QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| THE QUEEN (on the application of A)
|- and -
|(1) National Asylum Support Service
(2) London Borough of Waltham Forest
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Parishil Patel (instructed by The Treasury Solicitor) for the First Defendant
Mr Bryan McGuire (instructed by The London Borough of Waltham Forest Legal Department) for the Second Defendant
Crown Copyright ©
Mr Justice Keith:
The statutory framework
"The Secretary of State may provide, or arrange for the provision of, support for
(a) asylum-seekers, or
(b) dependants of asylum-seekers,
who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed."
The nature of the support which can be provided is identified in section 96(1), which provides:
"Support may be provided under section 95
(a) by providing accommodation appearing to the Secretary of State to be adequate for the needs of the supported person and his dependants (if any);
(b) by providing what appear to the Secretary of State to be essential living needs of the supported person and his dependants (if any) .."
In addition to providing adequate accommodation and essential living needs, the Secretary of State "may provide support under section 95 in such other ways as he considers necessary to enable the supported persons and his dependants .. to be supported" if he considers the circumstances of a particular case to be exceptional (section 96(2)). And section 98 empowers him to provide support temporarily while he is considering whether to provide support under section 95.
"(1) A local authority may provide support for asylum-seekers and their dependants (if any) in accordance with arrangements made by the Secretary of State under section 95.
(2) Such support may be provided by the local authority
(a) in one or more of the ways mentioned in section 96(1) and (2);
(b) whether the arrangements in question are made with the authority or with another person."
That support therefore includes accommodation and essential living needs. In addition, a local authority or a registered social landlord is required to co-operate when asked to assist the Secretary of State in the exercise of his power under section 95 to provide accommodation. Thus, sections 100(1) and 100(2) provide:
"(1) This section applies if the Secretary of State asks
(a) a local authority, [or]
(b) a registered social landlord ..
to assist him to exercise his power under section 95 to provide accommodation.
(2) The person to whom the request is made must co-operate in giving the Secretary of State such assistance in the exercise of that power as is reasonable in the circumstances."
In that context, a local authority is required to supply the Secretary of State with such information about its housing accommodation as he may request from time to time (section 100(4)). The Secretary of State can make payments to local authorities to reimburse them for their expenditure in providing accommodation and essential living needs pursuant to such arrangements made by him (see section 110).
"(1) In this section 'eligible person' means a person who appears to the Secretary of State to be a person for whom support may be provided under section 95.
(2) Subsections (3) and (4) apply if an application for support under section 95 has been made by an eligible person whose household includes a dependant under the age of 18 ('the child').
(3) If it appears to the Secretary of State that adequate accommodation is not being provided for the child, he must exercise his powers under section 95 by offering, and if his offer is accepted by providing or arranging for the provision of, adequate accommodation for the child as part of the eligible person's household.
(4) If it appears to the Secretary of State that essential living needs of the child are not being met, he must exercise his powers under section 95 by offering, and if his offer is accepted by providing or arranging for the provision of, essential living needs for the child as part of the eligible person's household."
The effect of these sub-sections is that if the dependant child of a destitute asylum-seeker is not being provided with adequate accommodation or if his essential living needs are not being met, the Secretary of State must provide adequate accommodation and essential living needs, or arrange for them to be provided by a local authority or a registered social landlord.
"(1) It shall be the general duty of every local authority ..
(a) to safeguard and promote the welfare of children within their area who are in need; and
(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,
by providing a range and level of services appropriate to those children's needs.
(2) For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part 1 of Schedule 2.
(3) Any service provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child's welfare.
(6) The services provided by a local authority in the exercise of functions conferred on them by this section may include giving assistance in kind or, in exceptional circumstances, in cash."
Para. 6 of Part I of Schedule 2 relates to disabled children. It provides:
"Every local authority shall provide services designed
(a) to minimise the effect on disabled children within their area of their disabilities; and
(b) to give such children the opportunity to lead lives which are as normal as possible."
In addition, section 17A empowers local authorities to make such payments as they think fit to a disabled child's parent to enable the parent to obtain any of the services which they would otherwise have provided under section 17.
"No local authority may provide assistance under any of the child welfare provisions in respect of a dependant under the age of 18, or any member of his family, at any time when
(a) the Secretary of State is complying with this section in relation to him; or
(b) there are reasonable grounds for believing that
(i) the person concerned is a person for whom support may be provided under section 95; and
(ii) the Secretary of State would be required to comply with this section if that person had made an application under section 95."
"Assistance" means the provision of accommodation or essential living needs (section 122(6)), and "the child welfare provisions" include section 17 (but not section 17A) of the 1989 Act. The effect, therefore, of section 122(5) of the 1999 Act is that a local authority is prohibited from providing accommodation or essential living needs under section 17 of the 1989 Act for a particular child under the age of 18 or any member of his family either if the Secretary of State "is complying with" section 122 of the 1999 Act in relation to such a person, or if the Secretary of State is not complying with it but there are reasonable grounds for believing that he would be required to do so: see R(W) v. Lambeth London Borough Council  2 FLR 327 at .
"Each housing authority must ensure that, so far as practicable, a tenancy of, or licence to occupy, housing accommodation provided under [Part II of the Housing Act 1985] is not granted to a person subject to immigration control unless .. the tenancy of, or licence to occupy, such accommodation is granted in accordance with arrangements made under section 95".
The aim of this provision was to ensure that the rights of tenants and licencees were not acquired by asylum-seekers provided with accommodation by a local authority unless the local authority provided the accommodation pursuant to arrangements made with the Secretary of State under his power to provide asylum-seekers with support.
"The power under section 2(1) does not enable a local authority to do anything which they are unable to do by virtue of any prohibition, restriction or limitation on their powers which is contained in any enactment (whenever passed or made)."
"Where a local authority having functions under section [17 of the Children Act 1989] are satisfied in the case of any [disabled child] to whom that section applies who is ordinarily resident in their area that it is necessary in order to meet the needs of that person for that authority to make arrangements for ..(e) the provision of assistance for that person in arranging for the carrying out of any works of adaptation in his home or the provision of any additional facilities designed to secure his greater safety, comfort or convenience .., then .. it shall be the duty of that authority to make those arrangements in exercise of their functions under the said section ."
A preliminary procedural point
"Where a person served with the claim form has failed to file an acknowledgement of service in accordance with rule 54.8, he-
(a) may not take part in a hearing to decide whether permission should be given unless the court allows him to do so; but
(b) provided he complies with rule 54.14 or any other direction of the court regarding the filing and service of-
(i) detailed grounds for contesting the claim or supporting it on additional grounds; and
(ii) any written evidence,
may take part in the hearing of the judicial review."
The Secretary of State did not file an Acknowledgement of Service in accordance with rule 54.8, because although it was filed within time it did not "set out a summary of his grounds for" contesting the claim as required by rule 54.8(4)(a)(i). Thus, the Secretary of State could only take part in the hearing of the judicial review if he complied with the proviso in rule 54.9(1)(b). No direction was made by the court regarding the filing and serving of the detailed grounds or any written evidence, and therefore the Secretary of State could only take part in the hearing of the judicial review if he had complied with rule 54.14 which required the Secretary of State to file and serve detailed grounds and any written evidence within 35 days after service of the order giving permission. It is accepted that the Secretary of State did not do that. Accordingly, it is said that the Secretary of State is not entitled to take part in the hearing, that being the sanction for the Secretary of State's failure to comply with rule 54.14, when there had been a prior failure to file an Acknowledgement of Service in accordance with rule 54.8.
"Due to the long-term needs of [the two boys], the family would be best placed in a property with level access and with facilities to assist with providing personal care, such as a level access shower and easily accessible toilet. It would be preferable for them to be placed in a house either on a single level or on more than one level with a lift.
The house would need to comprise of:
1) Two bedrooms, where one is sufficiently large for the two boys to share and have space to use wheelchairs and other equipment. Or
2) Three bedrooms, where the two boys have their own room, again with sufficient space to use a wheelchair and other equipment in each room."
Such a house would be ideal, but other options include a house on two floors in which the stairs are not so steep and have handrails.
"Whilst I note that the family are content to continue to reside at 50 Clacton Road, E17 I have referred the case to the NASS Accommodation Booking Section to establish if more suitable accommodation is available. This is based on the information in respect of [the older boy] who has had difficulties with the lay of the house, specifically the down stairs bathroom. Due to the shortage of available accommodation in London I cannot guarantee that this is possible, or if possible how quickly it will be available."
" .. your clients' needs are quite specific and NASS does not currently have any suitable accommodation available in the area and of the type that is required. We have asked the London Borough of Waltham Forest to assist in finding accommodation on our behalf, as is common in such cases, and have confirmed our willingness to fund such accommodation. You have been notified by that authority that they would expect to be able find such accommodation in about a week, and I see no reason not to take this expectation at face value. There should be no reason for significant delay once available accommodation is identified. .." (Emphasis supplied)
In an attempt to ward off the proceedings for judicial review which had been threatened, NASS's letter of 31 July 2002 continued:
"However, you must appreciate that the Secretary of State does not have control over the availability of accommodation in the London Borough of Waltham Forest (and neither, for that matter, does the local authority) and we cannot predict precisely when suitable accommodation will become available that would be able to be obtained for your clients. It would be irresponsible for us to give [an] undertaking to find such accommodation within a certain timescale without knowing for certain whether there will be any available within that time. The position would be precisely the same if your clients were not asylum seekers, but were applying for accommodation directly through the local authority. No-one who is involved in the social housing market in London would be able honestly to give the assurances you seek.
We can, however, confirm that both NASS and the local authority are committed to finding you clients more suitable accommodation as a matter of priority, and as the local authority believes it is able to do so within a matter of about a week, we suggest that you allow them to make their best endeavours in this respect. Alternatively, if your clients or their associates are aware of any suitable accommodation available privately in the area then please do make NASS or the local authority aware of it and we will seek to secure it for your clients. However, we would see no purpose in your seeking permission for a judicial review at this time as this will not make accommodation available which is not there."
However, by 31 October 2002 when the present claim for judicial review was issued, no accommodation which was acceptable to the claimant had been found, and she and her family continue to this day to live in the accommodation provided to them by LBH as a temporary measure in June 2001.
" .. providing accommodation for your clients is not the responsible of this local authority but that of NASS and .. all we are doing is to assist NASS in finding accommodation within the area of this local authority."
This letter, coupled with NASS's letter of 31 July 2002, shows that NASS would be providing the accommodation itself (with LBWF simply assisting NASS to find it), rather than NASS making arrangements for the accommodation to be provided by LBWF under section 99(2) of the 1999 Act (with NASS reimbursing LBWF for the cost of doing so under section 110 of the 1999 Act).
The obligations of NASS
"If it appears to the Secretary of State that adequate accommodation is not being provided for the child, he must exercise his powers under section 95 by offering it, and if his offer is accepted by providing or arranging for the provision of, adequate accommodation for the child as part of the eligible person's household."
Thus, the Secretary of State's power in section 95 of the 1999 Act to provide adequate accommodation to destitute asylum-seekers and their dependants is converted by section 122(3) into a duty to do so for a dependant child who is living in the household of the asylum-seeker. That duty is triggered if "adequate accommodation is not being provided for the child".
" ..those needs which have to be met to be able to live in a reasonable fashion. They would include in those circumstances food, nourishment, to keep someone in health, to prevent him falling into illness resulting from a lack of such food and nourishment. Equally, they would include the provision of sufficient clothing and warmth, again to avoid the danger of illness."
He described those needs as "the kinds of needs that people in general have in order to have a reasonable minimum standard of existence by United Kingdom standards". He thought that if the words were construed as including the specific needs of a disabled child it would be necessary in every such case to determine what that child's specific needs were. That would require individual consideration of each case, and that consideration may involve difficult questions as to whether the specific needs of the child could truly be described as essential.
(i) NASS's non-involvement in the original provision of the accommodation to the claimant, which subsequently prevented NASS, as a consequence of the claimant laying down roots in the area where that accommodation was provided, from applying to the claimant its policy of dispersal out of South East England,
(ii) the continuing need for the claimant to stay in Walthamstow or thereabouts so as not to disrupt the boys' education,
(iii) the lack of available accommodation in the Walthamstow area which was suitable for the boys' needs,
(iv) the steps which have been taken to find suitable accommodation, and
(v) NASS's continued willingness to fund the provision of suitable accommodation if it can be found.
Mr Patel was inclined to accept that "adequate accommodation" was not being provided for the boys, and that NASS had therefore failed to discharge its duties under section 122(3), but that concession was only made after he had been pressed by me whether his submissions went to remedy or liability. For the reasons I have given, I have found that the claimant's current accommodation was adequate for the boys within the meaning of section 122(3) as I have construed it.
" ..the fundamental element of family life is the right to live together so that family relations can develop naturally and that members of a family can enjoy one another's company."
Sullivan J. did not dissent from that, and added that the European Court of Human Rights had recognised that Art. 8 may require public authorities to take positive measures to secure respect for family life. But in making the point that not every breach of the duty under section 21 of the 1948 Act would result in a breach of Art. 8 (because respect for family life does not require the state to provide every disabled citizen with suitably adapted accommodation), he added at :
"Whether the breach of statutory duty has also resulted in an infringement of the claimant's Article 8 rights will depend on all the circumstances of the case. Just what was the effect of the breach in practical terms on the claimant's family .. life?"
Ms Morris submitted that the Secretary of State's duties under section 122(3), and therefore under section 95, should be interpreted in the light of the need to take positive measures in appropriate cases to enable disabled persons to enjoy a proper family life, and that when those duties are interpreted in that light, the current accommodation should be regarded by the Court as inadequate for the purpose of sections 122(3) and 95.
(i) the modest risk to which they are exposed to an accident when going up or down stairs (though that risk increases, of course, if they attempt to negotiate the stairs unaided),
(ii) the inconvenience for their parents of having to accompany them when they use the stairs, and
(iii) the lack of access for their wheelchairs except in the sitting room.
I do not wish to minimise these deficiencies at all, but I do not believe that it can be said that the family life of the claimant and her family has been affected, when one focuses on their relationships with one another, on their ability to support one another emotionally, and on their ability to enjoy family life together.
The obligations of LBWF
Essential living needs