England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE PRIVATE 
QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)

		Royal Courts of Justice Strand London WC2
		29th July 2002

SIR EDWIN JOWITT:

The Facts

1. On the 11th July 1999 the first claimant, T, arrived in this country from Ethiopia and claimed asylum. The second defendant refused her claim on the 2nd March 2001 and she received formal notification of that on the 8th June 2001. Thereafter she launched an appeal against this decision. Her appeal has not yet been heard.
2. After T's arrival in the UK she was at first in receipt of income support under the Social Security Act 1988. Then after the 3rd April 2000, by which date the relevant parts of the Immigration and Asylum Act 1999 and the Asylum Support Regulations 2000 made under that Act had come into force, she ceased to be entitled to income support and became entitled instead to receive asylum support under these regulations, which are administered by the National Asylum Support Service (NASS).
3. On the 16th November 2001 T was moved by NASS into accommodation in Wolverhampton. By now she was four months pregnant of a child, S, who was born on the 23rd March 2002 and who is the second claimant. T is a single parent. In December 2001 she was diagnosed HIV positive. Fortunately, that disease appears not to have been passed on in utero to S. On the 24th April 2000 tests carried out to see whether she had HIV were negative.
4. A mother who is HIV positive should not breast feed her baby for fear of passing on her condition to it. More dangerous to the baby even than continal breast feeding is for the mother sometimes to breast feed and sometimes to bottle feed it. These matters are common ground between the parties.
5. To reduce the risk of transfer of T’s condition to S she was delivered by caesarean section. Mother and baby were discharged from hospital on the 4th April. Before she gave birth T was entitled to receive asylum support for herself. The weekly amount was increased on the 8th April to £28.99, which is 70 percent of the rate which would be paid to a single parent in receipt of income support or a jobseeker's allowance under the 1988 Act. The comparative figures are now £33.77 and £53 .95. Additionally, T now receives £33.50 a week in respect of S, which is 10p less than the allowance paid for a child under 16 of a parent in receipt of income support or a jobseeker's allowance. No complaint is made about this difference.
6. There are two additional benefits which a parent on income support or a jobseeker's allowance receives to which a parent on asylum support is not entitled. The first is part of income support and a jobseeker's allowance and is paid to a single parent. The weekly amount is £15.90, known as the family premium, payable while a child who is not yet 16 years old is part of the parent's family. This amount does not vary with the number of such children.
7. The second benefit is not provided as part of income support or the jobseeker's allowance but entitlement to one of these benefits is the gateway to entitlement to this further benefit. This is an entitlement under regulation 4 of the Welfare Food Regulations 1996 for a child under the age of one year to receive a given weekly quantity of dried milk or liquid milk, save that if a mother is breast feeding the child she may consume the liquid milk to which her child would otherwise be entitled. In the case of a child who has reached the age of one year but is not yet five years old, regulation 4 provides that his or her entitlement is to a given quantity of free milk each week. The regulation also makes provision for an expectant mother to receive free milk. Benefit under regulations 3 and 4 is not provided by way of cash but of milk tokens: see part III of the regulations. The purpose of providing the benefit in this way is to try to ensure that the free supply of milk powder or liquid milk reaches the intended beneficiary. I say to try to ensure because it is clear this outcome cannot be guaranteed.
8. The Welfare Food Regulations are made by the first defendant, the Secretary of State for Health, pursuant to powers given to him by section 13 of the 1988 Act. Subsection (1) defines welfare food to include, inter alia, liquid and dried milk. Subsection (2) allows the Secretary of State by order to add or remove any food from the foods referred to in subsection (1) but subsection (6) requires any such order to be approved by both Houses of Parliament. Subsection (3) provides:

"The Secretary of State may by regulations make a scheme or a number of schemes-

(a) for the provision of welfare food;"

It is to be noted that the 1988 Act has left it to the Secretary of State to identify in any regulations he makes the beneficiaries of a welfare food scheme.

9. The price of milk and milk powder varies between outlets. The cost to a mother of bottle feeding her child will also depend upon how much it needs. T says in her statement that the weekly cost to her would be in the region of £7.50 to £8. I say would be because she is has in fact only had to buy milk powder for about four weeks as when permission was given by Moses,J to make this application on the 9th May the second defendant responded to an application for interim relief by way of an injunction requiring him to provide additional support to T of £7 a week by undertaking to make these payments on an interim basis. She says in paragraph 19 of her statement, "At this stage, I am not sure how I will be able to continue to purchase sufficient formula milk for S, as well as meeting our weekly food, hygiene, clothing and travel costs."
10. A further factor needs to be added to the comparisons. Unlike the parent receiving income support or a jobseeker's allowance, T does not have to pay for her utilities. She puts this cost at a figure substantially less than the difference between her personal allowance from asylum support and the personal allowance received by the person on income support or a jobseeker's allowance. The defendants respond to this by saying that all these benefits are intended to deal with a variety of situations so that to make a £ for £ comparison is not a profitable exercise. There is substance in this point. However, insofar as it is relevant to make comparisons, since this application focuses on what T receives for the support of S by way of asylum support, the material comparison in my judgment is between this and the total support available to a similar person for her child if she is in receipt of income support or a jobseeker's allowance.
11. On the 13th April the solicitors acting on behalf of T wrote to the Department of Health and to the Home Office. The letter to the Department of Health explained that T and S were to be discharged from hospital on the following day, that T was HIV positive and that, in accordance with guidance given by the Department of Health she had been advised not to breast feed S. The letter pointed out that there was no entitlement to free milk tokens and that T would face an impossible dilemma as to how to feed her child. It was complained that their rights under Articles 8 and 14 of the European Convention on Human Rights were being breached. The demand was made that the Secretary of State for Health should amend the Welfare Scheme Regulations so as to provide for them the benefit of free milk tokens. (A similar claim was also made in relation to vitamins for which the scheme provides but T has since been provided with a sufficient quantity and that part of the claim has not been pursued.)
12. The letter to the Home Office provided the same factual background. A similar complaint of breach of Articles 8 and 14 was made and the Secretary of State for the Home Department was required to use his powers under section 96(2) of the 1999 Act to increase the weekly amount of T's asylum support to compensate for the absence of benefit under the Welfare Food Scheme. Section 96(2) empowers the second defendant, if the circumstances of a particular case are exceptional, to provide support under section 95 in such ways as he considers necessary to enable the supported person and any dependants to be supported. I shall return later to these provisions in order to consider them more fully.
13. These letters produced a response dated the 12 April from the solicitor for the Department of Health acting on behalf of both defendants in which the demands made in them were refused.

The claim against the First Defendant

14. Miss Rose, for the claimants, submits that it is necessary to begin a consideration of the claim against the first defendant by considering the inception and history of the Welfare Food System and what has been said by Ministers about its purpose. A scheme providing free milk to certain babies and children was launched during the Second World War, in 1940, when Mr Boothby, the Parliamentary Secretary to the Ministry of Food, told the House of Commons on the 11th June 1940, as is recorded in Hansard:

"The government fully recognises the paramount importance of milk in the diet of the people of this country and regard it as essential to maintain milk production at a level which would ensure a continuance of adequate supplies for those who need it most."

Ever since, there has always been a scheme for the provision of free milk for needy children and expectant and nursing mothers. Thus, Kathleen Mary Dawson, who is the head of the Welfare Food Unit at the Department of Health, with direct responsibility for the Welfare Food Scheme run by that department says in paragraph 5 of her statement (p270),

"The scheme began as a universal programme for all children under five years and for pregnant and breast feeding women. Some were eligible for free welfare foods and the remainder for subsidised foods. The criteria for entitlement have changed over time."

In the following paragraph she says that the current purpose of the Welfare Food Scheme is to provide a nutritional safety net to certain expectant mothers and children and that it operates as a public health measure to help prevent nutritional deficiencies. Miss Dawson goes on in the same paragraph to say,

"This is very different from acknowledging the need on the part of the Scheme's beneficiaries for milk, infant formula or vitamins. A scheme based on need would argue that each person's case should be assessed individually taking into account factors other than financial circumstances. There could be many variations in need depending on existing health and nutritional status, for example, variations in diet, feeding habits, nutritional status of the mother at the time of conception, size and weight of child etc."

In paragraph 7 she says,

"The Scheme is currently under review. Scientific evidence suggests that the Scheme retains a great potential for improving the health of the nutritionally vulnerable but that it could be improved without additional cost. In the NHS Plan, the Government has made a commitment that by 2004 there will be a reform of the welfare foods programme to use resources more effectively to ensure children in poverty have access to a healthy diet, and increased support for breast feeding and parenting. Department of health Ministers are currently considering options for the future of the Scheme."

I refer finally to paragraph 17 of Miss Dawson's statement.

"In October 2001, the Home Secretary announced proposals to reform the asylum support system with vouchers being phased out. I understand that vouchers are no longer provided and asylum seekers now receive benefits in cash. The Secretary of State takes the view that it is appropriate for an asylum seeker's nutritional needs to be met entirely through this cash-benefits system and that there is no good reason to provide for milk separately under a token system."

15. Reliance is also placed by the claimants on a report produced by Jenny McLeish on behalf of Maternity Allowance, a voluntary organisation which works to promote the well-being of pregnant women, new parents and babies. It is obviously a campaigning organisation and the purpose of the report which Miss McLeish has prepared was obviously to gather and disseminate information to assist the cause of female asylum seekers and their children. The report is entitled "Mothers in Exile" and it sets out to deal with the experiences of asylum seekers in England who had a baby during the asylum process.
16. The report is based on a study of the cases of 33 mothers, 17 of them in receipt of benefits from NASS. Nine of the remaining mothers had recent experience of receiving these benefits. All the mothers had given birth to children in the last 18 months, in all 31, their ages ranging from a few days to 18 months. The research was carried out from April to September 2001. The report was submitted to the Home Office and the Department of Health in response to a consultation exercise on the reform of the asylum and immigration system. Miss McLeish says that the two departments released a press statement asserting that the children of asylum seekers receive the same level of support as other children for whom benefits are provided.
17. The nutrition of babies is only one of many wide ranging topics dealt with by the report and the key findings (p 63) do not focus in particular on the nutrition of babies outside the context of facilities at emergency accommodation hotels, where the fault is laid at the door of these establishments. The voucher system is criticised, though, as being inadequate to support maternal and infant health and it is said that mothers could not afford to buy adequate food. In the section on food (p 74) the criticism is directed to the regimes in emergency accommodation.
18. Miss McLeish reports that some women said they had not been able to afford the kind of good diet they would have liked during pregnancy, in particular because they had to economise on the food in order to save up vouchers so as to be able to buy necessities for their babies. They described going without in order to protect their children and still being unable to feed them as they would wish. (p 86)
19. The section on health (p 102) states that fewer than half the babies were described by their mothers as being in reasonable or good health. The examples provided by the mothers are not obviously nutritional problems. Two of the women in the study where HIV positive.
20. Among the numerous recommendations (p 106) is one that pregnant and breast feeding mothers and their babies should have full access to the provision of milk tokens and vitamins under the Welfare Foods Scheme. It is further recommended that financial support should be set at a level demonstrably adequate for maternal and infant health.
21. In the discussion section (p 124) these comments are made: "It should be a source of shame to this country that pregnant asylum seekers and their babies are going hungry. . . . . Babies whose HIV positive mothers cannot afford formula milk are more likely to be occasionally breast-fed," and it is pointed out that this greatly increases the risk of transmitting the infection.
22. It is accepted (p 135) that the research has been limited by the small number of mothers who were interviewed and that the choice of mothers was skewed by the limitations upon the way in which they had to be chosen.
23. Save for a number of additional points for which Miss McLeish draws on the research of others, a reading of her report shows that it is based entirely upon what the mothers have said. So, for example, what the mothers said about the health of their babies is not supported by any examination of them. It does not purport to investigate the cost of providing an adequate diet for children or make any costings. Nor does it appear from the report that there was any investigation of the way in which the mothers who were interviewed managed and spent their money.
24. I summarise in this paragraph a number of the points contained in Miss McLeish's report which draws upon the research of and information provided by others. In the section dealing with the asylum support policy it is said that research into the impact of the rates of income support on pregnancy and infant nutrition indicates that the value of the vouchers has been set well below the level sufficient to support maternal and infant health and that mothers on income support often have to compromise on their own food to give their children an adequate diet. It is said that pregnant women relying on full rate income support cannot afford to eat a diet adequate for optimum pregnancy outcome. Reference is made to reports from the British Medical Association that doctors have witnessed mothers watering down milk for their babies in order to eke out their asylum vouchers. Miss McLeish speaks of other anecdotal evidence which shows that the asylum seeking mothers may introduce cow's milk at a very early age because formula milk is unaffordable. There have also been reports of HIV positive asylum seekers occasionally breast feeding when they run out of formula milk, which greatly increases the risk of mother to baby transmission of HIV. Miss McLeish says that a baby is very vulnerable during pregnancy and the first months of its life. Neglect during this critical period may have lifelong consequences. A malnourished mother is more likely to have a baby with a low birthweight, with a consequent higher risk of disability and early death.
25. She has also provided a statement dated 1st July 2002. In paragraph 3 (p 317) she refers to a scientific review of the Welfare Food Scheme conducted in 1999 and says this:

“. . . the review panel noted that if low income families had to purchase infant formula it would take up 22% of their average food expenditure.”

26. Miss McLeish's report had been submitted both to the Department of Health and the Home Office before the letters of the 5th April were sent and Miss Rose relies upon them as information which was available to the defendants at the time they made the decisions which are challenged in these proceedings. She also relies upon them as reinforcing the evidence that the Food Welfare Scheme is an important aspect of public health policy in relation to needy children among whom the children of those on asylum support must be seen to be included, since asylum support, under the appropriate regulations, is not provided except to those who are destitute.
27. Another person who has conducted research into the funding provided to asylum seekers is Jan Penrose. She is a consultant policy adviser for Oxfam and is a qualified social worker and holds a Master's degree in studies in forced migration awarded by the University of Oxford. Miss Penrose's report deals with the adequacy of the allowances provided to meet asylum seekers' basic needs. What she has done is to inquire of 36 charitable organisations, 21 of which are based in London. Her report is based upon their responses.
28. 85% of the organisations say that their clients sometimes or frequently have reported experiencing hunger. 80% say that asylum seekers are not able to maintain good health, the general complaint being that they are short of money. 87% of the organisations say that their clients sometimes or frequently express concern over the health and well being of their children. 72% of the organisations say they have had to provide help to their clients to enable them to obtain essential items, including food. 70% say they have received concerns from mothers who are not able to breast feed their children and who are unable to buy formula milk. Only one charity reported a case in which an application for an exceptional payment had been granted; the applicant was a diabetic. 30% of organisations had clients who had applied for exceptional payment and been refused.
29. Miss Penrose concludes her report in these words: "Evidence from our study suggests that, all too often, asylum-seekers are slipping into severe poverty and hardship."
30. There is nothing in her statement to inform the reader what proportion of the clients of the various organisations had made the complaints which feature in the report. Nor does one learn from it how many people have complained to the various organisations, or roughly what proportion they represent of the asylum seekers living in the area served. It is not possible to say whether there has been any overlap between those seeking help from one organisation and those seeking help from another. The possibility of such overlap is obviously much less likely to occur outside London where these charitable organisations are more widely dispersed. The reporting of complaints does not differentiate quantitatively between adults, children and babies. The report gives no detail about the nature of the ailments complained of. As in the case of Miss McLeish's report, this report seems to be based upon what the clients have said to the various charitable organisations. Similarly, there is no reference to any investigation of the way in which the recipients of state benefits managed and spent their money. Nor does Miss Penrose's investigation purport to have looked into the cost of providing an adequate diet for children or to have made any costings.
31. To comment on what these two reports do not set out to do is not to question the good intentions of their authors. They were not prepared simply to be seen by ministerial eyes. They were clearly intended for a wider audience, so as to generate human interest in the financial position of asylum seekers and so help to mould public opinion in their favour. However, what the reports do not set out to do affects their value as evidence by which to mount an attack upon the defendants.
32. The results of Miss Penrose's research were not before the defendants when they made the decisions complained of. They are contained in her witness statement of the 1st July. It was not, therefore, part of the evidence which the defendants had available for consideration when they made their decisions. Miss Rose relies upon this report, though, as further evidence reinforcing the importance of the Welfare Food Scheme.
33. Under the Welfare Food Regulations 1996 the gateway to a child's entitlement to benefit is that her parent is in receipt of income support or a jobseeker's allowance. When the 1999 Act came into force those on asylum support were excluded by section 115 (1) to any entitlement to, among other benefits, income support and the jobseeker's allowance. The effect of this was to take the child of a parent on asylum support outside the scope of the 1996 regulations. Miss Rose submits that, leaving this Act aside, there has been a clear Parliamentary intention to include needy children as beneficiaries of successive Welfare Food Schemes without discriminating between them and that this applies also to the scheme under these regulations. She relies upon the history of Welfare Food Schemes from their inception and on Miss Dawson’s evidence about its current purpose, to which I have referred already, and on the scientific review in 1999, referred to both by her and in Miss McLeish's second statement. The scheme is a public health measure, Miss Rose points out. Arising out of this history she makes two submissions.
34. Before the 1999 Act came into force the children of asylum seekers in receipt of income support were included as beneficiaries when the regulations were made. If they had been excluded, whether by omission or by a subsequent exclusionary amendment by the first defendant, this would have been unlawful and ultra vires as frustrating the policy of the 1988 Act and running counter to it. Miss Rose relies upon Padfield v Minister of Agriculture Fisheries and Food [1968] AC 997.
35. Further, to exclude someone from benefit because she is the child of a parent in receipt of asylum support is to discriminate irrationally and, therefore, unlawfully against her without justification when one compares her case with that of the child of a parent on income support or a jobseeker's allowance. Both are needy children. Indeed, the parent on asylum support has, in order to qualify for that benefit, to be destitute. It is submitted that this offends against the common law principle against discrimination between people in like circumstances, except for good reason, and reliance is based upon Matadeen v Pointu [1999] AC 98, a decision of the Privy Council. This case concerns the interpretation of and interaction between certain sections of the Constitution of Mauritius, but it is not that which leads Miss Rose to rely on the judgment of the Judicial Committee, which was given by Lord Hoffmann. She relies on the passage at page 109C.

"As a formulation of the principle of equality, the court [below] cited Rault J in Police v Rose [1976] MR 79, 81: “Equality before the law requires that persons should be uniformly treated, unless there is some valid reason to treat them differently." Their Lordships do not doubt that such a principle is one of the building blocks of democracy and necessarily permeates any democratic constitution. Indeed, their Lordships would go further and say that treating like cases alike and unlike cases differently is a general axiom of rational behaviour. It is, for example, frequently invoked by the courts in proceedings for judicial review as a ground for holding some administrative act to have been irrational . . ."

36. However, in my judgment this passage has to be made in the context of the next paragraph of the judgment.

"But the very banality of the principle must suggest a doubt as to whether merely to state it can provide an answer to kind of problem which arises in this case. Of course persons should be uniformly treated, unless there is some valid reason to treat them differently. And, perhaps more important, who is to decide whether the reason is valid or not? Must it always be the courts? The reasons for not treating people uniformly often involve, as they do in this case, questions of social policy on which views may differ. These are questions which the elected representatives of the people have some claim to decide for themselves. The fact that equality of treatment is a general principle of rational behaviour does not entail that it should necessarily be a justiciable principle - that it should always be the judges who have the last word on whether the principle has been observed. In this, as in other areas of constitutional law, sonorous judicial statements of uncontroversial principle often conceal the real problem, which is to mark out the boundary between the powers of the judiciary, the legislature and the executive in deciding how that principle is to be applied."

37. This paragraph leads me to conclude that where discrimination without valid reason is said to be demonstrated, the court should not see its task as being simply to consider these two issues and to provide a remedy if discrimination without a valid reason is demonstrated. It has to ask whether the provision of a remedy is part of the court's role, or whether there are indications that Parliament or the executive has, without unlawfulness in some other respect, decided that the question whether it may properly discriminate and for what reason is to be decided by Parliament or the executive. I regard this consideration as being important when I come to consider what impact, if any, the 1999 Act has upon the Welfare Food regulations 1996.
38. Returning to Miss Rose's first submission, it would in my view be more accurate to argue that an exclusion from benefit by the failure to include a child in the first place or by an amendment to exclude a child who was initially a beneficiary would amount to a failure fully to achieve the legislative purpose rather than the frustration of that purpose. In the light of the evidence on which reliance is placed, and ignoring altogether the impact of the1999 Act, I should be inclined to the view that such exclusion would be unlawful, though the fact that section 13 of the 1988 Act does not by itself demonstrate a clear parliamentary intention as to who should benefit under regulations made under that section.
39. But it is not possible to come to a conclusion about the claim made against the first defendant without considering what impact, if any, the 1999 Act has on the entitlement of the child of someone who is on asylum support has upon her right to be a beneficiary under regulations made pursuant to section 13.
40. It is necessary now to look at some of the sections of part VI (headed Support for Asylum Seekers) of the 1999 Act. Section 95 provides the power to make regulations providing for the support of asylum seekers. To qualify for asylum support they have to be destitute, that is without adequate accommodation or the means of obtaining it, or being otherwise unable to meet essential living needs. This section imposes no duty to provide support.
41. Section 96 (1) sets out the support which may be provided under section 95. This consists of the provision of accommodation and for the essential living needs of the asylum seekers and his dependants and certain expenses. Subsection (2) provides:

"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."

42. The duty to provide support is to be found in section 122 (3) and (4) and relates only to children. If it appears to the Secretary of State either that a child who is part of an asylum seeker's household has not been provided with adequate accommodation or with his essential needs he must offer provision pursuant to his power section 95 and, if the offer is accepted, he must make the provision.
43. Miss Rose submitted that the effect of section 122 is that the secretary of state may make provision without the need to make any regulations. However, the section takes one back to section 95 and it seems to me that the clear intention of part VI is that support should be provided for by regulations made under this part, save for the exceptional cases dealt with by section 96(2). What lay behind this submission was that, although Miss Rose makes no challenge to the Asylum Support Regulations 2000 made under the 1999 Act, she sought to make a case against the second defendant based upon a failure under section 122(4) to make proper provision for the claimants which, she submitted, need not be provided for by any regulations. She accepted this was a wider claim than the claim under section 96 (2) and she told me she put her case under section 122 first, with the claim under section 96 (2) as a fall back position. This was an addition to the grounds accompanying the application for permission. As this is put forward as a test case I was initially inclined to allow an amendment to raise this fresh ground. However, on reflection I concluded that this would not be appropriate. This is litigation by which the claimants seek to challenge the decision made by the second defendant but he has never been asked to make a decision under section 122.
44. To my mind the crucial provisions in relation to the case relating to the second defendant are to be found in section 115, the first of a number of sections in part VI under the heading "Exclusions". Subsections (1) and (3) provide:

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

(e) income support under the Social Security Contributions and Benefits 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."

It is common ground that at the present time the first claimant is subject to immigration control and does not fall within any prescribed exception.

45. Miss Rose accepts that in enacting section 115 Parliament must be taken to have been aware that receipt of income support or a job seeker's allowance provided the gateway to a child's entitlement under the Welfare Food Regulations 1996. Nonetheless, she contends that Parliament did not intend the result which this section has had. Had it intended the result which the section has in fact brought about it would have amended section 13 of the 1988 Act to exclude the children of asylum seekers from the ambit of the power to make any food welfare scheme, and it has not done so.
46. In support of her argument Miss Rose invites me to consider the way in which other legislation with the potential to affect those on asylum support and their dependants has been treated by sections 116 and 117 of the 1999 Act. Neither counsel drew my attention to the actual statutory provisions to which these sections refer. In my judgment it is necessary to consider them in order to decide whether sections 116 and 117 do provide support for Miss Rose's argument.
47. Section 116 (2) section 117 (1) and (2) all refer to arrangements to be made by local authorities to make provisions of different kinds to certain classes of people. The effect of the amendments is that in relation to someone to whom section 115 applies, arrangements may not be made because he is destitute or because of the physical or anticipated physical effects of destitution. The arrangements referred to are not set out in any statutory instrument. They are those made by the local authorities with the approval and subject to the direction of the Secretary of State. No question could arise, therefore, of amending a regulation making power. To have amended by statute arrangements made by local authorities would have been cumbersome and Parliament dealt with the point conveniently by the provision it made in section 116 and subsections (1) and (2) of section 117. It is not for this court to tell Parliament or the executive that they should set about giving effect to their intentions in one way rather than another.
48. Subsections (3) to (6) of section 117 provide for amendments to sections of the Housing Act 1996. Their effect is to remove from local housing authorities any responsibility or power to provide housing to those who are subject to immigration control under the 1999 Act. Subsection (3) deals with section 161 of the 1996 Act which, so far as is material, provides as follows:

"(1) A local housing authority shall allocate housing accommodation only to persons ("qualifying persons") who are qualified to be allocated housing accommodation by that authority.

(2) A person subject to immigration control within the meaning of the Asylum and Immigration Act 1996 is not qualified to be allocated housing accommodation by any authority in England and Wales unless he is of a class prescribed by regulations made by the Secretary of State."

Subsection (3) of section 117 inserts a new subsection into section 161 on the 1996 Act in these terms:

"(2A) Regulations may not be made under subsection (2) so as to include any prescribed class in a person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies."

Section 117 (4) deals with section 185 of the 1996 Act, of which subsection (2) provides:

"A person who is subject to immigration control within the meaning of the Asylum and Immigration Act 1996 is not eligible for housing assistance unless he is of a class prescribed by regulations made by the Secretary of State."

Subsection (4) inserts into section 185 subsection (2A) which is similar in effect to the subsection inserted into section 161.

49. In my view, the amendments made by subsections (3) and (4) of section 117 are readily understood as following from the fact that under part VI of the 1999 Act the second defendant has taken over the provision of accommodation for those in receipt of asylum support and their dependants and that immigration control is now dealt with by that Act.
50. Finally, in relation to section 117 the further amendments made to the 1996 Act by subsections (5) and (6) are in my judgment to be seen simply as consequential amendments following upon the coming into force of part VI of the 1999 Act.
51. Having considered sections 116 and 117, I do not regard them as providing any support for the proposition that, had Parliament wished to remove the dependent children of those on asylum support from the scope of any regulations made under section 13 of the 1998 Act, they would have done so by amending section 13. It needs to be pointed out, though, that to amend section 13 would not necessarily have amended the existing regulations made under it. The exclusions in section 115 was a simple and convenient way of taking the dependent children of those on income support out of the ambit of the regulations. I repeat, it is not for this court to tell Parliament or the executive that they should set about giving effect to their intentions in one way rather than another.
52. Miss Rose draws attention to another consequence of the exclusion of those on asylum support from income support and the jobseeker's allowance. Section 14 of the 1988 Act amended the National Health Service Act 1997 by adding to it a further section, section 83A, which gave power to make regulations remitting the charges for certain medical services and providing for the payment of certain travelling expenses in the case of prescribed descriptions of people. Subsection (2) sets out criteria which are to be taken into account as part of the criteria by which these descriptions are prescribed. One of these, paragraph (d), is by reference to the receipt of or entitlement to benefit in money or in kind under any enactment. The regulations made under this power, which were in force when the 1999 Act received the Royal Assent on the 11th November 1999 were the National Health Service (Travelling Expenses and Remission of Charges) Regulations 1988. By virtue of regulation 4 a person in receipt of income support, (2) (a), or a jobseeker's allowance, (2) (j), is entitled to receive the benefits provided by regulation 3 in the shape of free medicines and dentistry and certain travelling expenses. The effect of the exclusion in section 115 (1) was to deprive those on asylum support of these benefits.
53. Parliament must have been aware of this and so, submits Miss Rose, if it had been Parliament's intention to exclude the children of those on asylum support from the benefit of the Welfare Food Regulations 1996 it must equally its intention to exclude those on income support or a jobseeker's allowance from the benefit of these further regulations. But that is not what happened because, by the time the NASS scheme came into force, regulation 4 of these regulations had been amended to bring those on asylum support and their children back within their scope once more:

(n) an asylum-seeker for whom support is provided under part VI of the Immigration and Asylum Act 1999; or

(o) a member of the same family as a person described in paragraph (n) of this regulation".

Miss Rose submits that if Parliament had intended to create an exclusion from the right to free medicines etc there would have been no power to make this amendment. It must follow, therefore, that there was no such intention and that neither was there an intention to exclude children from the benefit of the Welfare Food Regulations 1996.

54. I do not accept this submission. It involves accepting the proposition that Parliament did not intend a result which, jurisprudentially, it is to be taken as knowing it was bringing about. (Miss Rose accepts that Parliament must be taken to have been aware of these two sets of regulations and that the entitlement to income support or a jobseeker's allowance was the gateway to benefits under them.) In my judgment the proper approach to the construction of section 115 (1) is this. Parliament did intend the result it achieved. However, it did not remove the power under the different Acts (section 13 of the 1998 Act and section 83A of the National Health Service Act 1997) to reverse, for good reason, what Parliament had enacted. So far as the amendment to the National Health Service (Travelling Expenses and Remission of Charges) Regulations 1988 is concerned the explanation for it is provided by the evidence of Miss Dawson in paragraph 18 of her statement (p 274):

"The claimants make the point that in one respect asylum seekers are treated in the same way as those entitled to Income Support in that they are provided with free NHS treatment including access to free prescriptions and dental treatment. Given that the Home Office is responsible for the support of asylum seekers under the Immigration and Asylum Act 1999, one might expect the Home Office to be responsible for the medical and dental care and treatment of asylum seekers. However, Ministers have decided that it would be a better and more effective use of Government resources to allow asylum seekers supported by NASS access to NHS treatment under the NHS Low Income Scheme rather than make Home Office directly responsible. The alternative would be a complex system of cross charging involving a variety of different medical, nursing and dental staff and facilities, which would be complicated and expensive to administer."

Miss Rose suggests that Miss Dawson exaggerates the difficulties of dealing with these matters by allowing free access to the NHS rather than make provision through NASS. I think this is a matter of ways and means which has to be left to the executive to decide upon.

55. I have said that, as the Welfare Food Regulations 1996 are presently drawn, section 115(1) does exclude the second claimant from benefiting under them. This is not in dispute. Although, as I hold to be the true construction of subsection (1), Parliament did intend to effect this exclusion, does the fact that the first defendant's power under section 13 of the 1988 Act has not been amended mean that he ought to amend his regulations so as to reverse this effect? I bear in mind that Miss Rose's proposition that he is legally obliged to do so was advanced on the basis of her argument as to the construction of subsection (1) which I have rejected. It is right, though, that I should nonetheless consider the question I have posed.
56. In considering it, I have to have regard to the full evidence, to some of which I have already referred to in outline, and also to what Ministers have said in the House of Commons. On the 16th June 1999 the then Home Secretary said (p 243):

"I recognise that hon. Members want to ensure that the children of asylum seekers are not treated significantly differently because of their asylum status. They will not be."

In fact, because her child cannot benefit from the Welfare Food Scheme, a mother on asylum support receives nearly 20 percent less for her child in money and in kind than a parent on income support or a jobseeker's allowance.

57. On the 9th November 1999 the then Home Secretary said (p 241):

"In setting up the new support arrangements, we are providing a level of support that is broadly equivalent to that which asylum seekers could expect to get, were social security benefits still available to them. Under those plans, support for children will be equivalent to 100 percent of child benefit levels."

If it stood alone the last sentence of this answer, in referring to benefit levels, might be accurate. The amount fixed by the NASS scheme is only 10p a week less than what is paid in respect of a child whose parent is on income support or a jobseeker's allowance. If, as Miss Rose submits, the benefit under the Welfare Food Regulations 1996 is a health provision it can be argued that the phrase "social security benefits" is not apt to include the provision of milk tokens. However, not everyone who heard what Mr Straw said would have understood his words in this way. There is an ambiguity in what he said, though I am certainly not suggesting this was intended.

58. finally, I refer to what a Home Office Minister, Miss Angela Eagle, said to the House of Commons Standing Committee on Delegated Legislation on a date which is not clear from the papers (p 231):

"My hon. Friend the Member for Crosby (Mrs Curtis-Thomas) asked two questions. The first was about milk tokens and I am afraid this is a matter for the Department of Health, not the Home Office. My understanding is that the Department of Health has no plans to extend the scheme in the way that she suggested, but I shall bring her comments to the attention of my colleagues and perhaps she can correspond with them on that."

59. I do not feel able to treat these ministerial statements as material on which I can draw to resolve an ambiguity in the construction of section 115 (1) of the 1999 act, for I cannot see that there is any. Nor can I read into what has been said that this provision was enacted with an expectation that the first defendant would amend his regulations. In my view this material does not assist the claimants' case against the first defendant
60. The evidence of Miss Dawson (p 273) is important in relation to this point:

"12. In enacting the Immigration and Asylum Act 1999, Parliament decided as a matter of policy to provide support for asylum seekers pursuant to a new National Asylum Seekers Support Service ("NASS") rather than pursuant to the mainstream benefits system. NASS is a part of the Home Office.

13. One of the matters underlying the existence of separate statutory regimes is the fact that the system of asylum support established under the Immigration and Asylum 1999 Act was not meant to replicate the full range of benefits available to those supported by mainstream benefits but only to provide a short-term safety net for meeting the needs of asylum seekers.

14. In September and October 1999, the Secretary of State specifically considered the possibility of passporting welfare food benefits into the (then) new Asylum Support System. He decided that this would be inappropriate and unnecessary. Extending the Welfare Food Regulations to asylum seekers would have run counter to the general policy choice made by Parliament that asylum seekers should be supported under a different statutory regime than those on low Income who were not subject to immigration control. The provision of milk tokens is no different to the provision of other social security benefits, such as Income Support, from which asylum seekers are expressly excluded. It was unnecessary to provide milk tokens to asylum seekers since Parliament had determined that their nutritional and other living needs would be met by NASS. There was therefore no need to treat milk any differently.

15. The Secretary of State further took the view that extending the Welfare Food Regulations to asylum seekers would be unnecessarily bureaucratic. At that time NASS was administered via vouchers. It would have been administratively complicated to provide for asylum seekers via a dual system of vouchers - asylum seeker vouchers and milk tokens. Each voucher was likely to have different conditions and validity periods. In any event, the Department of Health could not issue milk tokens to asylum seekers without the assistance of the Home Office, as the Department and had no access to information on the names, addresses and other details of asylum seekers."

61. In my judgment the position is this. It was the clear intention of Parliament, in enacting part VI of the 1999 Act, and of the executive, in putting the Immigration and Asylum Bill before Parliament and in setting up NASS and making the Asylum Support Regulations 2000, that the Home Office should become the government department having responsibility for the support of asylum seekers, save when it was administratively convenient in the case of free medicines etc to leave that responsibility with the National Health Service. It is not possible to say that because the milk scheme is regarded by the Department of Health as a public health measure that either Parliament or the executive did not intend the exclusionary effect of section 115 (1) which I have had to consider. The first defendant retains his power under section 13 but there are no express words in it identifying the beneficiaries of any scheme he makes and there is no basis for saying that he is acting irrationally or ultra vires by his decision not to amend his regulations to reverse what Parliament and the executive intended. Those intentions, in my judgment, provide a defence to the attack on his refusal to exercise his discretion to amend his regulations. The challenge to this refusal by the first defendant must be dismissed. In saying this I have yet to consider the human rights points which have been raised in this application.
62. I would add this. If I had been persuaded that the first defendant ought to amend his regulations, I should have declined to grant any declaratory relief. I have well in mind what was said by Lord Browne-Wilkinson, Lord Nicholls and, in his dissenting judgment, by Lord Mustill in Regina v SSHD ex p Via Brigades Union [1995] 2 AC 513 concerning the reluctance the courts should have about trespassing in matters over which Parliament enjoys exclusive jurisdiction, namely making legislation. At p550G Lord Browne-Wilkinson said:

"In my judgment it would be most undesirable that, in such circumstances, the court should intervene in the legislative process by requiring an Act of Parliament to be brought into effect. That would be for the courts to tread dangerously close to the area over which Parliament enjoys exclusive jurisdiction, namely the making of legislation. In the absence of clear statutory words imposing a clear statutory duty, in my judgment the court should hesitate long before holding the such a provision as section 171 (1) imposes a legally enforceable statutory duty on the Secretary of State." (Section 171(1) conferred power on the Secretary of State to bring the Act, of which it was a section, into force.)

63. I asked Miss Rose what would be the purpose of giving declaratory relief. Her candid answer was that it was in order that the first defendant should act upon the declaration and amend his regulations. I bear in mind that Parliament, by means of a negative resolution and what might follow, has the power to reject a Minister's regulations. It seems to me that for the court to grant any declaration in these circumstances would be to trespass in a field into which it should not enter. It is one thing to say by way of declaratory relief that a government Minister should exercise his discretion to do some act under a statutory instrument and quite another thing for the court to say by way of such relief that he should legislate. Accordingly, had I concluded in favour of the claimants against the first defendant on this issue, I would have considered it necessary to restrict myself simply to saying what I had concluded was the position in law but not to make any declaration.

The claim against the Second Defendant

64. A condition precedent to being able to make an application to the second defendant under section 96 (2) of the 1999 Act is that it discloses facts from which it could be concluded within Wednesbury parameters that the circumstances of the case in which it is made are exceptional. Circumstances are not exceptional if what is said is that, like other parents on asylum support with a young child, the support provided for them is simply insufficient to meet their essential living needs. Such a case would not, on this presentation, be different from the cases of all such parents. Similarly, a case cannot be regarded as exceptional because the child concerned is not able to benefit from the Welfare Food Regulations 1996. Nor is a case exceptional because the mother cannot breast feed her child. Bottle feeding, rather than breast-feeding, cannot be regarded as an exceptional circumstance. T does not breast feed S because she is HIV positive, but this cannot by itself turn the fact that she does not breast feed S into an exceptional circumstance.
65. In my view the search in this case for circumstances which make it exceptional must focus on the reason why T should not breast feed her child and whether there is in her case a real, as opposed to a fanciful, risk that, despite the risk of transferring HIV to S, she would try to suckle her because she receives insufficient money to enable her to buy formula milk. There is an argument that these circumstances cannot be exceptional because the fact that a baby is bottle fed does not make a case exceptional, despite the fact that the money for formula milk has to be found out of the asylum support allowance. Nonetheless, I conclude that these circumstances are capable of amounting to exceptional circumstances within the meaning of section 96 (2), bearing in mind the appalling consequences to S which would follow if she became infected and the very substantial costs of treating such case, which would very probably fall upon the NHS. A report from the Department of Health entitled "The national strategy for sexual health and HIV" published in July 2001 has this to say on the question of cost in paragraph 1.21 (p 314):

"The average lifetime treatment for costs for an HIV positive individual is calculated to be between £135,000 and £181,000, and the monetary value of preventing a single onward transmission is estimated to be somewhere between £1/2 and 1 million in terms of individual health benefits and treatment costs."

66. I turn now to consider the way in which the case was put to the second defendant by the solicitors then acting for the claimants in their letter of the 3rd April 2002, the reply to which is the decision letter giving rise to the challenges in these proceedings. There were in fact two letters (pp 47 and 49), one to each defendant with each of them being sent a copy of the letter addressed to the other. They are not in identical terms but their substance is the same. The second defendant was told that T is HIV positive and has a child, S, and that to reduce the risk of passing on her condition she has been advised, in accordance with guidance given by the Department of Health, not to breast feed her. The second defendant was informed (p 47):

"While in hospital she has been provided with free formula milk. No such provision will remain available once she is discharged from hospital with her daughter.

In recognition that the level of means-tested benefits is too low to protect maternal and infant nutrition, the Welfare Food Regulations 1996 made under section 13 of the Social Security Act 1988, provides for mothers of children under the age of 5 who are in receipt of income support to receive free milk tokens, as well as free vitamins. However, asylum seekers who are ineligible for income support do not qualify for free milk and vitamins under this scheme - even though NASS provides subsistence at a level which is substantially lower than that of income support.

As a result of these rules, once our client is discharged from hospital, she will face and impossible dilemma as to how to feed her daughter."

The letter complained that articles 8 and 14 of the European Convention on Human Rights had been breached and the second defendant was told of the claimants' requirement that the first defendant should amend his regulations so as to provide free milk tokens for S while the claimants resided in the United Kingdom and she was under the age of five. The letter went on to state what was required of the second defendant:

"Alternatively, our client requires the Secretary of State for the Home Department to use his powers under section 92 (2) of the Immigration and Asylum Act 1999 to increase the weekly amount of her asylum support to compensate for her lack of access to free milk tokens and free vitamins (alternatively to provide her with free milk tokens and vitamins) while she resides in the UK with a dependent child under the age of 5."

It is to be noted that this letter does not identify any circumstances which are said to be exceptional other than the fact that T is HIV-positive and the advice she had been given against breast-feeding S. Nothing is said about the risk that she might do so under the pressure of poverty. In fact the three paragraphs first quoted above contain no information which could constitute an exceptional circumstance.

67. Should it be said that the second defendant has not been alerted to any risk that T might breast feed S and that his decision is therefore not open to criticism? Clearly a decision maker is not to be criticised for a failure to take into account a factor of which he was not made aware by the person seeking his decision and of which he did not know and could not reasonably have been expected to be aware. When one speaks of what a Secretary of State knew or could reasonably be expected to know one is thinking of his department rather than him and of the information available to his official or officials dealing with a particular case or advising him upon it which appears or should be seen by them to bear upon the particular case.
68. Miss McLeish says in paragraph 1 of her statement (p 53) that her report was published in March 2002 and in paragraph 5 (p 54) she says it was submitted to the Home Office as part of the consultation upon the Home Secretary's proposal for the reform of the asylum and immigration system. She says in her report (p 68):

"There have also been reports [Sesay M, Submission to the Home Office on the Immigration and Asylum Bill. Africa HIV steering group 1999] of HIV-positive asylum seekers occasionally breast feeding babies when they run out of formula milk, which greatly increases the risk of mother to baby transmission of HIV [HIV and Infant Feeding, Guidance from the UK Chief Medical Officer's Expert Advisory Committee on AIDS, Department of Health 2001]"

In the discussion section (p 124) Miss McLeish expresses the opinion:

"Babies whose HIV-positive mothers cannot afford formula milk are more likely to be occasionally breast fed, which greatly increases the risk of the HIV virus being transmitted to them."

69. I conclude that, for the purpose of considering his decision, the second defendant is to be taken as having been aware of the information and opinions from Miss McLeish's report set out in the previous paragraph. Miss Rahman, for the defendants, has not sought to argue to the contrary.
70. It is to be noted that the material on which Miss McLeish drew contains no report of HIV positive mothers breast feeding because they could not afford to buy formula milk, as opposed merely to running out of it. At the time of her solicitor's letter of the 3rd April T was still in hospital but she has not said in either of her two statements that she ever breast fed S in the few weeks between leaving hospital and the interim undertaking. Further, by the time T made her first statement on the 26th April (p 20) she had been out of hospital for a little over two weeks. In paragraph 17 (page 27) she says she does not know how she will be able to manage on her current level of support until the 6th May. T’s second statement, made on the 27th June (p 277), adds nothing. She does not say in either statement that in the period between her discharge from hospital and the permission application she was in fact unable to find the money with which to buy formula milk. Miss Rahman submits there is no evidence to suggest that there is any risk of T breast feeding her baby and that, accordingly, there is no evidence that her’s was or is an exceptional case. In my view, if a mother who is HIV positive is faced with a baby who is crying because she is hungry and there is no money with which to buy formula milk it is not fanciful to conclude that in these circumstances there is a risk that she will attempt to suckle her.
71. What was the the second defendant's response in his decision letter (p 51)?

"We do not accept that the Regulations exist "in recognition that the level of means-tested benefit is too low to protect maternal and infant nutrition". The 1996Regulations were a consolidation measure. The Welfare Food Scheme was introduced in 1940 as part of the war effort, apparently to safeguard the nutritional status of expectant mothers and children. The criteria for entitlement have changed over time.

The new asylum support scheme which came into force on 3rd April is intended to provide support for asylum seekers who are destitute whilst their claim is under consideration. It is designed to meet their existing living needs. NASS support is intended to provide a short-term safety net and not to replicate the benefit system."

The letter goes on to point out that T received a payment of £300 to meet the costs associated with the arrival of a new baby and an emergency payment of £120 for S. It has to be remembered, however, that the weekly support allowances are not intended to do more than provide for essential living needs, which leads me to conclude that the maternity payment is paid because these allowances could not be expected to cover the costs associated with the arrival of a baby. As to the £120, it is accepted that this was not an extra sum paid over and above T's entitlement to allowances. It simply represented a back payment in respect of them. It is not clear from the decision letter whether these two payments are referred to simply a part of the history of NASS's dealings with T or whether they are advanced as reasons why this was not an exceptional case. Karen Milne is an Assistant Director of the NASS Secretariat Policy and Communications team. In paragraph 3 of her statement (p 264) she speaks of the maternity payment of £300 and in paragraph 4 she refers to the payment of £120 as being an additional emergency payment. None of this removes the uncertainty in the decision letter, which I have just referred.

72. However, in paragraph 6 of her statement Miss Milne says:

"Having regard to (1) the broad equivalance of general levels of support between asylum support under the 1999 Act and support under the systems of mainstream benefits (e.g. Job Seekers allowance and Income Support); (2) the identical levels of support paid in respect of children under the age of 16 under both the asylum support scheme and the mainstream benefits system; (3) the additional support received by asylum seekers in NASS accommodation not available to persons supported by mainstream income support (e.g. the costs of utilities, and items for infants supplied by accommodation providers); (4) the additional support the first Claimant had already received in respect of herself and the second Claimant (the maternity grant of £300 and the emergency support payment of £120) ; and (5) the fact that the system of asylum support established under the 1999 Act was not meant to replicate the full range of benefits available to those supported by mainstream benefits but only provide a short-term safety net for meeting the needs of asylum seekers, the Secretary of State for the Home Department concluded that the level of support available to the Claimants as asylum seekers was sufficient to meet their essential living needs, including the weekly cost of formula milk for the second Claimant."

In my view, the references in this paragraph to payments of £300 and £120 remove the uncertainty I have already commented upon and make it clear that the fact they were made is treated as one of the grounds upon which the application for a payment under section 96 (2) was refused. Turning to the reference to a short term safety net, obviously an adult may be able to manage in the short term without, for example, needing to buy new clothing which will certainly be needed in the long term, but this reference is hardly apposite to a consideration of the daily needs of a baby, which exist whether one considers the long or the short term.

73. Finally, a letter of the 25th April (p 196) written on behalf of the second defendant in response to a letter from the claimants' new solicitors (p 194), which adds nothing, contains the following two paragraphs:

"The Secretary of State has taken account of the fact that your client is HIV positive. He is aware that the Department of Health advises that the person who is HIV positive should not breast feed their baby because the danger of cross infection. The Secretary of State has noted that in order to follow this advice your client must buy formula milk for the baby."

" The Secretary of State is satisfied that the support already being provided to your client and the baby under section 95 of the 1999 Act is sufficient and that your client's circumstances are not so exceptional as to merit the provision of additional support in accordance with section 96 (2) of the 1999 Act."

This letter also refers to the maternity payment of £300. Miss Rahman submits that the first of these paragraphs deals with the risk point in relation to the transference of HIV.

74. Miss Rose urges upon me that the evidence adduced on behalf of the claimants demonstrates that, without any benefit under the Welfare Food Regulations 1996, the asylum support provision for a child is insufficient to meet its essential living needs. In my view it does not. If the intention were to demonstrate this, the obvious way to do it would be by preparing costings which, while they would be unlikely to produce a precise figure, ought to be able to give a good indication of the sufficiency or insufficiency of asylum support in respect of a child. Let me add, though, that in my view it is a tenable view that a meagre sufficiency for a child which leaves no safety margin would be sufficient to give rise to the risk of breast feeding by an HIV positive mother.
75. Looking at the reasons the second defendant has given for his decision, while there was a lack of charity in the decision letter about the relevance of the payments of £300 and £120, paragraph 6 of Miss Milne's affidavit makes it clear that the fact that these payments were made is relied upon as part of his reasons for his decision.. In my view these payments were irrelevant to the question he had to decide, as is the reference in Miss Milne's affidavit to a short term safety net, which also appears to be advanced as part of the second defendant's reasoning. He says he is satisfied that amount of asylum support for a child is sufficient, but faced with evidence critical of this proposition in Miss McLeish's report, albeit without costings, he does not say that the amount of the support has been costed, or descend to any particularity.
76. Further, the second defendant does not appear to have considered whether there is a risk that, as a result of poverty, an HIV positive mother may breast feed her child. It is true that whether this risk is a real one will depend upon the sufficiency of the allowance paid in respect of child but it may also depend upon whether, because of the cost in human and financial terms of transference, there needs to be a safety allowance to avoid the risk.
77. In all the circumstances it is my view that the second defendant's decision is flawed because he has taken into account irrelevant matters and has also failed to consider whether there is a real risk that T may suckle her child, and the consequent risk of her becoming infected. For these reasons his decision of the application made him under section 96 (2) will be quashed so that he may reconsider the matter and make a fresh decision.
78. It is clear from what I have said about the circumstances in this case which are and are not capable of being regarded as exceptional that the first claimant cannot ask for more benefit in money or kind in respect of the second claimant for any period beyond the time when, had she been breast fed, she would be fully weaned. Also, since the object of any additional payment, if made, would be to avoid the risk of breast feeding, the second defendant may wish to consider whether T is still lactating or could be brought back into lactation by trying to suckle S. He will no doubt wish to reconsider the sufficiency of the present asylum support for S and whether it avoids the risk of breast feeding or whether there should be a safety margin. Finally, he may wish to say whether costings have been made and provide some details.
79. (I conclude this part of my judgment by making a passing comment in reference to what Miss Milne says in paragraph 7 of her affidavit (p 266). She says the second defendant is reviewing his policy in respect of pregnant women and young children. He considers that were it necessary to make additional payments this would be better done under paragraph 3 (b) of schedule 8 to the 1999 Act rather than on a case by case basis under section 96 (2). She goes on to say this would have cost implications in relation to asylum support and that the second defendant has a responsibility to limit such costs. That is true, but the need to limit costs cannot lawfully lead to the amount required in pursuance of the statutory duty under section 122 (4), to provide for the essential living needs of children, being reduced below that level of need. However, this consideration has not influenced my decision, which I reached before pondering upon this particular paragraph.)

The Human Rights claim

80. The claimants' case is that their human rights under the European Convention on Human Rights have been breached is based on Articles 2,8 and 14.

"Article 2

1 Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

Article 8

1 Everyone has the right to respect for his private and family life, his home and his correspondence.

Article 14

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

81. The claim has three limbs.

1 The provision of milk tokens under the Welfare Food Regulations 1996 is within the ambit of Article 8 and the exclusion of S from benefit under them because she is the dependent child of a mother in receipt of asylum support amounts to discrimination against her in breach of article 14.

2 The provision of milk tokens or milk under the regulations is within the ambit of Article 2 and the execution of S from benefit under them because because she is the dependent child of a mother in receipt of asylum support amounts to discrimination against her in breach of article 14.

3 By reason of the fact that T is both HIV positive and has not been provided under the NASS Scheme with sufficient money to buy formula milk for S there is a risk that she will breast feed her child which constitutes a real and immediate risk to her life . In the circumstances, the state is under a positive duty under Article 2 to make provision in money or kind to enable T to provide S with such formula milk as she needs to eliminate that risk.

82. For present purposes the test of whether a provision which the state is under no obligation under the Convention to provide falls within the ambit of a Convention Article is whether, taking a broad view of that Article and its purpose, the provision deals with the same right or aspects of it. See, for example, the treatment of this question in "Human Rights Law and Practice" by Lord Lester of Herne Hill QC and Mr Pannick QC at page 277, paragraph 4.14.6. Provided one remembers that a provision falling within the ambit of a Convention Article does not need to be equated with or amount to a right under that Article and that this exercise should be approached with care it can be of some limited assistance to consider whether examples of what has been held by the European Court of Human Rights to be a right under the particular Article bear any similarity to the provision under consideration. I deal next with the three limbs in turn.
83. Articles 8 and 14

Miss Rose puts her case in this way (skeleton argument paragraph 83):

"a) The provision of welfare foods is intended to protect the health and welfare of babies and small children in low-income families, and thereby to prevent the need for them to be separated from their parents and cared for by the State. It is plainly a benefit that is within the ambit of the right to respect for family life: compare R (Hooper and others) v Secretary of State for Social Security [2002] EWHC 191, at paragraphs 14-35.

b) Adequate nutrition and health engage the right to respect for private life."

I have considered the relevant part of the judgment of Moses J and have been assisted by his exposition of the principles. His decision, though, turned on very different facts from the case I have to deal with

84. In "The Law of Human Rights" by Mr Clayton and Mr Tomlinson examples are given in paragraph 13.118 of positive obligations which the European Court of Human Rights has decided are imposed on the state in relation to Article 8. None of them is comparable with the provision made by the regulations. It is more important, though, to look at the Welfare Food Scheme and at its purpose. It is to provide a nutritional safety net for needy expectant mothers and children and operates as a public health measure to help prevent nutritional deficiencies. Scientific evidence suggests it has great potential for improving the health of the nutritionally vulnerable. (Miss Dawson, paragraphs 6 and 7 at page 271) Is this within the ambit of Article 8, which has to do with family and private life? In my judgment, while a provision which promotes health may improve the quality of life and help to avoid the need for absence from the family for medical treatment, the connection between the provision of free milk tokens and the underlying purpose of the Scheme are too remote from the rights under Article 8 for it to be held to be within the ambit of this Article. It follows that this part of the human rights claim the must fail.
85. Articles 2 and 14

It is well established that Article 2 requires the state to do all that can be reasonably expected to obviate a real and immediate threat to life. I accept that for a mother who is HIV positive to breast feed her child who is not poses a threat to life. Death may not occur for many years after infection but the threat of infection occurring in relation to the practice of breast feeding in such a case is immediate. Consequently, if the purpose of the provision of milk tokens under the Welfare Food Scheme could be said to be to prevent such a threat from materialising, the scheme would clearly be within the ambit of Article 2, which would mean the engagement of Article 14. I do not accept, though, that this is the purpose of the scheme. To promote healthy nutrition is not the same as taking steps to avoid a real and immediate risk of death. The two are remote from one another. I conclude that the Food Welfare Scheme is not within the ambit of Article 2. This part of the claim must also fail.

86. Miss Rahman argument that Article 14 could in any event have no application to this issue because the discrimination alleged does not fall within the Article. I do not accept this. The grounds set out in Article 1400 exhaustive, being preceded by the words "such as". Moreover, I would regard a distinction based on the fact that a child's mother is not entitled to a benefit because she is an asylum seeker in receipt of asylum support as being based on status. In my judgment the word status is not to be construed narrowly but should be given a purposive construction.
87. Article 2

It is clear from what I have said already that Article 2 is engaged if a mother, in whose case the state has assumed the responsibility for making financial provision, is provided with insufficient money to buy the formula milk needed for her baby, and if in consequence there arises a real, and not fanciful, risk that she will breast feed her child. In such a case there will be a breach if the state fails to make adequate provision to avoid this risk until such time as the baby would have been fully weaned, had she been breast fed. On the evidence before me, however, I am not persuaded that the claimants have made out the fact as to impecuniosity, which is a condition precedent to the obligation of the state to make such provision. I cannot, therefore, find that the state is in breach of a duty owed to S under Article 2. That does not mean, though, that when the second defendant reconsiders his decision he need have no regard to Article 2. It will be necessary for him to decide whether, on his reconsideration of the case, the facts are such as to give rise to a duty owed by the state to S under this Article. If that is his conclusion, the executive will obviously need to take appropriate action. Whether or not in the event of such a conclusion the case should be dealt with under section 96 (2) or by some other route is not for me to decide.

- - - - - - - - - -

SIR EDWIN JOWITT: The judgment which I hand down has to be corrected, and I shall deal with the corrections in a moment. But for the reasons given, the application against the first defendant, the Secretary of State for Health, is dismissed; the application against the second defendant, the Secretary of State for the Home Department, is allowed, upon the limited grounds set out in the judgment.

Can I deal now with the amendments. You must realise I am grateful to you for your corrections. You may have realised -- I do not know -- that some, and I do not pretend all, of the errors are because I use a voice recognition system, and sometimes gobbledegook comes out, or an "an" is an "and" or a "they" a "the", and I do not always spot them. But there are some additional amendments, namely to make the language better, or less bad, and can I go through them now.

Paragraph 9 -- I think what I better do, for the assistance of the shorthand writer, is to include your corrections, Miss Rose, as I go through as well. So paragraph 3, the date of birth of T is the 28th of March, not the 25th.

Paragraph 5, line 5, the figure should be £28.99. And then the --

MISS ROSE: My Lord, it is 29.89.

SIR EDWIN JOWITT: 29.89. Thank you. And the last two sentences should be -- I will read that again. "Receives £33.50 a week in respect of S." There should then be a full stop and the remainder of that sentence and the next sentence will be deleted.

Paragraph 9, the fourth line down, "I would say because she is has in fact" should simply be "I would say because she has in fact".

Paragraph 19, the last line "where" should be "were".

Paragraph 51, line 7, at the end of paragraph, "the exclusions in section 115" should be "the exclusion in section 115".

Paragraph 57, the second sentence up to the first quotation, which reads "The amount fixed by the NASS scheme is only 10p a week less than what is paid in respect of a child whose parent is on income support or a job-seeker's allowance," the whole of that sentence should be deleted.

Paragraph 58, the first world in the first line shall begin with a capital. "Finally" with a capital F.

Paragraph 59, a full stop is missing at the end of the paragraph.

Paragraph 62, line 5, should be the "Fire Brigades Union", not "Via Brigades Union".

And paragraph 86 should be "Article 14", not "Article 1400".

And I deal now with my own additional corrections. I have not tried to meld the two together because I fear I would only confuse myself and everyone else. So back to paragraph 9, lines 5 and 6, "to buy milk powder for about four weeks as," and then there should be a comma, and then "when permission was given by Moses J to make this application on 9th May," there should be another comma.

Paragraph 11, line 5, after "the Department of Health" there should be a comma. And then four lines from the bottom, "provide for them", it should be "provide for S".

Paragraph 14, the third line, should be Welfare Food Scheme with a capital S and not Welfare Food System. And then the fifth line after the first quotation, "with direct responsibility under the Welfare Food Scheme run by that department," then there should be a comma. And then in the third quotation, the penultimate line, "Health Ministers" should have a capital H.

Paragraph 24, the second line should be "draw", not "draws".

Paragraph 37, the sixth and seventh lines, at the moment read "there are indications that the Parliament or the executive has, without unlawfulness in some other respect, decided that the question". That should now read, and this is to remove the ambiguity, "there are indications that Parliament or, comma, without unlawfulness in some other respect, comma, the executive has decided that the question". And then the last line Welfare Food Regulations, there should a capital R for regulations.

Paragraph 38 -- this is why I have not dealt with your correction, Miss Rose. Three lines from the bottom reads "though the fact that section 13" should be "though the fact is that section 13".

Paragraph 42, the penultimate line should be "provision pursuant to his power under section 95", the "under" inserted by me.

Paragraph 43, the first and second line, the Secretary of State should have capital S's.

Paragraph 47, the second line, after the words "made by local authorities", add "under the statutes to which they refer". Then on the fourth line, "arrangements may not be made" should now be "arrangements may not be made solely".

Paragraph 49, the last line reads "and their dependents and that immigration control is now dealt with by that Act". After the word "dependents" there should be a full stop, and the remainder of that sentence "and that immigration control is now dealt with by that Act" should be deleted.

Paragraph 51, three lines from the end, the beginning of the line, "income support" shall read "asylum support".

Paragraph 52, the fifth and fourth lines from the end, "in receipt of income support", comma, then there should be the word "paragraph", so it reads "in receipt of income support, paragraph (2)(a)," comma. And similarly in the next line, "at paragraph (2)(j)".

Paragraph 60, the penultimate line in the quotation reads at the moment "as the Department and had no access" should simply be "as the Department had no access". Delete the "and".

Paragraph 61, four lines from the end, "provide a defence", with the American spelling, I am afraid, should be "provide an answer".

Paragraph 62, five lines from the end, "by Lord Mustill" should simply be "Lord Mustill".

Paragraph 63, the penultimate line reads "in law but not to make" should be "in law without making".

Paragraph 66, the second line from the end of the first quotation reads "and impossible dilemma" should be "an impossible dilemma".

Paragraph 67, the penultimate line "which appears" substitute "which bears".

Paragraph 71, six lines from the end of the second page on which that paragraph appears, reads "payments are referred to simply a part of the history" should be "payments are referred to simply as a part of the history".

Paragraph 75, the last line, "or descend" should be "or condescend".

Paragraph 77, the fifth line, reads at the moment "his decision of the application made him" should be "his decision on the application made to him".

Paragraph 83, the last line, there should be a full stop at the end of the sentence.

Paragraph 86 "Miss Rahman argument" should be "Miss Rahman argues". And then after what should now be "Article 14" on the third line, it should now read "the grounds set out in Article 14 are not exhaustive. Add the words "are not".

Yes, Miss Rose.

MISS ROSE: My Lord, so far as your Lordship's order is concerned, may I invite your Lordship to order that the second defendant's decision of 12th April should be quashed.

SIR EDWIN JOWITT: Yes.

MISS ROSE: Secondly, in relation to costs, in my submission the appropriate order is that 50 per cent of the claimant's costs should be paid by the second defendant.

SIR EDWIN JOWITT: The main burden of your argument really was directed to the Welfare Food Regulations, and I bear in mind you have not succeeded against the second defendant on your Convention points. I would have thought it would be appropriate -- I will hear what Miss Rahman says about this -- to allow you one third of your costs against the second defendant.

MISS ROSE: My Lord, we would be content with that order.

SIR EDWIN JOWITT: Yes.

MISS RAHMAN: My Lord, we accept that.

SIR EDWIN JOWITT: Very well. Then the second defendant will pay one third of the claimant's costs.

MISS ROSE: The next matter is permission to appeal, my Lord.

SIR EDWIN JOWITT: Yes.

MISS ROSE: We seek permission to appeal in relation to both defendants.

SIR EDWIN JOWITT: What is the threshold now for granting permission?

MISS ROSE: The test is CPR part 52.36, my Lord.

SIR EDWIN JOWITT: Yes, do just read it to me.

MISS ROSE: The question is, permission to appeal would only be given where (a) the court considers that the appeal would have a real prospect of success, or there is some other compelling reason why the appeal should be heard. The commentary to this passage points out that the two grounds on which permission to appeal may be granted are disjunctive.

SIR EDWIN JOWITT: Yes.

MISS ROSE: Which suggests that even if the court thinks there is not a real prospect, nevertheless permission to appeal should be granted if there is some other compelling reason, and in the case law the obvious reason that is given is if the issue is one which the court considers should, in the public interest, be examined by the Court of Appeal or raises an issue where the law requires clarifying.

And the learned editors of the White Book point out there is some contradiction, because of course in either of those circumstances there must be considered to be some prospect of success, and what is suggested by the White Book is that in circumstances where there is a question of real public interest, or public importance, that the court should apply a more charitable approach to the question of whether there is a real prospect of success on appeal.

SIR EDWIN JOWITT: At the moment you must tell me if this is a wrong approach. I approach it in this way. I would not be disposed to grant permission to appeal on the first of those bases, but this was put forward as a test case. It may perhaps on its facts, in the light of the judgment I have given, prove not to be very representative from the other cases which might come along, but rather than there should be another so-called test case be litigated at first instance, it strikes me that a decision of the Court of Appeal would resolve this matter.

MISS ROSE: Yes.

SIR EDWIN JOWITT: Without any attempt at a further so-called test case. Do you accept that that is the likely result? Whichever way it goes, it should resolve the matter.

MISS ROSE: Well, my Lord, one cannot necessarily predict that that would be so, but certainly if the matter were resolved in our favour in relation to the first defendant, that would be very likely to resolve the matter in relation to other cases. Similarly, if our human rights argument were to succeed in the Court of Appeal, that would also be likely to resolve --

SIR EDWIN JOWITT: But I would have thought if the case against the first defendant fails --

MISS ROSE: Yes, my Lord.

SIR EDWIN JOWITT: -- in the Court of Appeal, that really would be the end of litigation based on the issues you have raised against the first defendant.

MISS ROSE: Yes, my Lord, I accept that is so.

SIR EDWIN JOWITT: Similarly, I think on human rights, because I think you would have to accept that this case, the facts of this case, present the human rights argument at its highest.

MISS ROSE: Yes, my Lord. The only reason I am hesitating is because of course it could be that further evidence could be obtained; for example, the costings that your Lordship referred to about the costs of caring for babies. So that one can conceive of circumstances in which --

SIR EDWIN JOWITT: It does depend, does it not, on what the Court of Appeal say?

MISS ROSE: Yes, it does.

SIR EDWIN JOWITT: If the Court of Appeal says as a matter of construction you cannot ask for regulations, that would be the end of costings regardless.

MISS ROSE: Yes. But, my Lord, there are various permutations, but in any event --

SIR EDWIN JOWITT: The ingenuitive counsel will end up finding permutations. That should never surprise a judge.

MISS ROSE: Indeed, my Lord. My Lord, there is a further matter that I want to raise. Your Lordship will recall that we ran an argument based on Article 8 on grounds that this would be an interference with the claimant's private and family life because the claimant was prohibited was working.

SIR EDWIN JOWITT: That was paragraph 8.1, which you abandoned.

MISS ROSE: Yes, my Lord. And we abandoned it on the basis of a statement that was made to the court by the Home Secretary to the effect that the -- there was a concession which meant that she might be granted permission to work, even though it is accepted that she was prohibited from working at the time. And, my Lord, it has just come to my attention that about 13 days after the end of this hearing, the Home Office made a press release withdrawing the concession that permits asylum seekers to work after they have been in the United Kingdom for six months.

My Lord, it is a matter of great concern to us, because of course one expects the Home Office to conduct litigation with its cards face up on the table. If, in fact, at the time of this hearing it was known to the Home Office that such an announcement was imminent or was actively under consideration, and in my submission it must have been since it was made public only 13 days later, we are concerned that this matter was not made known to us and made known to the court, because the reality is that in fact my argument based on paragraph 8.1 in my skeleton argument was sound, because the claimant was prohibited from working; and given she had a small baby was not in a position at that time to apply for permission to a work, and on the basis of the withdrawal of the concession, will not now, that her baby is a little older, be in a position to work.

So, my Lord, I do formally seek permission to revive that argument in front of the Court of Appeal in the light of the change of policy and the fact that that was not drawn to the court's attention here.

SIR EDWIN JOWITT: That will be a matter for the Court of Appeal if I give permission.

MISS ROSE: I beg your pardon?

SIR EDWIN JOWITT: That will be for the Court of Appeal to decide whether you should revive that, not me.

MISS ROSE: My Lord, I have put on the record the basis on which the argument was withdrawn and the change of circumstances subsequent to the hearing.

SIR EDWIN JOWITT: Yes.

MISS ROSE: My Lord, the final issue is interim relief. As your Lordship knows, there was an agreement by the Secretary of State to pay the £7 a week pending the end of this hearing. I have asked my learned friend if they would agree to continue it pending the determination of the appeal, but she tells me that she can only agree to the interim relief continuing until the matter has been reconsidered by the Home Secretary.

Now, in those circumstances, I would formally ask that the court make an order for interim relief pending the determination of the appeal for which your Lordship has given permission.

SIR EDWIN JOWITT: I do not think you can hope, can you, for interim relief to continue until such time as the Court of Appeal looks at this matter if I give permission, regardless of when that may be, because your interim relief is based upon your section 96(2) claim, and that could only continue until such time as, had she been a normally breast fed baby, she would have been fully weaned.

MISS ROSE: My Lord, that is on the basis of your Lordship's judgment, but of course our appeal is based on a wider argument, including the argument that the baby is entitled to milk tokens on the same basis as a child with the benefit -- in a family with the benefit of income support, and that would be an entitlement to free milk up to the age of five. And that is of course one of the issues that we will be arguing before the Court of Appeal. Now --

SIR EDWIN JOWITT: Yes.

MISS ROSE: Sorry. Miss Rahman was whispering we did not argue it here. But, my Lord, we were arguing that there was unjustified discrimination as between children on income support and the babies of asylum seekers, and that is simply the terms of the Welfare Food Regulations, that you are entitled to free milk up to the age of five.

SIR EDWIN JOWITT: Yes.

MISS ROSE: My Lord, in my submission it is really a question of balance of convenience, and your Lordship has seen --

SIR EDWIN JOWITT: It is not just a matter of balance of convenience. I have to consider on this aspect what I think of your prospect of success, and really you are saying here that the interim relief should be continued because of your prospect of success against the second defendant and that -- the first defendant.

MISS ROSE: My Lord, against both defendants in my submission, because of course we have also the human rights argument in relation to the second defendant, which is based on discrimination.

SIR EDWIN JOWITT: That begs the question that the provision of the milk welfare scheme is within the ambit of Article 2.

MISS ROSE: Or Article 8, my Lord.

SIR EDWIN JOWITT: Yes.

MISS ROSE: So far as Article 8 is concerned, there has been an authority since your Lordship has heard this case. On Friday last Scott Baker J gave judgment in the case of Rose and another v Secretary of State for Health. Your Lordship may have seen a reference to this case. It is a case about children born as a result of artificial insemination by a donor who are seeking information about the donor fathers. They are seeking access to non-identifying information about the individual who donated the sperm that resulted in their conception, such as information about that individual's race, physical characteristics, religion and hobbies and so on.

Now, it was argued on behalf of the Secretary of State, and also the Human Fertilisation and Embryology Authority, that the information sought did not engage Article 8 because it was essentially personal information about a third party, not about the individuals. Scott Baker J has just found that in fact Article 8 was engaged, even though that meant going further than any of the existing Strasbourg case law, and he made the comment, at paragraph 44 of his judgment, that "private and family life is a flexible and elastic concept, incapable of precise definition."

My Lord, obviously the context is different, but there is that case and there is also of course the Hooper case, which is pending on appeal.

SIR EDWIN JOWITT: Yes. I think factually the Hooper case is different from the facts of this case.

MISS ROSE: My Lord, of course the facts are always going to be different, but my point is simply Article 8 is an article that is currently under very active consideration by domestic courts and the ambit of which is being extended, and it is now recognised by the Administrative Court that it is an elastic and flexible concept. In my submission, on that basis we do certainly have an arguable case that this falls within the scope of Article 8.

When you add to that the point about the positive interference with Article 8 rights, which I abandoned only, with great respect to my learned friend, on a false basis before your Lordship, in my submission there is an arguable human rights case which would result in effectively the second claimant having the same right to welfare foods from the second defendant, without discrimination, she would have if she were within the scope of the Welfare Food Scheme, because the remedy would be to eradicate the discrimination, which has never been argued to be justified. In my submission, on that basis we are -- interim relief ought to be ordered.

Now, when one comes to the question of the balance of convenience, it is obviously overwhelming, because from the point of view of the defendants, the inconvenience of paying £7 a week is minimal; from the point of view of the claimants, it is of enormous importance.

SIR EDWIN JOWITT: Yes. On that part of the case, you would need to be able to show, would you not, that the first claimant would be able to get work or would have a reasonable prospect of getting work were she entitled to seek work?

MISS ROSE: My Lord, I do not need to go so far, with respect, because it is sufficient that the State is prohibiting her from working, and to that extent interfering with her right to respect for her private and family life. And it is from that --

SIR EDWIN JOWITT: Even if it were the case that right was nugatory -- take slightly different facts. Suppose a claimant were seriously ill and would be likely to be in hospital for the next couple of years; the fact that she has no right to apply for work, even if that is an interference, would not take her anywhere, would it?

MISS ROSE: My Lord, in my submission there would be --

SIR EDWIN JOWITT: In terms of relief.

MISS ROSE: There would be different considerations in a case such as that, because then you would be looking at the sort of case your Lordship was considering, where the State has assumed the responsibility for care of a particular individual, a particular family.

But in my submission this case goes further now, because this is a case in which the State has accepted somebody into its territory, who cannot go anywhere else, and is preventing that person from supporting themselves, and that, per se, is an interference with private and family life, which, the submission I would have made to your Lordship, engages Article 8 and therefore Article 14.

SIR EDWIN JOWITT: Yes, very well.

Miss Rahman.

MISS RAHMAN: Yes. On that note, my Lord, there was not any attempt to mislead the court at all. That was the position. I understand now only from Miss Rose's submissions that there has been this notice about the withdrawal of the concession. However, I am informed that there may be exceptional circumstances in which you can be permitted to work. The point in this case, my Lord, is that the claimant has never applied to work and we have not considered whether or not she can work, so it ill behoves her to suggest that we are preventing her from doing so. And certainly the position as at the hearing was as I suggested to you, and which Miss Rose accepted.

So, my Lord, in relation to the matters now pending, pending an appeal, this court was not misled. Those issues were determined correctly. The claimant had not applied for work and the State was not interfering with her Article 8 rights, even if that argument could be maintained, which in my submission it could not.

So, my Lord, the more general question here is should you grant permission to appeal. It is certainly true that you could if you felt that there were compelling reasons in this case, but that seems again to be focused on this rather vague notion of this being a test case with many others behind it, a factor which has not really been established. My Lord, your conclusions, particularly on the constitutional argument as to whether or not the Welfare Food Scheme should be extended, or should be taken to have been intended by Parliament to be extended, are clear, my Lord. And it is not for me to tell you how clear you were on this conclusion. It is evident from the judgment.

So this is a case which, on the basis of your judgment, there really is not any basis upon which this court should grant permission to appeal. It is of course possible that the Court of Appeal would themselves apply -- allow application should the claimant renew their application to them. In my submission, it is really for them to determine whether or not these more vague issues, the general issues, the test case issues, are such that permission should be granted so these issues can be resolved once and for all.

But in my submission it is for your Lordship in this case to say, I have considered arguments, I have clearly come down against the claimant, and on the basis of my judgment there really is not any area of doubt such as, for instance, your Lordship indicating you were bound by authority or some lack of clarity in the law. Your Lordship's judgment is clear and permission should be refused on that basis. The claimant may renew their application to the Court of Appeal if they decide to do so. So, my Lord, that is my submission on the appeal.

On the interlocutory relief, there is no appeal at present, so the first point I would say is if you refuse permission to appeal, the proper course of action would be for the interim relief to continue until we reconsider from the Secretary of State for the Home Department's point of view the points made in your judgment and provide a new decision. And that is the first point.

As regards the appeal in any event, your Lordship has made the points that I would make. A lot of the points which my learned friend raises now are matters for the Court of Appeal to consider, and if in the interim period permission is somehow granted, the claimants can come back to court if the interim remedy is not continued because the Secretary of State for the Home Department makes the same decision again. But at that point different factors will come into play, the reasons for the decision and so forth.

And finally on that point, my Lord, you will remember there was some notion that in fact the costings of milk available in the Wolverhampton area might be somewhat less than the interim relief currently provided, and we would wish to make submissions on that. It may be, if we made the decision again, we would not consent to the same amount.

So insofar as today is concerned, the correct order, in my submission, would be that it should continue until the next decision made, and then the claimant to come back to court, and any submissions as to the appeal made then.

SIR EDWIN JOWITT: I am minded to give permission to appeal. It seems to me that it is appropriate that there should be some interim relief. Is the Secretary as the second defendant prepared to continue his undertaking until the 31st of December this year, and thereafter provided the first claimant applies within 14 days for permission to work, for as long as permission is withheld?

MISS RAHMAN: My Lord, I would obviously have to take instructions on that point.

SIR EDWIN JOWITT: Yes, of course.

MISS RAHMAN: My Lord, I am unable to take instructions conclusively on that point now. My Lord, I do not know what the best thing to do is.

SIR EDWIN JOWITT: I am very reluctant to grant an injunction against a Minister of the Crown. I will rise for a few minutes. I would hope a phone call would provide a speedy answer.

MISS RAHMAN: My Lord, I hope so.

SIR EDWIN JOWITT: It seems to me that the terms of the undertaking I suggested would deal with the child for the period that would be covered by breast feeding were she a child who was breast fed in the first place, and the second part of the undertaking deals with the point which Miss Rose raises.

MISS RAHMAN: Yes, my Lord. On the permission to appeal, my submission on that would be that there is no justification at all for permission to be granted against the second defendant, because the basis upon which your Lordship has reached his conclusions is essentially that they should exercise their discretion again. The claimant has won against the second defendant, and in my submission permission should not be granted to appeal on the general issue of public importance, as it is in relation to the first defendant.

SIR EDWIN JOWITT: If the human rights point is a good point, since the Home Office has accepted the responsibility to make provision for destitute asylum seekers, it may well be thought within government that it is the Home Office that should deal with that if the point is a good one. So I give permission to appeal against both defendants.

MISS RAHMAN: My Lord, in relation to the second point then, do I understand from your comments that if I was unable to give that undertaking, the court would in any event order it? Because in that case it might short circuit the instructions I have to take.

SIR EDWIN JOWITT: It is very unusual to grant an injunction, is it not?

MISS RAHMAN: My Lord, yes.

SIR EDWIN JOWITT: Miss Rose, it would be very unusual, would it not, to grant an injunction against a Minister of the Crown to provide for interim relief?

MISS ROSE: My Lord, it is perhaps not so unusual these days as it used to be. As far as I understand the position, there is no special principle that applies in relation to a Minister.

SIR EDWIN JOWITT: Generally speaking --

MISS ROSE: Generally speaking.

SIR EDWIN JOWITT: -- a minister, once he knows the way the judge is looking at a case --

MISS ROSE: Behaves reasonably, my Lord, yes.

SIR EDWIN JOWITT: -- would rather avoid an injunction.

MISS ROSE: May I just perhaps make one point.

SIR EDWIN JOWITT: Yes.

MISS ROSE: Which might concentrate the Home Office's mind. We are talking about £7 a week.

SIR EDWIN JOWITT: I understand that.

MISS ROSE: There is a public money issue here. If we end up having to incur further legal costs arguing about whether there should be interim relief and in what form, I would respectfully suggest that proportionality favours a sensible resolution.

SIR EDWIN JOWITT: Very well. Well, Miss Rahman, you have heard what I suggest by way of an undertaking for interim relief, which, as I say, I think covers the issues which really are raised. I will rise for a while for you to take instructions.

MISS RAHMAN: I am very grateful, my Lord.

(There was brief recess.)

SIR EDWIN JOWITT: Yes, Miss Rahman.

MISS RAHMAN: My Lord, I have instructions to agree that the interim remedy should continue until the appeal is resolved.

SIR EDWIN JOWITT: Very well.

MISS RAHMAN: My Lord, I do have another application, and that is in relation to our application to appeal. We would wish to seek your permission to do so on the following basis. In the judgment, your Lordship takes the second defendant to have had notice or been aware of Miss Jenny McLeish's report, and you do say at paragraph 69 that "Miss Rahman, for the defendants, has not sought to argue to the contrary."

So on that basis, we would seek permission to appeal. Essentially, we did deal with the evidence of Miss McLeish in the hearing, and we said that really, my Lord, there was nothing in it. There was not any evidence --

SIR EDWIN JOWITT: Yes, that is a different matter. But you were not saying that the Secretary of State should not be taken to have been aware of it.

MISS RAHMAN: No, my Lord, but that was not a point which was argued against me. What we did say is that the response to the --

SIR EDWIN JOWITT: It is a condition precedent to saying this is something a decision maker needs to take into account to say that he or his advisers knew of it or ought to have known of it, and that he or his advisers knew or ought to have known of it was never issue. What you were saying was, nevertheless, it really adds up to nothing.

MISS RAHMAN: My Lord, yes, we did say nevertheless it adds up to nothing, but our primary submission, and I referred your Lordship to the letters which you have referred to in the judgment to the second defendant and the first defendant, was that our response was perfectly adequate. And there was no mention of Miss McLeish's report in that. So what we went through was exactly what was put to us in the letter, which did not include Miss McLeish's report, and we said our response were adequate.

SIR EDWIN JOWITT: But are you saying there was no reason why the Secretary of State -- and I include in that his advisers -- should be taken to have known of this report and its potential bearing on a case of this nature?

MISS RAHMAN: My Lord, I am saying there was no requirement for us to refer to it in the letter.

SIR EDWIN JOWITT: That is not what I am asking you. Are you saying that there was no reason why the Secretary of State or his advisers should be taken to have known that this was material which had or might have a bearing?

MISS RAHMAN: My Lord, if I can take it in stages. The first point is yes, it was submitted, as put in paragraph 68 of your judgment, to the Home Office, so the Home Office certainly were aware of it. The next stage is should they have then accessed that report. A very great amount of material comes into the Home Office, my Lord. And, my Lord, I think the way it has been relied on in the judgment, i.e. it seems it should have been considered specifically in the letter, is something I would resist and did not have an opportunity to resist in the hearing because it did not come up in that way.

SIR EDWIN JOWITT: But I do not see why you had no opportunity to resist it. It was part of Miss Rose's application, as was apparent from the papers of the case, that the report of Miss McLeish had a bearing upon the matter the Secretary of State had to consider under section 96(2).

MISS RAHMAN: Well, my Lord, I --

SIR EDWIN JOWITT: That proposition was never resisted. All that you were saying was, well, if you look at it, it does not take the claimants anywhere. But it is not appropriate now to say, well, we never knew that this was a point taken, that we should have been looking at this.

MISS RAHMAN: My Lord, that is what I seek to say. What I think I have already said, the way in which I put this is that in the judgment, the point made is that the Home Office should be taken to be aware of it, and by reference to that they should have drawn certain conclusions in the decision letter. My submission has always been that the decision letter was always an adequate response to the submissions made.

SIR EDWIN JOWITT: That is a different point altogether. You began this application for permission to appeal by saying I have found against you on a basis which was not in the papers, not canvassed, and I understood you to be saying the condition precedent for its being material was not accepted. But none of that is made out. All you are saying is this, is it not, that the Secretary of State, if he had considered this, would not have been assisted by it?

MISS RAHMAN: My Lord, yes. My Lord, there was not any obligation. The way it is put in the judgment is that it has not been sought to have been argued to the contrary, but it was not a matter that was relevant, bearing in mind the factors that you have just outlined.

SIR EDWIN JOWITT: No. What I have said is that you did not seek to argue to the contrary the proposition that this was material which was known or should have been known to the advisers as bearing upon this question.

MISS RAHMAN: Well, my Lord --

SIR EDWIN JOWITT: And that -- correct me if I am wrong, and Miss Rose I am sure will correct me if I am wrong, but that was never disputed by you.

MISS RAHMAN: Well, no, my Lord. I think the way I put it is not dissimilar to the way that you put it, but I say it was not an issue between us, it was not canvassed, so I should not be criticised for not arguing to the contrary.

SIR EDWIN JOWITT: You say it was not an issue, but Miss Rose made it quite plain that the report of Miss McLeish was important. It is dealt with at some length in her skeleton argument. It is there, the full report in the papers, that it was material.

MISS RAHMAN: Well, my Lord, you might recall that also there was a report of Miss Jan Penrose.

SIR EDWIN JOWITT: Well, it was made clear the Secretary of State had not considered that and that Miss Rose did not rely upon that as being material which the Secretary of State should have known about and taken account of. She relied upon that as demonstrating a case against the first defendant.

MISS RAHMAN: Well, my Lord, if I cannot persuade you on that basis, which it appears I will not be able to, the second basis upon which I would ask for leave to appeal is you have outlined some important issues. The claimant will have an opportunity to rehearse that before the Court of Appeal. We would wish the opportunity to do the same. And if their issues are important and of public importance, ours therefore would be as well, and I would not wish to be restricted, which is fundamentally the reason for this application. I do not wish to be restricted in the Court of Appeal. I will not be reintroducing -- introducing new matters, but it stands to reason if --

SIR EDWIN JOWITT: You say that the judgment has introduced a new matter that was never canvassed?

MISS RAHMAN: No, I am saying I would not seek to introduce any new matters, but I wish to have the opportunity to make submissions on the law as relating to these issues of public importance on behalf of the second defendant.

SIR EDWIN JOWITT: What is the legal point you wish to raise? I have said that there were matters which the Secretary of State took into account, as becomes clear from the statement of Miss Anderson, and that he did not look sufficiently at the other material which he had -- it was for him to evaluate it, and also that he has not considered whether there needs to be a safety margin. I have not said that there does have to be, but I have said this is a matter for his consideration.

MISS RAHMAN: My Lord, yes.

SIR EDWIN JOWITT: Where is the point of law arising there?

MISS RAHMAN: Well, my Lord, I am afraid I am at the back foot really, because the way in which I have sought to ask permission for appeal was on the basis of the first argument, but it appears you are against me on that, so it is a general point. I do not expect, my Lord, that you will accept it, bearing in mind your comments on the first. I do not think I can say any more, save that I have to apply for permission at this stage and I have done so.

SIR EDWIN JOWITT: Yes. Thank you. What do you say about that, Miss Rose?

MISS ROSE: My Lord, I am surprised by what Miss Rahman has said. My recollection is that at the very outset of my submissions to your Lordship, I drew a distinction between the McLeish report and the Penrose evidence.

SIR EDWIN JOWITT: Yes, you did.

MISS ROSE: And specifically said that the McLeish report we relied on as being material that had been put before the Secretary of State, and we did not make that submission in relation to the Penrose report. That was always the premise of the application and was never in any way disputed. In respect of the rest of it, with respect to Miss Rahman, there is no issue of law, purely a finding of fact.

SIR EDWIN JOWITT: No, I shall not grant permission.

MISS RAHMAN: Very well, my Lord.

SIR EDWIN JOWITT: Then the second defendant undertakes to continue his earlier undertaking until the Court of Appeal has decided this matter; is that the position?

MISS RAHMAN: My Lord, yes.

SIR EDWIN JOWITT: Very well.

MISS ROSE: My Lord, I think there is one final matter.

SIR EDWIN JOWITT: Yes.

MISS ROSE: Which is paragraph 75 of your Lordship's judgment. I would like to hope this is a Freudian slip, my Lord, in the second line.

SIR EDWIN JOWITT: Just a moment --

MISS ROSE: Paragraph 75.

SIR EDWIN JOWITT: Yes, just a moment. Yes.

MISS ROSE: Your Lordship refers to a lack of charity in the decision letter, and I think it should be "clarity", although I am loathe to correct it.

SIR EDWIN JOWITT: I am grateful to you. Which line is that?

MISS ROSE: Second line, My Lord.

SIR EDWIN JOWITT: Second line, yes.

MISS ROSE: And finally, my Lord, may I just extend our thanks for your Lordship determining this so rapidly.

SIR EDWIN JOWITT: I am afraid I always find with proofreading I read what I think ought to be there. The author is perhaps the worst proofreader. At least this one. Thank you.