COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION - ADMINISTRATIVE COURT
(Mr Justice Wilson)
London, WC2A 2LL
B e f o r e :
(Vice-President of the Court of Appeal Civil Division)
LORD JUSTICE JUDGE
MR JUSTICE NELSON
| The Queen (on the application of Mani)
|- and -
|London Borough of Lambeth
|- and -
|The Secretary of State for the Home Department
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
(instructed by Messrs Sternberg Reed Taylor & Gill) for the Appellant
Stephen Knafler Esq
(instructed by Messrs Pierce Glynn) for the Respondent
Neil Sheldon Esq
(instructed by The Treasury Solicitor) for the Intervener
AS APPROVED BY THE COURT
CROWN COPYRIGHT ©
Crown Copyright ©
Lord Justice Simon Brown:
"21(1) … a local authority … 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 [subject to immigration control, including asylum seekers] 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."
"Asylum seekers are not entitled merely because they lack money and accommodation to claim they automatically qualify under s21(1)(a). What they are entitled to claim (and this is the result of the Act of 1996) is that they can as a result of their predicament after they arrive in this country reach a state where they qualify under the subsection because of the effect upon them of the problems under which they are labouring. … It is for the authority to decide whether they qualify … In particular the authorities can anticipate the deterioration which would otherwise take place in the asylum seeker's condition by providing assistance under the section. They do not need to wait until the health of the asylum seeker has been damaged."
"The 1948 Act will be amended to make clear that social services departments should not carry the burden of looking after healthy and able-bodied asylum seekers. This role will fall to the new national machinery."
"[I]f an applicant's need for care and attention is to any material extent made more acute by some circumstance other than the mere lack of accommodation and funds, then, despite being subject to immigration control, he qualifies for assistance. Other relevant circumstances include, of course, age, illness and disability, all of which are expressly mentioned in section 21(1) itself. If, for example, an immigrant, as well as being destitute, is old, ill or disabled, he is likely to be more vulnerable and less well able to survive than if he were merely destitute."
Hale LJ agreed, pointing out (at p2553) that s21 "was not originally designed as the last refuge of the destitute", but concluding (at pp2557-2558) that:
"It makes no sense for the old, the sick or the disabled to be eligible for hospital and other health services but not for the community care services they need."
Kay LJ agreed with both our judgments.
"42. Looking back, I have little doubt that our thinking (or certainly my thinking) on asylum-seekers was this: Those who without support would deteriorate essentially through destitution would be entitled to s.95 support irrespective of whether they were particularly vulnerable through age, ill health or disablement. Those, however, whose need for care and attention would exist even if in funds would still be entitled to community care under the 1948 Act.
43. The difficulty with this approach, however, a difficulty not I think appreciated by anyone when we decided ex parte O, is that it involves looking at s.21(1A) differently depending upon whether the 'person subject to immigration control' who is seeking support is or is not an asylum-seeker. If not an asylum-seeker then clearly the 1948 Act is indeed 'the last refuge of the destitute' and, as ex parte O decided, s.21(1A) should exclude from relief only the young and fit. If, however, the applicant is an asylum-seeker, then national assistance is no longer their last refuge: s.95 has replaced it.
44. Mrs Y-Ahmed's case is, it seems to me, a clear one: she, on any view, appears entitled to 1948 Act assistance and thus is excluded from s.95 support. What, however, would be the position of, say, a blind asylum-seeker? Mr Howell QC for NASS accepts, indeed submits, that assuming such an applicant, once provided with suitable accommodation and subsistence under s.95, would not be in need of community care and attention, then he is entitled to s.95 support. And this, of course, is consistent with the prescribed application form quoted above. It is perhaps less easily reconcilable, however, with the approach to s.21(1A) adopted in ex parte O. Were the blind applicant to be a non-asylum-seeking immigrant, there can be little doubt that, for want of s.95 support, he would be entitled to assistance under the 1948 Act.
45. Clearly none of this can affect the resolution of the legal issue now before us or the outcome of the present appeal (concerning as it does Mrs Y-Ahmed's support). It seems to me necessary, however, to note a certain tension between ex parte O and the clearly intended inter-relation between the 1948 Act and the 1999 Act with regard to asylum-seekers. I would end, therefore, by expressing the hope that NASS will continue to accept responsibility for supporting the great majority of asylum-seekers and that local authorities will only be expected to assist those comparatively few whose need for care and assistance would qualify them for 1948 Act assistance even were they not subject to immigration control (together, of course, with the relatively few non-asylum-seeking immigrants like O for whom in truth this Act is a last resort)."
"52. The present case does not fall within s.21(1A) because the asylum-seeker to whom it relates, Mrs Y-Ahmed, has a need for care and attention, which does not arise solely from either destitution or its physical or anticipated physical effects. She has a serious medical condition, requiring specialist medical care and attention. Westminster City Council ('Westminster') maintain, however, that her case (a) falls within s.95 of the 1999 Act and (b) is therefore excluded by s.21(1)(a) from the scope of their responsibilities under the 1948 Act, since s.21(1)(a) limits their responsibility to those in need of care and attention 'which is not otherwise available to them'.
63. I am therefore left in no doubt that the overall scheme was that NASS should take responsibility only for asylum seekers falling within s.21(1A), and that persons (whether asylum seekers or not) needing care and attention for other reasons would continue to be dealt with under s.21(1)(a) of the 1948 Act.
65. … Simon Brown LJ has drawn attention to the potential implications of this strict or limited interpretation of the scope of s.21(1A) on the balance of responsibility between NASS and local authorities in relation to asylum seekers. Our decision today indicates a mutually exclusive analysis of the roles of s.21(1)(a) of the 1948 Act and s.95 of the 1999 Act, which one would expect to apply whether or not the person seeking support was an asylum seeker. The relationship between and the working of the two sections will presumably be kept under review, and can if necessary be fine-tuned by legislation, regulation or, within limits, by pragmatic accommodation between the parties involved."
"26. More widely, I have reached the clear conclusion that the answer to the first and major question raised in these proceedings is, at any rate at the level of this court, dictated by the decisions of the Court of Appeal in O and Bhikha and Westminster v NASS. In O and Bhikha, as set out in §11 above, the Court of Appeal specifically rejected the argument that 'it is only if an applicant would still need [section 21] assistance even without being destitute that he is entitled to it'. In my view '[section 21] assistance' must there mean 'the provision of residential accommodation'. If so, the argument there rejected is precisely the argument advanced to me. In Westminster v NASS the Court of Appeal concluded, for obvious reasons, that the construction of section 21 in the case of asylum-seekers could not be different from its construction in the case of others subject to immigration control. That the application to asylum-seekers of the construction favoured in O and Bhikha might produce anomalies there began to emerge. Nevertheless, in the case of asylum-seekers, a clear line had been drawn, with whatever degree of forethought, by the White Paper which preceded the Act of 1999; and the adoption in their case of the test in O and Bhikha had at all events the added justification of being entirely loyal to it.
27. In §14 above I have set out paragraphs 42 to 45 of the judgment of Simon Brown LJ in Westminster v NASS because the local authorities in the present case set considerable store by them. I regard those paragraphs as a postscript to the judgment in which the emerging anomalies were acknowledged. The example of the blind man subject to immigration control, who needs considerable care and attention but not in the form of residential accommodation, was posited. I take the postscript to mean that, were he not an asylum-seeker, he would be entitled to residential accommodation under section 21; that, were he an asylum-seeker, the legal conclusion could be no different; but that outside the realms of legal obligation NASS should consider whether nevertheless to assume responsibility for him. At paragraphs 52 and 63, set out in §15 above, Mance LJ expressed himself even more conclusively, indeed by reference to the facts of that case. He said not that Mrs Y-Ahmed had a need for residential accommodation but that 'she has a serious medical condition requiring specialist medical care and attention' and therefore a need for care and attention which had not arisen solely because of destitution; that accordingly she was not excluded by (1A) from section 21; and that, being in need of care and attention and yet not thus excluded, she was to be dealt with (i.e. was entitled) under section 21."
"32. The use of the word 'solely' [in s21(1A)] 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.
41. My Lords, like Stanley Burnton J and the Court of Appeal, I find this argument [essentially the argument that NASS's power under the governing legislation to accommodate destitute asylum seekers is residual and cannot be exercised if the asylum seeker is entitled to accommodation under some other provision - as an infirm asylum seeker is, under s21 of the 1948 Act] compelling. The clear purpose of the 1999 Act was to take away an area of responsibility from the local authorities and give it to the Secretary of State. It did not intend to create overlapping responsibilities. Westminster complains that Parliament should have taken away the whole of the additional burden which fell upon local authorities as a result of the 1996 Act. It should not have confined itself to the able bodied destitute. But it seems to me inescapable that this is what the new section 21(1A) of the 1948 Act has done. As Simon Brown LJ said in the Court of Appeal 4 CCLR 143, 151, para 29, what was the point of section 21(1A) if not to draw the line between the responsibilities of local authorities and those of the Secretary of State?
46. As Simon Brown LJ confessed in his judgment in the Court of Appeal in this case, at 4 CCLR 143, 153, para 42, he had assumed in Ex p O that his construction of section 21(1A) would have a limited impact on asylum seekers because destitute asylum seekers would be entitled to section 95 support 'irrespective of whether they were particularly vulnerable through age, ill health or disablement'. Having reconsidered the matter in the present case, he was not so sure. A person subject to immigration control, whether or not an asylum seeker, was either excluded from local authority responsibility by section 21(1A) or he was not. If he was not, then he was not entitled to asylum support under section 95(1). But Simon Brown LJ, at p 154, para 45, expressed the hope that NASS:
'will continue to accept responsibility for supporting the great majority of asylum seekers and that local authorities will only be expected to assist those comparatively few whose need for care and assistance would qualify them for 1948 Act assistance even were they not subject to immigration control.'
47. Mr Pleming pointed out that this was an invitation to NASS to act upon the very construction of section 21(1A) which the Court of Appeal had rejected in Ex p O  1 WLR 2539, namely that it excluded those who would not need accommodation if they were not subject to immigration control (and therefore entitled to be accommodated under the homelessness legislation). Whether this would be lawful is somewhat doubtful. In more recent cases, judges in the Administrative Court have taken the reasoning in Ex p O and of the Court of Appeal in this case to its logical conclusion. In R (Mani) v Lambeth London Borough Council  EWHC Admin 735, The Times, 8 May 2002 for example, Wilson J decided that a destitute asylum seeker who, on account of a leg abnormality, sometimes needed help with bedmaking, hoovering and heavy shopping, was in need of care and attention which, as he had no accommodation, could not be given to him otherwise than in accommodation provided under section 21.
48. Mr Pleming said that this case demonstrated the absurd consequences of the decision of the Court of Appeal. If Mr Mani had been an ordinary resident, his disability would never have entitled him to accommodation under a statute intended to provide institutions for the old and retreats for the mentally handicapped. His entitlement as found by Wilson J arises simply from the fact that he is an asylum seeker. Such a conclusion is inconsistent with the policy of having a national support system specifically for asylum seekers. Furthermore, the decision undermines the policy of dispersal followed by NASS, which is intended to prevent asylum seekers from gravitating to London boroughs or other local authority areas of their choice. An asylum seeker who can produce a disability, physical or mental, which makes his need for care and attention 'to any extent more acute' than that which arises merely from his destitution, can play the system and secure accommodation from the local authority of his choice.
49. My Lords, I record these concerns, which seem to me, as they did to the Court of Appeal, not without substance. But the issues before your Lordships are narrow. The present case has been argued throughout on the footing that Mrs Y-Ahmed has a need for care and attention which has not arisen solely because she is destitute but also (and largely) because she is ill. It is also common ground that she has no access to any accommodation in which she can receive care and attention other than by virtue of section 21 or under Part VI of the 1999 Act. The first question for your Lordships is whether in those circumstances she comes prima facie within section 21(1)(a) and, if so, the second is whether she is excluded by section 21(1A). In my opinion, the answers to these questions are yes and no respectively. The third question is whether the existence of a duty under section 21 excludes Mrs Y-Ahmed from consideration for asylum support. Again, in agreement with the Court of Appeal, I think that the answer is yes.
50. Your Lordships are not however concerned to decide whether the test laid down by the Court of Appeal in R v Wandsworth London Borough Council, Ex p O  1 WLR 2539 (and applied by Wilson J in Mani's case, The Times, 8 May 2002) for determining whether the need for care and attention has arisen 'solely because he is destitute' was correct. It would not be right to express any view on this point because it affects the rights of everyone subject to immigration control, whether an asylum seeker or not, and they were not represented before your Lordships."
"21. Surely, argue the local authorities, those subject to immigration control are in no stronger position under section 21 than their indigenous counterparts. A destitute person subject to immigration control, who has a degree of disability with a consequential need for some sort of care and attention, obviously has a need for care and attention which does not arise solely because of destitution. Nevertheless, runs the crucial part of their argument, the resource at issue is residential accommodation; and so the need for care and attention consequential upon the disability must be such as can appropriately be met only by the provision of residential accommodation. They say that the reference to the need for care and attention both in (1)(a) and (1A) of section 21 must, unless the law is shamefully incoherent, be thus construed."
Lord Justice Judge:
Mr Justice Nelson: