England and Wales High Court (Administrative Court) Decisions

WESTMINSTER CITY COUNCIL v. NATIONAL ASYLUM SUPPORT SERVICE [2001] EWHC Admin 138 (27th February, 2001)

Case No: CO/4738/2000

Neutral Citation Number: [2001] EWHC ADMIN 138

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Tuesday 27^th February 2001

Nigel Pleming QC and Bryan McGuire (instructed by Creighton and Partners) for the Claimant

Pushpinder Saini (instructed by the Treasury Solicitor) for the Defendant

MR JUSTICE STANLEY BURNTON:

1. Before the passing of the Immigration and Asylum Act 1999 there was considerable concern at the cost to Local Authorities of accommodating and providing support to asylum-seekers in this country. That cost bore most heavily on Local Authorities for districts to which, for one reason or another, asylum-seekers tend to go: for example, the London Boroughs, and Kent. Part VI of the 1999 Act made a substantial change to the burden of supporting and accommodating destitute asylum-seekers in this country. The question in this case is whether that burden in its entirety was removed from Local Government, or whether, as the Secretary of State for the Home Department contends, it was moved to Central Government only in relation to asylum-seekers whose only need for support and accommodation arises from their destitution, but not in respect of asylum-seekers whose needs arise not only because they are destitute, but also because they are sick, disabled, elderly or for some other reason. If the Secretary of State is correct, the result is curious, since it leaves with Local Government the burden of accommodating and supporting those asylum-seekers whose needs are the greatest and most costly to provide for. Indeed, Westminster go so far as to contend that the result for which the Secretary of State contends is absurd.

2. I refer to the Secretary of State for the Home Department because, as will be seen, it was on him that the Act conferred powers to support asylum-seekers. The Defendant in this case, the National Asylum Support Service (to which I shall refer as the "NASS"), was established following the passing of the Act. It is part of the Home Office, and is not a separate legal entity. Its function is to provide support for asylum-seekers under Part VI of the Immigration and Asylum Act 1999.

3. This case has arisen as a result of the refusal of the NASS to accept responsibility for providing accommodation and support for Mrs Sabiha Mirza Y-Ahmad, whose age is 49, and her 13 year-old daughter. Mrs Y-Ahmad, to whom the parties have for convenience referred as A, is an Iraqi Kurd asylum-seeker. She was originally given leave to enter this country subject to a condition that she not have recourse to public funds. She remains subject to immigration control. She is not only destitute: she is suffering from spinal myeloma, for which she has been and is being treated at St Mary's Hospital in Paddington. She is confined to a wheelchair, and therefore needs, in addition to her essential living needs, accommodation which is wheelchair accessible, with enough space for her, her daughter, and her family carers, and within reach of St Mary's. At present, she is staying at a hotel in West London, at a cost of £176 per day. Clearly, her needs for suitable accommodation and support do not arise solely from destitution.

4. Westminster's case is that A and her daughter are entitled to support provided by the Secretary of State under section 95 of the 1999 Act. The NASS's case is that Westminster is under an obligation to provide them with accommodation under section 21 of the National Assistance Act 1948 as amended by the 1999 Act. Westminster seeks an order quashing the decision of the NASS not to provide support in the form of accommodation or meeting the essential living needs of A and her daughter, an order that NASS provide that support, and a declaration that Westminster has no duty or power to provide that support.

5. Sections 95 and 96 of the 1999 Act are as follows:

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 periods as may be prescribed.

(2) In prescribed circumstances, a person who would otherwise fall within subsection (1) is excluded.

(3) For the purpose 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.

(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.

(8) The Secretary of State may by regulations provide that items or expenses of such a description as may be prescribed are, or are not, to be treated as being an essential living need of a person for the purposes of this Part.

(9) Support may be provided subject to conditions.

(10) The conditions must be set out in writing.

(11) A copy of the conditions must be given to the supported person.

(12) Schedule 8 gives the Secretary of State power to make regulations supplementing this section.

(13) Schedule 9 makes temporary provision for support in the period before the coming into force of this section.

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);

(b) by providing what appear to the Secretary of State to be essential living needs of the supported person and his dependants (if any);

(c) to enable the supported person (if he is the asylum seeker) to meet what appear to the Secretary of State to be expenses (other than legal expenses or other expenses of a prescribed description) incurred in connection with his claim for asylum;

(d) to enable the asylum-seeker and his dependants to attend bail proceedings in connection with his detention under any provision of the Immigration Acts; or

(e) to enable the asylum-seeker and his dependants to attend bail proceedings in connection with the detention of a dependant of his under any such provision.

(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.

(3) Unless the circumstances of a particular case are exceptional, support provided by the Secretary of State under subsection (1)(a) or (b) or (2) must not be wholly or mainly by way of payments made (by whatever means) to the supported person or to his dependants (if any).

(4) But the Secretary of State may by order provide for subsection (3) not to apply-

(a) in all cases, for such period as may be specified;

(b) in such circumstances as may be specified;

(c) in relation to specified categories of person; or

(d) in relation to persons whose accommodation is in a specified locality,

(5) The Secretary of State may by order repeal subsection (3).

(6) "Specified" means specified in an order made under subsection (4).

6. Sections 99 and 100 enable the Secretary of State to make arrangements with local authorities for them to provide support for asylum-seekers, and for him to ask local authorities to assist him in exercising his power under section 95 to provide accommodation. Expenditure by local authorities is the subject of section 110. Subsections (1) and (2) are as follows:

"(1) The Secretary of State may from time to time pay to any local authority or Northern Ireland authority such sums as he considers appropriate in respect of expenditure incurred, or to be incurred, by the authority in connection with-

(a) persons who are, or have been, asylum-seekers; and

(b) their dependants.

(2) The Secretary of State may from time to time pay to any-

(a) local authority,

(b) local authority association, or

(c) Northern Ireland authority,

such sums as he considers appropriate in respect of services provided by the authority or association in connection with the discharge of functions under this Part."

The separate provision in those subsections is relevant to the question before me, as will be seen.

7. The exclusion of asylum-seekers from social security benefits is the subject of section 115 of the 1999 Act:

(1) No person is entitled to income-based jobseeker's allowance under the Jobseekers Act 1995 or to-

(a) attendance allowance,

(b) severe disablement allowance

(c) invalid care allowance,

(d) disability living allowance,

(e) income support,

(f) working families' tax credit,

(g) disabled person's tax credit,

(h) a social fund payment,

(i) child benefit,

(j) housing benefit, or

(k) council tax benefit,

under the Social Security Contributions and Benefits Act 1992 while he is a person to whom this section applies.

(2) No person in Northern Ireland is entitled to-

(a) income-based jobseeker's allowance under the Jobseekers (Northern Ireland) Order 1995, or

(b) any of the benefits mentioned in paragraphs (a) to (j) of subsection (1),

under the Social Security Contributions and Benefits (Northern Ireland) Act 1992 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.

(4) Regulations under subsection (3) may provide for a person to be treated for prescribed purposes only as not being a person to whom this section applies.

(5) In relation to the benefits mentioned in subsection (1) (f) or (g), "prescribed" means prescribed purposes only as not being a person to whom this section applies.

(6) In relation to the matters mentioned in subsection (2)) (except so far as it relates to the benefits mentioned in subsection (1) (f) or (g)), "prescribed" means prescribed by regulations made by the Department.

(7) Section 175(3) to (5) of the Social Security Contributions and Benefits Act 1992 (supplemental powers in relation to regulations) applies to regulations made by the Secretary of State or the Treasury under subsection (3) as it applies to regulations made under that Act.

(8) Sections 133(2), 171(2) and 172(4) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 apply to regulations made by the Department under subsection (3) as they apply to regulations made by the Department under that Act.

(9) "A person subject to immigration control" means a person who is not a national of an EEA State and who-

(a) requires leave to enter or remain in the United Kingdom but does not have it;

(b) has leave to enter or remain in the United Kingdom which is subject to a condition that he does not have recourse to public funds;

(c) has leave to enter or remain in the United Kingdom given as a result of a maintenance undertaking; or

(d) has leave to enter or remain in the United Kingdom only as a result of paragraph 17 of Schedule 4.

(1) "Maintenance undertaking", in relation to any person, means a written undertaking given by another person in pursuance of the immigration rules to be responsible for that person's maintenance and accommodation.

8. Schedule 8 is headed "Provision of Support: Regulations". Paragraphs 1 and 2 are as follows:

General regulation-making power

1. The Secretary of State may by regulations make such further provisions with respect to the powers conferred on him by section 95 as he considers appropriate.

2-(1) The regulations may provide, in connection with determining whether a person is destitute, for the Secretary of State to take into account, except in such circumstances (if any) as may be prescribed-

(a) income which the person concerned, or any dependant of his, has or might reasonably be expected to have, and

(b) support which is, or assets of a prescribed kind which are, or might reasonably be expected to be, available to him or to any dependant of his,

otherwise than by way of support provided under section 95.

(2) The regulations may provide that in such circumstances (if any) as may be prescribed, a person is not to be treated as destitute for the purposes of section 95.

9. I also have to consider the provisions of the Asylum Support Regulations 2000, made by the Secretary of State in the exercise of the powers conferred on him by Part VI of the 1999 Act. Normally, of course, Regulations made under an Act cannot be looked at as an aid to the construction of the enabling Act. In relation to section 95 of the 1999 Act, the position is complicated by subsection (12) which states that Schedule 8 to the Act gives the Secretary of State power to make regulations supplementing that section. However, as will be seen, I have reached my conclusion as to the effect of section 95 and of section 21 on the basis of the primary legislation and the subordinate legislation where reference to it is mandated by the 1999 Act.

10. The 1999 Act amended the National Assistance Act 1948 so as to exclude most asylum-seekers from social security benefits. They are excluded from benefits if their needs arise solely because they are destitute or suffering from the physical effects of destitution. The provisions of Part VI of the 1999 Act have to be considered together with those of the 1948 Act as amended.

11. Section 21 of the National Assistance Act 1948, as amended by the 1999 Act, provides:

(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 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; [and

(aa) residential accommodation for expectant and nursing mothers who are in need of care and attention which is not otherwise available to them];

(b) [...]

[(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 risen 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 Immigration and Asylum Act 1999, and paragraph 2 of schedule 8 to that Act, apply for the purposes of subsection (1A) as they apply for the purposes of that section, but for the references in subsection (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local authority.]

(2) In [making any 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.

[(2A) In determining for the purposes of paragraph (a) or (aa) of subsection (1) of this section whether care and attention are otherwise available to a person, a local authority shall disregard so much of the person's capital as does not exceed the capital limit for the purposes of section 22 of this Act.

(2B) For the purposes of subsection (2A) of this section-

(a) a person's capital shall be calculated in accordance with assessment regulations in the same way as if he were a person for whom accommodation is proposed to be provided as mentioned in subsection (3) of section 22 of this Act and whose ability to pay for the accommodation fails to be assessed for the purposes of that subsection; and

(b) "the capital limit for the purposes of section 22 of this Act" means the amount for the time being prescribed in assessment regulations as the amount which a resident's capital (calculated in accordance with such regulations) must not exceed if he is to be assessed as unable to pay for his accommodation at the standard rate;

and in this subsection "assessment regulations" means regulations made for the purposes of section 22(5) of this Act]

(3) Repealed by the Local Government Act 1972, s.195 (6), Sched. 23, para. 2(1), Sched. 30]

(4) [Subject to the provisions of section 26 of this Act] accommodation provided by a local authority in the exercise of their [functions under this section] shall be provided in premises managed by the authority or, to such extent as may be [determined in accordance with the arrangements] under this section, in such premises managed by another local authority as may be agreed between the two authorities and on such terms, including terms as to the reimbursement of expenditure incurred by the said other authority, as may be so agreed.

(5) References in this Act to accommodation provided under this part thereof shall be construed as references to accommodation provided in accordance with this and the five next following sections, and as including references to board and other services, amenities and requisites provided in connection with the accommodation except wherein the opinion of the authority managing the premises their provision is unnecessary.

(6) References in this Act to a local authority providing accommodation shall be construed, in any case where a local authority agree with another local authority for the provision of accommodation in premises managed by the said other authority, as references to the first-mentioned local authority.

(7) Without prejudice to the generality of the foregoing provisions of this section, a local authority may-

(a) provide, in such cases as they may consider appropriate, for the conveyance of persons to and from premises in which accommodation is provided for them under this Part of the Act;

[(b) make arrangements for the provision on the premises in which the accommodation is being provided of such other services as appear to the authority to be required].

(8) [...] nothing 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].

12. References below to section 21 are to section 21 of the 1948 Act. References to other numbered sections are to sections of the 1999 Act. References to regulations are to the Asylum Support Regulations 2000.

13. It will be noted that section 95 of the 1999 Act does not impose any obligation on the Secretary of State in relation to asylum-seekers. It gives him powers, not duties. While surprising, this does not affect the present case. The Defendant, as I understand its position, accepts that if Westminster is not obliged to accommodate and support A, it will do so under section 95. The essential question is whether A is destitute for the purposes of section 95 and not excluded from the scope of support under that section.

14. Neither Westminster nor the NASS suggested that A might be entitled to support from both of them. Each contended that the burden of support was the other's. I accept that it is unlikely that Parliament would have intended that asylum-seekers should be entitled to support from both central government and local government concurrently, and I approach the interpretation of the legislation on that basis.

15. As is increasingly common in cases in which the effect of legislation is disputed, I have been referred to statements made by Ministers when the 1999 Act was before Parliament, on the basis of the decisions of the House of Lords in Pepper v Hart [1993] AC 593 and Regina v Secretary of State for the Environment, Transport and the Regions, Ex parte Spath Holme Ltd [2001] 2 WLR 15. The statements made to Parliament seem to me to have been contradictory. On 28 July 1999, Lord Williams of Mostyn told the House of Lords :

"At the moment, local authorities accommodate over 15,000 asylum seekers under the 1948 provisions [i.e., under the National Assistance Act 1948]. I do not believe that anyone who has looked at this matter with any care could dispute that there is an intolerable strain on a small number of social service departments. That is not fair to them, it is not fair to the local communities, and it is not fair to those who are in the position of having to rely on this small number. I repeat that in future they will be relieved of the burden and asylum seekers, defined by Part VI, will be able to apply for support under the new scheme.

All destitution needs will be met by the new scheme by virtue of Clause 85 [section 95 of the Act]. One does not have to meet destitution needs under Section 21 of the 1948 Act "

The italics have been added. This statement entirely supports Westminster's case. However, on 2 November 1999 a number of amendments were put to the House of Lords and approved. Lord Williams of Mostyn said on this occasion:

"Further, asylum seekers with disabilities will be able to look to local authorities for assistance through the appropriate social services legislation."

This statement supports the Defendant's case.

16. As is also common, I do not think that sufficient assistance is to be derived from Hansard. I shall base my decision on the words of the legislation and of the relevant subordinate legislation. I have to say, however, that one would expect the legislation I have to consider to have been sufficiently clearly drafted to put the answer to the question before me obvious.

17. The strength of Westminster's case is that A is indubitably destitute and is not excluded from being considered so by any circumstance prescribed under section 95(2). Nothing would have been easier than to have prescribed, or to have provided in section 95 itself, expressly, that a person whose needs arise not solely because of destitution is excluded from support under section 95. Furthermore, the obvious reading of the words "he does not have ... any means of obtaining (accommodation)" in subsection (3)(a) (and the similar wording in (b)), which define destitution, is that it refers to some means personal to the asylum-seeker: sufficient money of his own to obtain accommodation, or a relative with a house, or the like. The Act refers to "support" when referring to public assistance, and one would have expected local authority support to be referred to as such if it was within the scope of section 95(3)(a) and (b). It is a curious mode of draftmanship to provide that someone who is entirely dependent on either central or local government for support is not "destitute". I appreciate, however, that one must be cautious in so commenting, because the definition is not of destitution, but of destitution for the purposes of section 95, i.e., for the purposes of the central government support scheme. Nonetheless, Mr Pleming is right to comment that the drafting of subsection (3) is not suggestive of a test of eligibility but of personal wherewithal.

18. However, the lack of clarity in section 95 leads me to attack the question before me from the other end, that is to say from section 21 of the National Assistance Act 1948 as amended by the 1999 Act, the terms of which are clearer. In a number of cases before 1999, the Courts had humanely interpreted section 21 as requiring local authorities to provide residential accommodation for destitute asylum-seekers. Subsection (1A) of section 21 prohibits local authorities from providing accommodation for most asylum-seekers, by reason of section 115 of the 1999 Act, since all asylum-seekers are persons subject to immigration control: see section 115(3). However, the key word in section 21 is "solely". A, and persons like her, are not persons whose need for care and attention has arisen solely because of their destitution. The only purpose of amending section 21 in the way it was must have been to leave with local authorities the obligation to make arrangements for providing accommodation for persons such as A. I can see no other reason for the words in section 21(1A) following "subsection (1)(a)".

19. Doubtless it is possible to argue that a person who is entitled to support under section 95 is not "destitute" for the purposes of section 21. But if a person whose condition does not exclude him from support under section 21 is not to be treated as destitute for the purposes of that section because of the availability of support under section 95, it is difficult to see why section 21 is worded as it is. It is possible for a person who is within the scope of support under section 95 to lose his support, for example if the Secretary of State has reasonable grounds to suspect that he has committed an offence under Part VI of the 1999 Act, or if he has intentionally made himself destitute: see Regulation 20 of the Asylum Support Regulations. However, it would be irrational to treat matters such as those set out in Regulation 20 as grounds not for depriving the guilty (or suspected) asylum-seeker of public support, but for shifting the burden of his support from central government to local government. In fact, the same test of destitution applies for the purposes of section 21(1A) as for section 95, mutatis mutandis: see section 21((1B), section 95, and Regulation 23. I use the expression mutatis mutandis, assuming it to be still permissible, because Regulation 23 applies where it falls to a local authority to determine whether a person is destitute (as it must for the purposes of section 21), whereas Regulation 6 applies where it falls to the Secretary of State to make the same determination. However, since Regulation 6(3) excludes support provided under section 95 ("asylum support") from consideration when determining whether a person is destitute, and Regulation 23 imports Regulation 6(3) to the determination by a local authority whether a person is destitute for the purposes of section 21(1A), it follows that even if an asylum-seeker were receiving support under section 95 the local authority would be under a duty to accommodate him under section 21.

20. However, Regulation 6(4) requires the Secretary of State to take into account in determining whether an asylum-seeker is destitute for the purposes of section 95(1) "any other support which is available to the (asylum-seeker) ... or might reasonably be expected to be so available ..." In my judgment, this is apt to include accommodation provided or which a local authority is under a duty to provide under section 21. See too Regulation 12, which applies for the purpose of deciding the level of support to be provided by the Secretary of State/ the NASS for asylum-seekers.

21. Some further assistance is to be derived from section 110 of the 1999 Act. Subsections (1) and (2) make separate provision for payments by the Secretary of State to local authorities in connection with asylum-seekers. Subsection (2) relates to services provided by local authorities in connection with the discharge of functions under Part VI. Such expenditure may be incurred by local authorities pursuant to section 99 under arrangements made by the Secretary of State, or as a result of assistance provided by local authorities to the Secretary of State under section 100. Section 110(1) must be concerned with expenditure incurred by local authorities in respect of asylum-seekers otherwise than in the discharge of functions under Part VI; and that expenditure must be expenditure incurred as a result of the provision of support under section 21 of the 1948 Act.

22. I am therefore driven to the conclusion that accommodation to which an asylum-seeker is entitled from a local authority under section 21 is a "means" of obtaining accommodation for the purposes of section 95 (3). Westminster is under an obligation to provide A with accommodation by virtue of section 21 of the 1948 Act as amended.

23. I recognise that my conclusion leaves a number of incongruities. For example, the application form prescribed by the Regulations for the purposes of Part VI, to be completed by asylum-seekers seeking support from the NASS, asks a number of questions about the health of the applicant and his or her accommodation needs. These are drafted as inquiries as to the applicant's requirements, and give no indication that the source of support depends on the answers given. The form does not inform the applicant that if he or she has special needs caused by ill-health or old age or infirmity he or she must apply to his or her local authority. Note 11 states (italics added):

"If we offer you accommodation we [the NASS] will try to choose the most suitable accommodation to meet your needs. We will consider your specific household needs. This includes the size of your family, ethnic, racial and cultural backgrounds and health issues.

In this section, you should provide details of any needs which may affect the accommodation that we give you."

24. Regulation 15 requires a person supported by the NASS to inform them of a relevant change of circumstances. One would expect the relevant changes of circumstances to include circumstances which would lead to a local authority coming under a duty to accommodate that person instead of the NASS: serious illness, disability, infirmity and the like. However, they do not. One of the prescribed relevant changes of circumstances is that the person supported has gone into hospital; but this is explicable on the basis that it may affect the need for accommodation.

25. However, these matters are not, in my judgment, such as to lead me to a different conclusion as to the effect of, and the relationship between, section 95 and section 21.

26. My conclusion accords with the judgment of Simon Brown LJ (with whom Hale and Kay LJJ agreed) in Reg. v Wandsworth London Borough Council, Ex parte O. [2000] 1 WLR 2539, at 2543 and 2548:

Destitute asylum seekers are now provided for under Part VI of the Act of 1999. As from 6 December 1999, they have their own system of support and no longer need to invoke section 21 of the Act of 1948 (save only where their need for care and attention is for more specific reasons than the sort of deterioration through destitution contemplated by the court in ex parte M., 1 C.C.L.R. 85)

.......

At the outset of the hearing it became plain that the construction of the newly inserted section 21(1A) of the Act of 1948 was of central importance on these appeals and that it concerned a great many others than these particular applicants and local authorities. We accordingly invited the assistance of the Secretary of State and we express our gratitude to him for agreeing to be joined as an intervenor and for instructing Mr. Bishop to advance argument on the point.

Section 21 (1A) necessarily predicates that there will now be immigrants with an urgent need for basic subsistence who are not to be provided for anywhere in the welfare system. Parliament has clearly so enacted and so it must be. The excluded cases are, of course, those where the need arises solely from destitution as defined. In what circumstances then, is it to be said that destitution is the sole cause of the need? The local authorities contend that the approach should be this. First ask if the applicant has (a) somewhere to live ("adequate accommodation") and (b) means of support (the means to "meet his other essential living needs"): see section 95(3) of the Act of 1999. Assuming the answer is "No" to each of those questions, ask next whether, but for those answers, he would need section 21 assistance. If not, he does not qualify. In other words, it is only if an applicant would still need assistance even without being destitute that he is entitled to it.

The applicants contend for an altogether different approach. They submit that if 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 yet more vulnerable and less well able to survive than if he were merely destitute.

Given that both contended for construction are tenable, I have not the least hesitation in preferring the latter. The word "solely" in the new section is a strong one and its purpose there seems to me evident. Assistance under the Act of 1948 is, it need hardly be emphasised, the last refuge for the destitute. If there are to be immigrant beggars on our streets, then let them at least not be old, ill, or disabled.

27. In that case no argument was addressed to the Court of Appeal that asylum seekers with special needs were within the scope of support under section 95. The NASS did not suggest that those statements were binding on me. Nonetheless, given that two local authorities were parties to Ex parte O., it is curious that the point was not raised.

28. It follows from my conclusion that Westminster is not entitled to the relief it seeks.

MR JUSTICE STANLEY BURNTON: My judgment in this case has been distributed in draft, and the decision I make is as set out in my draft.

MR SAINI: My Lord, consequent upon my Lord's judgment, my friend and I have agreed to a certain number of matters. First of all, that we should have the costs of the application; secondly, I do not have any formal request in respect of it, but there was an order of Ouseley J and an agreement between the Treasury Solicitor and my learned friend's instructing solicitors as to the costs of the accommodation prior to this hearing. The understanding that my friend and I have reached, and we do not ask it be embodied in any formal order, is that NASS will be reimbursed for costs already expended from the date of my Lord's judgment in the future --

MR JUSTICE STANLEY BURNTON: I notice the correspondence.

MR SAINI: But I do not ask for any formal order.

MR JUSTICE STANLEY BURNTON: If I may say, it was a very sensible arrangement for the parties to have arrived at.

MR SAINI: That is all I have to say. My friend has an application.

MR McGUIRE: Yes, it is an application, first, that there be permission to appeal. I understand that my learned friend will not make submissions in objection to that, but I seek to make it good. Secondly, that if permission is given, that when your Lordship fills in the relevant form, the relevant box, that there be a recommendation that the matter be expedited and heard, if possible, this term by the Court of Appeal.

Now, the reasons for that are as follows. First, as to permission --

MR JUSTICE STANLEY BURNTON: You do not have to address me on permission.

MR McGUIRE: I am most grateful for that. The reality of the situation is that on the basis of the order as made, there are now two categories of asylum seeker, two administrative systems, a good deal of sorting that needs to be done, a great deal of administrative expense identifying which of the schemes applies; secondly, the authority, if Westminster's view is the common view, and it would appear to be the case, then find themselves unprepared for but having to meet very considerable expenditure, and there is every reason to suspect that they will be required to provide accommodation and essential living support, perhaps for several thousand people, in the intervening time between now and the time of judgment. I say that for the reasons set out in the skeleton argument.

MR JUSTICE STANLEY BURNTON: Let me see if there is any objection to that.

MR SAINI: My Lord, I have no objection to permission to appeal. I had a word with my learned friend before. I am not sure my Lord has any power to direct expedition in the Court of Appeal.

MR JUSTICE STANLEY BURNTON: No, I am sure I do not, but I can recommend it.

MR SAINI: We certainly have no objection to my Lord recommending it.

MR JUSTICE STANLEY BURNTON: I think you will have to apply to the Court of Appeal Office.

MR McGUIRE: We accept that, but a recommendation would assist, simply because one has to deal with the administrative staff ultimately and get the thing on the desk before a Lord Justice. The best and most efficient way of doing that is for your Lordship to agree with us that that would be a sensible course.

MR JUSTICE STANLEY BURNTON: Having decided against you, I think the least I can do is assist you as far as that is concerned. I am sorry. If I had realised it was urgent, I would have tried to get my judgment out perhaps rather quickly, but --

MR McGUIRE: We are most grateful to your Lordship.

MR JUSTICE STANLEY BURNTON: I am afraid this was one of those judgments which you want to tackle on a clear day rather than on a foggy day.

MR McGUIRE: Yes, quite so.

MR JUSTICE STANLEY BURNTON: I shall do that.

MR McGUIRE: I am most grateful.

MR JUSTICE STANLEY BURNTON: Good. Is there anything else? Thank you very much for the help from both sides in this case. I wish you luck in the Court of Appeal, both of you.