QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of
(1) RASIM PAJAZITI
(2) HYLKIJE PAJAZITI
|- and -
|LONDON BOROUGH OF LEWISHAM
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Bryan McGuire (instructed by London Borough of Lewisham) for the Defendant
Hearing date : 13th July 2007
Crown Copyright ©
The Hon Mr Justice Newman :
(a) if the Defendant's current assessment(s) of the Claimants' needs, pursuant to section 47 of the National Health Service and Community Care Act 1990 ("the 1990 Act") is/are lawful, the Secretary of State is responsible for supporting the Claimants and their children under Part VI of the Immigration and Asylum Act 1999 ("the 1999 Act") but
(b) if those assessments are unlawful, the Defendant is responsible for supporting any claimant who has an assessed need for care and attention (under section 21 of the Act 1948) and the Secretary of State is responsible for supporting any claimant who does not and for supporting the Claimants' children.
The background facts
(a) booked travel to Nottingham on 6th June 2006: he failed to travel;
(b) booked travel to Bristol on 18th August 2006: he failed to travel;
(c) booked travel to Bristol on 2nd November 2006: he failed to travel;
(d) booked travel to Barnet, Hertfordshire on 7th November 2006: he failed to travel;
(e) booked travel to Birmingham on 19th April 2007: he failed to travel.
"The assessment of your client Hylkije Pajaziti showed her as not requiring any care services at all and managing all her own needs. She identified any difficulties she does have by way of minor reactive ailments, such as headaches, as being attributable to the possibility of dispersal….. Similarly, Mr Rassim Pajaziti has some minor medical needs which could be well managed in any part of the United Kingdom. Other than these, he did not display any difficulties save reactive minor ailments about his immigration status".
"…. 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…"
The Secretary of State has directed social services authorities to make arrangements under section 21(1)(a) in relation to persons ordinarily resident in their area and others in urgent need. Section 21(2) provides that:
"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."
Once a local authority has assessed a person as having a need for care and attention, that crystallises a duty to that person to provide accommodation under section 21.
The scope of section 21 of the 1948 Act and the cases in relation to support for asylum seekers.
"(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."
Further, section 95(1) of the 1999 Act provided that destitute asylum seekers would be provided with support under a new scheme (NASS).
"first, the person must be in need of care and attention; secondly, the need must arise by reason of age, illness, disability or "other circumstances" and, thirdly, the care and attention which is needed must not be available otherwise than by the provision of accommodation under section 21."
The respective contentions of the parties
"(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."
He submits that section 21(8) is concerned with services that may be provided subsequent to consideration of eligibility. Eligibility is determined by the characteristic of the claimant, namely the individual aspects of the applicant. He did not address any specific argument to the effect of the words in subsection (1)(a); "not otherwise available to them". As a matter of statutory interpretation he submitted that the qualifying subsection for asylum seekers was (1A). If the "destitution plus" test is met, an asylum seeker qualifies and is entitled to accommodation.
The evidence relied upon by the Claimants to support the conclusion that the destitution plus test is made out
"She should be able to receive psychiatric treatment and counselling through the National Health Service. Of course given the opinion that I have already expressed, the most powerful intervention, if it were available, would be to offer her permanent settlement in London".
Decision Letter dated 25th April 2007
(1) that it regarded the terms of section 21(1)(a) and section 21(8) as material and concluded that "… needs for primary healthcare which are set by the Primary Healthcare Services must be excluded from consideration";
(2) that it had looked carefully to see "whether once the provision of primary healthcare services is taken into account there still remains an unmet need for care and attention, and whether you are caught by section 21 (1A). Is there any need for care and attention made materially more acute by some circumstance other than a need for accommodation and funds?"
(3) that prior to the receipt of Dr Turner's reports, the position was clear beyond doubt. The key question, therefore, was whether the evidence of Dr Turner gave rise to a need to change that assessment? The defendant concluded as follows:
"7. Having read his reports with care we remain of the view that once one has set to one side the services provided by the NHS, you are not destitute plus. You do not have a need for care and attention made materially more acute by some circumstances other than a need for accommodation and funds.
8. As we read the reports of Stuart Turner, he is not saying that the provision of primary healthcare services will be ineffective. Rather, we read him as saying that ideally accommodation would be provided in London. This would be "the most powerful intervention". That is not the same thing as saying that the primary health care services cannot address the need".
The Defendant's submissions on the law
(1) There must be an unmet need for care and attention before responsibility under section 21(1)(a) can arise (see Hale LJ in Wahid and the three conditions precedent identified by her).
(2) If there is no unmet need, there is no need to consider the impact of section 21(1A).
(3) That it is plainly wrong, as Mr Khubber contended, for section 21(1A) to be regarded as determining eligibility.
(4) Ordinary housing is not in itself "care and attention". It is simply the means whereby the necessary care and attention can be made (see para 32 Hale LJ in Wahid).
(5) That the Defendant's interpretation did not render, as Mr Khubber suggested, "section 21 (1A) otiose".
"What will create such an obligation [an obligation under section 21] is a need for care and attention which has not arisen solely because of destitution".
He should not be taken as having excluded the need for consideration under section 21(1)(a).
(1) whether the need for medical treatment exists solely by reason of a lack of accommodation and funds;
(2) where a need exists for medical treatment other than by reason of the mere lack of accommodation and funds, whether the care and attention needed is "otherwise available";
(3) whether, even if medical treatment is provided, the asylum seeker's medical condition is of such a character as to make the need for care and attention materially more acute (see, for example, Collins J's conclusion in M v Slough Borough Council which concerned an HIV positive applicant).