QUEEN'S BENCH DIVISION
SITTING AT NEWCASTLE-UPON-TYNE
The Law Courts
Newcastle-upon-Tyne NE1 3LA
Handed Down at the Royal Courts of Justice
B e f o r e :
MR JUSTICE LANGSTAFF
| (1) R (VC and others)
(2) R (K)
|- and -
|NEWCASTLE CITY COUNCIL
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Hilton Harrop-Griffiths (instructed by the Legal Services Division) for the Defendant
Ms Deok Joo Rhee (instructed by the Treasury Solicitor) for the Interested Party
Hearing dates: 18-19 April 2011
Crown Copyright ©
Lord Justice Munby :
The facts: VC's case
The facts: K's case
The statutory framework
"the distribution of responsibility which is at the core of this case could surely have been provided much more clearly and simply."
I can only agree. Mr Harrop-Griffiths laments that in many respects the paper chase here is even more elaborate. Again I can only agree.
The statutory framework: local authority support
Local authority support: section 17
"It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part) –
(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."
I emphasise the words "by their families" in section 17(1)(b). The duty under section 17(1) is supplemented by the duty of the local authority under sections 11(1)(a) and (2) of the Children Act 2004 to:
"make arrangements for ensuring that –
(a) their functions are discharged having regard to the need to safeguard and promote the welfare of children; and
(b) any services provided by another person pursuant to arrangements made by the person or body in the discharge of their functions are provided having regard to that need."
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
"(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 cash."
"… Section 17 refers to a range and level of services appropriate to the children's needs. It is broadly expressed, with a view to giving the greatest possible scope to the local social services authority as to what it chooses to do in the provision of these services. Although the services which the authority provides may "include" the provision of accommodation (see section 17(6)), the provision of residential accommodation to rehouse a child in need so that he can live with his family is not the principal or primary purpose of this legislation. Housing is the function of the local housing authority, for the acquisition and management of whose housing stock detailed provisions are contained in the Housing Acts. Provisions of that kind are entirely absent from this legislation.
… A reading of that [section 17(1)] as imposing a specific duty on the local social services authority to provide residential accommodation to individual children in need who have been assessed to be in need of such accommodation would sit uneasily with the legislation in the Housing Acts. As Mr Goudie pointed out, it could have the effect of turning the social services department of the local authority into another kind of housing department, with a different set of priorities for the provision of housing for the homeless than those which section 59 of the Housing Act 1985 lays down for the local housing authority."
"For the purposes of this Part a child shall be taken to be in need if –
(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
(c) he is disabled,
and "family", in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living."
Section 17(11) contains wide definitions of "disabled", "development" and "health" which there is no need to set out.
"the distinguishing feature of a "child in need" for this purpose is not that he has needs – all children have needs which others must supply until they are old enough to look after themselves – but that those needs will not be properly be met without the provision of local authority social services. … The local social services authority do not have the duty, or even the power, to make a global assessment of a child's needs, still less to determine what would be in the best interests of any individual child. The authority have the duty to assess the child's need for their own services."
"the circumstances in which a local authority will be required to exercise its powers under section 17 in relation to a child detained in a YOI … may in the very nature of things be comparatively limited … I do not doubt that very large numbers indeed of the children in YOIs are, in one sense of the phrase, "children in need" – indeed, children in desperate need. It does not follow, however, that they are, in the statutory sense, children whose "needs will not be properly be met without the provision of local authority social services".
… prima facie, there is nothing unreasonable or unlawful about a local authority taking the view that, whilst a child is in a YOI, his or her needs for services would (at least ordinarily) be adequately met by the facilities provided by the Prison Service."
"Before giving any assistance … , a local authority shall have regard to the means of the child concerned and of each of his parents."
Local authority support: other statutory powers
"It is the duty of the local authority to give a former relevant child –
(a) assistance of the kind referred to in section 24B(1), to the extent that his welfare requires it;
(b) assistance of the kind referred to in section 24B(2), to the extent that his welfare and his educational or training needs require it;
(c) other assistance, to the extent that his welfare requires it."
Section 24B(1) empowers the local authority to give assistance in certain circumstances by contributing to expenses incurred by a young person in living near the place where he is, or will be, employed or seeking employment; section 24B(2) empowers the local authority to give assistance in certain circumstances by contributing to expenses incurred by a young person in living near the place where he is, or will be, receiving education or training or by making a grant to enable him to meet expenses connected with his education or training. "Assistance" for this purpose includes the provision of accommodation: R (SO) v Barking and Dagenham LBC  EWCA Civ 1101,  HLR 63, para .
"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 … 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."
I need not go into the details but it is common ground that the Secretary of State has issued directions which, so far as material for present purposes, turn the power under section 21(1)(a) into a mandatory – "shall" – duty.
The statutory framework: asylum support
"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".
Section 4(2) empowers the Secretary of State to support a person (who it is convenient to refer to as a failed asylum seeker):
(a) he was (but is no longer) an asylum-seeker, and
(b) his claim for asylum was rejected."
It is important to note (and the significance of this in the present case will become apparent in due course) that section 94(5) provides an extended definition of "asylum-seeker" for this purpose:
"If an asylum-seeker's household includes a child who is under 18 and a dependant of his, he is to be treated (for the purposes of this Part) as continuing to be an asylum-seeker while –
(a) the child is under 18; and
(b) he and the child remain in the United Kingdom."
In other words, the effect of section 94(5) is that if a person who makes an asylum claim has a dependent child under 18 at the date the application is (negatively) determined, that person continues to be treated as an "asylum seeker" for the purposes of Part VI, and thus continues to be eligible for section 95 financial support, until the child reaches the age of 18, notwithstanding that otherwise the parent would be regarded as a 'failed asylum seeker'.
"(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."
Regulation 6(4) of The Asylum Support Regulations 2000, SI 2000/704, provides that where it falls to the Secretary of State to determine for the purposes of section 95 whether someone is destitute or likely to become so within the period prescribed by regulation 7, he
"must take into account –
(a) any other income which the principal, or any dependant of his, has or might reasonably be expected to have in that period;
(b) 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; and
(c) any assets mentioned in paragraph (5) … which are available to the principal or any dependant of his … or might reasonably be expected to be so available in that period."
The same definition is applied for the purposes of section 4 by regulation 2 of the Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005, SI 2005/930.
Asylum support: support for asylum seekers
"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."
Section 96 details the manner in which section 95 support may be provided:
"(1) 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);
(2) 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."
"(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."
"make arrangements for ensuring that [any functions of the Secretary of State in relation to immigration, asylum or nationality] are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom."
This, again, reflects the obligation of the United Kingdom under Article 3 of the Convention on the Rights of the Child.
Asylum support: support for failed asylum seekers
"(2) The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a person if –
(a) he was (but is no longer) an asylum-seeker, and
(b) his claim for asylum was rejected.
(3) The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a dependant of a person for whom facilities may be provided under subsection (2)."
Section 4 continues by conferring on the Secretary of State wide powers to make regulations:
"(5) The Secretary of State may make regulations specifying criteria to be used in determining –
(a) whether or not to provide accommodation, or arrange for the provision of accommodation, for a person under this section;
(b) whether or not to continue to provide accommodation, or arrange for the provision of accommodation, for a person under this section.
(10) The Secretary of State may make regulations permitting a person who is provided with accommodation under this section to be supplied also with services or facilities of a specified kind.
(11) Regulations under subsection (10) –
(a) may, in particular, permit a person to be supplied with a voucher which may be exchanged for goods or services,
(b) may not permit a person to be supplied with money,
(c) may restrict the extent or value of services or facilities to be provided, and
(d) may confer discretion."
The Immigration and Asylum (Provision of Services or Facilities) Regulations 2007, SI 2007/3627, made pursuant to sections 4(10) and (11), permit the Secretary of State to supply or provide certain specified facilities and vouchers which there is no need for me to particularise.
"(1) Subject to regulations 4 and 6, the criteria to be used in determining the matters referred to in paragraphs (a) and (b) of section 4(5) of the 1999 Act in respect of a person falling within section 4(2) or (3) of that Act are –
(a) that he appears to the Secretary of State to be destitute, and
(b) that one or more of the conditions set out in paragraph (2) are satisfied in relation to him.
(2) Those conditions are that –
(a) he is taking all reasonable steps to leave the United Kingdom … ;
(b) he is unable to leave the United Kingdom by reason of a physical impediment to travel or for some other medical reason;
(c) he is unable to leave the United Kingdom because in the opinion of the Secretary of State there is currently no viable route of return available;
(d) he has made an application for judicial review of a decision in relation to his asylum claim – (i) in England and Wales, and has been granted permission to proceed pursuant to Part 54 of the Civil Procedure Rules 1998 … ;
(e) the provision of accommodation is necessary for the purpose of avoiding a breach of a person's Convention rights … "
The statutory framework: the relationship between local authority and asylum support
"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(1B) incorporates for this purpose the definition of destitution in section 95(3) of the 1999 Act. Regulation 6(4) of the 2000 Regulations is applied by regulation 23 when it falls to an authority to determine for the purposes of section 21(1A) of the 1948 Act whether a person is destitute: see regulations 23(1)(a), (2) and (3).
"(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 (local authority support for children and their families)…"
The statutory framework: its application to the facts
i) From the date when VC's Article 3 submissions were accepted as a fresh claim by the Secretary of State (4 January 2005) VC again became an asylum seeker entitled to section 95 support.
ii) As DC had by then been born, section 94(5) applied even though the fresh claim was dismissed. VC therefore retained the status of an asylum seeker until indefinite leave to remain was granted on 18 February 2011.
iii) As a consequence, during the period from 4 January 2005 until 18 February 2011,
a) VC was not eligible for support under section 4 as she was not a failed asylum seeker
b) Subject to satisfying the destitution criteria for eligibility, VC and her children (as her dependants) were eligible for support under section 95;
c) By virtue of section 122(5)(b)(ii) of the 1999 Act the local authority did not have the power to provide VC and her family with accommodation or support under section 17.
In short, VC's claim for judicial review based, however put, on the proposition that the local authority was obliged to provide accommodation and support under section 17, could not have succeeded.
"is residual and cannot be exercised if the asylum seeker is entitled to accommodation under some other provision. In such a case, he or she is deemed not to be destitute."
Referring to the 2000 Regulations he said (para ):
"Regulation 6(4) says that when it falls to the Secretary of State to determine for the purposes of section 95(1) whether a person applying for asylum support is destitute, he must take into account "any other support" which is available to him. As an infirm destitute asylum seeker, support was available to Mrs Y-Ahmed under section 21. Therefore she could not be deemed destitute for the purposes of section 95(1)."
He elaborated (para ):
"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. Westminster complains that Parliament should have taken away the whole of the additional burden which fell upon local authorities as a result of the 1996 Act. It should not have confined itself to the able bodied destitute. But it seems to me inescapable that this is what the new section 21(1A) of the 1948 Act has done. As Simon Brown LJ said in the Court of Appeal ((2001) 4 CCLR 143, 151, para 29) what was the point of section 21(1A) if not to draw the line between the responsibilities of local authorities and those of the Secretary of State?"
"The present case has been argued throughout on the footing that Mrs Y-Ahmed 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 section 21 or under Part VI of the 1999 Act. The first question for your Lordships is whether in those circumstances she comes prima facie within section 21(1)(a) and, if so, the second is whether she is excluded by section 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 section 21 excludes Mrs Y-Ahmed from consideration for asylum support. Again, in agreement with the Court of Appeal, I think that the answer is yes."
"where one is dealing, as we are in this case, with the question whether a person is destitute … , the relevant question is simply whether other support is available, not whether the Secretary of State might reasonably think it would be available."
He went on (para ):
"This distinction is I think of some importance in the present discussion. In deciding whether a person is destitute, it is not enough that the authority may have a power or discretion to provide accommodation or other support, or that the Secretary of State might reasonably expect them to do so. The question is whether the family has "the means" to obtain that support (section 95(3)) or whether it "is available" to them. These words to my mind, at least where the source of the support is a public authority, connote a legal entitlement or enforceable expectation that the support will be given."
"The precise scope of the authority's powers under section 21 is not directly in issue in this case. However, I am satisfied that even if the authority has power in some circumstances to accommodate the children of a claimant under that section, it is not an entitlement or enforceable expectation. It cannot be said that under section 21, the family as a whole has the "means of obtaining" adequate accommodation or that such accommodation "is available" to them."
"Against that background, Miss Laing was right in my view not to press too strongly the suggestion that section 17 could be relied on, as a basis for holding that the children in this case had the means of obtaining accommodation. Indeed, as Mr Harrop-Griffiths points out, if that were its effect it might nullify all those parts of the NASS legislation which are designed specifically to govern the obligations in respect of asylum seekers with children. The terms of section 17 are wide enough for the needs of any children of a destitute asylum seeker to be brought within its scope, and arguably to impose an obligation on the authority to support them as a family. Conversely, the specific exclusion of section 17 from cases within the NASS scheme is … a strong indication that the general responsibility for asylum-seeking families rests on NASS not on local authorities …
… It would have been open to Parliament, when amending section 21 so as to exclude children from its scope, to have introduced a specific saving for circumstances where the family needed to be looked at as a whole. The absence of such provision is perhaps another indication that Parliament regarded it as inappropriate, given the new code for support for children and families provided by the 1989 Act."
"… it is an entirely separate duty owed to the child, and unsurprisingly given the context, includes no presumption that the accommodation will be provided with the parent. It may be said to be a form of support which is "available" to the child, but it seems very artificial to describe it as a means by which the family (that is, the asylum seeker and her dependants taken together) have the means of obtaining accommodation within the meaning of section 95(3).
… under section 23, far from the family as a unit having any right to accommodation, the accommodation otherwise available to the parent is simply one of the factors taken into account in deciding how and with whom the child's needs are to be met … section 23(6) does not impose a duty on an authority looking after a child to provide accommodation to a child's parent to enable the child to live with the parent nor does the Barnet decision contemplate the use of the Children Act as a means of obtaining family accommodation which was not available under the Housing Acts".
"although accommodation is available to the mother under section 21 of the 1948 Act, neither that provision nor anything in the Children Act 1989 has the effect that accommodation is available to her and her children taken together, nor that they have the means of obtaining it. It follows that she is "destitute" within the meaning of section 95."
His overall conclusion (para ) was that:
"Haringey is correct. The Judge was right to reject the appellant's case, insofar as it relied on a power to support the children derived from section 21 itself or the Children Act 1989. He was right also to hold that the family was "destitute" within section 95 and therefore entitled to support under the NASS scheme. He was wrong, however, to conclude that this placed the total responsibility on the Secretary of State. The authority's duty to the mother under section 21(1)(a) remains, notwithstanding the NASS scheme, and must be taken into account in determining the support to be provided under that scheme. On the other hand, it is the Secretary of State's duty under section 122 to make arrangements to provide the necessary support for the children as part of her household."
"Section 4(2) of the 1999 Act is intended to empower the Secretary of State to provide or arrange for the provision of accommodation to failed asylum-seekers …
By contrast, a very different statutory function is performed by section 21 of the 1948 Act. Its purpose is to meet the needs of those who are in need of care and attention which is not otherwise available to them, by reason of age, illness, disability or any other circumstances. In the case of persons subject to immigration control section 21(1A) applies more restrictive criteria. Nevertheless, the purpose of section 21 remains to meet the needs of those who are assessed to be in such need. The purpose of section 21(1)(a) is not to provide accommodation for those who need accommodation per se but to provide accommodation for those who are in need of care and attention. The provision of accommodation is not an end in itself but the means by which care and attention can be provided."
His conclusion, so far as relevant for present purposes, was (para ):
"where a person is assessed as in need of care and attention under sections 21(1) and (1A), there is a duty on the local authority to exercise its powers or perform its duties to the extent necessary to avoid a breach of Convention rights. It is not open to a local authority to refuse to provide support which it would otherwise be required to provide, on the ground that accommodation could be provided by the Secretary of State under section 4 which would prevent a breach of Convention rights. Section 4 of the 1999 Act is intended to perform a different function: the provision of accommodation to able-bodied former asylum-seekers who satisfy the criteria."
"The conundrum which arises is whether, when the local authority is considering whether it is under a duty to provide accommodation under s.23C(4)(c) to a former relevant child asylum seeker, it may take into account the possibility that support may be given by NASS, pursuant to s.95. A similar conundrum arises if an application for support by way of accommodation is first made by a former relevant child asylum seeker to NASS rather than to the local authority. Must the Secretary of State take into account the support which the local authority might reasonably be expected to give, pursuant to s.23C(4)(c)? Unless the circle can be squared, there is the opportunity for each body to decline to give support by reference to the possibility that the other would do so.
The same conundrum arises concerning the inter-relation of the powers and duties of a local authority under s.21 of the National Assistance Act 1948 to provide accommodation to the infirm destitute and the power of the Secretary of State to give support under s.95. It arose in R (Westminster City Council) v NASS  1 WLR 2956."
He accepted the argument (para ) that Lord Hoffmann's analysis in Westminster applied by way of analogy and that, just as the Secretary of State's power under section 95 was residual, so too, as had been held in R (W) v Croydon London Borough Council, was his power under section 4.
"since the powers under s.95 (and s.4) of the Immigration and Asylum Act 1999 are residual, and cannot be exercised if the asylum seeker (or failed asylum seeker) is entitled to accommodation under some other provision, a local authority is not entitled, when considering [for the purposes of section 23C(4)(c)] whether a former relevant child's welfare requires that he be accommodated by it, to take into account the possibility of support from NASS."
i) First, says Mr Broach, at the time when the local authority decided to terminate the claimants' section 17 support, the children were "in need".
ii) Second, he says (and in this he is supported by Ms Rhee), it was unlawful for the local authority to terminate the claimants' section 17 support by reference to the potential availability of section 4 support. That being, so he asserts, the only basis for the local authority's decision, it follows, he says, that the decision was unlawful.
iii) Third, he says, a local authority approached by a migrant family seeking accommodation and support must provide such support in order to comply with its obligations under domestic and Convention law and cannot avoid this duty by reference to the potential availability of section 4 support. The duty, if not absolute, at the very least arises whenever the circumstances are such as to trigger the obligations identified in R (Clue) v Birmingham City Council (Shelter intervening)  EWCA Civ 460,  1 WLR 99.
For her part, Ms Rhee seeks to make good a further proposition:
iv) The Secretary of State is entitled to refuse to provide section 4 support to a new applicant family on the basis that they are not "destitute", being entitled to support from a local authority under section 17.
Issues (iii) and (iv) do not, of course, arise directly on the facts of the cases before us. The prior question therefore arises as to whether we should embark upon a consideration of these points at all or whether we should not leave them to be resolved as and when they arise on the facts of a particular case.
" … but social services departments will no longer be expected to provide for asylum seeking families in the absence of special needs requiring a social services response."
The latter aim, he says, was to be achieved by means of section 122 of the 1999 Act which, he submits, makes the division of responsibility between local authorities and the Secretary of State entirely clear in respect of these families. He says that if the claimants and the Secretary of State are correct it would mean that not only would a social services department be a surrogate housing department but also a surrogate Benefits Agency and/or, what is of even more significance here, a surrogate support service for failed asylum-seekers and their children – the very thing which Lord Hope made clear it is not. Moreover, he says, if the claimants and the Secretary of State are correct there would be no scope whatsoever for supporting children, within a family, under section 4; they could always insist on a local authority doing so, because the Secretary of State could always refuse to support.
Mr Justice Langstaff :