England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE KEITH

		Royal Courts of Justice Strand, London, WC2A 2LL
		23rd October 2003

Lord Justice Waller:

Introduction

1. This appeal is concerned with a family of asylum seekers with two disabled children who without "adequate" accommodation would be destitute. It raises the questions as to what is "adequate" accommodation for such a family, and who owes the duty to provide it. As regards destitute but also disabled adult asylum seekers, in R (Westminster City Council) v National Asylum Support Service [2002] UKHL 38, [2002] 1 WLR 2956, the House of Lords upheld the ruling of the Court of Appeal that it was a local authority who owed the duty to provide accommodation under s21 of the National Assistance Act 1948 (the 1948 Act) as amended. They held that the Immigration and Asylum Act 1999 (the 1999 Act), passed to relieve local authorities of a burden imposed by the decision of the Court of Appeal in R v Hammersmith & Fulham London Borough Council ex parte M (1997) 30 HLR 10, did not apply. They held that s21(1A) of the 1948 Act (inserted by s116 of the 1999 Act) excluded from a local authority's obligation to provide accommodation under s21(1A) only asylum seekers whose need for care and attention arose solely because they were destitute and did not exclude those who needed care and attention because they were infirm as well as destitute.
2. In the instant case Keith J followed what he perceived to be the reasoning in the Westminster case as applied by Collins J in The Queen on the application of Ouji v Secretary of State for the Home Department [2002] EWHC 1839 (Admin). In Ouji Collins J was concerned to interpret s122(4) of the 1999 Act relating to "essential living needs". Keith J and Collins J reasoned that basic support and basic essential needs by reference to non-disabled asylum seekers would be provided by the Secretary of State under the 1999 Act, but that any additional support needed as a result of disabilities would be provided by local authorities under s21 of the 1948 Act. Keith J thus held that adequacy under the 1999 Act fell to be tested by reference to able-bodied children and not disabled children. On that basis he held that the accommodation offered to the A family in the instant case was adequate.
3. No counsel supported Keith J's conclusion or reasoning. It was submitted by all counsel, including Mr Jay QC for the Secretary of State, that the ruling in this case and in the Ouji case in so far as they suggested that the 1999 Act took no account of the disability of a dependant child in assessing either the adequacy of accommodation or essential living needs, could not stand.
4. Keith J also held that Article 8 of the Convention on Human Rights was not engaged. He held that he did not believe that it could be said that the family life of the As had been affected when one focused on their relationships with one another, on their ability to support one another emotionally and on their ability to enjoy family life together. Once again no counsel, including Mr Jay for the Secretary of State, was prepared to support Keith J's application of Article 8.
5. I can say at the outset that it seems to me that the judge's reasoning in the two respects identified cannot be supported. But that does not provide an easy answer to this case. It simply means there are facets, and difficult facets, with which the judge did not need to grapple and with which this court must grapple for the first time.
6. There is furthermore an important point to bear in mind. We are considering the provisions of the 1999 Act and the "adequacy" of accommodation for this family including the disabled children. If we were concerned with a disabled adult asylum seeker we would be concerned, following the language of s21 of the 1948 Act, with whether accommodation "suited" to that disabled adult had been provided. Clearly the words "suited" or "adequate" could mean different things, but it seems scarcely likely that Parliament intended disabled children to receive less favourable treatment at the hands of the state, than a disabled adult would receive at the hands of a local authority. In any event since Article 8 of the Convention on Human Rights is, it is common ground, engaged in both instances, less favourable treatment for disabled children as compared with disabled adults would be likely to fall foul of Article 14. That would lead to it being necessary pursuant to s3 of the Human Rights Act 1998 to read both provisions so as not to discriminate.
7. This judgment will follow the following sequence. I will set out the relevant provisions of the 1999 Act. I will then look at the provisions of the 1948 Act. I will then set out the relevant facts. I will then discuss the provisions of the 1999 Act by reference to the facts of this case. I will thereafter deal with two specific points on the construction of first s118 of the 1999 Act and then s122(5) of that Act. I will then come back to consider what should be the answer in this case by reference to the provisions of the 1999 Act. Finally I will consider how a disabled adult asylum seeker might have been dealt with under s21 of the 1948 Act to cross-check whether any relevant distinction might be drawn between the treatment of disabled children and disabled adults. Finally I shall consider Article 8 so far as necessary.

The Immigration and Asylum Act 1999

8. The following relevant provisions of the 1999 Act are all contained in Part VI headed "Support for Asylum Seekers". s94 is a definitions section where the only relevant definitions are the following:

"asylum-seeker" means a person who is not under 18 and has made a claim for asylum which has been recorded by the Secretary of State but which has not been determined; …..

"dependant", in relation to an asylum-seeker or a supported person, means a person in the United Kingdom who-

(a) is his spouse;

(b) is a child of his, or of his spouse, who is under 18 and dependent on him; or

(c) ….."

9. Section 95 is the governing section. It provides:

   "95. (1) 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.

   (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); or

   (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 references 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-

   (a) the fact that the person concerned has no enforceable right to occupy the accommodation;

   (b) the fact that he shares the accommodation, or any part of the accommodation, with one or more other persons;

   (c) the fact that the accommodation is temporary;

   (d) the location of the accommodation. ….."

10. Section 96 identifies the nature of the support when the Secretary of State provides or arranges support under Section 95:

"96. (1) 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); …..

(2) If the Secretary of State considers that the circumstances of a particular case are exceptional, he may provide support under section 95 in such other ways as he considers necessary to enable the supported person and his dependants (if any) to be supported. ….."

11. Section 97 identifies both matters to which the Secretary of State must have regard and also certain matters to which he may not have regard. It is from this section that it appears that the Secretary of State will contemplate in general dispersing asylum seekers to different parts of the country:

"97. (1) When exercising his power under section 95 to provide accommodation, the Secretary of State must have regard to-

(a) the fact that the accommodation is to be temporary pending determination of the asylum-seeker's claim;

(b) the desirability, in general, of providing accommodation in areas in which there is a ready supply of accommodation; and

(c) such other matters (if any) as may be prescribed.

(2) But he may not have regard to-

(a) any preference that the supported person or his dependants (if any) may have as to the locality in which the accommodation is to be provided; or

(b) such other matters (if any) as may be prescribed. ….."

12. Section 98 deals with temporary support:

"98. (1) The Secretary of State may provide, or arrange for the provision of, support for-

(a) asylum-seekers, or

(b) dependants of asylum-seekers,

who it appears to the Secretary of State may be destitute.

(2) Support may be provided under this section only until the Secretary of State is able to determine whether support may be provided under section 95.

(3) Subsections (2) to (11) of section 95 apply for the purposes of this section as they apply for the purposes of that section."

13. Section 99 deals with support which may be provided by a local authority pursuant to arrangements made by the Secretary of State. We were informed no arrangements relevant to the instant case had been made. But its provisions are relevant to the proper construction of the Act:

"99. (1) A local authority may provide support for asylum-seekers and their dependants (if any) in accordance with arrangements made by the Secretary of State under section 95.

(2) Such support may be provided by the local authority-

(a) in one or more of the ways mentioned in section 96(1) and (2);

(b) whether the arrangements in question are made with the authority or with another person. ….."

14. Section 100 deals with assistance to be provided when the Secretary of State requests it:

"100. (1) This section applies if the Secretary of State asks-

(a) a local authority,

(b) a registered social landlord,

(c) a registered housing association in Scotland or Northern Ireland, or

(d) the Executive,

to assist him to exercise his power under section 95 to provide accommodation.

(2) The person to whom the request is made must co-operate in giving the Secretary of State such assistance in the exercise of that power as is reasonable in the circumstances.

(3) Subsection (2) does not require a registered social landlord to act beyond its powers.

(4) A local authority must supply to the Secretary of State such information about their housing accommodation (whether or not occupied) as he may from time to time request. ….."

15. Section 118 relates to the use a local authority can make of its housing stock. I will quote that section when I come to deal with a specific point which arises on that section.
16. Section 122 is a key provision so far as this appeal is concerned, creating a duty on the Secretary of State to provide accommodation where adequate accommodation or essential needs are not being provided to children. It furthermore fundamentally affects the obligations of local authorities by virtue of s122(5):

"122. (1) In this section "eligible person" means a person who appears to the Secretary of State to be a person for whom support may be provided under section 95.

(2) Subsections (3) and (4) apply if an application for support under section 95 has been made by an eligible person whose household includes a dependant under the age of 18 ("the child").

(3) If it appears to the Secretary of State that adequate accommodation is not being provided for the child, he must exercise his powers under section 95 by offering, and if his offer is accepted by providing or arranging for the provision of, adequate accommodation for the child as part of the eligible person's household.

(4) If it appears to the Secretary of State that essential living needs of the child are not being met, he must exercise his powers under section 95 by offering, and if his offer is accepted by providing or arranging for the provision of, essential living needs for the child as part of the eligible person's household.

(5) No local authority may provide assistance under any of the child welfare provisions in respect of a dependant under the age of 18, or any member of his family, at any time when-

(a) the Secretary of State is complying with this section in relation to him; or

(b) there are reasonable grounds for believing that-

(i) the person concerned is a person for whom support may be provided under section 95; and

(ii) the Secretary of State would be required to comply with this section if that person had made an application under section 95.

(6) "Assistance" means the provision of accommodation or of any essential living needs. ….."

Section 21 of the 1948 Act

17. S21 of the 1948 Act is relevant to two aspects of the appeal. First it is necessary by reference to its terms and the terms of the 1999 Act to explain why the construction that Keith J placed on the word "adequate" is wrong. Second it is relevant because it does apply to disabled adult asylum seekers, and its wording is different. It would as I said be unlikely that Parliament would intend adult disabled asylum seekers to be treated more favourably than disabled children of asylum seekers, and it may thus throw light on the question whether there is any distinction intended between the use of the word "adequate" as compared to the word "suited" [the s21 word] or even the word "suitable" as used in other homelessness legislation. It may be more likely that the words mean much the same but take their meaning from their context in different situations.
18. S21 provides as follows:

    "(1) Subject to and in accordance with the provisions for 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 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 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.

    (2) In making such arrangements a local authority shall have regard to the welfare of all persons for whom accommodation is provided and in particular to the need for providing accommodation of different descriptions suited to different descriptions of such persons as are mentioned in the last foregoing subsection."

    Why the Reasoning of the Judge was Wrong<

19. In the Westminster case (supra) at page 2965 Lord Hoffmann construed the above provision as applying to adult disabled asylum seekers in the following words:

"32 The use of the word "solely" makes it clear that only the able-bodied destitute are excluded from the powers and duties of section 21(1)(a). The infirm destitute remain within. Their need for care and attention arises because they are infirm as well as because they are destitute. They would need care and attention even if they were wealthy. They would not of course need accommodation, but that is not where section 21(1A) draws the line.

33 In parallel with the amendment of section 21, section 95(1) of the 1999 Act gave the Secretary of State power to

'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.'

34 This power is exercised through NASS. Section 95(3) provides that 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); or

(b) he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs.'"

20. He however found that even though s95(1) of the 1999 Act prima facie also conferred a power in relation to all destitute asylum seekers, other provisions of the 1999 Act and regulations made under it made it clear that that power is residual. In the result if s21 applied s95(1) did not.
21. The reason why disabled children of asylum seekers do not fall under s21 is that that provision applies only to those over 18. The corresponding provision for disabled children would be s17 of the Children Act 1989. However that section is expressly excluded by s122(5) and (6) of the 1999 Act. There is thus no provision other than s95 under which a disabled child of an asylum seeker can be provided with accommodation. It is for this reason that Keith J was by common consent wrong to hold that adequacy had to be tested by reference to able-bodied children of asylum seekers as opposed to disabled children of asylum seekers. It was in any event to misread the effect of the Westminster case to suggest that there was a division of responsibility as between NASS and a local authority, NASS being responsible for the normal accommodation and a local authority for that which related to disability in relation to any individual asylum seeker. The Westminster case demonstrated that an adult disabled asylum seeker fell outside the 1999 Act altogether. This also casts doubt on the reasoning of Collins J in Ouji. It is right to say that the order of Jackson J in this particular case (see paragraph 48 below) seems to have divided the responsibility as between the local authority and NASS in a way consistent with the reasoning of Keith J and Collins J but again before us it was accepted that that should not have happened.

"Suited" to an Adult Asylum Seeker

22. As far as I am aware there is no authority which has considered the position of a disabled adult asylum seeker and the nature of the obligation of the local authority under s21 of the 1948 Act. The wording of s21 is clearly different from the wording of s95 and the other sections of the 1999 Act. In s21 the obligation is to provide accommodation "suited to different descriptions of such persons as are mentioned…." i.e. suited to a person requiring accommodation by reason of disability. Miss Foster has relied on a number of cases concerned with s21 but all in a different context. They are summarised in R (Batantu) v London Borough of Islington (unreported 8^th November 2000) a decision of Henriques J. There is no dispute about what the authorities establish. They establish the following: (i) the reference to "needs" in s21(1) makes it clear that the residential accommodation should be appropriate to the needs of the individual applicant (R v Avon County Council, ex parte M [1999] 2 CCLR 185); (ii) once need has been assessed the local authority are under a duty to provide suitable accommodation on a continuing basis (R v Kensington & Chelsea RBC ex parte Kujtim [1999] 4 All ER 16); (iii) a local authority cannot at that stage parade their lack of resources as an excuse for failing to make the necessary provision (see the same cases); (iv) thus resources cannot be an excuse for failing to make provision – they may be taken into account in deciding how to meet the needs as long as those needs are met (R v Sefton MBC ex parte Help the Aged [1997] 3 FCR 392); (v) the housing lists are but one of the ways in which accommodation may be provided by the local authority under s21; (vi) other registered social landlord and accommodation to be purchased from the private market is to be included (see Batantu at paragraph 35 citing R v Bristol CC ex parte Penfold [1998] 1 CCLR 315); (vii) a reasonable refusal by the needy person of accommodation asserted by the authority to be suitable does not absolve the authority from its duty to provide (Batantu paragraph 41); (viii) however, a local authority is entitled to treat its duty as discharged and refuse to provide further accommodation if an applicant refuses to accept the accommodation provided or following its provision manifests by his conduct a persistent and unequivocal refusal to observe the authority's reasonable requirements in relation to the occupation of such accommodation (R v Kensington BC ex parte Kujtim supra).
23. Miss Foster suggests by reference to the above authorities that a disabled adult asylum seeker would be entitled to an order against NASS in the instant case, but that in my view takes no account of the circumstances of the cases on which she relies as compared with the circumstances of the instant case. So far as asylum seekers pending the resolution of their status are concerned any accommodation will be of a temporary nature pending determination of their immigration status. The word "suited" is a flexible word and will mean slightly different things depending how long and the purpose for which the accommodation is needed. Perhaps one of the strange features of the decision in the Westminster case is that the power to disperse is obviously not available to a local authority as it is under the 1999 Act to NASS. However if one varies the circumstances of the instant case to consideration under s21 and how a disabled adult asylum seeker might have been dealt with by the local authority the answer is not as I see it as clear as Miss Foster would suggest. Prima facie one must accept that 50 Clacton Road would not be "suited" to the disabled adult. However if under s21 the disabled adult had at one stage accepted 50 Clacton Road where the family have lived since their arrival in this country (see paragraph 26 below), as suited, and then maintained that more suitable accommodation should be provided but now only in a particular area, that is a situation with which the authorities have not yet dealt.
24. My approach will thus be first to construe the provisions of the 1999 Act as if there was not intended to be any material distinction between the word "adequate" and the word "suited" (or "suitable") simply as words. It is the context which will supply the answer to whether accommodation is "adequate" or "suited" or "suitable". Thereafter I will revisit s21 and the position of a disabled adult asylum seeker placed in similar circumstances to the As to see whether the answer in such a case would be any different.

Relevant Facts and Chronology

25. The history can in my view be broken up into two phases. Phase 1 deals with a period from Mrs A's arrival with her two boys on 30^th May 2001 to the acceptance by NASS and the two relevant local authorities Hackney and Waltham Forest that the As should remain in 50 Clacton Road with support and not be dispersed. The second phase runs from receipt of an occupational therapist's report in May 2002 until the present day.

Phase 1

26. Mrs A and her two boys arrived in the United Kingdom on 30^th May 2001 and immediately claimed asylum. They stayed for a short time with a family in Hackney. Hackney's asylum department then placed them in 50 Clacton Road, Walthamstow. Understandable as that was, it is doubtful whether Hackney had any power to place the As in that accommodation. Hackney assisted Mrs A to make an application to NASS. That application described 50 Clacton Road as "emergency accommodation". The form when filled in did not answer either "yes" or "no" the question whether the As wanted to stay in their present accommodation i.e. 50 Clacton Road. The application was received by NASS on 3^rd July 2001. No response was sent by NASS until 7^th February 2002. In the meanwhile by letter dated 28^th September 2001 solicitors for Mrs A wrote to NASS saying that no response had been received and explaining that Hackney was providing accommodation and essential living needs. They said that Hackney had told them that NASS was reimbursing Hackney for the costs, and said that they assumed the "support was temporarily provided [by NASS] pursuant to s98 of the 1999 Act". The letter further said that the accommodation was inadequate providing reasons, but said that dispersal was not appropriate because of the availability of family support and because Mrs A was a vulnerable person speaking no English.
27. The solicitors sent a reminder on 17^th October 2001 and with still no answer NASS sent a further letter of 22^nd November 2001. By this date Hackney had carried out two assessments - a Child in Need – Initial Assessment dated 10th August 2001, and a Child in Need - Core Assessment of 6^th November 2001. The thrust of both assessments was that 50 Clacton Road met the family's housing needs subject to one aspect, the problems faced by H [the eldest child] getting downstairs to the toilet at night, but the recommendation was that H's bed be moved downstairs. The letter of 22^nd November 2001 furthermore explained (a) that roots had now been put down in the local area; (b) that the family were registered now with a local GP; (c) that the boys were on a waiting list for assessment by the local hospital; and (d) that Waltham Forest had agreed to undertake an assessment of special educational needs. The letter ended as follows:

"In view of the steps which have been taken by both local authorities to provide for the educational and community care needs of the children, and of our client as their carer, and in view of the steps which had been taken to meet the children's medical needs in the local area, we submit that it would not be appropriate for this family now to be moved.

We would therefore be grateful if you would confirm to us that the current accommodation arrangement will continue pending a final resolution of our client's claim for asylum"

28. On 7^th January 2002 Mr A arrived from Turkey. On 21^st January 2002 the two boys began to attend the William Morris school for SEN children in Walthamstow. The first response of NASS was by letter dated 7^th February 2002. It stated:

"I am writing in response to your request for accommodation in London for the above mentioned applicant.

The Secretary of State has carefully considered the circumstances of the request, however accommodation is allocated on a no choice basis whilst taking into account the person's individual circumstances.

The Secretary of State does not consider that the request to be allocated accommodation near her relatives in London (Putney) is of sufficient weight to justify a departure from his general policy of providing support under section 95 of the Immigration and Asylum Act 1999 in areas where there is a ready supply of accommodation.

He is required by section 97 of that Act to have regard to the desirability, in general, of providing accommodation in such areas.

The health matter was referred to our medical adviser Dr John Keen who after much consideration recommended that relocation was not necessary.

NASS is satisfied that wherever an asylum seeker is accommodated within the UK they would be able to access the necessary medical facilities and that additional support is available to them via the voluntary community infrastructure in place."

29. On 26^th February 2002 solicitors for the As responded wondering whether NASS had sent a letter about a different family having regard to the reference to Putney. They however repeated their assertion that it would be wrong to remove the A family and asked them for an assurance that the family would continue to be accommodated "at the above address" i.e. 50 Clacton Road.
30. By letter dated 5^th March 2002 NASS regretted the mistake and explained that they had meant Hackney and persisted in their view that the family should be relocated out of London.
31. By letter dated 14^th March 2002 solicitors for the As set out their case for being allowed to remain at 50 Clacton Road. They asserted that accommodation all on one level would be "more suitable" but said that "the family are settled at this accommodation and, taking this into account and other matters which we will come to, it is in their interests that they be allowed to continue to occupy this accommodation until there is a final determination of their asylum claim." The solicitors concluded that letter with the paragraph:

"We put you on notice that unless you confirm to us within 14 days of the date of this letter that NASS will continue to accommodate our Client and the children at her current accommodation at 50 Clacton Road, our Client will commence proceedings against NASS to seek a judicial review. Please reply to us at the above address. We are sending a copy of this letter to the Treasury Solicitor."

32. By letter dated 2^nd April 2002 the Secretary of State responded to the above letter in the following terms:

"The Secretary of State has reconsidered his decision to disperse your client and her family in light of your representations. Having weighed the needs of this family against the policy of dispersal the Secretary of State has exceptionally decided that it would not be appropriate to seek to disperse this family out of London.

Whilst I note that the family are content to continue to reside at 50 Clacton Road, E17 I have referred the case to the NASS Accommodation Booking Section to establish if more suitable accommodation is available. This is based on the information in respect of H who has had difficulties with the layout of the house, specifically the down stairs bathroom. Due to the shortage of available accommodation in London I cannot guarantee that this is possible, or if possible how quickly it will be available."

33. By letter dated 11th April 2002 the solicitors for the As accepted that decision. Thus they accepted non-dispersal and 50 Clacton Road knowing that although more suitable property would be sought in the area of Waltham Forest, no guarantee was possible and in particular no guarantee as to the speed at which such property could be found. They noted that NASS was looking for more suitable accommodation and asked NASS to note that the accommodation needed had to meet certain criteria including (1) either a 2 bedroom property on one level, or if on two floors, then with a WC on each floor; and (2) that the accommodation must be in the same locality as the current accommodation so that the children could continue to attend the same special educational needs school and so that the family could continue to access the support and services described in their previous letter.
34. An initial assessment commenced in relation to both children on 23^rd April 2002. Those assessments both contained the following comment in relation to housing:

"Temporary housing has been provided by NASS. The accommodation comprises of hall stairs and landing, a through lounge, kitchen and bathroom to the ground floor, two bedrooms to the first floor. Though the family have expressed a preference for a larger property, the present accommodation does appear to meet basic needs."

35. In the meanwhile judicial review proceedings had been commenced by Hackney against Waltham Forest with Mrs A joined as an interested party. A consent order was made in those proceedings under which Waltham Forest agreed within 14 days to carry out a community care assessment of the needs of the two disabled children under s17 of the Children Act 1989 and s2 of the Chronically Sick and Disabled Persons Act 1970. The order also records Waltham Forest agreeing in particular:

"to carry out an occupational therapy assessment of the needs of H and CA for works of adaptation in the home at 50 Clacton Road Waltham Forest London E17 8AR or for the provision of any additional facilities in the home designed to secure their comfort or convenience. The said assessment is to pay particular regard to the need for a chair lift and other facilities to enable H and C to use the stairs at the home; their need for handrails to the stairs, living room, bathroom and WC and their need for a bath seat."

Conclusion of Phase 1

36. The above concludes what I would describe as phase 1. There are two points to make at this stage. First at no time have NASS suggested that the A family were not a family to whom s95 would not apply. Right from the outset the Home Secretary seems to have taken the view that s95 would apply and the only question was how NASS should exercise its powers. But second the normal policy of NASS would have been to disperse a family such the As. The As however wished to stay in 50 Clacton Road. It seems to me that the As were accepting up until this moment that 50 Clacton Road was adequate in the ordinary meaning of the word. It was not ideal but rather than be moved or have NASS disperse them they wanted to stay in 50 Clacton Road. Furthermore such assessment as had been carried out up to 25^th April 2002 supported the view that 50 Clacton Road although not ideal was adequate for the A family. Furthermore the As sought and in effect obtained an undertaking from NASS that the family would be allowed to remain in 50 Clacton Road pending the final decision on their immigration status.

Phase 2

37. What commences the next phase appears from the correspondence to be a request by telephone to Waltham Forest on 26^th April 2002 to carry out certain adaptations to 50 Clacton Road. The response was in the following terms:

"I refer to our telephone conversation on Friday, 26 April 2002 and to confirm that I have been advised by an officer at NASS that it would not be advisable for this Local Authority to seek to carry out any adaptation works in respect of your client's current accommodation. He informed me that there is a separate team within NASS that is negotiating properties for people with special needs and that in the event the present property is deemed unsuitable the family will be moved to property which would have already been adapted.

In addition I have been informed by the O.T. Team that they would carry out the O.T. assessments. They would however not be in the position to provide any specialist equipment for your clients until such time as NASS designates this Local Authority as the responsible authority, as otherwise they would not be able to recover any expenditure they would have incurred."

38. On 27^th May 2002 Waltham Forest's occupational therapy team produced a home visit report. That report contained the following quotation:

"Present Accommodation:

The family lives in a relatively small and sparsely furnished privately rented property that comprises of two upstairs bedrooms, a lounge-dinning room, kitchen and ground floor bathroom and separate toilet. The property is generally in poor repair and has a faulty over-bath shower and damaged floor coverings. …..

The stairs to the first floor are very steep, narrow and with a series of three winding steps at the top of the straight flight of stairs. The stairs have only one handrail on the straight flight of stairs and none on the winding steps.

These stairs are extremely dangerous to climb whilst supporting another person and Occupational Therapist advised that H should stay downstairs to avoid the potential of falling. Keeping H downstairs had already been recommended by the family's social worker in her report dated 6^th November 2001 She also arranged through section 17 funding to purchase H and C a single bed each, which have both been placed upstairs by the family, therefore requiring H to be heavily supported on the stairs. ….

Problems with Present Accommodation:

It is readily apparent that the present accommodation provided through the NASS is insufficient for the family's needs, due to the lack of ground floor bedroom for H and no upstairs toilet for use by C during the night. …..

Conclusion:

It is possible to provide the H and C with equipment to support them in both the short and long term, however the present accommodation does not facilitate their medium or long term needs to be addressed. Therefore the action plan given at this time is seeking to address those needs that can be reasonably addressed within their present accommodation. The Children's Occupational Therapy Team will make reasonable efforts to give information and recommendations to the relevant workers on H and C's medium and long term housing needs, but will not take responsibility in locating such accommodation."

39. The above report led to a letter from the solicitors for the As dated 14^th June 2002. The letter refers to the decision of the Secretary of State and to the solicitors' response. However it further states as follows:

"You will note that the Assessment finds that the accommodation is unsuitable for the children. The report states that the stairs to the first floor is very steep, narrow and with a series of three winding steps at the top. The Assessment finds that the stairs are extremely dangerous to climb whilst supporting another person. The Occupational Therapist recommends that the child, H, should sleep downstairs to avoid the potential of falling. However, this is not a practical arrangement as the downstairs comprises an open plan living room/dining area through to the kitchen with no door between. The child would lack privacy and the family would lack living space. Further, H requires supervision at night and our Client would be unable to hear him from her bedroom upstairs. He needs supervision to access the toilet at night.

The Local Authority are prepared to provide disability equipment and minor adaptations to this address. This is on the basis that the cost of this will be paid for by NASS. Please confirm whether, in fact, NASS have agreed to pay for the adaptations and disability equipment recommended by the assessment.

The Local Authority state that major adaptations will not be provided until our Client has leave to remain in the UK. We consider that this approach is unlawful. However, given that the stairs are narrow and steep, adaptations to this particular accommodation would seem to be problematic. Accordingly, it is our view that the family need urgent re-housing to alternative suitable accommodation. The OT Assessment describes the type of accommodation required.

In addition, as we have pointed out in previous correspondence, it is essential that alternative accommodation is in the same locality. This is so the children continue to attend the same special educational needs school. …..

Accordingly, we write to give you notice that we will advise our Client to commence proceedings against NASS for a Judicial Review unless firstly you confirm to us within 7 days of the date of this letter that suitable alternative accommodation adequate for the family's needs will be provided within 21 days and secondly you actually provide such accommodation within 21 days of the date of this letter."

40. NASS's response to that letter was in my view restrained. They responded first by letter dated 25^th June 2002 and then by letter dated 27^th June 2002. It is only necessary to quote the 27^th June letter:

"The matter of alternative suitable accommodation for your client and her family has been referred to the NASS accommodation section, who are currently trying to establish if NASS has any suitable accommodation for this family, given the special needs of the children. NASS will revert to you at the earliest possible opportunity with details of any property which may be suitable, however at this stage I cannot make any guarantee.

The second issue raised concerns the support that Mrs A and her 2 children have received to date. In order to fully investigate this matter I would be grateful if you could confirm how, and from whom, Mrs A is receiving the £157.26 per fortnight. ….."

41. On 5^th July 2002 solicitors for the As said that not having heard about any alternative suitable accommodation they were proceeding to instruct counsel to settle a claim form for judicial review. The response from the Treasury Solicitors was again restrained. It said:

"I have passed the documentation to my client and have stressed upon them the importance of this matter in order to avoid unnecessary litigation.

With this thought in mind I trust the next time you hear from the Home Office it will be on more favourable terms. ….. "

42. Clearly at this stage NASS started to make further enquiries as to how the As came to be in 50 Clacton Road. Some explanation following telephone conversations was given by the solicitors for the As by letter dated 25^th July 2002. This led to a detailed letter from NASS dated 31^st July 2002 which stated as follows:

"For the avoidance of any doubt, we wish to make absolutely clear that 50 Clacton Road was occupied by your clients before NASS became involved, and that NASS agreed to support your clients in this accommodation at your specific request – indeed at your insistence. We would refer you to your letter of 14 March 2002 in which you stated "unless you confirm to us within 14 days of the date of this letter that NASS will continue to accommodate our client and the children at 50 Clacton Road our client will commence proceedings against NASS to seek a judicial review". We trust that you are not now seeking to criticise or bring action against NASS for having done so.

The difficulties that your clients are facing in the accommodation are, as we understand them, essentially of three types:

There are a number of disrepair items. These should be susceptible of resolution, if not with the landlord directly, through the environmental health department of the local authority, which is responsible for and empowered to serve notices and take enforcement action to ensure these are resolved. We trust you will have referred the report from your consultant to the local environmental health office for this reason.

There are a number of adaptations which would be desirable if your clients are to remain in the property, due to the children's specific needs. We note that you are pursuing the local authority in this respect, and they are the appropriate body to resolve this matter. We do not therefore feel it appropriate for us to comment further on this point.

There are deficiencies in the nature of the accommodation for your clients, due to the children's specific needs. This is accepted, and is why we have agreed to seek alternative accommodation for your clients. Finding alternative accommodation quickly would clearly remove the necessity for adaptations to be made to the existing property.

However, your client's needs are quite specific and NASS does not currently have any suitable accommodation available in the area and of the type that is required. We have asked the London Borough of Waltham Forest to assist in finding accommodation on our behalf, as is common in such cases, and have confirmed our willingness to fund such accommodation. You have been notified by that authority that they would expect to be able to find such accommodation in about a week, and I see no reason not to take this expectation at face value. There should be no reason for significant delay once available accommodation is identified, and certainly not the 7 days that you envisage in your letter.

However, you must appreciate that the Secretary of State does not have control over the availability of accommodation in the London Borough of Waltham Forest (and neither, for that matter, does the local authority) and we cannot predict precisely when suitable accommodation will become available that would be able to be obtained for your clients. It would be irresponsible for us to give an undertaking to find such accommodation within a certain timescale without knowing for certain whether there will be any available within that time. The position would be precisely the same if your clients were not asylum seekers, but were applying for accommodation directly through the local authority. No-one who is involved in the social housing market in London would be able honestly to give the assurances you seek.

We can, however, confirm that both NASS and the local authority are committed to finding your clients more suitable accommodation as a matter of priority, and as the local authority believes it is able to do so within a matter of about a week, we suggest that you allow them to make their best endeavours in this respect. Alternatively, if your clients or their associates are aware of any suitable accommodation available privately in the area then please do make NASS or the local authority aware of it and we will seek to secure it for your clients. However, we would see no purpose in your seeking permission for a judicial review at this time as this will not make accommodation available which is not there.

In respect of your client's subsistence we confirm that we have made arrangements for subsistence at NASS rates to be provided directly to your clients, instead of the allowance that was previously provided by the London Borough of Hackney. This should be received by the end of the week. We understand this will overlap with the last payment from Hackney but do not yet have confirmation of when that payment expires."

43. During August 2002 a property at 30 Pevensey Road E7 was located by Waltham Forest as a possible alternative. An assessment dated 15^th August 2002 by the occupational therapist indicated that once again the property would only be suitable if H slept downstairs and considered that the property could only be viewed as a further interim measure to provide for this family's needs. Ultimately by letter dated 18^th September 2002 solicitors for the As were told that 30 Pevensey Road was not appropriate. By letter dated 23^rd September 2002 solicitors for As complained to NASS that it had taken 7 weeks to reach that conclusion.
44. At the end of September 2002 the correspondence would indicate that Waltham Forest were still endeavouring to find a property. They identified a property in Waltham Forest but that was considered unsuitable (see letter 15^th October 2002 page 143). They then considered a possible property in Redbridge. The correspondence indicates that the family went to view 130 Wanstead Park Road, Redbridge. They were concerned about the state of the property and as to whether it could fulfil the family's needs but in addition the family were troubled about that property's location. It seems that Mrs A in any event expressed a desire to remain at 50 Clacton Road rather than move out of Waltham Forest. At the same time it is clear that consideration was being given to making adaptations to 50 Clacton Road to make that a more suitable accommodation for the As.
45. By letter dated 27^th January 2003 the solicitors for the As set out in detail the position as it had been reached as of that date. That letter included an assertion that NASS had not been reimbursing Hackney for the accommodation at 50 Clacton Road. It seems that Hackney had served a notice to vacate the property because no payment had been received. The solicitors asked for confirmation of the following:

"(a) Why NASS are not paying for the accommodation at 50 Clacton Road;

(b) That NASS will pay for this accommodation, and make arrangements with Hackney to pay arrears of rent, such that Hackney agree to take no steps to terminate this accommodation;

(c) Provide a detailed account of the steps NASS are taking to identify adequate accommodation for the family;

(d) Confirmation that NASS will call on Waltham Forest to try to identify adequate accommodation within the Local Authority's own stock;

(e) That NASS will ask other registered social landlords who may have housing stock in the area to assist with identifying accommodation for the family;

(f) The reason for the delay in NASS making the six-monthly lump-sum payments which have been due to the family since our letter to you of 19^th November 2002 and confirmation that these sums will be paid immediately."

46. By letter of 29^th January 2003 the Treasury Solicitor for NASS wrote to the solicitors for the As. In essence the letter maintained (1) that NASS was under no obligation to pay for 50 Clacton Road because no arrangement existed with Hackney; (2) that NASS had been in constant contact with Waltham Forest in an attempt to identify adequate accommodation for the family; (3) that they understood from Mr Higginbotham [the occupational therapist] that the As were prepared to stay at 50 Clacton Road until their immigration status was decided and that minor adaptations were being made to that property; and (4) that the As had had property offered to them but insisted on remaining at 50 Clacton Road and thus NASS had discharged their obligation.
47. The judicial review application was about to come on and solicitors for the As by letter dated 17 February 2003 indicated that they would seek additional interim orders against NASS including an order that (a) they pay for the accommodation at 50 Clacton Road and (b) determine the claim for asylum support. On the same date they wrote to Waltham Forest saying that they would seek a declaration that Waltham Forest were acting unlawfully in failing to consider Waltham Forest's own housing stock for the As. This was raising a point on the proper construction of s118 of the 1999 Act to which I will return.
48. The matter came before Jackson J on 24^th February 2003. NASS and Waltham Forest were prepared to give certain undertakings which were recorded in that order. Waltham Forest undertook:

"(a) to carry out an assessment of H and CA's need for financial support under section 17 of the Children Act on or before 4.00pm on 17^th March 2003; and

(b) to meet the costs of any top up funding for the disability related part of the A family's accommodation from the date of this order until liability ceases or further order."

NASS undertook:

"(a) to meet the costs of the basic part of the A family's accommodation from the date of this order until liability ceases or further order;

(b) to file and serve a witness statement on or before 4.00pm on 17^th March 2003 setting out whether asylum support had been paid to the A family under section 95 or section 98 of the Immigration and Asylum Act 1999 to date;

(c) and if asylum support has been paid under section 98 to date, to determine the A family's claim for asylum support under section 95 on or before 4.00pm on 17^th March 2003; and

(d) if asylum support has been paid under section 95 to pay the supplementary sums due to the A family under regulation 11 of the Asylum Support Regulation 2000 on or before 4.00pm on 17^th March 2003. "

49. Michael Barber's witness statement dated 17^th March 2003 on behalf of NASS complied with Jackson J's order in the following respect. It stated:

"Arrangements, further to the Order of the Court, have now been made for Hackney to be reimbursed the rent of the Claimant's accommodation at 50 Clacton Road from 26 February 2003 and this will continue to be paid during the time that NASS has a legal responsibility to do so. There is understood to be no financial issue for the Claimant in respect of rent as she is provided with accommodation rent free.

NASS remains willing to fund the Claimant's future accommodation during the time that there remains a duty to do so under the Act should either the London Borough of Hackney or the London Borough of Waltham Forest be able and willing to provide such suitable accommodation."

50. There are other passages earlier in the statement of Mr Barber which are relevant:

"The London Borough of Waltham Forest agreed to locate more suitable accommodation. As the London Borough of Waltham Forest were prepared to deal with the Claimant and her family under the scheme of co-operation that had been established between local authorities and NASS to handle such cases, NASS authorised them to pay the rent on 50 Clacton Road. The reason that they did not do so is that the Claimant has no rent liability for that accommodation.

I understand that the London Borough of Waltham Forest investigated whether the Claimant's present accommodation can be suitably adapted to meet her family's needs, but their investigations revealed that this would not be practicable. I am also aware that they endeavoured to locate suitable alternative accommodation, although the accommodation they located did not meet the Claimant's wishes, and I understand she elected to remain at 50 Clacton Road.

Essentially, NASS is prepared to support the Claimant's family in suitable accommodation locally, provided that someone is able to find some. However, NASS has a very limited remit in which to operate and quite simply does not have accommodation of the sort required in the very limited geographical area stipulated by the Claimant's solicitors. I am unclear whether such accommodation actually exists, is available, or is realistically likely to become available. Doubtless the London Borough of Waltham Forest is better placed to comment on the accommodation within its area of authority.

NASS has always remained willing to provide the Claimant and her family with accommodation appropriate to the family's needs. Because of the apparent unsuitability of 50 Clacton Road, NASS has tried to obtain more suitable accommodation through the available channels. NASS remains prepared to accommodate the family in partnership with any local authority that is prepared to do so and that is able to provide appropriate accommodation. Should suitable accommodation not be able to be secured locally, NASS is happy to provide suitable accommodation in a dispersal area. Indeed, it is at the Claimant's request that we have not done so.

That the Claimant has now become settled to some extent in London and contends that she cannot be dispersed is resultant from the arrangement by which Hackney was accommodating her, but also from her own decision to remain at 50 Clacton Road during the processing of her asylum matter. Had the Claimant not rejected dispersal then she would be living in suitable accommodation for her family's needs in a dispersal area."

Discussion of the 1999 Act

51. The adequacy, or "suitability" if that word were preferred (see paragraph 24 above), of accommodation is relevant in two stages under Part VI of the 1999 Act. It is relevant to the first stage when a decision is taken as to whether someone with their dependants is destitute. Under s95 a person is destitute if "he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met)". A decision that an asylum seeker is destitute triggers the powers under s95 but where there are children under s122(3):

"If it appears to the Secretary of State that adequate accommodation is not being provided for the child, he must exercise his powers under section 95 by offering, and if his offer is accepted by providing or arranging for the provision of adequate accommodation for the child as part of the eligible person's household."

Thus if a decision is taken that adequate accommodation was not being provided and a decision is thus taken that the asylum seeker with dependants was destitute, the second stage at which adequacy has to be assessed is when considering whether adequate accommodation has been provided pursuant to s95.

52. Adequacy cannot have a different meaning depending on which aspect the court is considering. Although it is only in the context of providing the accommodation once the s95 powers are being exercised that it is expressly provided by s96(1) that the accommodation must be "adequate for the needs of the supported person and his dependents (if any)", it must be relevant to the initial decision as to adequacy whether the needs of the asylum seeker and his dependants are being met. But whether the question arises under s95 in considering whether an asylum seeker is destitute in the first instance, or whether it arises in considering whether accommodation being provided is adequate, the word "adequate" will take its meaning from the context. In the context of different legislation concerned with homeless persons the court has said that "suitability" must be tested by reference to the needs of persons to whom the duty is owed [see R v London Borough of Brent ex part Omar 23 HLR 446]. The same must be true of the word "adequate" in the 1999 Act, but the context is important.
53. The context for asylum seekers is the provision of accommodation which prevents such people being destitute, and which provides for their essential living needs. Furthermore in considering adequacy or suitability the individual circumstance of each individual, including dependants, must be considered; thus the age of the children and whether any person including the children suffers from a disability will be relevant to the adequacy of accommodation and as to whether the family would be destitute. Lord Hoffmann accepted that s95(1) prima facie conferred power to accommodate all destitute asylum seekers, including disabled adult asylum seekers, but accepted the argument that regulations made under Part IV of the 1999 Act made clear that the power was "residual" and could not be exercised if the asylum seeker was entitled to accommodation under some other provision. See paragraph 38 in R (Westminster City Council) v National Asylum Services (supra). It is the fact that Keith J did not appreciate Lord Hoffmann's reasoning which led him wrongly to conclude that adequacy was to be tested without reference to any disability.
54. The period during which the accommodation is likely to be occupied is also clearly relevant. S95(6)(c) shows that the fact that accommodation is temporary will not be taken into account in considering adequacy. I understand that to mean that its temporary nature cannot be relied on to support the argument of inadequacy. That has to be so to make it consistent with s97(1)(a) under which in exercising his power to provide accommodation, the Secretary of State must have regard to the fact that "the accommodation is temporary pending determination of the asylum seeker's claim." Adequacy or suitability will vary from case to case; if it takes a very long time for an asylum seeker's claim to be dealt with, that may make accommodation inadequate which was in a shorter time frame adequate.
55. In considering whether the Secretary of State is fulfilling a duty to provide adequate accommodation, the position may become different over the passage of time. Just as under homelessness legislation the duty to provide accommodation is a continuing one and thus what may have been suitable at one moment may become unsuitable later [see Ibrahim Zaher v City of Westminster [2003] EWHC 101 (Admin)], so the same would be true under the 1999 Act.
56. In addition just as under the homelessness legislation if a party accepts accommodation as suitable he should not be entitled to challenge its suitability [see Alghile v Westminster City Council [2001] 33 HLR 57 referred to in paragraph 28 of Zaher], so the same principle should apply to the asylum seeker who accepts accommodation as adequate or suitable. But again that does not mean things are set in stone. Circumstances can change and can rekindle the duty [see again Zaher, particularly paragraphs 28 and 29].
57. The distinction between temporary accommodation and permanent accommodation must be borne in mind; but there are also degrees of temporariness and what might be considered adequate or suitable in the short-term may be inadequate or unsuitable in the longer term. One difficulty with the 1999 Act is that although the Act expressly states that the temporary nature of the accommodation is a fact to be taken into account, for some asylum seekers the appeal process may make the length of stay in accommodation quite short whereas for others the delay in the appeal process may make it quite long term. The difficulty for NASS, and indeed for the court, may be in weighing up to what extent the delay in the process is solely the fault of the system, to be contrasted with the conduct of the asylum seeker who may wish to extend the process as long as possible. However in this case we have heard no argument to the effect that the appeal process has in any way been extended by the action or inaction of the A family and thus the approach of the court must be to the facts as they are i.e. that the appeal process has in this case taken a very considerable period.
58. Adequacy or suitability may also be fact-specific in another way. Accommodation is more difficult to find in London. As has happened in this case, the A family made clear their wish to stay in 50 Clacton Road pending the result of their asylum claim. NASS accepted that they should be entitled to do that albeit being prepared to look for further accommodation which would be more suitable. In the result the children have begun to attend special needs schools and the A family have become keener still to stay in the area. NASS are seeking to find alternative accommodation but only within the relevant area. The argument of Miss Foster for the claimant appears to be that having accepted the constraint of finding accommodation in North London the obligation of NASS can only be fulfilled so as to provide accommodation such that the children can continue to attend their school. In other words the submission appears to be that it is now part of the test of adequacy whether the property fulfils the requirement so far as the children's particular school is concerned. In my view that is not the correct approach. First, accommodation may be adequate in London if that is where NASS has accepted the family should stay, although it would not be adequate in other areas where much more suitable accommodation is available. But if the accommodation became such that it was impossible to survive as a family in it, NASS would in my view be entitled to offer accommodation outside London where other schools were available.
59. The duty on NASS under which they must provide adequate accommodation appears to be absolute. But I suggest that its absolute nature should work in this way. Obviously if asylum seekers are on the streets without any accommodation the duty to provide accommodation is absolute and immediate. The legislature contemplates temporary support until the Secretary of State "is able to determine whether support may be provided under section 95". But when exercising their s95 powers NASS are in my view entitled to place persons in accommodation which will be adequate in the short-term until they find accommodation adequate for the slightly longer term. That may lead to a family being prepared to accept as adequate the shorter term property for the longer, albeit temporary, term in order to maintain the same schools or doctor etc for the family. Circumstances can of course change so that what was previously accepted as adequate is clearly no longer so, but it would take an extreme change to bring about a duty to provide other accommodation immediately, and that extreme change might be such as to alter the constraints which the family would like to maintain.
60. A balancing exercise has to be carried out with the question at the forefront - is the accommodation adequate for the needs of the disabled children in the circumstances which persist at that moment in time? The circumstances of this case, for example, seem to be that the As wanted to stay in that particular area of London and accepted 50 Clacton Road as adequate while they established their immigration status. It would seem they appreciated that although other accommodation would be sought in the area, the constraints were such that no guarantee of providing better accommodation could be given. If this is right, the questions which would need addressing would be first whether NASS have carried out a proper search for better accommodation, and second whether circumstances have changed so as to render 50 Clacton Road inadequate, that being tested against the accommodation as it was when it was accepted as adequate. That involves a balancing exercise. If no proper search was being carried out that would lead to a finding of a breach of duty. If circumstances had changed in such a serious way, that may have imposed a duty to find better accommodation come what may, but the constraints may also need further consideration and the balancing exercise will involve considering whether the family should be asked to move from the area or whether it is fair to continue to ask them to accept 50 Clacton Road as acceptable. Before reaching any final conclusions on these points, I should deal with two other points of construction on the 1999 Act.

Section 118

61. One point of contention has been that Waltham Forest have construed s118 as not allowing them to use their own housing stock. That section provides as follows:

"118. (1) Each housing authority must secure that, so far as practicable, a tenancy of, or licence to occupy, housing accommodation provided under the accommodation provisions is not granted to a person subject to immigration control unless-

(a) he is of a class specified in an order made by the Secretary of State; or

(b) the tenancy of, or licence to occupy, such accommodation is granted in accordance with arrangements made under section 95.

(2) "Housing authority" means-

(a) in relation to England and Wales, a local housing authority within the meaning of the Housing Act 1985;

(b) in relation to Scotland, a local authority within the meaning of the Housing (Scotland) Act 1987; and

(c) in relation to Northern Ireland, the Executive.

(3) "Accommodation provisions" means-

(a) in relation to England and Wales, Part II of the Housing Act 1985;

(b) in relation to Scotland, Part I of the Housing (Scotland) Act 1987;

(c) in relation to Northern Ireland, Part II of the Housing (Northern Ireland) Order 1981.

(4) "Licence to occupy", in relation to Scotland, means a permission or right to occupy.

(5) "Tenancy", in relation to England and Wales, has the same meaning as in the Housing Act 1985.

(6) "Person subject to immigration control" means a person who under the 1971 Act requires leave to enter or remain in the United Kingdom (whether or not such leave has been given).

(7) This section does not apply in relation to any allocation of housing to which Part VI of the Housing Act 1996 (allocation of housing accommodation) applies."

62. The first question is whether "arrangements" under s118(1)(b) refers to arrangements made under s99 or whether it also covers more loose arrangements following a request under s100. If "arrangements" refers to only to s99 arrangements the exception would not apply in this case. The answer in this case would then depend on the meaning of the words "so far as practicable" in s118(1).
63. In my view "arrangements" has a meaning under the 1999 Act and means s99 arrangements. Thus since there were no such arrangements with Waltham Forest in this case, s118(1)(b) does not provide an exception.
64. What, then, about the words "so far as practicable"? Were those words intended to mean that if the local authority knew that a person was subject to immigration control they should not use their housing stock in any circumstances because with that knowledge it was "practicable" to refuse? Or are the words simply an exhortation not to use housing stock unless that was the only way of providing accommodation? In my view the words "so far as practicable" are an exhortation. The local authority if requested to assist under s100 must cooperate in giving such assistance as is reasonable; it must look outside its housing stock, but there may be circumstances in which the inadequacy of the accommodation is such that it would be unreasonable for the local authority not to use its own housing stock. Once again a balancing exercise has to be performed.

S122(5)

65. Subsection 5 of s122 I should set out again:

"(5) No local authority may provide assistance under any of the child welfare provisions in respect of a dependant under the age of 18, or any member of his family, at any time when-

(a) the Secretary of State is complying with this section in relation to him; or

(b) there are reasonable grounds for believing that-

(i) the person concerned is a person for whom support may be provided under section 95; and

(ii) the Secretary of State would be required to comply with this section if that person had made an application under section 95."

66. Miss Foster primarily submits that if she can establish a failure by NASS to provide accommodation, she should be entitled to an order against Waltham Forest to provide the same under s17 of the Children Act. She accepts however, that she could not obtain an order both against NASS and against the local authority. In my view she is right in making that concession, and that is a pointer towards the proper construction of this subsection.
67. In my view the proper construction of this subsection is that it excludes the local authority from providing assistance where NASS should be complying with its obligations under s95 and s122. Sub-subsection (b) provides a clue, and it seems to me that that is what Parliament intended.
68. For this reason, and since NASS are purporting to carry out their s95 and s122 duties, no remedy lies against Waltham Forest.

Overview of the Present Case in the Context of the Above Discussion of the 1999 Act

69. There can be no doubt that NASS are now exercising their s95 powers in relation to accommodation in that from February 2003 they have been paying for 50 Clacton Road. Were they exercising their s95 powers in relation to accommodation prior to that date? They were clearly contemplating their s95 powers in early 2002 because they were contemplating dispersing the A family. But it can be said with some force that they did not in fact exercise those powers because otherwise they would have been bound to offer accommodation pursuant to s122(3). So far as 50 Clacton Road was concerned, that was not offered by NASS, nor was it provided or arranged for by NASS. The proper analysis of what occurred in April 2002 appears to be that NASS were contemplating exercising their powers under s95 which would have included dispersing the A family but were prepared not to do so and prepared to accept that 50 Clacton Road was in fact adequate and thus that the A family were not destitute while they remained in that accommodation pending a search for more suitable accommodation in London. Since that was a decision with which those representing the As expressly agreed, it seems to me that the As cannot now challenge the adequacy of 50 Clacton Road as at April 2002. In any event the reports, such as they were at that date would not suggest that 50 Clacton Road was inadequate and would demonstrate that the decision was an understandable one for the A family and those responsible for finding accommodation for them. I shall quote hereafter a recent report from a community consultant paediatrician Corina O'Neill who expresses the view that this accommodation was never adequate, but that does not have regard to the decision that the A family actually took at that time, nor the proper construction of the 1999 Act. The accommodation was not ideal for the two disabled children but the assessments suggested it was adequate and would certainly be so if H moved downstairs as recommended by the social services.
70. Has the accommodation become inadequate? The occupational therapist's report of May 2002 suggested that 50 Clacton Road was unsuitable for the two children's "medium and long term needs". There seems little doubt that the disabilities of the two children became and are getting worse. The time that it is taking to resolve the asylum claim is probably longer than was contemplated in April 2002. As indicated in the decision of April 2002 NASS have been requesting Waltham Forest to look for better accommodation. Waltham Forest have identified certain properties, but they have either been no more suitable than 50 Clacton Road or if they have been marginally more suitable, they are in areas into which the As would prefer not to move. They would prefer to put up with what they have got at 50 Clacton Road in order to take advantage of the school and the support that they are now getting from Waltham Forest. (There was a time it appears when disrepairs were causing problems at 50 Clacton Road but it seems that those repairs have now been done and that that is not an issue.)
71. What are NASS's obligations in relation to searching for particular accommodation? They are, on the language of s122(3), to provide or arrange for the provision of adequate accommodation. They can do that by making arrangements with a local authority under s99 (not this case). They can also request the local authority to give assistance under s100. Furthermore they could make their own enquiries both of registered social landlords or presumably estate agents. In the circumstances of this case NASS had been placed in a situation by the decision by the As in April 2002 whereby they are being asked to confine their search to a certain area. It may not in all circumstances be reasonable for NASS to request only one local authority under s100 to assist, but in this case, with Waltham Forest's expertise in the particular area, it is entirely reasonable that they should have done so. Furthermore Waltham Forest will be likely to have greater experience of relevant registered social landlords than NASS themselves, and indeed will be likely to have more detailed knowledge of the particular area, even in so far as estate agents are concerned. NASS have in any event made clear that if the A family or any member of that family could find accommodation in the relevant area they would be prepared to pay for it.
72. It clearly is not enough for NASS simply to request Waltham Forest, they must see that Waltham Forest comply with that request so far as Waltham Forest are obliged to do so. Waltham Forest's obligation is to cooperate in giving such assistance as is reasonable in the circumstances (s100(2)). They must in so acting have regard to s118 and the exhortation not to use their housing stock "so far as practicable". The most recent statement of Mr Barber for NASS before us makes clear the difficulties.

"I am informed by the Borough that currently they have 43 high priority medical cases waiting for placement in two-bedroom accommodation. They have a further 13 high priority medical cases waiting for three-bedroom accommodation. Since my previous discussion with the Borough in May, 5 two-bedroom properties which are suitable for wheelchair users have been let to tenants. Their records show that there have been no three-bedroom properties which are suitable for wheelchair users let during that period."

73. The most recent statement relating to the A family comes from Corina O'Neill to whom I have already referred, and was put before us without objection. It bears no date but was faxed to the A's solicitors on 11^th September 2003 and thus presumably reflects Corina O'Neill's view at that date. She says amongst other things:

"The accommodation currently provided could not be made adequate for H and C by arranging for them to have beds downstairs. If H and C's beds were downstairs there would be no or no sufficient space for their equipment, including their wheelchairs. It would be impossible to accommodate the further equipment they will require as they deteriorate. Secondly, H and C would be deprived of their privacy and dignity. It is undesirable for boys of this age to share a room, but it is wrong for them to have to sleep in a room, which is the whole family's living room. This proposal would mean that H and C would have to live their whole lives in one room. The problem is intensified because their disabilities limit the extent to which they can leave the house. Thirdly, this arrangement would undermine family life. Either the whole family would have to live in the boys' bedroom, or Mr and Mrs A would have to use living accommodation upstairs apart from the boys' living accommodation and be apart. We must also remember that despite their significant disability their intellect is relatively preserved and opportunities for appropriate hobbies and social interaction are most important.

I consider that the accommodation provided has never been adequate for them. When I first met the family I was horrified to learn that Mrs A was supporting H up and down the stairs. I am just as concerned today now that both boys require support. As time has progressed, H and C have continued to deteriorate because their condition is degenerative. Consequently, the accommodation has become more and more inadequate, and it will continue to do so. The accommodation is not adequate in the short, medium or long term."

74. The view of Miss O'Neill that this accommodation was never "adequate" is respected, but as of April 2002 the As accepted it as adequate in order to be able to stay where they were. They did so knowing that efforts would be made to find other accommodation, but that there would be major difficulties finding alternative more adequate or suitable accommodation. It is in that context that the balancing exercise to which I have previously referred had to be conducted and the questions which I posed would arise. The condition of the children has clearly deteriorated and the process of dealing with the A's asylum claim has been extended beyond that which would have been contemplated as at April 2002. Those two factors must make it the more urgent to find accommodation which provides more nearly for the needs of these disabled children. But at the same time Waltham Forest have their obligations to disabled persons other than asylum seekers, and NASS only has properties which would be more suitable outside the area where the As want to stay.
75. It would not be reasonable to impose on NASS or Waltham Forest in this case an obligation to purchase property in the defined area where the As desire to live and convert the same so as to enable the As to continue their children's education at the school they are now attending even if such property could be found.
76. Miss Foster when asked what actual remedy she sought, responded that an order should be made to find a property in the relevant area within 3 months, with a further 3 months to convert the same to make it adequate for the As. That on any view involves a proper appreciation that it cannot be said that there has come a stage that there is an absolute obligation to place the As in further accommodation with immediate effect.
77. The question is whether circumstances have so changed since April 2002 that NASS must request Waltham Forest to do more than Waltham Forest are in fact doing, or whether it is unfair that the A family should continue to be asked to accept 50 Clacton Road as adequate.
78. I have found this a very troublesome case having regard to the situation of the two disabled children. But my conclusion is that NASS are not at this stage in breach of their duty. One reason that I say this is that I do not think circumstances have changed appreciably. In addition to wishing to remain in the area the A family have still, for example, not followed the recommendation to the effect that the two children could live downstairs. I have quoted the opinion of Miss O'Neill in this regard, but the obligation of NASS is to prevent destitution and adequacy or suitability must be tested in that context. That is just as true when looking at the needs of disabled children of asylum seekers as it is when looking at the needs of the asylum seekers themselves. In addition, following the decision in April 2002 it does seem to me that NASS have requested and insisted on Waltham Forest searching for further accommodation. The difficulties of that exercise were pointed out to the As at the time, and I do not think it can be shown that NASS have failed in this respect so far.
79. Steps – indeed urgent steps - must continue to be taken by NASS to see that Waltham Forest do all that is reasonable to provide this family with more suitable accommodation. But in my view the time has not arrived where it can be said that NASS are in breach of duty under the 1999 Act.
80. I said I would come back to cross-check the position of a disabled adult asylum seeker under s21 of the 1948 Act. In the circumstances of this case where there has been an acceptance of the accommodation as suited so that a family may live in a particular location with the terms of that acceptance clear and where that accommodation is temporary in the sense that it is to be used pending resolution of an asylum claim, in my view no different result would have been reached under s21.

Article 8

81. I should finally add that I do not believe that my construction of the 1999 Act or indeed the decision which I make will give rise to a breach of Article 8. I accept that Keith J was wrong in suggesting Article 8 was not engaged. It would be engaged having regard to the effect on the "physical and psychological integrity" of the family (see Botta v Italy 26 EHHR 241 relied on by Sullivan J in R (Bernard) v London Borough of Enfield [2002] EWHC 2282 (Admin) at [31]). But the balancing exercise which I suggest must be carried out bears in mind the possible interference with the lives of other families who may not get more suitable accommodation if the As get that accommodation and pays regard in particular to the economic resources required to remove the interference in the lives of the As, and is thus justified under Article 8(2).
82. I have noted also the very recent decision of Alan & Another v London Borough of Southwark [2003] EWCA Civ 1406, and believe my view on Article 8 to be in accordance with the judgment of the Court in that case.
83. I would therefore dismiss the appeal.

Lord Justice Clarke

84. I agree that the appeal should be dismissed for the reasons given by Waller and Brooke LJ.

Lord Justice Brooke

85. The purpose of Part VI of the 1999 Act is to prevent asylum-seekers and their dependants from becoming destitute while they are in this country waiting for their asylum claims to be processed. If they appear to the Secretary of State to be destitute or to be likely to become destitute in a prescribed period, the Secretary of State is given power under section 95(1) of the Act to provide, or arrange for the provision of, support for them. For this purpose a person is destitute if he does not have adequate accommodation or any means of obtaining it (section 95(3)).
86. Section 96(1) shows that the Secretary of State may provide the requisite support by providing accommodation appearing to him to be adequate for the needs of the supported person and his dependants.
87. So far I have only referred to powers. Section 122(3) speaks of a duty if there is a child in the family of the person whom the Secretary of State has a power to support. In such a case the Secretary of State must offer accommodation, and if his offer is accepted, he must provide or arrange for the provision of adequate accommodation for the child as part of that person's family. In the present case the two children are disabled, and I agree with Waller LJ, for the reasons he gives, that ECHR Article 14 obliges us not to interpret the word "adequate" in such a way as to imply that a lower standard of accommodation might be appropriate for a disabled child than accommodation that is suited to a disabled adult within the meaning of section 21(2) of the National Assistance Act 1948.
88. The evidence shows that the Secretary of State would normally perform his section 122(3) duty by finding accommodation for the child and his family in a part of the country which is not, like London, beset by a housing crisis. The scale of that crisis, at any rate so far as North London is concerned, is apparent from the distressing evidence from Waltham Forest recorded in paragraph 72 of Waller LJ's judgment. In the present case the Secretary of State did not follow the normal course because of the urgent plea of Mrs A's solicitors that their client and her family should be allowed to remain where they were pending the resolution of their asylum claim, because they had a stronger preference for the location of 50 Clacton Road and the nearness of a suitable school for the boys than they had for accommodation in a different part of the country where they might be equally close to a suitable school but where the accommodation might be more suited to the boys' needs. For these reasons I consider that Mrs A cannot be heard to say that the Clacton Road accommodation was inadequate between the time of her first application to NASS and the time of the occupational therapist's report in May 2002. She actively chose to stay there when NASS was willing to provide more suitable accommodation elsewhere.
89. The more difficult question then arises whether NASS was at any time in breach of its duty after the unsuitability of Clacton Road had become apparent from the occupational therapist's report which Waller LJ cites in paragraph 38 of his judgment. For the reasons given by Waller LJ I have concluded, with some hesitation, that it was not. Palliatives which the family chose not to adopt could have mitigated some of those matters highlighted in that report which have not yet been remedied, and it must always be remembered that the purpose of this statutory scheme is to prevent a family from being destitute within the meaning of section 95 of the Act. If a family actively chooses to stay in an area with a housing crisis for the entirely understandable reasons adopted by Mrs A and her family, I can see no evidence that Parliament envisaged the Secretary of State buying a house for them in that area as their home for the remainder of the comparatively short period before their asylum claim is finally determined. By using the word "comparative" I am speaking of a period which may not exceed two or three years at most, and may well be shorter.
90. For these reasons I, too, would dismiss this appeal.