C1/2006/0638, C1/2006/0644, C1/2006/0636
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
Mr Justice Lloyd Jones
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Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWS
LORD JUSTICE SCOTT BAKER
| The London Borough of Croydon
The London Borough of Hackney
- and -
|The Queen on the Application of AW, A and Y
|- and -
The Secretary of State for the Home Department
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Mr Jonathan Cowen (instructed by The London Borough of Hackney) for the 2nd Appellant
Mr Stephen Knafler (instructed by Messrs Pierce Glynn (for AW) and Hackney Community Law Centre (for A and Y))
Ms Elisabeth Laing (instructed by The Treasury Solicitors)
Hearing dates : 6 March 2007
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Lord Justice Laws :
This is the judgment of the court, prepared by Laws LJ.
THE ISSUE IN THE CASE
"If in the case of a failed asylum-seeker who satisfies the criteria of section 21(1) and (1A) [of the 1948 Act] the provision of support is necessary for the purpose of avoiding a breach of his Convention rights within the meaning of paragraph 3 of Schedule 3 to [the 2002 Act], is that provision to be made by a local authority pursuant to section 21 [of the 1948 Act] or by the Secretary of State for the Home Department pursuant to section 4, Immigration and Asylum Act 1999?"
"(1) Subject to and in accordance with the provisions of 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 eighteen and 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 1999 Act] (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.
(1B) Subsections (3) and (5) to (8) of section 95 of [the 1999 Act]... apply for the purposes of subsection (1A) as they apply for the purposes of that section, but for the references in subsections (5) and (7) of that section and in that paragraph substitute references to a local authority.
(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.
(5) References in this Act to accommodation provided under this part thereof shall be construed as... including references to board and other services, amenities and requisites provided in connection with the accommodation except where in the opinion of the authority managing the premises their provision is unnecessary.
(8) ... [N]othing in this section shall authorise or require a local authority to make any provision authorised or required to be made (whether by that or by any other authority) by or under any enactment not contained in this Part of this Act or authorised or required to be provided under the National Health Service Act 1977."
We will set out the relevant provisions of s.115 of the 1999 Act below. We should note that s.21(1) has effect as a duty owed by local authorities by force of directions made by the Secretary of State under that subsection. It is unnecessary to set out the directions, to which the judge below referred at paragraph 32 of his judgment.
"(1) The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of persons –
(a) temporarily admitted to the United Kingdom under paragraph 21 of Schedule 2 to the [Immigration Act 1971];
(b) released from detention under that paragraph; or
(c) released on bail from detention under any provision of the Immigration Acts.
(2) The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a person if –
(a) he was (but is no longer) an asylum-seeker, and
(b) his claim for asylum was rejected.
(5) The Secretary of State may make regulations specifying criteria to be used in determining –
(a) whether or not to provide accommodation, or arrange for the provision of accommodation, for a person under this section;
(b) whether or not to continue to provide accommodation, or arrange for the provision of accommodation, for a person under this section.
(6) The regulations may, in particular –
(a) provide for the continuation of the provision of accommodation for a person to be conditional upon his performance of or participation in community activities in accordance with arrangements made by the Secretary of State;
(b) provide for the continuation of the provision of accommodation to be subject to other conditions;
(c) provide for the provision of accommodation (or the continuation of the provision of accommodation) to be a matter for the Secretary of State's discretion to a specified extent or in a specified class of case."
"(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.
(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.
(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...
(7) In determining, for the purposes of this section, whether a person's other essential living needs are met, the Secretary of State –
(a) must have regard to such matters as may be prescribed for the purposes of this paragraph; but
(b) may not have regard to such matters as may be prescribed for the purposes of this paragraph."
"A local authority... may provide support for persons in accordance with arrangements made by the Secretary of State under section 4 [or] 95..."
Lastly, s.115, which as will be recalled is referred to in s.21(1A) of the 1948 Act:
"(1) No person is entitled to income-based jobseeker's allowance under the Jobseekers Act 1995 or to [then a full list of benefits is specified, including income support, child benefit and housing benefit] while he is a person to whom this section applies.
(3) This section applies to a person subject to immigration control unless he falls within such category or description, or satisfies such conditions, as may be prescribed."
"A power or duty under a provision referred to in sub-paragraph (1) may not be exercised or performed in respect of a person to whom this paragraph applies (whether or not the person has previously been in receipt of support or assistance under the provision)."
"Paragraph 1 does not prevent the exercise of a power or the performance of a duty if, and to the extent that, its exercise or performance is necessary for the purpose of avoiding a breach of –
(a) a person's Convention rights..."
"(1) Subject to regulations 4 and 6, the criteria to be used in determining the matters referred to in paragraphs (a) and (b) of section 4(5) of the 1999 Act in respect of a person falling within section 4(2) or (3) of that Act are –
(a) that he appears to the Secretary of State to be destitute, and
(b) that one or more of the conditions set out in paragraph (2) are satisfied in relation to him.
(2) Those conditions are that –
(b) he is unable to leave the United Kingdom by reason of a physical impediment to travel or for some other medical reason."
Regulation 2 defines the term "destitute":
"In these Regulations –
'destitute' is to be construed in accordance with section 95(3) of the 1999 Act".
"This regulation applies where it falls to the Secretary of State to determine for the purposes of section 95(1) of the Act whether –
(a) a person applying for asylum support... or
(b) a supported person...
Regulation 6(3) provides for matters to be ignored by the Secretary of State. Then 6(4):
"But he must take into account –
(b) any other support which is available to the principal [sc. the applicant for asylum support] or any dependant of his, or might reasonably be expected to be so available within that period [sc. where the question is whether destitution is likely within a particular period]..."
In light of certain submissions advanced by Miss Richards for Croydon, which we will consider in due course, we should also set out part of Regulation 23 of the 2000 Regulations:
"(1) In this regulation 'the relevant enactments' means –
(a) section 21(1A) of [the 1948 Act];
(2) The following provisions of this regulation apply where it falls to an authority, or the Department, to determine for the purposes of any of the relevant enactments whether a person is destitute.
(3) Paragraphs (3) to (6) of regulation (6) apply as they apply in the case mentioned in paragraph (1) of that regulation, but as if references to the principal were references to the person whose destitution or otherwise is being determined and references to the Secretary of State were references to the authority or (as the case may be) Department."
THE ANALYSIS ACCEPTED BY THE JUDGE
R (WESTMINSTER CITY COUNCIL) v NASS
"28. The stark facts of that case - able bodied asylum seekers having to be accommodated by the social services department of the local authority - caused consternation. Before the 1996 Act the local authorities would have had to provide them with accommodation under the homelessness legislation. But the rent would have been paid out of housing benefit from central funds. Now the entire burden was shifted onto the administrative resources and budget of the social services department. And the burden fell particularly heavily upon those local authorities where asylum seekers tended to congregate - Kent, for those landing at the Channel ports, Hillingdon and East Sussex for those landing at Heathrow and Gatwick and the inner London boroughs. As the new government said later in paragraph 8.14 of the White Paper Fairer, Faster and Firmer...:
'The Court of Appeal judgment... meant that, without warning or preparation, local authority social services departments were presented with a burden which is quite inappropriate, which has become increasingly intolerable and which is unsustainable in the long term, especially in London, where the pressure on accommodation and disruption to other services has been particularly acute.'
29. What may have escaped notice in the aftermath of [M, P and X] was that the 1996 Act had brought into the scope of section 21 of the 1948 Act two distinct classes of asylum seekers who would not have been entitled to Part III accommodation if the 1996 Act had not excluded them from the normal social security system. The first class were the able bodied asylum seekers who qualified solely because, being destitute, they were already or were likely to become in need of care and attention. This was the class highlighted in [M, P and X]. I shall call them 'the able bodied destitute', who came within section 21 solely because they were destitute. The second class were asylum seekers who had some infirmity which required the local social services to provide them with care and attention, but who would not ordinarily have needed to be provided with accommodation under section 21 because it was available in other ways, for example, under the homelessness legislation. They would not have come within the section 21 duty because they would not have satisfied the third condition which I have quoted from the judgment of Hale LJ in Wahid's case  EWCA Civ 287, paragraph 30: the care and attention which is needed must not be available otherwise than by the provision of accommodation under section 21. I shall call this class 'the infirm destitute'."
"...focused entirely on the able bodied destitute. It said 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 support machinery.'
31. Nothing was said about the infirm destitute and, as I have said, I am not sure it was appreciated that their accommodation was also a new burden upon local authorities which had been created by the 1996 Act. However, the terms in which the 1948 Act was amended were in my opinion perfectly clear. Section 116 of the Immigration and Asylum Act 1999 introduced into section 21 a new subsection (1A)..."
After setting out the terms of s.21(1A) Lord Hoffmann noted:
"32. The use of the word 'solely' [in s.21(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."
"35. It will be seen that while section 21(1A) removes only the able bodied destitute from the duty of the local social service departments, section 95(1) appears prima facie to give NASS power to accommodate all destitute asylum seekers, whether able bodied or infirm. It is this apparent overlap between the powers of NASS and the duties of the local authority which has given rise to this appeal."
"38. The ground upon which Stanley Burnton J and the Court of Appeal found for the Secretary of State was that although section 95(1) prima facie confers a power to accommodate all destitute asylum seekers, other provisions of Part VI of the 1999 Act and regulations made under it make it clear that the power is residual and cannot be exercised if the asylum seeker is entitled to accommodation under some other provision. In such a case, he or she is deemed not to be destitute. If Mrs Y-Ahmed had been able bodied destitute, she would have been excluded from section 21 and therefore qualified for accommodation under section 95(1). But as she was infirm destitute, her first port of call should be the local authority."
"40... Regulation 6(4) says that when it falls to the Secretary of State to determine for the purposes of section 95(1) whether a person applying for asylum support is destitute, he must take into account 'any other support' which is available to him. As an infirm destitute asylum seeker, support was available to Mrs Y-Ahmed under section 21. Therefore she could not be deemed destitute for the purposes of section 95(1).
41. My Lords, like Stanley Burnton J and the Court of Appeal, I find this argument 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 ((2001) 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?"
i) Persons in need of care and attention within s.21(1)(a) of the 1948 Act. Being destitute, in any sense of that term, is not a condition of entitlement to support under the subsection. The "destitute plus" are however members of the class – because of the "plus". There is an assessment process (whose details we need not describe) for the ascertainment of a need for care and attention.
ii) Persons who are destitute within the meaning of s.95(3) of the 1999 Act. There are three sub-classes of this class:
a) Asylum-seekers and their dependants (s.95(1)).
b) Persons temporarily admitted [etc] to the United Kingdom (s.4(1) of the 1999 Act). These are persons subject to immigration control who are liable to be detained pending examination or removal, but who have in fact been temporarily admitted or released under paragraph 21 of Schedule 2 to the Immigration Act 1971 (or bailed, under measures such as paragraph 22 of Schedule 2). They may, of course, not be asylum-seekers or failed asylum-seekers but persons seeking entry on some quite different ground. We need not set out the material provisions of the 1971 Act.
c) Failed asylum-seekers and their dependants (s.4(2)).
Persons who are destitute within the meaning of s.95(3) include members of sub-class (a) because s.95(3) cross-refers to s.95(1). Members of sub-classes (b) and (c) are included because, as we have shown, criteria specified under s.4(5) by the 2005 Regulations tie them into the s.95(3) definition of "destitute".
MISS RICHARDS' SUBMISSIONS FOR CROYDON
"... the opening words of Regulation 6(1) of the 2000 Regulations – 'This Regulation applies where it falls to the Secretary of State to determine for the purposes of section 95(1) of the Act...' – must be read as referring to the new purpose required by the 2005 Regulations i.e. the purposes of section 4(2) of the Act. In the same way, subsections (5) and (7) and the 2000 Regulations are transposed so as to apply to section 4(2)."
We think this reasoning is correct.
"Nothing in section 21 allows, let alone requires, a local social services authority to make any provision authorised or required to be made, whether by them or by any other authority, by or under any enactment other than Part III of the 1948 Act. The asylum seekers succeeded because there was no other power, let alone duty, to provide them with the care needed to sustain life and health".
But Wahid was not at all concerned with the question that presently confronts us. The principal point established by the case was that the duty provided for by s.21 of the 1948 Act only arises in respect of a person who has been properly assessed as being in need of care and attention. The court was not confronted with any question as to the competing responsibilities of central and local government, whether in relation to failed asylum-seekers or at all.
THE PAPER CHASE – AS FAR AS s.95(5) AND (7)?
MR COWEN'S SUBMISSIONS FOR HACKNEY
"[Mr Cowen's submissions] give no weight to the fact the issue for the Judge was which (of the Secretary of State or local authorities) is responsible for a destitute plus FAS if support is necessary to avoid a breach of Convention rights. If that is the issue, the provisions of Schedule 3 can have no bearing on the answer. This does not deprive Schedule 3 of any useful effect. The point of Schedule 3 is that support is only permitted to the extent that its provision is necessary to avoid a breach of Convention rights. Thus if a destitute-plus person's asylum claim has been refused (and his appeal rights exhausted), and there are no impediments to his return, the provision of support under section 21 is not necessary to avoid a breach of his Convention rights and it must cease. If, on the other hand, he has made fresh submissions which purport to be a fresh claim for asylum, support under section 21 must continue. For the purposes of the issue in this case, Schedule 3 operates in the background. It cannot affect the analysis, for example, by casting doubt on the reasoning in Westminster v NASS, or the application of that reasoning to this case."
"It is reasonable to conclude that at least some of those failed asylum seekers who are unfit to travel by reason of a physical impediment to travel or some other medical reason will have a need for care and attention which would entitle them to section 21 support were they asylum seekers. It is accepted not necessarily all; some may not pass the section 21 threshold but may still be unfit to travel, but that does not alter these submissions.
Thus Regulation 3(2)(b) is inclusive in that it does not seek to distinguish those failed asylum seekers who have a need for care and attention which would entitle them to section 21 support from any others who may come within Regulation 3(2)(b) and this shows that section 4 support is both suitable support and, in relation to the legislative scheme the appropriate form of support, for destitute plus failed asylum seekers who need support in order to avoid a breach of their Convention rights."
"(a) A person may be temporarily 'unable to leave the United Kingdom by reason of a physical impediment to travel or other medical reason' eg, a woman in the late stages of pregnancy, without being a person who has any care needs at all; but more fundamentally,
(b) Regulation 3(1) of the 2005 regulations provides that for section 4 to apply a person must be destitute, and satisfy a condition in regulation 3(2) (one of which is that set out in regulation 3(2(b)). A person who has care needs, and is therefore owed duties under section 21 of the 1948 Act, would not be destitute, and section 4 does not therefore apply to him, even if regulation 3(2)(b) of the 2005 regulations did apply to him."