England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION - ADMINISTRATIVE COURT
(Mr Justice Wilson)

		Royal Courts of Justice Strand, London, WC2A 2LL
		9th July 2003

Lord Justice Simon Brown:

1. "Does a local authority have a duty to provide residential accommodation for a destitute asylum seeker who suffers a disability which, of itself, gives rise to a need for care and attention which falls short of calling for the provision of residential accommodation?" That was how Wilson J formulated the major question arising on this challenge (and two similar conjoined challenges) below. I gratefully take the relevant facts from his admirably clear and comprehensive judgment given on 18 April 2002, now reported at (2002) 5 CCLR 486.
2. The respondent, Mr Mani, is a destitute 24 year old Algerian asylum seeker. He suffers a congenital abnormality of the right leg. It is about one-half the length of his left leg. He seeks to cope with this disability by the use of crutches but also at other times by fitting a prosthetic extension to his right leg. But his mobility is impaired: whichever be his chosen means of movement, he experiences pain after walking about 100 - 150 metres. The movement of walking with the prosthesis gives him pain in his lower back; and he has difficulties at times when he needs to remove it, such as when washing or taking a bath. On days when he is in pain he cannot undertake basic tasks such as bed-making and hoovering and he needs help in carrying heavy shopping. He also has a history of mental health difficulties arising in adolescence and he is vulnerable to psychotic illness which is likely to result in a reduced capacity to cope in times of stress.
3. Between November 2000 and April 2001 and again between June and July 2001, Mr Mani was provided with accommodation in the Eurotower Hotel (in the area of Lambeth) by the National Asylum Support Service ("NASS"), a division of the Home Office. Since August 2001, however, when Mr Mani declined NASS's further offers of accommodation and instead claimed to be accommodated by Lambeth LBC ("Lambeth"), Lambeth has been providing him with residential accommodation without prejudice to, and pending determination of, its liability to do so.
4. I have already said enough to indicate to those familiar with this area of the law that the central dispute arising here is whether the liability for Mr Mani's accommodation and support lies with NASS under s95 of the Immigration and Asylum Act 1999 ("the 1999 Act") or with the appellant authority (Lambeth) under s21 of the National Assistance Act 1948 as amended by the 1999 Act ("the 1948 Act"). Rather than rehearse all the relevant statutory provisions in yet another judgment I shall for the most part take them as read. The most directly relevant parts of s21 itself, however, must be set out:

"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."

5. It is convenient at this stage to summarise very briefly the development to date of the relevant jurisprudence.
6. In 1997 this court in R -v- Westminster City Council ex parte M (1997) 1 CCLR 85 held that all destitute asylum seekers, the able-bodied as well as the infirm, deprived of all benefit entitlement as they had by then become by the Asylum and Immigration Act 1996, could qualify for assistance under s21 of the 1948 Act. Lord Woolf MR, giving the judgment of the Court, said at p95:

"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."

7. As Lord Hoffmann was later to observe in R (Westminster City Council) -v- National Asylum Support Service [2002] 1 WLR 2956, 2964, the decision in M "caused consternation" and in a 1998 White Paper proposing the creation of NASS and anticipating the 1999 Act, the government stated in paragraph 8.23:

"The 1948 Act will be amended to make clear that social services departments should not carry the burden of looking after healthy and able-bodied asylum seekers. This role will fall to the new national machinery."

8. The 1999 Act by s95 provided this new national support machinery for asylum seekers and at the same time by s116 introduced the new subsection (1A) into s21 of the 1948 Act.
9. In June 2000 this court in R -v- Wandsworth LBC ex parte O; R -v- Leicester CC ex parte Bhikha [2000] 1 WLR 2539 (a decision which I shall refer to simply as "Ex parte O") was concerned with two claimants, each subject to immigration control but neither an asylum seeker (each, in short, an overstayer). One had severe psychiatric problems; the other had recurring cancer of the duodenum which required continuous medical treatment. Both were destitute. The critical question arising on the appeals was whether the insertion of subsection (1A) into s21 of the 1948 Act had made them ineligible for accommodation under that section. In short, did their need for care and attention arise solely from the physical effects of their actual or anticipated destitution? This court held not. As I myself put it at p2548:

"[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.

10. The proceedings between Westminster and NASS followed, successively before Stanley Burnton J and this court in early 2001 and the House of Lords in 2002. Westminster -v- NASS, unlike Ex parte O, did concern a destitute asylum seeker and so for the first time the question was directly raised as to where, between NASS and local authorities, the responsibility lies for housing and supporting disabled asylum seekers. Mrs Y-Ahmed, the asylum seeker in that case, was both destitute and suffering from spinal myeloma. She required self-contained accommodation of at least two rooms near the hospital accessible by wheelchair and to community care services, accommodation which was found for her at a local hotel. The issue in the case was whether the liability for that accommodation lay with Westminster or with NASS. Westminster lost the case at all levels: it was held that support was available to Mrs Y-Ahmed as an infirm destitute asylum seeker under s21 of the 1948 Act, and that, having regard to the relevant provisions of the 1999 Act and the Asylum Support Regulations 2000, it was plain that she could not therefore be deemed destitute for the purposes of s95 and so could not look to NASS for support.
11. Although, I think it fair to say, we in the Court of Appeal had little difficulty in reaching our conclusion in Westminster -v- NASS, I for my part thought it right to consider the impact of that conclusion on our earlier decision in Ex parte O and I reflected in particular that Ex parte O itself would have an altogether wider effect than we had originally recognised. Paragraphs 42 - 45 of my judgment in Westminster -v- NASS are in point and, as will appear, came to be relied on by the appellants in the present case:

"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)."

12. Brooke and Mance LJJ agreed with my judgement, Mance LJ adding within a judgment of his own:

"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."

13. Wilson J's decision in the instant case came between the judgments respectively of the Court of Appeal and the House of Lords in Westminster -v- NASS. The concluding paragraphs of his own judgment on the present point are well worth citing:

"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."

14. As will be seen from the second of those paragraphs, Wilson J for his part thought nothing of the local authority's argument based upon my own reflections about Ex parte O when I came to give judgment in Westminster -v- NASS.
15. I come finally to the House of Lord's decision in Westminster -v- NASS, in particular the speech of Lord Hoffmann, the following paragraphs of which are central to this appeal:

"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 [2000] 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 [2002] 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 [2000] 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."

16. That, then, is the background of authority against which Lambeth's primary argument on the present appeal falls to be considered. The argument is, in a nutshell, that s21(1)(a) applies, not to all those who need care and attention, but solely and exclusively to those who need care and attention of a kind which is only available to them through the provision of residential accommodation. The need, it is said, must be "an accommodation-related need". That, submits Mr Goudie QC, in an argument faithful to the skeleton argument prepared for the appeal by Mr Giffin QC, is apparent from the language of the subsection (and equally of subsection (1A)): the care and attention referred to means care and attention of a kind calling for the provision of residential accommodation. Unless the applicant's disability or infirmity is such as to give rise to an accommodation-related need for care and attention, it cannot be a disability or infirmity entitling the applicant in any circumstances to subsection 21 accommodation. So runs the argument.
17. Mr Mani's disability, it is said, is not such as to require the provision of residential accommodation (accommodation ordinarily provided under s21 only to old people no longer capable of living at home and to those with severe mental handicaps). So much, indeed, is clear and was expressly accepted by Wilson J below. What was not accepted, however, was Lambeth's core argument (albeit described by the judge as "indeed a powerful argument") recorded in paragraph 21 of his judgment as follows:

"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."

18. For my part I find the argument an impossible one in the light of the authorities already discussed. Take the opening sentence: "Surely … those subject to immigration control are in no stronger position under s21 than their indigenous counterparts". How is that reconcilable with the first of the trilogy of cases which now govern this area of the law - Ex parte M (see paragraph 6 above)? If, as is apparent from that decision, all destitute asylum seekers, unless they are explicitly excluded by s21(1A), would be entitled to accommodation under s21, to my mind it is clear that some at least of those subject to immigration control have a substantially better chance of qualifying for s21 accommodation than their indigenous counterparts. Of course, the introduction into s21 of subsection (1A) means that fewer immigrants in future will qualify for such accommodation than before the 1999 Act was passed. But subsection (1A) cannot alter the meaning of s21(1)(a) and suddenly confine its scope to accommodating only those who have "an accommodation-related need", still less confine its operation to the accommodation only of those who would be entitled to s21 accommodation even if they had none of the needs stemming from their immigration status. Take, for example, the three immigrants whose s21 entitlement was in question respectively in ex parte O and in Westminster -v- NASS (whose infirmities are described respectively in paragraphs 9 and 10 above). All, I would acknowledge, were more disabled than Mr Mani, the respondent to the present appeal. None, however, would have required s21 accommodation has they been British citizens and this, indeed, I understand Mr Goudie to concede. Yet all in the event were held to qualify for s21 accommodation.
19. True it is that Lord Hoffmann, in paragraph 49 of his speech in Westminster -v- NASS (see paragraph 15 above) spoke of Mrs Y-Ahmed as having "a need for care and attention which has not arisen solely because she is destitute but also (and largely) because she is ill". True too, in paragraph 44 of my judgment in the Court of Appeal in that case (see paragraph 11 above) I myself had suggested that she "on any view appear[ed] entitled to 1948 Act assistance". None of that is to say, however, that had she been a British citizen she would have been entitled to s21 relief: rather she would have been entitled to be housed as a homeless person and her accommodation needs would have been met under that legislation rather than under the 1948 Act.
20. In short, it seems to me that Lambeth here are well and truly caught in the coils of the existing authorities and that fidelity to these compelled Wilson J below to the conclusion he reached. So much, indeed, appears to have been recognised by Lord Hoffmann in paragraph 47 of his subsequent speech in Westminster -v- NASS (see paragraph 15 above). My earlier reflections in that case concerning the scope of Ex parte O - implicitly perhaps questioning whether we would have reached the view we did there as to the true construction and application of s21(1A) of the 1948 Act had we appreciated that it would apply no less to asylum seekers than to others subject to immigration control - are really nothing to the point, at least in this court. True, the correctness of the test established in Ex parte O was expressly left open in paragraph 50 of Lord Hoffmann's speech (see again paragraph 15 above). But certainly at this level we are bound by Ex parte O and in any event there are certain passages in Lord Hoffmann's speech - consider particularly paragraphs 32 and 41 (also set out in paragraph 15 above) - tending to suggest that the line drawn by s21(1A) is indeed, consistently with paragraph 8.23 of the 1998 White Paper (see paragraph 7 above), between the able-bodied and the infirm destitute rather than, as Lambeth now seek to argue, between those who have "an accommodation-related need" and those with some lesser disability.
21. Whatever be the position as to that, however, the test now applicable equally to asylum seekers as to non asylum seekers is that laid down in Ex parte O and it must remain so unless and until the House of Lords decides otherwise or Parliament in some way adjusts the balance of responsibility between NASS and local authorities (a possibility envisaged by Mance LJ in paragraph 65 of his judgment in Westminster -v- NASS). It follows, contrary to what I had understood to be Mr Howell QC's concession, indeed assertion, in Westminster -v- NASS, that a blind asylum seeker would indeed fall to be supported by the local authority rather than NASS and it must, I think, follow too that Mr Pleming was right to point out the inappropriateness of my own expression of hope there that NASS would in fact continue to accept responsibility for the great majority of disabled asylum seekers - see paragraph 45 of my judgment in Westminster -v- NASS and paragraphs 46 and 47 of Lord Hoffmann's speech in that case.
22. That, then, disposes of Lambeth's primary argument on the appeal and leads me to their two subsidiary arguments which I can deal with altogether more shortly. The first, a hare which I myself set running during the hearing, focuses on the precise basis on which destitute asylum seekers, even assuming they suffer some disability sufficient to enable them to escape the bar represented by s21(1A), are entitled to s21 accommodation. As appears from Lord Woolf's judgment in Ex parte M (see paragraph 6 above), the entitlement arises strictly at the point when they "reach a state where they qualify", ie when their "health … has been damaged" so that, in the words of the section, they "become in need of care and attention". Whilst, of course, as Ex parte M makes plain, the local authority does not have to wait for the asylum seeker's health to be damaged but rather can "anticipate the deterioration", it can nevertheless be said that there will be some delay (if in practice only a notional delay) between the moment when the asylum seeker becomes destitute and the point in time at which he becomes entitled to relief under s21. During that interval, runs the argument, the asylum seeker (disabled or not) must surely be able to look to NASS for s95 support and at that stage NASS would be unable to deny his destitution by reference to any entitlement to accommodation under s21.
23. Persuasive though at first blush I had found the argument (unsurprisingly, perhaps, given its authorship), and notwithstanding that it would, of course, provide a legitimate basis for distinguishing for s21 purposes between asylum seekers and non-asylum seekers, a distinction which Ex parte O had assumed to exist, I have come to reject it. Not only would it make for a most unsatisfactory result on the facts - requiring in every case an assessment of the applicant's existing degree of deterioration and/or need for care at the moment relief is first claimed - but also, as Mr Knafler points out, it runs into the legislative difficulty presented by a combination of regulations 6(3)(a) and 23 of the Asylum Support Regulations 2000 - the effect of which I considered in detail at paragraphs 25 - 27 of my judgment in Westminster -v- NASS and which I do not propose to repeat here. Rather I shall note only that regulation 6(3) in the context of regulation 23 requires the local authority (and not merely the Secretary of State) to ignore "any asylum support … which the principal … is provided with or, where the question is whether destitution is likely within a particular period, might be provided with in that period."
24. Were this argument in truth a sound one, one might reasonably have expected it to have been canvassed at some point during the lengthy proceedings in Westminster -v- NASS as well, of course, as at some earlier stage of the present challenge. It was not. This hare, I conclude, has now run its course.
25. The second of Lambeth's subsidiary arguments is of a very different nature. This argument rests on the extensive periods of time during which NASS in fact provided the respondent with his accommodation and support (see paragraph 3 above) and is to the effect that NASS's provision of this accommodation and its evident readiness to continue to provide it of itself relieves Lambeth of whatever liability they would otherwise be subject to under s21.
26. This argument appears to me, as it appeared to the judge below, unsustainable. As a matter of law either NASS or Lambeth are liable to accommodate the respondent (unless, of course, the test in Ex parte O comes to be changed so that no-one has such liability). If, as I would hold, the liability falls on Lambeth, then no doctrine of functus officio nor any form of public law estoppel can possibly operate to transfer that liability to NASS. On the contrary, it would quite simply be unlawful for NASS to continue to make provision for accommodation when on a strict view of the law they have not merely no duty but no power to do so.
27. Wilson J below considered this part of Lambeth's case in paragraphs 28 - 32 of his judgment. As with all the many issues before him, he dealt with it clearly, cogently and to my mind entirely convincingly. I cannot improve upon the reasons he gave for rejecting it.
28. From all this it follows that each of Lambeth's arguments must fail. I would accordingly dismiss this appeal.

Lord Justice Judge:

29. I agree.

Mr Justice Nelson:

30. I also agree.

 
Order: Appeal dismissed with costs to be assessed on the standard basis if not agreed. Detailed assessment of respondent's publicly funded costs. Leave to appeal to the House of Lords refused. (Order does not form part of the approved judgment)