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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Westminster City Council, R (on the application of) v National Asylum Support Service [2001] EWCA Civ 512 (10 April 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/512.html
Cite as: [2001] EWCA Civ 512, (2001) 4 CCL Rep 143, (2001) 33 HLR 83
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE STANLEY BURNTON
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL Tuesday 10th April 2001 |
||
B e f o r e :
LORD JUSTICE BROOKE
and
LORD JUSTICE MANCE
____________________
| REGINA on the application of WESTMINSTER CITY COUNCIL |
Claimant/ Appellant |
|
| - and - |
||
| NATIONAL ASYLUM SUPPORT SERVICE |
Defendant/ Respondent |
____________________
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 John Howell QC & Mr Pushpinder Saini (instructed by The Treasury Solicitor) for the Respondent
____________________
Crown Copyright ©
- This appeal, brought with the permission of the judge below, raises an interesting and important question concerning the support of a particular category of asylum-seeker. The category in question are those who are not merely destitute (that is, without adequate accommodation and/or the means of meeting their other essential living needs) but who in addition have community care needs.
- The critical question is whether the responsibility for housing and supporting this category of asylum-seeker now falls upon the respondents (NASS), a service within the Home Office established by the Secretary of State to provide support for asylum seekers under Part VI of the Immigration and Asylum Act 1999, or remains with local authorities still to be discharged (as before the 1999 Act it had been) under s.21(1) of the National Assistance Act 1948.
- The issue arises here as a result of NASS's refusal to accept responsibility for providing accommodation and support for Mrs Sabiha Mirza Y-Ahmad, an Iraqi Kurd asylum-seeker, and her 13 year old daughter. Mrs Y-Ahmad is not merely destitute but suffers also from spinal myeloma for which she has been, and continues to be, treated at St Mary's Hospital, Paddington. On 23 November 2000, the appellant Council's social services department assessed her as requiring (on her discharge from hospital) assistance from a carer with her mobility indoors and outdoors, with transfer between bed, chair, bath and wheelchair, and with personal care in respect of washing, dressing and toilet. She also requires accommodation with disabled access and its own bathroom as close to St Mary's Hospital as possible and which has at least two rooms, one of them large enough to allow a carer to work around her. Since 20 December 2000 she has been accommodated in two rooms at a West London hotel at a cost of £176 per day.
- Westminster's case is that Mrs Y-Ahmad and her daughter are entitled to be supported by NASS under s.95 of the 1999 Act at least to the extent of their accommodation expenses and the cost of meeting their essential living needs. (Although in their written skeleton argument Westminster appear to accept "that community care needs beyond accommodation and essential living needs would continue to be met by local authorities", on their wider argument I understand them to seek recoupment of these too under ss.99 and 110 of the 1999 Act.) NASS's contrary contention is that Westminster remains under an obligation to provide for these asylum-seekers' needs under s.21 of the 1948 Act.
- Stanley Burnton J, acceding to NASS's argument and rejecting Westminster's challenge, did so with evident misgivings, expressing the view that his conclusion "leaves a number of incongruities". Westminster now appeal.
- It is convenient at this stage to set out the principal legislative provisions under which NASS (for the Secretary of State) and Westminster are respectively either required to provide (or more accurately, in NASS's case, empowered to provide), or precluded from providing, the support here in question.
- NASS
- Let me then turn to schedule 8:
- The Asylum Support Regulations 2000
- Westminster
- Section 21(1) of the National Assistance Act 1948, before amendment by the 1999 Act, provided simply:
- With effect from 1 April 1993 the Secretary of State duly did direct local authorities among other things to make arrangements in terms of s.21(1).
- The 1999 Act amended s.21 of the 1948 Act to insert, after subsection (1):
- S.115 of the 1999 Act applies, by subsection 3, to "a person subject to immigration control" as defined by subsection 9, and, as we explained in R v Wandsworth LBC ex parte O [2000] 1 WLR 2539, 2543:
- Mrs Y-Ahmad, I should note, obtained leave to enter the United Kingdom subject to a condition that she should not have recourse to public funds and is thus a person subject to immigration control.
- I must now refer to one further regulation of the Asylum Support Regulations 2000:
- As will be seen from those provisions, NASS can only support an asylum-seeker if he (or she) appears destitute i.e. "does not have adequate accommodation or any means of obtaining it" or "cannot meet his other essential living needs". Westminster (and, of course, other local authorities too) can only provide 1948 Act accommodation and services to those "in need of care and attention which is not otherwise available to them". Westminster's central contention is that care and attention is now otherwise available to all asylum-seekers including the category with which this challenge is concerned (i.e. those whose community care needs do not arise solely from their destitution or from its actual or anticipated physical effects and who are not therefore excluded under s.21(1A)) because the Secretary of State ought properly to meet their basic need for accommodation and their essential living needs under s.95. NASS's contrary argument is that these particular asylum-seekers are not to be regarded as destitute for s.95 purposes because they do have adequate accommodation or the means of obtaining it and can meet their other essential living needs by virtue of their continuing rights under the 1948 Act.
- Before examining these and related arguments in any detail it is convenient next to indicate briefly the circumstances in which Part VI of the 1999 Act came to be enacted. The backdrop to the modern legislation is this Court's decision in R v Hammersmith & Fulham LBC ex parte M [1997] 30 HLR 10 which held that destitute asylum-seekers, deprived by the Asylum and Immigration Act 1996 of all benefit entitlement, could qualify for assistance under s.21 of the 1948 Act. As Lord Woolf MR put it giving the judgment of the Court at p.20-21:
- The practical result of this decision, which was concerned with asylum-seekers whose need for care and attention stemmed solely from their lack of accommodation and means to support themselves, was to require local social service authorities to provide such persons with accommodation and assistance in meeting their essential living needs in a very substantial number of cases. As was stated in the July 1998 White Paper preparatory to the 1999 Act:
- Later, in a paragraph indicating how the proposed new "safety net scheme will operate", appears this:
- That last passage, of course, strongly supports NASS's contention in these proceedings. Certainly it is for them to support the great majority of asylum-seekers, those who are healthy and able-bodied (as were M and his fellow claimants in the Court of Appeal case); the 1948 Act was never intended to support those asylum-seekers in need of care and attention solely because of their destitution and it was clearly appropriate to lift the burden of their support from local authorities. But that and that alone was the intended effect of Part VI of the 1999 Act. It was not intended to relieve local authorities of their 1948 Act obligations towards asylum-seekers with specific care needs. That is NASS's argument.
- White papers are a legitimate aid to construction - see Duke v GEC Reliance Limited [1988] AC 618, 637, Harrods Limited v Remick [1998] 1 All ER 52, 58, and Pepper v Hart [1993] AC 593, 640. Hansard is more problematic, a parliamentary statement being admissible only if made by the Minister or other promoter of the Bill, and only if it clearly addresses and resolves the very ambiguity or obscurity which the rule postulates. Although each side showed us various statements made by Ministers in the course of this Bill's parliamentary progress, in my judgment none of them properly satisfies the Pepper v Hart tests of admissibility. Perhaps the closest was Mr Mike O'Brien's statement on 11 May 1999 during the special standing committee debate on the Bill, with regard to a question upon what is now s.116:
- Rather, however, than seek to decide this case by reference to such explanatory materials, it seems to me preferable to consider first where the legislative scheme takes one. The judge below, examining the case initially from the starting point of s.95, said this:
- The points made by the judge there are prominent amongst those advanced by Westminster on this appeal. But how far do they take Westminster's case? Let us suppose that Mrs Y-Ahmad's application for support had been made first to NASS. True, at that point she would indeed in common parlance have been destitute. But whether she would have been destitute for s.95(1) purposes would depend upon whether "any other support [was] available to [her]" within the meaning of regulation 6(4)(b) of the regulations. This regulation, by virtue of s.95(12) and paragraph 2(1)(b) of Schedule 8, supplements s.95 and thereby defeats Westminster's reliance upon the reference in s.95(3) only to the asylum-seeker's "means" of obtaining accommodation rather than to the availability of other "support".
- Look at it then from the other standpoint and assume that Mrs Y-Ahmad had first applied to Westminster. Would they have been entitled to reject her claim under s.21(1)(a) of the 1948 Act on the basis that she was eligible for s.95 asylum support from NASS and so was not in need of care and attention because it was "otherwise available" to her?
- To my mind the answer to this question is No. The statutory concept of destitution only entered the 1948 Act by the 1999 Act's introduction of the new section 21(1A). The new s.21(1B) then dictates how the local authority for its part is to determine whether a person is destitute or not. Regulation 6(3)(a) applies mutatis mutandis (if I may be permitted the Latin) to the local authority and they therefore must ignore "any asylum support". It follows that Westminster would be bound to regard Mrs Y-Ahmad as destitute. The relevance and only relevance of that from their point of view, of course, is that it raises the question posed by s.21(1A): does Mrs Y-Ahmad's need for care and attention arise solely because of her destitution or its actual or anticipated physical effects? Plainly it does not. Accordingly Westminster are not relieved of their duty to provide her with residential accommodation under s.21(1)(a).
- How then does Westminster seek to resist liability on this basis? As I understand Mr McGuire's argument, it is that regulation 23(1)(a) refers only to s.21(1A) of the 1948 Act and not to s.21(1)(a) and that if one starts at s.95 of the 1999 Act everything falls into place. To my mind, however, this is an impossible argument. Regulation 23(1)(a) does not refer to s.21(1)(a) of the 1948 Act for the very good reason that under this sub-section the local authority has no occasion to determine whether or not the person concerned is destitute: that statutory concept has no direct relevance to whether there is a need for care and attention and is relevant only to whether, assuming there is, it is nevertheless barred by s.21(1A). As I have sought to demonstrate, moreover, starting at s.95 solves none of Westminster's problems: it merely raises the question whether "any other support" is available to the asylum-seeker. If it is, as I conclude that it is here, then NASS are required by regulation 6(4)(b) to take account of it.
- In short, the logic of NASS's position is to my mind irresistible. They win because the regulations apply equally to both parties and both must therefore ignore "any asylum support" - regulation 6(3)(a); under regulation 6(4)(b), however, NASS "must take into account ... any other support which is available ...".
- This result to my mind accords also with the overall scheme of the legislation. The 1999 Act at one and the same time took the duty to support certain asylum-seekers away from local authorities under the National Assistance Act and placed it instead upon the Secretary of State. If this were so with regard to all asylum-seekers, what, one wonders, would be the point of the new s.21(1A), a provision whose sole effect is to distinguish between those whose need for care and attention is, and those whose need for care and attention is not, solely due to destitution or its effects. This distinction can hardly have been made solely to affect non asylum-seeking immigrants. It is surely plain that the 1999 Act was designed to shift the responsibility only for those asylum-seekers newly excluded by s.21(1A).
- Before parting from this appeal, however, there are a number of other points I should touch upon. First, the fact that entitlement to 1948 Act community care is not a prescribed circumstance excluding someone otherwise entitled from asylum support. I find this wholly unsurprising. A careful analysis of regulation 4 (with which I shall not burden this judgment) indicates why it was thought appropriate to exclude those whom it does exclude. Those entitled to 1948 Act care do not need to be excluded: they would not in any event "otherwise fall within" the s.95(1) entitlement.
- Second, I must address Westminster's complaint that NASS's argument leaves local government with the burden of accommodating and supporting those asylum-seekers whose needs are the greatest and most costly to provide for. This, Westminster submits, substantially defeats the essential aim of the 1999 Act, which was to administer and fund a centralised and integrated support scheme for asylum-seekers, thereby lifting the burden from local authorities. Subject only to what I say below about ex parte O, there is to my mind nothing in this point. The great majority of asylum-seekers are, one assumes, healthy and able-bodied (there is certainly no evidence before us to the contrary) and, as the White Paper envisaged, the burden of supporting these has indeed been lifted by the 1999 Act from the shoulders of local government. True, the cost of supporting those whose needs are greatest remains with local government and that expense will continue to bear disproportionately upon those local authorities (notably the London Boroughs and Kent) to which for obvious reasons asylum-seekers tend to go. But that is not to say that the 1999 Act has not served its purpose. The question of how the financial burden of supporting asylum-seekers is to be shared between central government and local government (and, of course, health authorities) is ultimately a political one. Parliament can if it wishes amend the 1999 Act. Or the regulations can be amended. There are in any event powers to provide financial assistance to local authorities under the Local Government Finance Act 1988. Similarly, under s. 110(1) of the 1999 Act the Secretary of State may pay to any local authority such sums as he considers appropriate in respect of expenditure incurred or to be incurred by the authority in connection with asylum-seekers and their dependants.
- The third point I must deal with is the application form for asylum support prescribed by paragraph 3(3) of the regulations which in terms asks whether the asylum-seeker "suffer[s] from any medical condition that you need treatment, medication or counselling for" or has "a disability that will affect the type of accommodation you are given". Similarly, the notes to the form include the following:
- This struck the judge below as one of the "incongruities" of his conclusion. Westminster argue that it is implicit in this statutory form that NASS will undertake the burden of caring even for those with particular needs i.e. needs for which they would otherwise look to local authorities under the 1948 Act. Again, subject only to what I say below about ex parte O, there seems to me nothing in this argument. The support which the Secretary of State may provide under s.95 is limited, save in exceptional circumstances, to the provision of adequate accommodation and, as a general rule, vouchers redeemable for goods, services and cash for certain stipulated fixed amounts - see s.96(1)(a) and (b) of the 1999 Act and regulation 10. There could be no question of NASS providing community care services of the kind required by Mrs Y-Ahmad in the present case.
- I come finally to ex parte O, a decision of this Court from which the Judge below drew some support but which to my mind presents the only real difficulty in the case. Ex parte O concerned two non-asylum-seeking immigrants, each with a serious health problem and each entirely lacking support. A critical issue in both cases was whether 1948 Act assistance was barred by s.21(1A). What, in short, was meant by "need for care and attention [arising] solely because [of destitution or its actual or anticipated physical effects]"?
- We held that:
- In reaching that conclusion I observed:
- Later in the judgment, dealing with a second critical issue as to whether the applicants were nevertheless disentitled from assistance on the grounds of illegality, I referred to the 1948 Act as "a welfare scheme of last resort" (p.2552E) and "the very last possibility of relief, the final hope of keeping the needy of the streets" (p.2552H). Hale LJ, also dealing with this second issue, described the Act as "the last refuge of the destitute" (p.2553H).
- In short, we felt it appropriate to restrict the bar to relief created by the newly inserted s.21(1A) as far as possible so that the benefit of this last resort welfare would be retained for the maximum number of vulnerable non-asylum-seeking immigrants.
- We were not, I must emphasise, concerned in that case with asylum-seekers. As to them I said this:
- That, for obvious reasons, was the passage from which the Judge below drew support. Later, however, I said this:
- Necessarily implicit in that sentence, of course, is that, were the same immigrants (whom we were holding still eligible, on account of their ill health, for 1948 Act assistance) to be asylum-seekers, they would be entitled to s.95 asylum support – a view which would appear to support Westminster's case.
- 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 s.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.
- 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 s.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, s.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: s.95 has replaced it.
- Mrs Y-Ahmad'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 s.95 support. What, however, would be the position of, say, a blind asylum-seeker? Mr Howell QC for NASS accepts, indeed submits, that assuming such an applicant, once provided with suitable accommodation and subsistence under s.95, would not be in need of community care and attention, then he is entitled to s.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 s.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 s.95 support, he would be entitled to assistance under the 1948 Act.
- 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-Ahmad's support). It seems to me necessary, however, to note a certain tension between ex parte O and the clearly intended inter-relation 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 O for whom in truth this Act is a last resort).
- I would dismiss this appeal.
- I agree.
- I agree with the reasoning and conclusions of Lord Justice Simon Brown. The schemes of support provided by s.21(1)(a) of the National Assistance Act 1948 and s.95 of the Immigration and Asylum Act 1999 must be read together. The 1948 Act, together with authorities interpreting it, constitutes essential background to the understanding of the former. The 1999 Act by s.116 amends the 1948 Act by inserting s.21(1A) and (1B), in a manner clearly intended to promote harmony between the two Acts.
- The immediate background in authority to the 1999 Act consists of R v. Hammersmith & Fulham LBC, ex p. M. (1997) 30 HLR 10. This court there held that s.21(1)(a) of the 1948 was capable of extending to individual asylum seekers in circumstances which the court described as follows:
- This had the effect of requiring local authorities to provide care and assistance for a considerable number of asylum seekers (and no doubt others) whose basic need was money and accommodation, but whose circumstances could, at least with the passage of time, be said to meet the minimal additional conditions described by this court.
- When the 1999 Act was drafted the intention was clearly to transfer responsibility for a category of asylum seekers falling within the class identified in ex p. M from local authorities to NASS. S.21(1)(A), inserted into the 1948 Act, is formulated in language directly addressing this category. Paragraph (a) deals with those with a need for care and attention arising solely because of destitution, that is lack of "adequate accommodation or any means of obtaining it" or inability to "meet essential living needs": see the definition in s.95(3) of the 1999 Act, which by virtue of s.21(1B) applies to s.21(1A) of the 1948 Act. Paragraph (b) deals with those with such a need arising solely because of "the physical effects, or anticipated physical effects" of a person being destitute, in other words with certain circumstances in which a need for care and attention within s.21(1)(a) could under ex p. M otherwise arise.
- The present case does not fall within s.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. Westminster City Council ("Westminster") maintain, however, that her case (a) falls within s.95 of the 1999 Act and (b) is therefore excluded by s.21(1)(a) from the scope of their responsibilities under the 1948 Act, since s.21(1)(a) limits their responsibility to those in need of care and attention "which is not otherwise available to them".
- Even if this were right, I observe that the Secretary of State would not under s.95(1) have an absolute obligation to provide or arrange for the provision of support. That subsection is phrased in terms of discretion. Under s.21(1)(a) of the 1948 Act read with the relevant Approval Directions (Appendix 1 to Department of Health Circular No. LAC(93)10), a local authority is in contrast obliged to make arrangements under s.21(1)(a):
- The argument before us has however focused on the fundamental question whether the Secretary of State has any power to provide or arrange for support under s.95(1) in relation to an asylum seeker with Mrs Y-Ahmad's needs for specialist medical care and attention. For the National Asylum Support Service ("NASS"), it has been argued that the answer to this question lies in the reference in s.95(3)(a) to "other means of obtaining adequate accommodation" and in the phrase "cannot meet his other essential living needs" in s.95(3)(b). It is submitted that Mrs Y-Ahmad is entitled to look to the local authority under s.21(1)(a), that she therefore has "other means of obtaining adequate accommodation" and can "meet [her] other essential living needs" and that she is not therefore destitute within s.95(1) and (3).
- So far, it might appear that the answer depends upon where one starts. Does one start with these words of s.95(3) or with the concluding words of s.21(1)(a)? In my view, one must look at the statutory provisions together, and try to work out the underlying intention. Approaching the matter in this way, I am not convinced that the phrases "other means of obtaining adequate accommodation" and "cannot meet his other essential living needs" in s.95(3) are of relevance or assistance on the present point. On their face they are simply concerned with the asylum seeker's physical needs, not with support that might be provided him under any statutory scheme. Where a reference to support is intended, the word is used – cf e.g. ss.95(9), 96 and 97. The phrase "care and attention not otherwise available to them" in s.21(1)(a) is in contrast clearly apt to refer to support under another statutory scheme. Thus far, Westminster have a point.
- The matter does not however end there. Looking at the general purpose of the 1999 Act and the amendments that it introduced to the 1948 Act, the impression gained is that the 1999 Act was to cater for the category of person identified in ex p. M, and no more. S.21(1A) is clearly directed to that category. It would be curious if s.21(1)(a) was - at one and the same time - intended to have an effect which would appear, first, to duplicate s.21(1A) - s.21(1)(a) would on its own be sufficient, on Westminster C.C's case, to throw responsibility onto NASS for providing residential accommodation for the category of persons identified in s.21(1A) - and, secondly, to go beyond the reversal of ex p. M so as to expand the category of persons to whom NASS were responsible for providing such accommodation to include all asylum seekers in need of any care and attention, however specialist. If this had been intended, one would have expected that to have been made much clearer, rather than left to the pre-existing last words of s.21(1)(a).
- I am strengthened in this impression by the limited nature of the accommodation and provision for essential living needs that s.95(3) contemplates that NASS will be providing. It is true that those words themselves are of some flexibility. But s.95(5)(b) and (6) suggest a basic standard, and this is reinforced by consideration of The Asylum Support Regulations 2000 made under s.95(12) to "supplement" s.95. Regulations 8, 9 and 10 are relevant in this respect. Regulation 10 is of particular interest:
- Regulation 6 is expressed to apply where it falls to the Secretary of State to determine for the purposes of s.95(1) whether a person applying for asylum support (the principal) is destitute or likely to become so, and it provides:
- The word "support" in paragraph 3(b) expressly refers to support under a statutory scheme, and must also be capable of doing so under paragraph (4)(b). Again, it may be said that there is a chicken and egg situation. Does one start with s.95 and the supplementing Regulations, particularly Regulation 6, or with the concluding words of s.21(1)(a)? Again, it is necessary in my view to look at the overall scheme. The specific introduction of Regulation 6(4) to exclude from account "any other support" suggests that destitution under the 1948 Act was only intended to exist if support under the existing scheme of the s.21(1)(a) of the 1948 Act was not available.
- The effect of ex p. M was to ensure a basic standard of support to asylum seekers. In the light of the considerations that I have already identified, I would conclude, first, that the apparent intention and effect of the 1999 Act was to pass the burden of providing such support, in relation to asylum seekers, to NASS, and, secondly, that the 1999 Act was not addressing responsibility for persons in need of special care and attention arising from age, infirmity or other circumstances, except to the extent of a somewhat artificial category of such persons recognised in ex p. M, responsibility for whom was expressly intended to be transferred from local authorities to NASS by the insertion in the 1948 Act of s.21(1A).
- That this was so is confirmed when one looks at the mischief which the 1999 Act was addressing, as described in the White Paper "Fairer, Faster and Firmer – A Modern Approach to Immigration and Asylum" (Cmnd. 4018), paragraphs 8.14 and 8.23 of which have been set out by Simon Brown LJ. It seems clear that the intention was to relieve local authorities of the responsibility put on them by ex p. M in respect of persons within the categories described in s.21(1A) of the 1948 Act, and no more.
- I think it unnecessary to look further to Hansard for possible assistance in the construction of the relevant statutory provisions.
- I am therefore left in no doubt that the overall scheme was that NASS should take responsibility only for asylum seekers falling within s.21(1A), and that persons (whether asylum seekers or not) needing care and attention for other reasons would continue to be dealt with under s.21(1)(a) of the 1948 Act.
- The concept of asylum seeker receives under s.94(1) of the 1999 Act an expanded definition, embracing any person not under 18 who has made "a claim that it would be contrary to the United Kingdom's obligations under the Refugee Convention or under Article 3 of the Human Rights Convention, for the claimant to be removed from, or required to leave, the United Kingdom". S.21(1A) however goes wider, since it catches any person to whom s.115 applies, that is any person subject to immigration control (unless within a prescribed category). There can therefore be persons subject to immigration control falling within s.21(1A), who are as a result not entitled to either the (limited) benefits relating to accommodation and essential living needs supplied by NASS under s.95 or local authority care and attention under s.21(1)(a). In relation to such persons, the decision in ex p. M has been substantially reversed by s.21(1A), and they will only continue to be entitled to residential accommodation on the basis of their "need for care and attention" if their need for care and attention does not arise solely from circumstances specified in s.21(1A).
- This court's decision in R v. Wandsworth LBC ex p. O [2000] 1 WLR 2539 concerned two immigrants, who were not asylum seekers, but suffered from serious ill health and had overstayed their leave, in one case due to his ill health. It was held that s.21(1A) did not apply to their case. The word "solely" was a strong one, and it excluded only a limited class. Support under s.21(a)(a) was still available to the old, ill or disabled. Simon Brown LJ has drawn attention to the potential implications of this strict or limited interpretation of the scope of s.21(1A) on the balance of responsibility between NASS and local authorities in relation to asylum seekers. Our decision today indicates a mutually exclusive analysis of the roles of s.21(1)(a) of the 1948 Act and s.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.
- I too would therefore dismiss this appeal.
LORD JUSTICE SIMON BROWN:
The most directly material provisions in s.95 of the 1999 Act are:
"(1) The Secretary of State may provide, or arrange for the provision of, support for -a) asylum-seekers, orb) dependants of asylum-seekers,who appear to the Secretary of State to be destitute ...
(2) In prescribed circumstances, a person who would otherwise fall within subsection (1) is excluded.
(3) For the purposes of this section, a person is destitute if -
(a) he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met);(b) he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs.(4) If a person has dependants, subsection (3) is to be read as if the reference to him were references to him and his dependants taken together.
(5) In determining, for the purposes of this section, whether a person's accommodation is adequate, the Secretary of State -
(a) must have regard to such matters as may be prescribed for the purposes of this paragraph; but(b) may not have regard to such matters as may be prescribed for the purposes of this paragraph or to any of the matters mentioned in subsection (6)(6) Those matters are -
...(d) the location of the accommodation.(7) In determining, for the purposes of this section, whether a person's other essential living needs are met, the Secretary of State -
(a) must have regard to such matters as may be prescribed for the purposes of this paragraph; but(b) may not have regard to such matters as may be prescribed for the purposes of this paragraph.(8) The Secretary of State may by regulations provide that items or expenses of such a description as may be prescribed are, or are not, to be treated as being an essential living need of a person for the purposes of this Part.
...
(12) Schedule 8 gives the Secretary of State power to make regulations supplementing this section."
1. The Secretary of State may by regulations make such further provision with respect to the powers conferred on him by section 95 as he considers appropriate.
Determining whether a person is destitute 2. (1) The regulations may provide, in connection with determining whether a person is destitute, for the Secretary of State to take into account, except in such circumstances (if any) as may be prescribed -
(a) income which the person concerned, or any dependant of his, has or might reasonably be expected to have, and(b) support which is, or assets of a prescribed kind which are, or might reasonably be expected to be, available to him or to any dependant of his,otherwise than by way of support provided under section 95.
(2) The regulations may provide that in such circumstances (if any) as may be prescribed, a person is not to be treated as destitute for the purposes of section 95."
6. (1) This regulation applies where it falls to the Secretary of State to determine for the purposes of s.95(1) of the Act whether -
(a) a person applying for asylum support [defined by regulation 2(1) to mean support provided under s.95 of the Act], or such an applicant and any dependants of his ...is or are destitute ...
(2) In this regulation "the principal" means the applicant for asylum support ...
(3) The Secretary of State must ignore -
(a) any asylum supportwhich the principal or any dependant of his is provided with ...
(4) But he must take into account -
(a) any other income which the principal, or any dependant of his, has ...(b) any other support which is available to the principal or any dependant of his ..."
Once again I shall set out only the most directly relevant provisions.
"... a local Authority ... to such extent as [the Secretary of State] may direct, shall make arrangements for providing -
(a) residential accommodation [defined by s.21(5) to include 'references to board and other services, amenities and requisites provided in connection with the accommodation ...] for persons aged 18 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 ..."
"(1A) A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accomodation 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 effect of all this is that (i) overstayers or illegal entrants, (ii) persons here with leave but with a condition of no recourse to public funds or following a maintenance undertaking, and (iii) those who are appealing against a decision to vary or refuse to vary limited leave (in each case whether or not asylum-seekers) have no access to assistance under s.21(1) if their need arises solely because of the physical effects of actual or anticipated destitution."
"Meaning of 'destitute' for certain other purposes
23(1) In this regulation 'the relevant enactments' means -
(a) section 21(1A) of the National Assistance Act 1948 ...
(2) The following provisions of this regulation apply where it falls to an authority ... to determine for the purposes of any of the relevant enactments whether the person is destitute.
(3) Paragraphs (3) to (6) of regulation 6 apply as they apply in a case mentioned in paragraph (1) of that regulation, but as if references to the principal were references to the person whose destitution or otherwise is being determined and references to the Secretary of State were references to the authority ..."
"Asylum-seekers are not entitled merely because they lack money and accommodation to claim they automatically qualify under s.21(1)(a). What they are entitled to claim (and this is the result of the 1996 Act) is that they can as a result of their predicament after they arrive in this country reach a state where they qualify under the subsection because of the effect upon them of the problems under which they are labouring. In addition to the lack of food and accommodation is to be added their inability to speak the language, their ignorance of the country and the fact that they have been subject to the stress of coming to this country in circumstances which at least involve their contending to be refugees. Inevitably the combined effect of these factors with the passage of time will produce one or more of the conditions specifically referred to in s.21(1)(a). It is for the authority to decide whether they qualify ... In particular the authorities can anticipate the deterioration which would otherwise take place in the asylum-seeker's condition by providing assistance under the section. They do not need to wait until the health of the asylum-seeker has been damaged."
"8.14 The result has been support arrangements which are messy, confusing and expensive, currently costing about £400 million a year and liable to rise to £800 million a year by 2001/02 if no action is taken to deal with the backlogs and delays in the process. 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."
"8.23 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."
"The 1948 Act has an important role in delivering care to the community. Asylum-seekers with specific needs will continue to be eligible for such support. However, the Act was never intended to provide financial support and accommodation for asylum-seekers solely because of their destitution. When the clause takes effect, the Act will cease to be necessary for that purpose."
"The strength of Westminster's case is that [Mrs Y-Ahmad] is indubitably destitute and is not excluded from being considered so by any circumstance prescribed under s.95(2). Nothing would have been easier than to have prescribed, or to have provided in s.95 itself, expressly, that a person whose needs arise not solely because of destitution is excluded from support under s.95. Furthermore, the obvious reading of the words 'he does not have ... any means of obtaining [accommodation]' in sub-section (3)(a) (and the similar wording in (b)), which define destitution, is that it refers to some means personal to the asylum-seeker: sufficient money of his own to obtain accommodation, or a relative with a house, or the like. The Act refers to 'support' when referring to public assistance, and one would have expected local authority support to be referred to as such if it was within the scope of s.95(3)(a) and (b). It is a curious mode of draftsmanship to provide that someone who is entirely dependent on either central or local government for support is not 'destitute'. ... Mr Pleming [then appearing for Westminster] is right to comment that the drafting of sub-section (3) is not suggestive of a test of eligibility but of personal wherewithal."
"If we offer you accommodation we will try to choose the most suitable accommodation to meet your needs ... This includes ... health issues ... If you, or your dependants, suffer from any disability such as blindness, deafness, partial sight, damaged hearing, or problems moving around, you should let us know ... We will try to provide support that will meet your needs."
"… 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 s.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"
"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."
"Destitute asylum-seekers are now provided for under Part VI of the Act of 1999. As from 6 December 1999, they have their own system of support and no longer need to invoke s.21 of the Act of 1948 (save only where their need for care and attention is for more specific reasons than the sort of deterioration through destitution contemplated by the court in ex parte M … )"
"It may be anticipated that in future all those in the position of these applicants will make their claims for exceptional leave to remain specifically under Article 3 so as to become entitled to support as asylum-seekers."
LORD JUSTICE BROOKE:
LORD JUSTICE MANCE:
"Asylum seekers are not entitled merely because they lack money and accommodation to claim they automatically qualify under s.21(1)(a). Where they are entitled to claim (and this is the result of the 1996 Act) is that they can as a result of their predicament after they arrive in this country reach a state where they qualify under the subsection because of the effect upon them of the problems under which they are labouring. In addition to the lack of food and accommodation is to be added their inability to speak the language, their ignorance of this country and the fact that they have been subject to the stress of continuing in this country in circumstances which at least involve their contending [sic - ?continuing] to be refugees. Inevitably the combined effect of these factors with the passage of time will produce one or more of the conditions specifically referred to in s.21(1)(a)."
"in relation to persons who are ordinarily resident in their area and other persons who are in urgent need thereof to provide residential accommodation for persons aged 18 and over who by reason of age, illness, disability or any other circumstances are in need of care and attention not otherwise available to them."
"(1) This regulation applies where the Secretary of State has decided that asylum support should be provided in respect of the essential living needs of a person.
(2) As a general rule, asylum support in respect of the essential living needs of that person may be expected to be provided weekly in the form of vouchers redeemable for goods, services and cash whose total redemption value, for any week, equals the amount shown in the second column of the following Table opposite the entry in the first column which for the time being describes that person. …."
"(3) The Secretary of State must ignore:
(a) any asylum support, and
(b) any support under section 98 of the Act,
which the principal … is provided with ….or ….might be provided with …"
(4) But he must take into account-
(a) any other income which the principal … has or might reasonably be expected to have …
(b) any other support which is available to the principal … or might reasonably be expected to be …."