QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF "O"
| - and -
|LONDON BOROUGH OF HARINGEY
- and -
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
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)
Hilton Harrop-Griffiths (instructed by London Borough Haringey) for the Defendant
John-Paul Waite (instructed by Treasury Solicitor) for the Interested Party
Crown Copyright ©
Mr Justice Ouseley:
The relevant statutory provisions
"(1) Subject to and in accordance with the provision 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,…."
(1A) A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely –
(a) because he is destitute; or
(b) because of the physical effects, or anticipated physical effects, of his being destitute.
(1B) Subsection (3) and (5) to (8) of section 95 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule 8 to that Act, apply for the purposes of subsection (1A) as they apply for the purposes of that section, but for references in subsections (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local authority
(2) In [making any such arrangements] a local authority shall have regard to the welfare of all persons for whom accommodation is provided, and in particular to the need for providing accommodation of different descriptions suited to different descriptions of such persons as are mentioned in the last foregoing subsection.
(8) …nothing in this section shall authorise or require a local authority to make any provision authorised or required to be made (whether by that or by any other authority by or under any enactment not contained in this Part of this Act or authorised or required to be provided under the National Health Service Act 1977."
"2. (1) The Secretary of State hereby …
(b) directs 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 circumstance are in need of care and attention not otherwise available to them."
"(1) The Secretary of State may provide, or arrange for the provision of, support for –
(a) asylum-seekers, or
(b) dependants of asylum-seekers,
who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed.
(3) For the purposes of this section, a person is destitute if –
(a) he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or
(b) he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs.
(4) If a person has dependants, subsection (3) is to be read as if the references to him were references to him and his dependants taken together."
"(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) Subsection (3) and (4) apply if any application for support under section 95 has been made by an eligible person whose household includes a dependant under the age of 18 ("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.
(5) 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.
(6) "Assistance" means the provision of accommodation or of any essential living needs.
(7) "The child welfare provisions" means-
(a) section 17 of the Children Act 1989 …."
"5(1) Subject to paragraph (2), where an application in accordance with regulation 3(3) is for asylum support for the applicant and one or more dependants of his, in applying section 95(1) of the Act the Secretary of State must decide whether the applicant and all those dependants, taken together, are destitute or likely to become destitute within the period prescribed by regulation 7."
6 (1) This regulation applies where it falls to the Secretary of State to determine for the purposes of section 95(1) of the Act whether - ….
(a) a person applying for asylum support, or such an applicant and any dependants of his …
is or are destitute ….
6(4)…[the Secretary of State] must take into account - …
(b) any other support which is available to the [applicant for asylum support] or any dependant of his ….
12(1) This regulation applies where it falls to the Secretary of State to decide the level or kind of asylum support to be provided for - …
(a) a person applying for asylum support, or such an applicant and any dependants of his ….
12(3) The Secretary of State must take into account …
(b) support which is or might reasonably be expected to be available to [the applicant for support] or any dependant of his …
otherwise than by way of asylum support.
16(1) This regulation applies where, in deciding the level of asylum support to be provided for a person who … will be a supported person, the Secretary of State is required to take into account …support…as mentioned in regulation 12(3).
16(2) The Secretary of State may-
(a) set the asylum support at a level which does not reflect the…support…,and
(b) require from that person payment by way of contributions towards the cost of the provision for him of asylum support."
"(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)-
(a) to safe-guard 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.
(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 providing accommodation and giving assistance in kind or, in exceptional circumstances, in cash."
The reference to "accommodation" was inserted by the Adoption and Children Act 2002, section 116, with effect from 6th November 2002.
"It is not disputed by the defendant that, in light of these assessments carried out by its social services department, it was under a duty, as the local social services authority responsible for the provision of community care services to the claimants, to make arrangements for, inter alia, the provision of suitably adapted accommodation for the second claimant under s 21(1)(a) of the National Assistance Act 1948: see R v Kensington and Chelsea Royal London Borough Council ex parte Kujtim  4 A11 ER 161, and R (Bantatu) v Islington London Borough Council (2001) 33 HLR 76. Policy guidance makes it plain that although the statutory duty is owed to the second claimant, every attempt must be made to ensure that the family can remain together."
(There was however no immigration control overlay in that case).
"In some circumstances, instanced by R.v.Avon CC ex p. M 2 FLR 1004, a person may have a need (in ex p. M psychological in nature), as distinct from a preference, to reside in a particular place.
I would wholly endorse Mr Drabble's general submission that section 21 of the 1948 Act and section 47 of the 1990 Act contemplate an assessment by the local authority of a person's accommodation needs, which takes very full account of their wishes, including the very fundamental aim of preserving the independence of elderly people in the community and in their own homes for as long and as fully as possible. A certain degree of risk-taking is often acceptable, rather than compromise independence and break family or home links. But, where a local authority concludes, as Southwark did her, that "the only way in which Mrs Khana's needs can properly be met is for her to go into full time "residential home" and makes a corresponding offer, and where this assessment and the reasonableness of the offer made cannot be challenged as such, then the local authority has in my judgment satisfied its duties under the legislation."
Lord Slynn said at paragraph 17:
"Accordingly, it follows that the only limitation on a local authority's liability to provide accommodation is where the need is "solely" due to destitution or its effects. Section 95 of the 1999 Act can therefore not be relied on to give a separate right against the Secretary of State where there is destitution plus disability. Even if that were a possible construction the Secretary of State, under s 95, must take into account, by virtue of reg 6(4) (b) of the Asylum Support Regulations 2000/704, "any other support which is available to the principal or any dependant of his, or might reasonably be expected to be so available in that period…" Accordingly, the Secretary of State, even under s 95, would be obliged to have regard to the liability of the local authority under s 21 of the 1948 Act as amended for any asylum-seeker whose need for care and attention had not arisen solely because of his destitution."
" It will be seen that while s 21(1A) removes only the able-bodied destitute from the duty of the local social service departments, s 95(1) appears prima facie to give NASS power to accommodate all destitute asylum-seekers, whether able bodied or infirm. It is this apparent overlap between the powers of NASS and the duties of the local authority which has given rise to this appeal."
At paragraph 41, he said:
"The clear purpose of the 1999 Act was to take away an area of responsibility from the local authorities and give it to the Secretary of State. It did not intend to create overlapping responsibilities."
" My Lords, I record these concerns, which seem to me, as they did to the Court of Appeal, not without substance. But the issues before your Lordships are narrow. The present case has been argued throughout on the footing that Mrs [A] has a need for care and attention which has not arisen solely because she is destitute but also (and largely) because she is ill. It is also common ground that she has no access to any accommodation in which she can receive care and attention other than by virtue of s 21 or under Pt V1 of the 1999 Act. The first question for your Lordships is whether in those circumstances she comes prima facie with s 21(1)(a) and, if so, the second is whether she is excluded by s 21(1A). In my opinion, the answers to these questions are Yes and No respectively. The third question is whether the existence of a duty under s 21 excludes Mrs Y-[A] from consideration for asylum support. Again, in agreement with the Court of Appeal, I think that the answer is Yes."
"The Government will ensure that in providing a safety net for asylum seekers the needs of children are fully respected and their welfare and rights safeguarded. Appropriate access to education will continue to be afforded to the children of asylum seekers."
"I think that the correct analysis of section 17(1) is that it sets out duties of a general character which are intended to be for the benefit of children in need in the local services authority's area in general. The other duties and the specific duties, which then follow, must be performed in each individual case by reference to the general duties which section 17(1) sets out. What the subsection does is to set out the duties owed to a section of the public in general by which the authority must be gained in the performance of those other duties: see R v London Borough of Barnet, Ex p B  ELR 357…. . As Mr Goudie QC for the respondents accepted, members of that section of the public have a sufficient interest to enforce those general duties by judicial review. But they are not particular duties owed to each member of that section of the public of the kind described by Lord Clyde in R v Gloucestershire County Council, Ex p Barry  AC 584, 610A which give a correlative right to the individual which he can enforce in the event of a failure in its performance."
"The reason why disabled children of asylum seekers do not fall under section s21 is that that provision applies only to those over 18. The corresponding provision for disabled children would be s17 of the Children Act 1989. That section is expressly excluded by s122(5) and (6) of the 1999 Act. There is thus no provision other than s95 under which a disabled child of an asylum seeker can be provided with accommodation. It is for this reason that Keith J was by common consent wrong to hold that adequacy had to be tested by reference to able-bodied children of asylum seekers as opposed to disabled children of asylum seekers. It was in any event to misread the effect of the Westminster case to suggest that there was a division of responsibility as between NASS and a local authority, NASS being responsible for the normal accommodation and a local authority for that which related to disability in relation to any individual asylum seeker. The Westminster case demonstrated that an adult disabled asylum seeker fell outside the 1999Act altogether."
"The context for asylum seekers is the provision of accommodation which prevents such people being destitute, and which provides for their essential living needs. Furthermore in considering adequacy or suitability the individual circumstance of each individual, including dependants, must be considered; thus the age of the children and whether any person including the children suffers from a disability will be relevant to the adequacy of accommodation and as to whether the family would be destitute. Lord Hoffmann accepted that s95(1) prima facie conferred power to accommodate all destitute asylum seekers, including disabled adult asylum seekers, but accepted the argument that regulations made under Part IV of the 1999 Act made clear that the power was "residual" and could not be exercised if the asylum seeker was entitled to accommodation under some other provision."
MR JUSTICE OUSELEY: For the reasons which are set out in the judgment which has been handed down, this application is dismissed. The case shall be reported and referred to only by "O".
MR HARROP-GRIFFITHS: My Lord, in that case I ask for costs against the claimant and against the interested party.
MR KNAFLER: I cannot resist, my Lord, subject to the usual Legal Aid proviso.
MR WAITE: My Lord, I cannot resist that either. My Lord, I have an application for permission to appeal.
MR JUSTICE OUSELEY: Yes, unless Mr Harrop-Griffiths has -- no, you have your permission. And the position in the interim?
MR KNAFLER: Formally, my Lord, I ask for permission to appeal.
MR JUSTICE OUSELEY: Yes, certainly, you can both have permission to appeal.
MR HARROP-GRIFFITHS: We would hope these dates will be reserved, subject to arrangements by the Secretary of State and the other party to notarise the financial position in the light of the ultimate judgment in court.
MR JUSTICE OUSELEY: Mr Harrop-Griffiths, it seems to me that is the most sensible thing, that and the local authority continue to provide accommodation as it is currently doing.
MR HARROP-GRIFFITHS: My Lord, yes, it will be an accounting exercise.
MR JUSTICE OUSELEY: If the judgment is upheld, the Secretary of State, in whole or in part, will pay, presumably, and no formal order is necessary in that respect. Would that be right?
MR HARROP-GRIFFITHS: My Lord, entirely.
MR JUSTICE OUSELEY: Very well, I believe there is an order in effect at the moment, dealing with accommodation, but is one necessary? If you indicated that you are going to provide accommodation until the hearing --
MR HARROP-GRIFFITHS: I do indicate that, my Lord.
MR JUSTICE OUSELEY: Well, then I do not think any order is necessary. There will be an order for costs in favour of the defendant and against the claimant and interested party that, against the claimant, to be subject to the usual terms in relation to Legal Services Commission funding. Thank you very much.