QUEENS BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
| R (on the application of B and H)
|- and -
|The London Borough of Hackney
Mr Jonathan Cowen and Ms Siân Davies (instructed by Hackney Legal Services) for the Defendant
Hearing dates : 8-9 May 2003
Crown Copyright ©
Mr Justice Keith:
The background facts
The statutory framework
"…..a person who is not under 18 and has made a claim for asylum which has been recorded by the Secretary of State but which has not been determined."
And a claim for asylum means, inter alia,
"…..a claim that it would be contrary to the United Kingdom's obligations …..under Article 3 of the [European Convention on Human Rights]…..for the claimant to be removed from, or required to leave, the United Kingdom."
Thus, Mr B and Ms H are both asylum-seekers within the meaning of Part VI of the 1999 Act. If the Secretary of State accepted that they were destitute, they and their two daughters could be provided by him with adequate accommodation and essential living needs: see sections 95(1) and 96(1) of the 1999 Act. NASS is the executive agency through which the Secretary of State provides that support.
"Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing –
(a) residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them….."
"….. local authorities to make arrangements under section 21(1)(a) of the  Act in relation to persons who are ordinarily resident in their area and other persons who are in urgent need thereof, to provide residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention not otherwise available to them."
He also approved in para. 2(5)
"….. the making by local authorities of arrangements under section 21(1)(a) of the  Act to provide accommodation to meet the needs of persons for –
(a) the prevention of illness;
(b) the care of those suffering from illness; and
(c) the after-care of those so suffering."
And a person to whom residential accommodation is provided under section 21(1)(a) is entitled to be provided with other basic necessities. That is because section 21(5) provides:
"References in this Act to accommodation provided under this Part shall be construed as …..including references to board and other services, amenities and requisites provided in connection with the accommodation….."
"…..in ordinary English usage someone who is unable to provide for himself the basic necessities of life can properly be said to be in need of care and attention. He needs at least shelter, warmth and food. It is said that these applicants need only money, not care and attention. The point is that they cannot get money and without it they cannot fend for themselves. If they have access to money, they do not need care and attention. Without such access, they do."
Collins J. therefore equated an unsatisfied need for shelter, warmth and food with a need for care and attention.
"The fact that asylum seekers have a need for food and accommodation which would but for [their ineligibility for state benefits and housing] be met under other statutory provisions does not mean that they cannot qualify as having a problem which results in their needing care and attention which is a condition precedent to their being entitled to rely on section 21(1)(a) of the 1948 Act."
At p. 94E-G, he added:
"The destitute condition to which asylum seekers can be reduced as a result of [their ineligibility for state benefits and housing] coupled with the period of time which, despite the Secretary of State's best efforts, elapses before their applications are disposed of means inevitably that they can fall within a class who local authorities can properly regard as being persons whose needs they have a responsibility to meet by the provision of accommodation under section 21(1)(a). The longer the asylum seekers remain in this condition the more compelling their case becomes to receive assistance under the subsection. There is nothing remarkable in this since there is no dispute as to their entitlement to treatment from the Health Service and if Parliament has left the entitlement to treatment there is no obvious reason why it should not take the same course as to care and attention under section 21."
And at p. 95A-C, he concluded:
"Asylum seekers are not entitled merely because they lack money and accommodation to claim they automatically qualify under section 21(1)(a). What they are entitled to claim (and this is the result of [their ineligibility for state benefits and housing]) is that they can as a result of their predicament after they arrive in this country reach a state where they qualify under the subsection because of the effect upon them of the problems under which they are labouring. In addition to the lack of food and accommodation is to be added their inability to speak the language, their ignorance of this country and the fact that they have been subject to the stress of coming to this country in circumstances which at least involve their contending to be refugees. Inevitably the combined effect of these factors with the passage of time will produce one or more of the conditions specifically referred to in section 21(1)(a)."
The effect, therefore, of this decision was that young, able-bodied asylum-seekers would be eligible for residential accommodation under section 21(1)(a) if the impact of their destitution on them (when coupled with the other stresses on destitute asylum-seekers taking refuge in a foreign country) gave rise to a need for care and attention.
"….. may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely –
(a) because he is destitute; or
(b) because of the physical effects, or anticipated physical effects, of his being destitute."
Section 21(1A) applies to persons to whom section 115 of the 1999 Act applies. Section 115 applies to persons "subject to immigration control", and it therefore applies to asylum-seekers such as Mr B and Ms H. The effect of section 21(1B) of the 1948 Act is to apply to section 21(1A) the machinery set out in the 1999 Act for determining whether a person is destitute, and it is common ground that Mr B and Ms H were, and continue to be, destitute. Accordingly, if they were to continue to be entitled to be provided by the Council with residential accommodation,
(a) they had to be in need of care and attention (by reason of their illness which was not otherwise available to them (section 21(1)(a)), and
(b) that need had to have arisen other than solely because they were destitute (section 21(1A)).
"In what circumstances …..is it to be said that destitution is the sole cause of need? The local authorities contend that the approach should be this. First ask if the applicant has (a) somewhere to live ('adequate accommodation') and (b) means of support (the means to 'meet his other essential living needs'): see section 95(3) of the Act of 1999. Assuming the answer is 'No' to each of those questions, ask next whether, but for those answers, he would need section 21 assistance. If not, he does not qualify. In other words, it is only if an applicant would still need assistance even without being destitute that he is entitled to it.
The applicants contend for an altogether different approach. They submit that if an applicant's need for care and attention is to any material extent made more acute by some circumstance other than the mere lack of accommodation and funds, then, despite being subject to immigration control, he qualifies for assistance. Other relevant circumstances include, of course, age, illness and disability, all of which are expressly mentioned in section 21(1) itself. If, for example, an immigrant, as well as being destitute, is old, ill, or disabled, he is likely to be yet more vulnerable and less well able to survive than if he were merely destitute.
Given that both contended for constructions are tenable, I have not the least hesitation in preferring the latter. The word 'solely' in the new section is a strong one and its purpose there seems to me evident. Assistance under the Act of 1948 is, it need hardly be emphasised, the last refuge for the destitute. If there are to be immigrant beggars on our streets, then let them at least not be old, ill or disabled." (Emphasis supplied)
These remarks constitute the current reach of section 21(1A), and have been regularly applied since then: see, for example, Murua v. Croydon London Borough Council (2002) 5 CCLR 51 at  and  (per Rafferty J.), and R (Mani) v. Lambeth London Borough Council (2002) 5 CCLR 486 at  (per Wilson J.). In R (Westminster City Council) v. National Asylum Support Service  1 WLR 2959, the House of Lords was asked to decide whether the test laid down by the Court of Appeal in O for determining whether the need for care and attention had arisen "solely ….. because he is destitute" was correct. It declined to do so, Lord Hoffmann saying at :
"It would not be right to express any view on this point because it affects the rights of everyone subject to immigration control, whether an asylum seeker or not, and they were not represented before your Lordships."
As it is, since the hearing before me, the Court of Appeal heard an appeal in Mani, in which the correctness of the test in O was specifically challenged. The Court of Appeal rejected the challenge on 9 July, and the reason for the delay in handing down this judgment was because it was necessary to see whether the test in O withstood the challenge to its correctness.
"…..where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority –
(a) shall carry out an assessment of his needs for those services; and
(b) having regard to the result of that assessment, shall then decide whether his needs call for the provision by them of any such services."
The phrase "community care services" includes services provided by a local authority under Part III of the 1948 Act, in which section 21 is to be found: see section 46(3) of the 1990 Act. Commenting on the assessment to be made under section 47(1) of the 1990 Act, Scott Baker J. (as he then was) said in R v. Bristol City Council ex p. Penfold (1998) 1 CCLR 315 at p. 321B-C:
"An assessment is something that is directed at the particular person who presents with an apparent need. One cannot be said to have been carried out unless the authority concerned has fully explored that need in relation to services it has the power to supply. In some cases the exercise will be very simple; in others more complex."
"If at any time during the assessment of the needs of any person under subsection (1)(a) above, it appears to a local authority –
(a) that there may be a need for the provision to that person by such Primary Care Trust or Health Authority as may be determined in accordance with regulations of any services under the National Health Service Act 1977, …..
the local authority shall notify that Primary Care Trust …..[or] Health Authority…..and invite them to assist, to such extent as is reasonable in the circumstances, in the making of the assessment; and, in making their decision as to the provision of the services needed for the person in question, the local authority shall take into account any services which are likely to be made available for him by that Primary Care Trust [or] Health Authority….."
Mr B and Ms H were already receiving treatment under the National Health Service, and therefore the most relevant provision is section 47(4) of the 1990 Act, which provides:
"The Secretary of State may give directions as to the manner in which an assessment under this section is to be carried out or the form it is to take but, subject to any such directions ….., it shall be carried out in such manner and take such form as the local authority consider appropriate."
Between the passage and the coming into force of the 1990 Act, the Secretary of State issued a booklet which described itself as policy guidance entitled "Caring for People: Community Care in the Next Decade and Beyond". Para. 3.32 included the following passage:
"As well as considering health and housing needs, staff from the local housing and health authorities may be able to offer expert advice on, and contribute to, the assessment of community care needs."
"In my judgment Parliament in enacting section 7(1) did not intend local authorities to whom ministerial guidance was given to be free, having considered it, to take it or leave it. Such a construction would put this kind of statutory guidance on a par with the many forms of non-statutory guidance issued by departments of state. While guidance and direction are semantically and legally different things, and while 'guidance does not compel any particular decision' (Laker Airways Ltd v. Department of Trade  QB 643, 714 per Roskill LJ), especially when prefaced by the word 'general', in my view Parliament by section 7(1) has required local authorities to follow the path charted by the Secretary of State's guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course."
I do not comment on whether the language of section 47(4) requires a more stringent view to be taken of any directions given by the Secretary of State, but I rather doubt whether the policy guidance given in the booklet amounted to "directions". And since the language of section 47(4) is so different from that of section 7(1) of the 1970 Act, I doubt whether much help can be obtained from the way in which section 7(1) has been interpreted. In short, I do not think that when local authorities carry out an assessment to which section 47(1) relates, they need do any more than take into account what the booklet contains.
The Council's approach to the assessment
"The assessment of Need is very crucial; it is on this basis that Hackney will decide whether or not to accept a duty to the applicant under the National Assistance Act 1948. Complete Community Care Assessment under NHS & CCA90 applying the department's eligibility criteria. Provide written copy of assessment and statement of need to the person.
The needs assessment will address the issue of social care needs explicitly.
Statement of need will have to state whether or not applicants meet the National Assistance act criteria."
"If a person is determined as not eligible for services following community care assessment, the care manager should then consider any need for care and 'attention' not otherwise available to the applicant that might arise through illness/disability/age. Proof, including where appropriate medical assessment report will be required. In particular the assessment should consider whether a person's illness, age or disability renders them more vulnerable and less able to survive than would be the case anyway through destitution."
Thus, whether the provision of residential accommodation under section 21 was being considered under stage 1 or stage 2, the structure of stage 2 shows how the assessment was to be carried out. The first sentence focuses on the assessment required by section 21(1)(a). The third sentence focuses on the assessment required by section 21(1A). The language of the third sentence does not track the language of the test in O, which was whether "an applicant's need for care and attention is to any material extent made more acute by some circumstance other than the mere lack of accommodation and funds". That led Mr Knafler to argue that the third sentence failed to direct the social worker's mind to the fact that a person's need for care and attention can arise because of both destitution and other factors which do not relate to destitution. I do not agree. The sense of the sentence is plain, and it is an adequate précis of the test.
The challenge to the assessment
"He is HIV positive with CD4 count of 12 and viral load of 671,000 as of the 3rd March. He is being treated for cryptococcal disease and is currently on [the medication is then set out]. If he continues with treatment his outlook is good, however without antiretroviral therapy he is unlikely to live more than @ 1yr (Cryptococcal disease being an Aids defining diagnosis). He is currently far from medically fit to travel."
A copy of that letter was sent to the Council. A further letter dated 19 February 2002 was sent by the same doctor to the Council, which read:
"…..this man is HIV positive on combination therapy, which requires food to be taken at the time of medication amongst other things. He had an AIDS-defining diagnosis at presentation and still is in a moderately fragile state."
"Before carrying out an assessment it is my standard practice to read the case file, including medical evidence on file. ….. At the conclusion of the assessment visit I am generally able to make a decision as to the outcome of the assessment, unless I need to consult medical evidence on the file again or request that medical evidence be provided." (Emphasis supplied)
It is apparent from her subsequent witness statements (para. 6 of her second witness statement and paras. 2 and 3 of her third witness statement) that she had read the reports on Mr B and Ms H which were on the Council's files. She did not state that she had understood the technical language in the letter of 24 March 2000 about Mr B or that she had tried to find out what it meant. But having read those reports, she must be treated as having decided that further up-to-date reports were unnecessary.
"All applicants should be informed in writing of the decisions and reasons for the decisions."
Before leaving their home on 10 February 2003, Ms Pickering informed Mr B that her decision was that he was no longer eligible for residential accommodation under section 21, and she confirmed that in a letter to him dated 13 February 2003. However, that letter did not contain any reasons for her decision, and there is no evidence that Ms Pickering told Mr B what her reasons were before she left his home.
"Based on the information provided by Mr [B] and my observation at the time of the assessment we can conclude that Mr [B's] medical diagnosis does not deem him to be in need of care and attention and as such, will not be more vulnerable than anyone else. His problems appear to be in relation to accommodation and access to funds. Mr [B] is not considered to be in need of support under section 21, of the National Assistance Act, 1948."
These documents were attached to Ms Pickering's second witness statement, which summarised her view as follows: "Mr B did not have any care needs arising from his medical condition" (para. 9), and he "did not demonstrate any need for community care services other than accommodation and food, and there was no risk identified in the withdrawal of support" (para.10).
"Due to the complex nature of the assessment, if an applicant requests it, a senior manager to the one making the original decision will review the decision within 10 working days."
On 7 March 2003, solicitors acting for Mr B and Ms H wrote to the Council's legal department, setting out various reasons why the decision to withdraw accommodation and other services to them under section 21 of the 1948 Act were said to be factually and legally incorrect. The letter written on behalf of Mr B contained, under the heading "Remedy Sought", the following passage:
"We request that [the Council] reconsiders their decision to withdraw support as a matter of urgency, taking into account his circumstances and the matters we have raised."
The letter written on behalf of Ms H was not dissimilar. The letters went on to threaten proceedings for judicial review if Mr B and Ms H did not continue to be provided with accommodation pending the reconsideration of their entitlement to residential accommodation and other services under section 21. Mr Knafler contended that the requests contained in the letters amounted to requests for a review by a senior manager within the framework of the Council's policy document, and no such review has ever taken place.
(a) the policy document did not require the request for a review to be made in any particular language,
(b) at the time of making the request, the claimants' solicitors were aware of the contents of the Council's policy document, because it was referred to in the letters of 7 March 2003, and
(c) the way in which a decision under section 21 in respect of a person subject to immigration control was to be reconsidered was by way of review by a senior manager.
In my view, therefore, the requests contained in the letters of 7 March 2003, properly construed, were requests for a review within the framework of the Council's policy document, and should have been treated by the Council as such.
(i) he should read Ms Pickering's findings as to (a) the needs of Mr B and Ms H as stated in the documents headed "Statement of Need", and (b) their functional abilities as stated in the documents headed "Overview Assessment",
(ii) he should consider whether, in the light of the representations made in the letters of 7 March 2003 and the reports referred to in para. 25 above, further up-to-date medical information should be obtained,
(iii) he should consider whether, in the light of all the information, including the new information relating to the needs of Mr B and Ms H outlined in the reports referred to in para. 25 above, Ms Pickering's findings about the claimants are still realistic, and
(iv) he should then consider the statutory question posed by section 21 of the 1948 Act in the light of those findings, namely whether such need for care and attention as Mr B and Ms H have as a result of their destitution (which made them unable to provide shelter, warmth and food for themselves) was made more acute by their illness.