England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Mr Justice Owen)

		Royal Courts of Justice Strand London WC2 Thursday, 20th June 2002

Thursday, 20th June 2002

1. LORD JUSTICE PETER GIBSON: Lord Justice Potter will give the first judgment.
2. LORD JUSTICE POTTER: This is a renewed application for permission to appeal the judgment and order of Owen J dated 24th January 2002 dismissing the application of the claimant, who is an asylum seeker and single mother, for judicial review and a quashing order in respect of the decision of the London Borough of Islington on 17th May 2000 reducing the financial support provided to her and her dependent child, now aged 7, by £15.00 per week.
3. The applicant also seeks:

"2) A mandatory order that [Islington] properly review the amount of subsistence payable to the Claimant.

3) A mandatory order that [Islington] provide details of the origin of the policy which they state they are following in assessing the level of subsistence and in coming to the decision to reduce the Claimant's financial support.

4)A declaration that the policy of [Islington] is ultra vires alternatively a declaration that the policy is irrational and unreasonable.

5) If the policy is found to be unlawful a mandatory order that the Claimant receive 72% of the current level of income support."

4. At the time of the decision to reduce the financial support paid by Islington to the applicant she was receiving subsistence payments from Islington, in addition to her accommodation and payment of her utility bills of £84.00 per fortnight, calculated on the basis of £3.00 per day for each of herself and her child. She had been paid by the Council at that rate since her arrival in November 1998, she being a destitute asylum seeker within the meaning of section 95(3) of the Immigration and Asylum Act 1999. However, at about the end of 1999 she had also obtained child benefit for her son at the rate of £15.00 per week. Islington were unaware of this additional receipt, and the reduction of £15.00 per week was made when, in the course of reviewing her right to subsistence payments in May 2000, Islington became so aware.
5. The obligation of support for the applicant and her son pursuant to the Asylum Support Interim Provisions Regulations 1999 lies upon Islington, as the relevant local authority under those regulations. Although the application was triggered by the Council's decision to deduct the sum of £15.00 week, it being asserted that the Council acted unlawfully in that respect, by the time the matter came before Owen J it was no longer in issue that the deduction was lawfully made, in light of regulation 6(1)(a). Nonetheless, it was still maintained before the judge that the level of assistance and benefits provided to the applicant and her son in accordance with what was said to be the policies of the Council as to the rates payable to asylum seekers were such that Islington were demonstrably not providing for the essential living needs of the applicant and her son.
6. The contentions fell into two parts:

(1)An attack upon the confusion which appeared to exist within Islington as to what its' policies were, whether as applied generally or in the applicant's case. There appeared to be two versions of the policy advanced by the Council, both of which were attacked as irrational and unreasonable.

(2)It was said that, in any event, Islington had failed to give proper consideration to the applicant's case and that, had it done so, it would have been satisfied that there were "exceptional circumstances" operative in the applicant's case which justified a higher payment under Regulation 5(4). Those exceptional circumstances were said to arise from a condition or illness of the applicant's son which required expenditure on trips to hospital as well as extra expenditure to meet his enhanced dietary needs.

7. Owen J rejected the second aspect of the application on the grounds that by the time of the hearing Islington was meeting the costs of hospital trips and, having investigated the medical position of the sum of the applicant's son, had been informed by the family's general practitioner there were no long-term problems, or concern on the part of the general practitioner, as to the health of the applicant's son. It is stated in the notice of appeal that that ground is no longer pursued, and the leave to appeal which the applicant seeks is limited to the question of the asserted irrationality of the policy of Islington and the way in which that issue was dealt with by Owen J.
8. The judge dealt with it in this way. The application was mounted and presented on the basis that it was the policy of Islington, set by its legal department, that payments should be made to asylum seekers at the rate of 72% of the current rate of income support for ordinary members of the community. That was what had been stated to the trainee in the firm of solicitors acting for the applicant in response to a telephone query on 22nd May 2000. However, from an internal fax on the claimant's file kept by the Islington asylum team and dated two days later, the response to the query was that the subsistence payments of the Council were based on a rate of £3.00 per person per day, which information was passed on to the applicant's solicitors in an official reply by Miss Rodrigues of the Law and Public Services Department, without reference to any 72% policy. Thereafter, a further letter consistent with the position was written by the Department on 13th June 2000.
9. It is clear that the assertion that it was the general policy to pay at the rate of £3.00 per person per day came from a long policy document placed before the judge which had been sent to the applicant's solicitors in response to an order of the court on 31st July 2001, entitled "Assessment policy and procedures subject to the Immigration and Asylum Act 1999", which on the face of it was the Council's step by step guide for assessment officers. At page 35 of that document it stated:

"The rates calculated are as follows:

Families including children: £3 per person per day

Single Adults: £5 per day"

10. Again, there was no reference whatsoever to a 72% policy.
11. Despite this, in the letter of 2nd August 2001 which enclosed the policy document Miss Bouwer of the Law and Public Services Department stated:

"The starting point, insofar as meeting your client's essential living needs is concerned, is that the support to which your client is entitled in accordance with our policy, equates to 72% of the rates of current income support, (which is considered to be sufficient for subsistence), less any income received in respect of child benefits (see reg 6.1 of the 1999 regulations)."

12. As a result of his perusal of the various documents in the case, in the light of the rationale sought ^^ to be advanced for the 72% policy mentioned, and having regard to the content of the witness statement of Ingrid Dudley on behalf of Islington, the judge held, for reasons well set out in his judgment that he was quite unable to place any reliance upon the assertion either that there was such a policy or that it had been applied in the applicant's case. On the other hand, he was satisfied that the policy in operation and as applied to the case of the applicant was that of paying in respect of subsistence £3.00 per person per day to families, including children, whereas single adults received £5.00 per day. In this respect the judge said at paragraph 39 of his judgment:

"I turn then to the £3 per day policy to which very different considerations apply. It is clear of course that it was applied in the claimant's case. The question is therefore whether it was Wednesbury unreasonable or irrational. On the face of it, it seems surprising that a single adult is provided with subsistence of £5 a day, whereas a member of a family living together receives £3 per day each, so that the claimant and her son receive only £1 a day more than a single person. But the policy has to be viewed in the context of the whole package of support and benefits provided for families which include accommodation and certain facilities, allowance for clothing for the child, preschool meals and travel costs. Miss Dudley's evidence is that the authority believes that such benefits justify the differential. The defendant has submitted a comparative table setting out the payments made to in-county asylum seekers by a total of ten London local authorities including the defendant. Their approaches differ, but Mr Rutledge argues that the table demonstrates that the defendant's approach cannot be so said to be outside the four corners of its discretion. I agree and have come to the conclusion, albeit with some hesitation, that the policy cannot be said to be unreasonable or irrational; and that its application does not have the consequence that the defendant has failed to discharge the obligation to provide for the essential living needs of the claimant and her son. It follows that this limb of the application fails."

13. The applicant seeks to challenge that finding on this basis. Mr Collins has picked upon two particular passages of the judge's judgment, the first at paragraph 37 of his judgment where he said:

"In the absence of any satisfactory explanation for the 72 per cent policy, I am driven to the conclusion that there was no rational basis for it. Had I been satisfied that it had been applied to the assessment of the claimant's entitlement under the Regulations, I would have set aside that assessment, but I am not satisfied that it was."

14. At paragraph 38 of the judgment, the judge referred to the defendant being:

"...in a hopeless state of confusion about the policy and, in my judgment, there is no reliable evidence upon which to find that it was applied in the claimant's case".

15. Mr Collins submits correctly that Islington, as a local authority and public body, must have a policy relating to how it provides subsistence support to those such as the appellant and that it is not sufficient for it simply to pull figures out of thin air. He complains that it always appeared to be the case advanced by Islington that the policy in respect of the applicant was that she should receive financial support amounting to 72% of the income support levels accorded to the general population. In that respect he relies upon the fact that the judge stated that there was no rational basis for the policy of the defendant providing the claimant with 72% of income support levels on the ground variously advanced before him, and that, if he had been satisfied that the applicant's subsistence had been assessed on those grounds, he would have set aside the amount for reconsideration in accordance with that policy.
16. Mr Collins further points out that it is apparent from paragraph 16 of the amended grounds in support of the application that it was the applicant's contention that the 72% policy was unlawful, but that if it were in fact found to be lawful, then the appellant had an expectation that she should receive financial support equivalent to 72% of income support levels. Thus, if such a policy was unlawful on the grounds sought to be advanced by Islington, the appellant should have been granted a declaration to that effect. Alternatively, if the policy was lawful, albeit not currently being applied to the applicant, Islington should have been ordered to comply with its own policy.
17. He further submits that the judge erred in his conclusion that the respondent's policy of paying £5.00 per day to adults but only £6.00 per day to a single parent family was neither irrational nor unreasonable. He points out that the judge stated at paragraph 39 of the judgment that, on the face of it, such a differential seems surprising, only going on to dismiss this aspect of the application on the basis that the policy "has to be viewed in the context of the whole package of support and benefits provided for families, which include accommodation and certain facilities, allowance for clothing for the child, preschool meals and travel costs", as already referred to above.
18. Mr Collins submits rightly that, with the exception of the benefits relating specifically to the child, the benefits referred to are those which any person on income support would receive. Similarly, the benefits relating specifically to the child would be received by a single mother on income support, and her income support would not be reduced accordingly.
19. Finally, he points out that it is apparent from the current rates of income support at page 200 of the bundle of documents before us that a single parent such as the appellant would receive more than 20% extra, i.e. the difference between £5.00 and £6.00, on top of the single person's allowance to bring up a young child, and that that would be the position in any other borough than Islington. On that basis the monetary value of the benefits referred to by the judge would be less than the amount that the claimant and her son lose in real terms by virtue of only receiving £1.00 per day more than a single adult. Thus, he submits, the policy of Islington to pay only £1.00 per day extra to a single mother over what she would receive for herself if she had no child is unreasonable and irrational.
20. So far as the argument as to the 72% policy is concerned, it seems to me that despite Islington's reference to it and the attempt to justify it as a rule of thumb or general policy, the judge was entitled to find, as appears clearly to be the case, that the 1999 policy document was the one in which the Council's general policy as to the level of subsistence to be paid was set out and, equally, that it was that which had actually been applied to the applicant's case.
21. In these circumstances, at first sight at least, it would have been both futile and wrong to grant relief to the applicant based on the assertion and/or acceptance of a 72% policy. However, it has to be said that the judge identified, and was critical of, the muddle which appeared to exist within Islington as to what its policy was.
22. As to the £3.00 per person policy which he identified, it seems plain that it did yield results which in real terms, gave her almost less for her son and herself, often by a substantial margin, than that which she would have obtained in other boroughs. The exception to that observation appears to be Hackney Borough Council, not on the basis of the particular figures shown, but because in Islington the bills for utilities are paid without limit, whereas that was not so in the case of Hackney. Thus, although the judge stated that the results were comparable, they were, as I have indicated, very much at the bottom end of any scale.
23. Mr Collins has forcefully made the point to us that it is an unusual situation for a judge, having had asserted by an authority as part of its case that it had a particular policy underlying payments made, to reject that argument and make a finding to the effect that a different policy existed and was applied in the particular case. However, it is apparent from the judgment why the judge did so and, in my view, that finding alone is not something which, other things being equal, should give rise to a ground of appeal.
24. The judge, however, went on to treat as a separate and unrelated matter, as it seems to me, the question of the £3.00 per person allowance and whether it was demonstrably irrational. He did not refer specifically to a passage in the affidavit of Miss Dudley in which she was, as I see it, essentially pulling the two so-called policies together and suggesting, though not stating in terms, that the £3.00 per person per week policy was itself a manifestation of and/or sufficient to fulfil an underlying 72% policy which, though not referred to in the 1999 document, nonetheless governed the thinking of Islington in assessing the rates which it awarded. She said at paragraph 25 of her witness statement:

"I do not accept that the package Islington is providing does not equate to at least 72% of the relevant income support rate. As I say the Claimant is receiving a range of fringe benefits the most expensive of which (from Islington's point of view) being the payment of the utility bills. These bills will obviously increase with the onset of winter. In my respectful view these, combined with clothing and other benefits to which I have referred make up at least 72% of what the Claimant would receive had she been eligible for income support."

25. In addressing us, Mr Collins has been able to persuade me that that statement is in any ordinary situation unlikely to be correct, bearing in mind the figures revealed in the table of sums paid by local authorities to which we have referred. He submits that a number of findings made by the judge, despite his final conclusion, justify an argument to the effect that Islington has a policy which cannot be justified on rational grounds or, at any rate, may produce a figure so low as to be beyond rational justification, at any rate taking into account the matters so far advanced by Islington as operative in the mind of those responsible for assessing the level of payments made.
26. In refusing leave to appeal on paper, Keene LJ observed:

"1. The judge was entitled to find that the Council's policy was to pay £3 per person per day, rather than to pay 72% of income support. Given that finding, Ground 3 of the Ground of Appeal is unsustainable.

2. He was also entitled to conclude that payment of £6 per day to a mother & son was not irrational. Free school meals and the clothes allowance were relevant to the differential between this payment and one of £5 to a single person. There is no real prospect of a successful appeal."

27. That was certainly my initial reaction upon reading the judgment of the judge. However, in the light of the arguments advanced by Mr Collins which I have mentioned, and in the light of the fact that this matter seems to be one of considerable general importance, it satisfies the requirement of rule 52.3(6) and should be regarded as a matter deserving of consideration by the full court. It seems to me unsatisfactory, though it may ultimately be no ground for upsetting the judge's decision, that a situation should exist in which Mr Collins was able to submit that, despite having failed to justify the rationale of the only policy which it positively advanced as applicable in the case, Islington were held to have acted rationally in setting what on the face of it is likely to be a minimal standard of support for asylum seekers.
28. In those circumstances I would grant leave to appeal.
29. LORD JUSTICE PETER GIBSON: I agree.
Order: Application allowed. We estimate the appeal hearing will last one day. No order as to costs.