for supporting the great majority of asylum-seekers
and that local authorities will only be expected to assist those
comparatively few whose need for care and assistance would qualify
them for 1948 Act assistance even were they not subject to immigration
control (together, of course, with the relatively few non-asylum-seeking
immigrants like ex parte O for whom in truth this Act
is a last resort).”
- In a concurring judgment Mance LJ held
in paragraph 52:
“The present case does not fall within section 21(1A) because
the asylum-seeker to whom it relates, Mrs Y-Ahmed, has a need
for care and attention, which does not arise solely from either
destitution or its physical or anticipated physical effects.
She has a serious medical condition requiring specialist medical
care and attention.”
Mance LJ then proceeded to reject the contention that, although
she was not excluded by section 21(1A), Mrs Y-Ahmed never fell
within section 21(1)(a) in the first place. In paragraph 63
he said:
“I am therefore left in no doubt that the overall scheme was
that NASS should take responsibility only for asylum-seekers
falling within section 21(1A), and that persons (whether asylum-seekers
or not) needing care and attention for other reasons would continue
to be dealt with under section 21(1)(a) of the 1948 Act.”
Finally in paragraph 65 he addressed the decision in O
and Bhikha and the effect of what he called its strict
or limited interpretation of section 21(1A) upon the balance
of responsibility between NASS and local authorities. He said
at 158D to E:
“Our decision today indicates a mutually exclusive analysis
of the roles of section 21(1)(a) of the 1948 Act and section
95 of the 1999 Act, which one would expect to apply whether
or not the person seeking support was an asylum-seeker. The
relationship between and the working of the two sections will
presumably be kept under review, and can if necessary be fine-tuned
by legislation, regulation or, within limits, by pragmatic accommodation
between the parties involved.”
- Counsel tell me that the House of Lords
has granted Westminster permission to appeal against the decision
of the Court of Appeal. In retrospect I wonder whether, although
not invited to do so, I should have declined to embark on the
hearing of this case until the determination of that appeal.
- The final authority of central relevance
is R, on the application of Murua and Gichura v. The London
Borough of Croydon, a presently unreported decision of Rafferty
J in this court given on 25 October 2001 (No: CO/2463/01). In
some respects the case does not yield easy analysis. But what
is clear is that both the successful claimants had substantial
disabilities, the one with thoracic spinal injury and the other
with polio; that neither could stand without either crutches or
callipers; and that neither could without difficulty perform everyday
tasks except by using a wheelchair and special adaptations. It
is not easy to see precisely how Croydon sought to justify its
denial of responsibility for the claimants under section 21. Both
local authorities in the proceedings before me complain that Croydon
seems to have conceded too much and argued too little. I consider
that there is little value in my seeking to discern the argument
and that I should proceed straight to the crux of my colleague’s
judgment:
“28. In my judgment the starting point for the LA is M,
P, A and X. A destitute asylum-seeker needs section 21(NAA)
care and attention. Then the words of Simon Brown LJ in Westminster
make plain that in assessing whether he be destitute, the LA
must ignore NASS support. Thus, as ex parte O to my mind
makes clear, it must ask whether such need as destitution has
caused is made materially more acute by something other than
lack of accommodation and funds.”
I agree with Mr Giffin that, in that Rafferty J. there did
no more than succinctly to apply the three decisions of the
Court of Appeal to which I have referred, there is no need for
me to study that case in more detail.
- The above survey of the reported authorities
leads Mr Seddon, who appears on behalf of Mr Mani, and Mr Knafler,
who appears on behalf of Mr Tasci and Mr J, to argue that Lambeth
and Enfield are responsible for the claimants under section 21
of the Act of 1948 by reference not only to proper canons of statutory
construction but also to decided authority. Although they would,
if necessary, reach back to invoke O and Bhikha,
they primarily cite Westminster v NASS as a case where
a destitute asylum-seeker, who also had disabilities increasing
to a material extent her need for care and attention, was held
to fall within the responsibility of the local authority under
section 21. They submit that, to the extent that the claimants
in the present case have disabilities with analogous consequences,
I am bound to follow the decision in Westminster v. NASS.
They add that the facts in Murua and Gichura are indistinguishable
from those in the present cases and that, while not binding on
me, I should also follow that decision unless convinced that my
colleague was wrong.
- In a set of conspicuously well-crafted
submissions Mr Giffin, ably supported by Mr McGuire, argues that
it would be paradoxical to the point of absurdity if the local
authorities were obliged to provide residential accommodation
for these claimants. The disabilities of Mr J and, even more obviously,
of Mr Mani are (so I accept) not such as to require the provision
of residential accommodation. Those of Mr J place him in need
only of visiting assistance; and the evidence in relation to Mr
Mani supports a conclusion, although not yet reflected in Lambeth’s
assessment of him, that at times he also has a need for care and
attention of that visiting kind. Of the three claimants Mr Tasci
has the greatest needs. But, even though he needs accommodation
of a particular type, I am not persuaded (and I am not clear that
on his behalf Mr Knafler even argues) that even his disabilities
are such as, by themselves, to call for the provision of “residential
accommodation”, which means managed accommodation (section 21(4))
and which includes “board and other services, amenities and requisites
provided in connection with the accommodation except where in
the opinion of the authority managing the premises their provision
is unnecessary” (section 21(5)).
- The local authorities explain that,
apart from in their new and controversial discharge in respect
of those subject to immigration control, their duties to provide
residential accommodation under section 21 have for half a century
been largely directed towards providing accommodation for the
elderly no longer able to live at home (i.e. “old people’s homes”)
and for those with severe mental handicap. It has been rare for
a physical disability to lead to such provision. The local authorities
are adamant that, had the three claimants been indigenous members
of our population, their disabilities would not be such as to
have secured for them residential accommodation under section
21. On behalf of Mr Mani, Mr Seddon orally concedes that point;
and I collect from the claimants’ joint written closing submissions
an analogous concession by Mr Knafler on behalf of the other two
claimants.
- Surely, argue the local authorities,
those subject to immigration control are in no stronger position
under section 21 than their indigenous counterparts. A destitute
person subject to immigration control, who has a degree of disability
with a consequential need for some sort of care and attention,
obviously has a need for care and attention which does not arise
solely because of destitution. Nevertheless, runs the crucial
part of their argument, the resource at issue is residential accommodation;
and so the need for care and attention consequential upon the
disability must be such as can appropriately be met only by the
provision of residential accommodation. They say that the reference
to the need for care and attention both in (1)(a) and (1A) of
section 21 must, unless the law is shamefully incoherent, be thus
construed.
- It is indeed a powerful argument. And
it leads Mr Seddon to concede that the relevant “need for care
and attention” has to be assessed in light of the fact that its
proposed service would take the form of residential accommodation
and thus that it should be a need calling for such provision.
Mr Knafler does not expressly distance himself from that concession.
-
(a) Although I find
the whole subject perplexing, I think on reflection that Mr Seddon
may have made his concession slightly too baldly. I now believe
that the answer to the conundrum is to be found in the words “which
is not otherwise available to them” in subsection (1)(a).
(b) The conundrum itself cannot better be expressed than it
was by Stanley Burnton J. in R on the application of Wahid
v Tower Hamlets LBC [2001] 4 CCLR 455 at paragraph 27:
“Section 21 is curious in that there is a difference
between the need it addresses and the means to meet it: the
need is for care and attention, yet the means of meeting it
is by the provision of residential accommodation. Clearly
a need for accommodation is not the same as the need for care
and attention.”
(c) But the requisite need is for care and attention “which
is not otherwise available to them”. In the vast majority of
cases necessary care and attention is (or are!) otherwise available.
If not available from family or friends, they are available
from public authorities. To take the best example, the conjunction
of section 29 of the Act of 1948 with section 2(1) of the Chronically
Sick and Disabled Persons Act 1970 requires local authorities
to provide a raft of support for the needy within their homes.
(d) So it will be very rare for necessary care and attention
which fall short of requiring residential accommodation to be
“not otherwise available”.
(e) But, whenever they are indeed not otherwise available,
there is the long-stop of section 21. To my mind, the section
is the epitome – fascinating and, by modern standards, extraordinary
– of the proud embrace of the Welfare State: when a person is
in need of care and attention which are not otherwise available,
then, whatever the nature of the necessary care and attention,
he is entitled to come inside.
(f) Look, for example, at section 21(1)(aa) [set out in §5
above], added though it was in 1972. The situation of the nursing
mother hardly gives rise to any need for residential accommodation
beyond that of any other mother; similarly with that of the
expectant mother, whose extra need for accommodation, if any,
is to be in hospital. Yet, when the lesser degree of care and
attention which they both need is not otherwise available, they
too are entitled to come inside.
- From this stage of the analysis the
local authorities would, were it open to them to do so in this
court, proceed to argue that, if the three present claimants were
accommodated by NASS, the care and attention which each needs
by reason of their disabilities, being of kinds not calling for
residential accommodation, would be otherwise available to them,
with the result that they do not fall within section 21(1)(a).
They would rely upon the application form for NASS support and
accompanying notes, prescribed by regulation 3(3) of, and the
schedule to, the Regulations of 2000, which require the applicant
to identify various types of disability and which indicate to
him an aspiration to provide support which meets any needs consequent
thereon. They would stress that, insofar as NASS itself is not
in a position to provide community care of that sort, what underlies
such an indication is recognition that the local authority for
the area in which NASS accommodates the asylum-seeker has the
usual duty to make such provision for him pursuant in particular
to section 29 of the Act of 1948 and section 2 of the Act of 1970.
And they would conclude by submitting that, even if asylum support
itself falls to be disregarded in the enquiry under section 21(1)(a)
as to whether care and attention are otherwise available, there
is nothing to require or justify disregard of the availability
of a local authority’s care of, and attention towards, those with
special needs accommodated by NASS.
- Mr Seddon and Mr Knafler in part seek
to repel the above argument by reference to the chasm between
the obligations which may in theory be owed to NASS-accommodated
asylum-seekers and, as now well-documented, the miserable realities.
Mr Knafler says that the disabled asylum-seeker is in practice
at a hopeless disadvantage even in understanding, let alone in
successfully asserting, whatever his rights may be to extra care
and attention; and that the entire NASS scheme is in danger of
collapse by virtue of an infrastructure which in various ways
is woefully insupportive of the asylum-seeker. In my view, however,
counsel’s easier recourse is to abort further discussion of the
merits of the local authorities’ argument by submitting that it
has already been rejected in the Court of Appeal in Westminster
v NASS. In paragraph 32 of his judgment Simon Brown L.J. fully
considered the words on the prescribed form of application to
NASS. It is true that, in the final sentence of the paragraph,
when he rejected the argument constructed around the form, the
learned lord justice seems to have addressed a hypothesis of community
care provided for the disabled directly by NASS rather than by
the relevant local authority. But Mr McGuire assures me that his
argument to that court was directed to provision by the local
authority; and I proceed on the footing that it was thus understood.
- More widely, I have reached the clear
conclusion that the answer to the first and major question raised
in these proceedings is, at any rate at the level of this court,
dictated by the decisions of the Court of Appeal in O and
Bhikha and Westminster v NASS. In O and Bhikha,
as set out in §11 above, the Court of Appeal specifically rejected
the argument that “it is only if an applicant would still need
[section 21] assistance even without being destitute that he is
entitled to it”. In my view “[section 21] assistance” must there
mean “the provision of residential accommodation”. If so, the
argument there rejected is precisely the argument advanced to
me. In Westminster v NASS the Court of Appeal concluded,
for obvious reasons, that the construction of section 21 in the
case of asylum-seekers could not be different from its construction
in the case of others subject to immigration control. That the
application to asylum-seekers of the construction favoured in
O and Bhikha might produce anomalies there began
to emerge. Nevertheless, in the case of asylum-seekers, a clear
line had been drawn, with whatever degree of forethought, by the
White Paper which preceded the Act of 1999; and the adoption in
their case of the test in O and Bhikha had at all
events the added justification of being entirely loyal to it.
- In §14 above I have set out paragraphs
42 to 45 of the judgment of Simon Brown L.J. in Westminster
v NASS because the local authorities in the present case set
considerable store by them. I regard those paragraphs as a postscript
to the judgment in which the emerging anomalies were acknowledged.
The example of the blind man subject to immigration control, who
needs considerable care and attention but not in the form of residential
accommodation, was posited. I take the postscript to mean that,
were he not an asylum-seeker, he would be entitled to residential
accommodation under section 21; that, were he an asylum-seeker,
the legal conclusion could be no different; but that outside
the realms of legal obligation NASS should consider whether
nevertheless to assume responsibility for him. At paragraphs 52
and 63, set out in §15 above, Mance L.J. expressed himself even
more conclusively, indeed by reference to the facts of that case.
He said not that Mrs Y-Ahmed had a need for residential accommodation
but that “she has a serious medical condition requiring specialist
medical care and attention” and therefore a need for care and
attention which had not arisen solely because of destitution;
that accordingly she was not excluded by (1A) from section 21;
and that, being in need of care and attention and yet not thus
excluded, she was to be dealt with (i.e. was entitled) under section
21.
- I turn to the second question, identified
in §2 above. In the case of Mr Mani the question arises because
NASS provided him with accommodation (namely in Eurotower, which
lies in the area of Lambeth, between November 2000 and April 2001
and again between June and July 2001) and thereafter offered to
continue to provide him with accommodation (namely in Bolton).
In the case of Mr Tasci it arises because in December 2001 NASS
offered to provide him and his dependants with accommodation (namely
in Newcastle).
- The local authorities argue in both
cases that, even if in the absence of offers of accommodation
by NASS they would have been liable to provide residential accommodation
for the two claimants, the offers by NASS relieve them of liability.
Mr McGuire stresses the social undesirability of asylum-seekers
being able, as he puts it, to pick and choose between providers
of accommodation; and in particular to defeat the government’s
dispersal policy, such that, when faced with dispersal to places
like Bolton and Newcastle, they contrive to keep themselves accommodated
in London by the assertion of rights against London local authorities.
There are strong policy reasons, argues Mr Giffin, for a simple
rule that, whichever body – whether NASS or indeed a local authority
- be the first to accept an asylum-seeker’s application for the
provision of accommodation, such should be its only provider until
circumstances change.
- Even at first sight the local authorities’
argument seems unsound. It is impossible to wring out of such
circumstances any election on the part of the asylum-seeker made
with knowledge of his rights. He arrives in the UK; there is an
urgent need for him to be accommodated; and he is probably first
directed to the Refugee Council, a charity which acts as a conduit
to potential providers of support. If the Council helps him to
approach NASS and if NASS responds with an offer of accommodation,
should the offer operate to forfeit any rights which he has against
the local authority? Is either the Council or in particular NASS
then in a position to conduct a proper appraisal of whether he
has a need for care and attention, not otherwise available to
him, made materially more acute by a circumstance other than destitution?
And, if the appraisal is wrongly negative, why should it affect
the asylum-seeker’s rights?
- These concerns are highlighted by the
circumstances in which Mr Tasci received his offer of accommodation
from NASS. In September 2001 he approached the Refugee Council
and requested accommodation for himself and his family. Following
enquiry into his circumstances and an informal discussion with
NASS, the Council referred him to Enfield, explaining why in its
view he fell within Enfield’s responsibility under section 21.
Enfield conducted an assessment but nevertheless decided to steer
him towards NASS. In November its officer completed on his behalf
the form for application to NASS, which he signed; attached to
the form was a letter from Enfield to NASS in support of the application.
When in December NASS accepted the application, Enfield at once
declared itself no longer responsible for accommodating him. It
would be absurd if, by that sequence of events, Enfield could
avoid a responsibility otherwise falling upon it. Who, asks Mr
Knafler, is the party there seeking to pick and choose?
- But the answer to the second question
is put beyond doubt by the conjunction of regulations referred
to in §10 above. The effect of regulation 23(1) and (3) of the
Regulations of 2000 is that, in the words of regulation 6(3) as
adapted, the local authority must, in considering destitution
for the purpose of section 21(1A), ignore any NASS support with
which the applicant not only might be provided but also is provided.
If the actual provision of NASS support (or, which may be regarded
as its equivalent, a refusal to accept it) were to eliminate the
local authority’s liability under section 21, that part of the
regulation would be redundant.
- The third and final question, posed
in §3 above, requires attention to the approvals and directions
in LAC(93)10, referred to in §5 above. They identify the local
authority upon which in a particular case the powers and duties
under section 21 are conferred and cast. The effect of the directions
(which create the duties) is, insofar as is relevant, that a local
authority must provide residential accommodation under section
21 to:
(a) a person who is ordinarily resident in its area (paragraph
2(1)(b)); and
(b) a person who is in urgent need thereof (paragraph 2(1)(b));
and
(c) a person with no settled residence who is in its area
and who is or has been suffering from mental disorder (paragraph
2(3)(a)).
Lambeth contends that Mr Mani falls within none of those categories;
he contends that, as it happens, he falls within all of them.
- An initial issue, not fully argued,
relates to the date at which Mr Mani’s circumstances must satisfy
one of the three criteria. Mr Giffin suggests that it is the date
of Mr Mani’s issue of these proceedings: with respect, that seems
wholly illogical in circumstances where the focus is upon the
legality of a prior decision. Mr Seddon contends that the choice
is between the date of Mr Mani’s application to Lambeth or the
date of its rejection. Although in my view the outcome is the
same, I confidently choose the latter. In Mohamed v Hammersmith
and Fulham LBC [2001] 3 WLR 1339 Lord Slynn of Hadley, at
paragraph 23, held that, when a local authority was required to
consider whether an applicant for housing under the Housing Act
1996 had a local connection, it should consider the circumstances
existing at the date of its decision (or later review).
- It is convenient first to address the
issue of Mr Mani’s ordinary residence, to which the following
chronology is relevant:
(a) On 23 October 2000 Mr Mani arrived in the U.K. and claimed
asylum;
(b) On 1 November 2000 he was accommodated by NASS in Eurotower
in Lambeth;
(c) By letter dated 7 March 2001 the Refugee Council referred
him to Lambeth, alleging that he had a disability which brought
him within section 21;
(d) On 24 April 2001 Lambeth interviewed Mr Mani;
(e) On 27 April 2001 Lambeth intimated orally to the Refugee
Council that it refused Mr Mani’s request for assistance;
(f) On 4 May and 6 June 2001 Lambeth’s written and inferentially
negative assessment of Mr Mani was signed and countersigned;
(g) Meanwhile, on 27 April 2001, Mr Mani had left Eurotower
in order to stay with friends in London but not in Lambeth.
Apart from a further period in Eurotower between 15 June and
27 July 2001, he remained in London but not in Lambeth until
24 August 2001, when Lambeth’s without prejudice provision
to him of accommodation began.
- In the Mohamed case the applicant
had lived in Hammersmith for six months prior to its initial decision
that he had no local connection and for a further two months prior
to its review, which was to the same effect. For all but the first
three months of that period he had lived in interim accommodation
provided by Hammersmith pending the decision. It was held that,
certainly by the time of the review and (as I infer) even by the
time of the initial decision, the applicant had acquired a local
connection. In paragraph 17 Lord Slynn equated normal residence
with ordinary residence and cited R v Barnet LBC ex p. Shah
[1983] 2 AC 309 for the proposition, upon which Mr Giffin relies,
that ordinary residence has to be an abode adopted not only voluntarily
but “for settled purposes as part of the regular order of his
life for the time being, whether of short or of long duration”.
Then, in paragraph 18, Lord Slynn continued:
“It is clear that words like “ordinary residence”
and “normal residence” may take their precise meaning from the
context of the legislation in which they appear but it seems
to me that the prima facie meaning of normal residence is a
place where at the relevant time the person in fact resides.
That therefore is the question to be asked and it is not appropriate
to consider whether in a general or abstract sense such a place
would be considered an ordinary or normal residence. So long
as that place where he eats and sleeps is voluntarily accepted
by him, the reason why he is there rather than somewhere else
does not prevent that place from being his normal residence.
He may not like it, he may prefer some other place, but that
place is for the relevant time the place where he normally resides.
If a person, having no other accommodation, takes his few belongings
and moves into a barn for a period to work on a farm that is
where during that period he is normally resident, however much
he might prefer some more permanent or better accommodation.
In a sense it is “shelter” but it is also where he resides.
Where he is given interim accommodation by a local housing authority
even more clearly is that the place where for the time being
he is normally resident. The fact that it is provided subject
to statutory duty does not, contrary to the appellant authority’s
argument, prevent it from being such.”
- By 25 and 27 April 2001, when Lambeth
interviewed him and decided to reject his application, Mr Mani
had been living continuously in its area for almost six months.
Mr Giffin concedes that, on Lord Slynn’s analysis, his adoption
of residence there was sufficiently voluntary. I hold that its
purposes were also sufficiently settled, Eurotower being the compass
of the regular order of his life during that period. He was ordinarily
resident in Lambeth for the purpose of the first criterion.
- Had I reached a contrary conclusion,
I would have proceeded to hold that the third criterion had been
satisfied in that Mr Mani had no settled residence, was in the
area of Lambeth and had been suffering from mental disorder. I
will say nothing about the second criterion, which raises the
question whether the compulsory disregard of asylum support extends
to the determination for which it calls.
- It follows that all three of the applications
succeed.
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