QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of Refugee Action
|- and -
|The Secretary of State for the Home Department
Clive Sheldon QC and Deok-Joo Rhee (instructed by Treasury Solicitors) for the Defendant
Hearing dates: 11, 12, 13 February 2014
Crown Copyright ©
The Hon. Mr Justice Popplewell:
(1) The Defendant's decision that the current rates of asylum support are sufficient to meet the essential living needs of asylum seekers is incompatible with her obligations under EU law and in any event is irrational. No sufficient investigation has been conducted into the level of support necessary to meet essential living needs. In taking the decision the Defendant has taken account of irrelevant considerations and/or material errors of fact, and has failed to take account of relevant considerations.
(2) The Defendant has breached her public sector equality duties ("PSED") under s. 149 of the Equality Act 2010.
(3) The Defendant has breached her duty towards children under s. 55 of the Borders, Citizenship and Immigration Act 2009.
An overview of support for asylum seekers
Single adult £36.62
(other than a small legacy remnant of over 25s who have been on support since 2009 who receive £42.62)
Qualifying couple £72.52
Lone parent aged 18 or over £43.94
16 & 17 yr olds £39.80
Children under 16 £52.96
(1) Under Regulation 10A, added by amendment in 2003, additional weekly amounts to be paid to pregnant women and children under the age of three are as follows:
Pregnant women £3
Babies under the age of one £5
Children aged one and two £3
(2) Pregnant women are granted a maternity payment (for each pregnancy) of £300 which is payable in the period from 8 weeks before the estimated delivery date to 6 weeks after birth.
(1) The rates originally laid down in Regulation 10(2) in 2000 were set at 70% of Income Support rates for adults, and 100% of the Income Support rates for children. The justification for setting the adult rates at 70% of Income Support was that (1) asylum seekers were provided with furnished and equipped accommodation with all utility bills paid and (2) asylum support was intended to be a measure of last resort provided on a short-term basis. This involved adopting two different rates for single adults, one for those aged 18 to 24 and a higher rate for those aged 25 and over, because such a differentiation was (and still is) drawn in Income Support rates.
(2) Until 2008, increases to the Regulation 10(2) rates were made on an annual basis and broadly in line with increases to income support, save in the case of 16 and 17 year olds.
(3) In 2008 the link to Income Support was broken and for 2009 the separate rate for single adults aged 25 and over was removed: a unitary rate for all single adults was introduced, based on the lower sum previously paid to those aged 18 to 24. Those aged 25 and above who were receiving support at that time were allowed to stay on the higher 25 plus rate. There are now very few asylum seekers left in this 25 plus legacy category.
(4) The amounts were increased by the Consumer Price Index rate of inflation ("CPI") each year for 2010/11 and 2011/12 (except for the legacy 25 plus group on the old rates). No increase was made for 2012/13 or 2013/2014. The current weekly amounts remain those introduced for the 2011/2012 financial year.
(5) The effect of decoupling the rates from Income Support and freezing them has been that they have increasingly become a smaller proportion of the amount payable for Income Support (which was not frozen but increased by CPI of 5.2% for 2012/13 and a further 1% for 2013/2014). For 2013/2014 the Regulation 10 payments to asylum seekers represent the following percentages of the relevant Income Support rates:
Single adult 25+ 51%
Single adult 18-24 64%
Qualifying couple 64%
Lone parent 49%
16-17 yr old 61%
Under 16 81%
(6) The Regulation 10A supplementary payments for pregnant women and children under three have not been increased since their introduction in 2003.
The legislative framework
"95.(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 [14 days]
(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.
(7) In determining, for the purposes of this section, whether a person's other essential living needs are met, the Secretary of State—
(b) may not have regard to such matters as may be prescribed for the purposes of this paragraph.
(8) The Secretary of State may by regulations provide that items or expenses of such a description as may be prescribed are, or are not, to be treated as being an essential living need of a person for the purposes of this Part.
96 . (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);
(c) to enable the supported person (if he is the asylum-seeker) to meet what appear to the Secretary of State to be expenses (other than legal expenses or other expenses of a prescribed description) incurred in connection with his claim for asylum;
(d) to enable the asylum-seeker and his dependants to attend bail proceedings in connection with his detention under any provision of the Immigration Acts; or
(e) to enable the asylum-seeker and his dependants to attend bail proceedings in connection with the detention of a dependant of his under any such provision.
(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.
97. (4) When exercising his power under section 95 to provide essential living needs, the Secretary of State—
(b) may not have regard to such other matters as may be prescribed for the purposes of this paragraph.
122. (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.
(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)…."
(a) the cost of faxes;
(b) computers and the cost of computer facilities;
(c) the cost of photocopying;
(d) travel expenses [except to initial accommodation];
(e) toys and other recreational items;
(f) entertainment expenses.
(1) A common policy on asylum, including a Common European Asylum System, is a constituent part of the European Union's objective of progressively establishing an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Community.
(4) The establishment of minimum standards for the reception of asylum seekers is a further step towards a European asylum policy.
(5) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, this Directive seeks to ensure full respect for human dignity and to promote the application of Articles 1 and 18 of the said Charter.
(7) Minimum standards for the reception of asylum seekers that will normally suffice to ensure them a dignified standard of living and comparable living conditions in all Member States should be laid down.
(9) Reception of groups with special needs should be specifically designed to meet those needs.
(12) The possibility of abuse of the reception system should be restricted by laying down cases for the reduction or withdrawal of reception conditions for asylum seekers.
(15) It is in the very nature of minimum standards that Member States have the power to introduce or maintain more favourable provisions for third-country nationals and stateless persons who ask for international protection from a Member State.
The purpose of this Directive is to lay down minimum standards for the reception of asylum seekers in Member States.
General rules on material reception conditions and health care
1. Member States shall ensure that material reception conditions are available to applicants when they make their application for asylum.
2. Member States shall make provisions on material reception conditions to ensure a standard of living adequate for the health of applicants and capable of ensuring their subsistence. Member States shall ensure that that standard of living is met in the specific situation of persons who have special needs, in accordance with Article 17, as well as in relation to the situation of persons who are in detention.
Modalities for material reception conditions
1. Where housing is provided in kind, it should take one or a combination of the following forms:
(a) premises used for the purpose of housing applicants during the examination of an application for asylum lodged at the border;
(b) accommodation centres which guarantee an adequate standard of living;
(c) private houses, flats, hotels or other premises adapted for housing applicants.
2. Member States shall ensure that applicants provided with the housing referred to in paragraph 1(a), (b) and (c) are assured:
(a) protection of their family life;
(b) the possibility of communicating with relatives, legal advisers and representatives of the United Nations High Commissioner for Refugees (UNHCR) and non-Governmental organisations (NGOs) recognised by Member States.
1. Member States shall take into account the specific situation of vulnerable persons such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, in the national legislation implementing the provisions of Chapter II relating to material reception conditions and health care.
2. Paragraph 1 shall apply only to persons found to have special needs after an individual evaluation of their situation."
(a) a minor;
(b) a disabled person;
(c) an elderly person;
(d) a pregnant woman;
(e) a lone parent with a minor child; or
(f) a person who has been subjected to torture, rape or other serious forms of psychological, physical or sexual violence; who has had an individual evaluation of his situation that confirms he has special needs.
"149 (1) A public authority must, in the exercise of its functions, have due regard to the need to-
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
(2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to-
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
(7) The relevant protected characteristics are-
pregnancy and maternity;
religion or belief
"55 (1) The Secretary of State must make arrangements for ensuring that—
(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and
(b) any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.
(2) The functions referred to in subsection (1) are—
(a) any function of the Secretary of State in relation to immigration, asylum or nationality; "
"I am writing to inform you, of my decision not to change the amount of support provided to those asylum seekers and failed asylum seekers who are supported by the Home Office, for the coming year. Having considered a range of comparators including rates of mainstream benefits paid, the asylum support payments made by EU member states, and evidence from partners, I have concluded that the packages of support provided under section 95 and section 4 of the Immigration and Asylum Act 1999 are sufficient, and meet the statutory requirement to provide for recipients' essential living needs.
The provisions in the 1999 Act were introduced to reduce significantly the burden faced by Local Authorities and DWP who were then responsible for housing and supporting asylum seekers. The provisions enable the Home Office to support asylum seekers while their application to remain in the UK is determined, and failed asylum seekers if they are temporarily unable to return home. For both groups, fully furnished and equipped housing is provided free of charge with no bills to pay, and modest rates of financial support are paid to meet recipients' other essential living needs.
I have carefully considered whether those rates of financial support are adequate, whether they meet the requirement set by Parliament that they provide the essential living needs of recipients and their dependants if they would otherwise be destitute, and whether they are coherent when compared to changes in the mainstream benefit system.
I have looked at the approach for setting the rates in comparison to other European countries. That has not identified a better model: most use an accommodation centre model (with only a 'pocket-money' allowance paid). There is reasonably significant variation in the rates of support paid. Many pay a higher rate to the principal applicant, but with lower rates generally paid to children than in the UK.
I have concluded that the system of support is reasonable and consistent with our statutory obligations, as are the rates of financial support paid. They are rightly lower than rates of mainstream benefits given their temporary nature, the different statutory framework, and the value of non-cash support provided in furnished and equipped housing, and assistance with transport for the disabled or infirm.
Over the last 5 years, rates of asylum support have risen by 11.5% - almost the same as private sector wages. We need to demonstrate fairness to the taxpayer, and I am not persuaded that asylum support rates need to rise to meet the statutory test that was set by Parliament nor our obligations under EU law "to ensure a standard of living adequate for the health of applicants and capable of ensuring their subsistence".
The asylum support system is intended for the able-bodied destitute, not those with complicated disability or health problems. Support for asylum seekers or failed asylum seekers who have more complicated needs is provided by Local Authorities following the conduct of a needs assessment under powers in the National Assistance Act, and may be equivalent to that available to permanent residents.
Critics have asserted that the rates of support are insufficient, especially for children, and leave families unable to afford sufficient food. I do not accept that. Under current rates a family of four awaiting the outcome of their asylum application would receive more than £175 per week to pay for their food, toiletries and clothing. Additional funds are paid to pregnant women, and to young children and assistance with the costs of transport and telephone calls are provided where needed. We pay higher rates of asylum support to children than many of our EU contemporaries; and data from the Office for National Statistics shows that support rates are on a par with families' spending on essential items for those households with basic but regular income from employment. Whilst modest, the rates are not ungenerous or insufficient.
We will of course keep the adequacy of the rates under review in accordance with our annual review cycle and against the statutory test."
"Summary of the evidence considered in demonstrating due regard to the Public Sector Equality Duty.
Support rates will not be changed for all who receive asylum support, regardless of the following protected characteristics:
• Gender reassignment
• Pregnancy and maternity
• Race this includes ethnic or national origins, colour or nationality
• Religion or belief this includes lack of belief
• Sexual orientation
While there already exists a difference in support rates for children and adults this is to protect the best interests of children, whose living needs include clothing to replace outgrown items, school equipment and other additional expenses unique to their age group. Moreover, young children and infants receive additional payments to ensure their living costs are met.
Consideration has been given to the specific needs of older recipients who may have higher travel costs, for medical appointments for example, and who are more susceptible than younger adults to the effects of cold: weather. However there is existing provision which allow for this outside of the asylum support rates. Assistance with travel costs are made available, and all utility bills are paid.
It is also noteworthy that 16 and 17 year olds receive a slightly lower rate of support than children aged 15 and under. This difference is based on the fact that their overall living needs become similar to adults, making a step-change in allowance appropriate.
Consideration has been given to the implications of the rates being frozen and it has been concluded that the rates for both children and adults are sufficient and as they will be frozen for all, this will have no negative impact on the basis of age.
Consideration has been given to whether the decision to freeze rates will have a negative impact on the grounds of disability. While it is acknowledged that it is possible some individuals, such as those with learning difficulties or minor mental health issues, may find it more difficult than others in adjusting to a stricter budget (given inflationary pressures), those with serious vulnerabilities will be in the care of local authorities, and fall outside the scope of this decision.
Those who are within scope of this decision have been deemed to be able to care for themselves on a day-to-day basis including in matters of monitoring household budgets. Though it may be harder for some to adjust than others, it is considered that the decision to freeze rates is not so harsh as to make it impossible for some currently receiving support to meet their essential living needs.
Pregnancy and maternity:
Pregnant and new mothers receive additional financial support in the form of a maternity grant to cover the additional costs of having a child. Those in asylum support accommodation are also provided with necessary equipment. Corporate Partners have put to us difficulties faced by pregnancy women in travelling to health appointments. Assistance with travel is provided separately to the support rates. None of the factors above will be affected by the rates freeze and as such, we do not consider that the decision will have a disproportionate impact on the basis of pregnancy and maternity.
Consideration has been given on the ground of race. It has been noted that claimants of some nationalities are likely to have larger volume families. However, given that families receive support for each child it is not considered that the rates being frozen will have any impact in this regard.
Consideration has been given to all other protected characteristics including gender reassignment, religion, sex and sexuality, however no impact on these groups has been found
In light of the consideration above the present decision not to change the rates will not impact proportionally on one group more than another."
"48. As part of the review, visits were made to asylum accommodation to understand better the context and whether concerns about housing quality that had been flagged by stakeholders should be taken into account in the review as to rates. The intention was not to carry out a detailed review of accommodation provided but simply to gain an indicative understanding, based on the accommodation visited. I understand that the choice of accommodation was led by accommodation providers (though it was varied, and I understand that they attempted to show the best and the worst by way of example). Visits were carried out in London (Green Lanes) (at the end of 2012), and in the Greater Manchester area (on 24 January 2013). In total around a dozen properties were visited – some houses of multiple occupation: studios, flats, houses; occupied by families, single parents, and single people. The impression that had been gained from the London visits was to a large extent discounted - as there were such overt signs of relative wealth - eg large flat screen TVs, Sky boxes, multiple electronic computer games, smart phones, laptops and such like. (From those visits it was impossible to conclude that the inhabitants only lived on their asylum support payment.) The impression gained from visits in the Manchester area were less distorted, and more in keeping with the working hypothesis about the likely living standards of asylum seekers. Kitchens were well-stocked with food, homes were clean and well kept, there was personalisation of living space, shoes, coats and toys were in evidence. On visiting HMOs for single men in London, there was some concern about the dirty state of shared areas. However, on closer inspection, the availability of cleaning supplies were in evidence. In Manchester, cleaning services were provided by the accommodation provider. Whilst in those HMOs there was less food clearly on display, there was refuse on display that showed relatively expensive food had been consumed recently (eg takeaway pizza boxes, beer cans).
49. As part of the review, a number of specific options were put forward for consideration: (i) making no changes to rates (ii) increasing support rates by 1% each year up to 2015 and (iii) linking all rates explicitly to Income Support levels,
50. The findings of the review took into account the requirement under EU law to ensure that asylum seekers have a standard of living 'adequate for their health and to enable their subsistence', and the domestic law requirement to provide support to enable asylum seekers to meet their 'essential living needs'. Account was also taken of Article 3 ECHR (prohibition against torture/inhumane treatment) and for children, the duty under section 55 of the Borders and Citizenship Act 2000. By reference to these considerations, it was considered that the minimum, or 'floor', requirements would be met if arrangements were made to provide the following:
- safe, furnished accommodation with all utilities;
- sufficient food to keep those on support in health and to avoid illness or malnourishment;
- essential toiletries (or means to pay for them);
- access to Primary Healthcare and immediately necessary or urgent secondary treatment;
- the means to travel to appointments where they are out of reach;
- some means of communication with emergency services;
- access to education for children as well as a contribution to wider socialisation costs to promote their development; and
- for those in receipt of asylum support for any length of time, the provision of suitable clothing to avoid any danger of illness.
51. The review concluded that:
(1) the current rates of support, though lower than those on Income Support, met the legal requirements, on the basis that section 95 (and section 4) support is intended to be temporary and those receiving Income Support will have more bills to pay and greater costs associated with furnishing and equipping their homes:
(2) for children, the section 95 support rates are relatively generous against all comparators;
(3) for vulnerable people, it was acknowledged that they are more likely to wait for a decision, more likely to have additional costs of travel and may find it hard to manage their spending appropriately if they have poor mental health. However, it was considered that this did not merit a rise in support levels. In particular, due account was taken of the fact that the asylum system is already responsive to the needs of vulnerable people e.g. in the way that accommodation is provided for the disabled.
52. In assessing the appropriateness of the levels, a range of comparators was used in the assessment. As already explained, whilst the level of Income Support has been a useful comparator, this was not considered to reflect the temporary nature of asylum support, the fact that utilities are paid or the economies possible in household spending. Income Support also provides for a higher standard of living than is necessary to meet the statutory requirements of asylum support. Other important comparators considered were ONS survey data about average household spending for lowest income groups (SB11) and the rates of support paid by EU partners. It was also noted that the Red Cross provides food and toiletries parcels to destitute persons (valued at around £10 per week).
53. In particular, a detailed analysis was undertaken comparing the support received by those on mainstream benefits with the support made available under section 95. When comparing asylum seekers and those on mainstream benefits, the review explained that for those on mainstream benefits utilities are not provided, or deductions are made from benefits paid if utilities are included in rent. It was also acknowledged that council tax was 'usually provided' for those on mainstream benefits. (I should add however that this can no longer be assumed due to changes in the council tax regime…….
- account was also taken of average UK household spending per person (both the median expenditure - £205.40 per household per week, and expenditure for those for the poorest 10% of the UK - £134.80 per household per week). In looking at these figures (which are of course higher than the amounts provided by way of asylum support) it was recognised that non-asylum seeking households will have more income, but a greater proportion of it would he spent on more discretionary items and not essential living needs (spending on recreation added up to £63.90 per week for the median expenditure and £18 per week for the poorest 10%; spending on hotels and restaurants added up to £39 per week for the median expenditure and £9.80 for the poorest 10%),. The data showed that the poorest 10% of the UK spend only around £37 per week per household (of 1.3 persons) (ie some 16% of their Gross Income) on essential items (ie food and non-alcoholic drink, clothing). Therefore the value of other costs met by those households, and not essential for those receiving asylum support, are significant in determining how much support a person actually requires. (emphasis in original)
- in terms of support rates paid by other EU states, data taken from information requested via the European Migration Network was taken into account: exhibited as SB12. It was found that other EU systems are not directly comparable because EU law allows for a wide variation in practice. In summary it was found that there is a reasonably significant variation in the rates of support paid (where recipients are not housed in reception centre) and there is some variation in what the host country expects the recipient to pay for - some include the cost of recreation and socialisation. Many pay a higher rate to the principal applicant, with a slightly lower rate paid to subsequent adults in a household. In general, slightly lower rates of support are paid to children than in the UK. In addition, the manner of support provided, the variable cost of living in other countries, and currency fluctuations reduce the value of comparing actual amounts……
- inflationary considerations were also taken into account. However, the majority of items that make up general measures of inflation (as a percentage value) fall outside of the items that are most likely to be necessary as essential living needs. Furthermore, it was considered that measures of inflation do not reflect economies that households are able to achieve by reducing spending on non-essential items, or by selecting lower cost alternatives. The basket of goods used to calculate food inflation (2% in September 2012 and 4.2 % in January 2013), for example, includes most commonly purchased items, some of which will not be essential, and will not be the cheapest choice. Prices of clothing and footwear went down by 0.5% in September, and was up by 0.2% in January 2013.
54. Furthermore, express consideration was given to the position of 16/17 year olds, whether the rates for this group should be increased to the rate paid to children under 16. However, the conclusion was that the rate currently paid for those aged 16/17 was sufficient to meet their essential living needs. In particular it was considered that it was right to stagger the support received by this group who are transitioning to adulthood. Furthermore, whilst they may have some higher costs (than an adult) if attending college (e.g. transport. stationery and possibly uniform) it was also recognised that post-16 education is not compulsory for recipients of asylum support) (that is, education after the year in which the child attains the age of 16), and they will have lower clothing costs given the reduced rates of growth (as evidenced by WHO child growth charts)."
The First Ground
(1) What are the essential living needs for which she is obliged to provide support under section 95?
(2) What amounts are sufficient to meet those needs?
(1) Ms Rose QC addressed two lines of argument that the Secretary of State fell into error in identifying the needs for which support had to be provided. The first was that she erroneously identified the group of persons whose needs fell to be considered as restricted to the able bodied, whereas the needs of disabled and vulnerable groups also fell to be provided for. The second was that there are particular needs which qualify as essential living needs which the Secretary of State did not identify and treat as such.
(2) At the second stage the argument was that the factors relied on by the Secretary of State were irrelevant and/or the evidence misunderstood; that the Secretary of State failed to take into account available evidence which she should have taken into account; and that she failed to conduct the necessary investigation and inquiry, and apply an appropriate methodology, so as to collect material capable of supporting a rational decision to freeze rates. Accordingly the decision making process was flawed and/or there was no rational basis for reaching the decision that the amounts were sufficient. Further, the material before the Court demonstrated that the amounts were insufficient, such that the decision was Wednesbury unreasonable.
(1) At the first stage, the Secretary of State was correct to identify the group of persons whose needs fell to be considered as confined to the able bodied destitute; and there were no needs which the Secretary of State was obliged to treat as essential living needs which she had not so treated.
(2) At the second stage, the decision was one for the judgment of the Secretary of State on the advice of her department; the investigation and inquiry was adequate; the factors taken into account were relevant and sufficient to support the decision which was within the wide range of responses which were reasonably open to her; the materials relied upon by the Claimant are anecdotal and/or flawed and/or irrelevant; they are not such as to fulfil the high threshold of demonstrating the irrationality of the decision.
(1) Was the Secretary of State in error in treating the group of persons whose needs fell to be addressed in setting the level of cash support under s. 96(1)(b) as limited to the able bodied destitute?
(2) Did the Secretary of State fail to identify and take account of particular needs which were essential living needs for which provision had to be made in setting the level of cash support under s. 96(1)(b)?
(3) Was the assessment of the amounts necessary to meet the essential living needs, by way of cash support to be provided under s. 96(1)(b), flawed on the grounds advanced by the Claimant?
Issue 1: Needs confined to those of the able bodied destitute
(1) needs which are exceptional for the normal cohort of asylum seekers; and
(2) needs which could reasonably have been expected to be provided for by other organs of the State, including local authorities.
"I remain of the view which I expressed in R (Wahid) v Tower Hamlets London Borough Council  LGR 545, para 32, that the natural and ordinary meaning of the words 'care and attention' in this context is 'looking after'. Looking after means doing something for the person being cared for which he cannot or should not be expected to do for himself: it might be household tasks which an old person can no longer perform or can only perform with great difficulty; it might be protection from risks which a mentally disabled person cannot perceive; it might be personal care, such as feeding, washing or toileting. This is not an exhaustive list. The provision of medical care is expressly excluded."
Lord Neuberger agreed, adding, at :
"As for 'care and attention', while again it is right to caution against the risks of reformulating the statutory language, it appears to me that Hale LJ was right to say that 'in this context', the expression means 'looking after' and that 'ordinary housing is not in itself "care and attention"': see R (Wahid) v Tower Hamlets London Borough Council  LGR 545, para 32. I do not consider that 'care and attention' can extend to accommodation, food or money alone (or, indeed, together) without more. As a matter of ordinary language, 'care and attention' does not, of itself, involve the mere provision of physical things, even things as important as a roof over one's head, cash, or sustenance. Of course, if a person has no home or money, or, even more, if he has no access to food, he may soon become in need of care and attention, but, as already explained, that is beside the point."
(1) A fridge for a person who is HIV positive but whose only needs are for medication and a refrigerator in which to store it (as in M v Slough). The medication is the responsibility of the National Health Service (which the local authority is not allowed to provide under s. 21(8)), but the fridge is not a need for "care and attention" at all.
(2) A person suffering from mental illness who needs stability and support, including regular meetings with a care co-ordinator, attendance at counselling groups and the support of a befriender (as in L v Westminster). Such a person falls outside s. 21 because the care and attention can be provided independently of accommodation.
(3) A person with mobility difficulties or who is elderly, who is able to care for themselves within their home or has a family member who can do so, but is unable to walk even a short distance to do their shopping or visit the GP. Again such a person falls outside s. 21 because the care and attention can be provided independently of accommodation.
"53 Before Ouseley J. the argument concentrated on the question of accommodation. It seems to have been assumed that, if the authority were required to accommodate the mother and the children under s.21, other living expenses would automatically be included. This no doubt was in reliance on s.2l(5), which provides that references to "accommodation" are to be construed as including "references to board and other services, amenities and requisites provided in connection with the accommodation." In the course of the argument I raised the question whether this would extend to expenses unrelated to the provision of accommodation, such as clothing for the parent and the children.
54 Mr Harrop-Griffiths was able to refer us to a very recent decision of this Court which deals with this precise point: R. (Khan) v Oxfordshire CC  EWCA Civ 309. Mrs Khan challenged the decisions of the council to refuse to provide her with accommodation under s.21(1)(a) of the 1948 Act, and to refuse to give her financial assistance under s.2 of the Local Government Act 2000. At the relevant time she was an asylum seeker, and therefore not entitled to normal benefits. Section 2 of the 2000 Act is a general provision giving authorities a wide range of powers including powers for the provision of financial assistance to individuals, but it is subject to the general restriction that it 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" (contained in any other Act). The Court held that the provision of accommodation was prohibited by s.21(1A). However it was argued on behalf of Mrs Khan that that prohibition had no impact on the giving of financial assistance which was not covered by the s.21(1)(a) power. In this context Dyson L.J., giving the leading judgment, referred to s.21(5) which he accepted gave "accommodation" a very wide meaning. He said:
"So it includes food, and other things which are necessary in connection with the accommodation. There must be a link between what is provided and the physical accommodation or premises. In my view it is clear that the definition of accommodation, wide though it is, does not extend to all of a person's essential living needs. An obvious example is clothes. It is not possible to say that, if provided, clothes would be services, amenities or requisites provided in connection with the accommodation. They have nothing to do with the accommodation."
55 In answer to this Mr Knafler first referred to s.22 of the 1948 Act, which provides for charges for accommodation provided under s.21, but in doing so takes account of the ability of the claimant to pay and her need to meet other personal expenses. That does not appear to throw any light on the means available to the claimant to meet her essential living needs. He also sought to rely on the wide power to provide assistance under the 2000 Act, as discussed in the Oxfordshire case. I am doubtful that it would be right to rely on an Act passed in 2000 to resolve an issue as to the scheme of the 1999 Act. In any event, the 2000 Act is far from providing any duty on the authority to meet living needs. Accordingly I do not see how the possibility of assistance under that Act can be said to amount to support "available" to the claimant for the purposes of deciding whether she is destitute.
56 The more convincing answer made by Mr Knafler is that, if the only shortfall in relation to the support necessary for the family is the money required to pay for clothing, then that is something which could be provided by the NASS scheme as in effect a "top-up" payment under reg. 12. That appears to me a sensible approach. However, it does not assist the appellant's case in relation to the issue whether the applicant is "destitute". For that purpose it is not enough that the family has adequate accommodation or the means of obtaining it, if it does not have the means of meeting other essential living needs. Once it is accepted that the means of providing for clothing are not available, then it must follow that the family is destitute and within the NASS scheme, even if the support derived directly from the scheme is limited to topping up living expenses.
The statutory scheme
57 Indeed, the "living expenses" issue to my mind provides some general assistance in understanding the statutory scheme. The threshold for inclusion within the NASS scheme is a low one. Any deficiency in essential living needs, whether of accommodation or living expenses, is sufficient to bring the asylum seeker within the scheme. The fact that some part of those needs (even as important a part as accommodation) is met from other sources does not prevent the claimant being treated as "destitute" for the purpose of s.95. On the other hand, once she is within the scheme, the availability of other resources is taken into account in deciding what provision is required from NASS itself. The "care and attention" required for the mother will still be the responsibility of the local authority under s.21. As has been seen, for that purpose the authority cannot avoid responsibility by relying on the availability of asylum support."
"(1) A local authority may, with the approval of the Secretary of State, and to such extent as he may direct in relation to persons ordinarily resident in the area of the local authority shall, make arrangements for promoting the welfare of persons to whom this section applies, that is to say persons aged eighteen or over who are blind, deaf or dumb or who suffer from mental disorder of any description, and other persons aged eighteen or over who are substantially and permanently handicapped by illness, injury, or congenital deformity or such other disabilities as may be prescribed by the Minister."
(1) Support for people who fall outside the pool of vulnerable people defined in section 29 of the 1948 Act. These include:
(a) Those whose illness or injury does not give rise to substantial and permanent handicap, such as those with hepatitis or glandular fever, or those temporarily handicapped by an injury such as severe lower back pain or a broken limb, from which they will eventually recover; and sufferers of long-term diseases who are not substantially and permanently handicapped by that disease, such as HIV.
(b) Those whose special needs do not arise from the disability criteria set out in section 29(1) of the 1948 Act. These include groups such as torture survivors, lone parents and elderly people, who are within the scope of Article 17 of the Reception Directive, but who are not mentally disordered or substantially and permanently handicapped by illness, injury or congenital deformity.
(2) Needs which do not fall within the scope of s. 2(1) of the 1970 Act. In particular, travel assistance is available only in relation to journeys to and from "services" provided by the local authority under arrangements made pursuant to section 29 of the 1948 Act (or services which are "similar" to these) (subsection 2(1)(d)). Thus those who are unable to walk to the shops or to the GP cannot obtain travel assistance under this provision.
(3) Adults within the area of the five local authorities who only provide for those whose needs are critical but who nevertheless may therefore have needs which will give rise to the following consequences (taking the criteria from the "substantial" band as defined in Prioritising Need):
- there is, or will be, only partial choice and control over the immediate environment; and/or
- abuse or neglect has occurred or will occur; and/or
- there is, or will be, an inability to carry out the majority of personal care or domestic routines; and/or
- involvement in many aspects of work, education or learning cannot or will not be sustained; and/or
- the majority of social support systems and relationships cannot or will not be sustained; and/or
- the majority of family and other social roles and responsibilities cannot or will not be undertaken.
(1) In relation to those suffering from temporary illness or debility, the alleged gap is wholly or largely filled by accommodation related services under s. 21 of the 1948 Act and/or by the National Health Service Act 2006, Schedule 20, paragraph 2 of which, following approval by the Secretary of State, gives local authorities a power to provide services for the "purpose of the prevention of illness, for the care of persons suffering from illness and for the after-care of persons who have been suffering from illness". This would allow services to be provided to persons suffering from the effects of long-term illnesses which do not result in substantial and permanent handicap. I had no evidence of the extent to which these powers were or were not exercised in individual cases. There is therefore no evidence that there is a class of such persons with such needs which the Secretary of State could not reasonably expect to be met by local authorities or other organs of the State, and which form a group whose needs are properly to be regarded as normal for the group as a whole.
(2) To the extent that lone parents, torture survivors and the elderly have vulnerabilities which fall outside the scope of section 29, and which can properly be regarded as normal for the cohort of asylum seekers, they have not been excluded by the Secretary of State from the scope of support under s. 96(1)(b) by her treating the cash support as aimed at the "able bodied" destitute. The letter to the Deputy Prime Minister draws a distinction between the able bodied destitute and "those with complicated disability or health problems". Those with more minor physical or mental health problems are treated within the target cohort as the able bodied, as appears from the Disability section of the PES. As to each of the three categories:
(a) Lone parents are not a category whose vulnerabilities stem from not being able bodied, in the sense used by the Secretary of State in targeting the s. 96(1)(b) support, and their particular needs are addressed by Regulation 10 treating them as an individual category receiving more than single adults, and where applicable the additional Regulation 10A amounts for pregnant women and mothers of young children.
(b) So far as concerns torture survivors, the traumatic effect of different experiences of torture will vary for different individuals. For some it will be such that they fall within s. 29. Those with more minor mental health problems are within the Secretary of State's s. 96(1)(b) target of "able bodied". It remains to be seen whether the level of cash support can be challenged as insufficient to meet their needs other than in exceptional cases. But this is not a category which undermines the lawfulness of the Secretary of State's decision on the level of cash support to be provided under s. 96(1)(b) on the grounds that she addressed it to the needs of the able bodied destitute.
(c) The category of "the elderly" may have within it those whose age gives rise to particular frailties or needs of an exceptional nature. Such a person might fall outside the description "able bodied". If so, their needs are likely to be provided for as accommodation related services under s. 21, and to the extent that they are not, that would be the exception, at which s. 96(1)(b) is not aimed. Again, this is not a category which undermines the lawfulness of the Secretary of State's decision on the level of cash support to be provided under s. 96(1)(b) on the grounds that she addressed it to the needs of the able bodied destitute.
(d) So far as concerns travel assistance for those who are unable to walk to the shops or the GP, this category was introduced as the exemplar of needs for those who did fall within the protection of s. 29, but whose needs fell outside the scope of s. 2 of the 1970 Act. Only a sub category of these will fall outside the scope of assistance under s. 21, which should be available for those whose mobility impairment also affects their accommodation needs. The needs of such a residual sub category are more conveniently addressed under Issue 2 below when considering whether the Secretary of State has failed to take account of a particular category of "needs". For the reasons there set out, any need for such assistance would only fall to be met in what could legitimately be regarded as exceptional cases. Again, this is not a category which undermines the lawfulness of the Secretary of State's decision on the level of cash support to be provided under s. 96(1)(b) on the grounds that she addressed it to the needs of the able bodied destitute.
(3) Reliance by the Claimant on the Age UK 2011-2012 document appended to its note in reply, in relation to the then practice of 5 out of 152 Councils, is in my view misplaced on an application such as the present. There is no proper evidential basis for the current practice of Councils, nor even for the 2011-2012 practice of what is in any event said to have been that of a small minority of Councils. There is no evidence of whether this has in fact impacted on any asylum seeker and if so in what circumstances. Such a hypothetical possibility is not the proper subject matter of speculation on a generic application challenging the level of cash support to asylum seekers as a whole. I am unable to say that there is any asylum seeker who fulfils one or more of the alleged "substantial" criteria who is having to survive on the cash support provided pursuant to s. 96(1)(b), let alone that such person would not properly be regarded as an exceptional case.
"A further important change to the scope of s.21 came with the Children Act 1989. The 1989 Act amended s.21(1)(a) so as to limit the duty to persons "aged 18 or over". This was the corollary of the comprehensive provision dealing with "local authority support for children and families" contained in Pt III of the 1989 Act. Since then, it is quite clear that the authority owes no direct duty to children under s.21. As Hale L.J. said in R. (Wahid) v Tower Hamlets LBC 5 C.C.L.R. 239 (having analysed the scope of s.21 in terms commended by Lord Hoffmann in the Westminster case, para ), the local authority's duty is to the claimant "and not to the other members of his family" (para.)."
"2. In the instant case Keith J  EWHC 1402 (Admin) followed what he perceived to be the reasoning in the Westminster case as applied by Collins J in R (Ouji) v Secretary of State for the Home Department  Imm AR 88. In the Ouji case Collins J was concerned to interpret s122(4) of the 1999 Act relating to "essential living needs". Keith J and Collins J reasoned that basic support and basic essential needs by reference to non-disabled asylum seekers would be provided by the Secretary of State under the 1999 Act, but that any additional support needed as a result of disabilities would be provided by local authorities under section 21 of the 1948 Act. Keith J thus held that adequacy under the 1999 Act fell to be tested by reference to able-bodied children and not disabled children. On that basis he held that the accommodation offered to the A family in the instant case was adequate.
3. No counsel supported Keith J's conclusion or reasoning. It was submitted by all counsel, including Mr Jay for the Secretary of State, that the ruling in this case and in the Ouji case, in so far as they suggested that the 1999 Act took no account of the disability of a dependant child in assessing either the adequacy of accommodation or essential living needs, could not stand…
[Waller LJ then set out Keith J's reasoning in relation to Article 8 ECHR]
5. I can say at the outset that it seems to me that the judge's reasoning in the two respects identified cannot be supported..."
"21. The reason why disabled children of asylum seekers do not fall under section 21 is that that provision applies only to those over 18. The corresponding provision for disabled children would be section 17 of the Children Act 1989. However that section is expressly excluded by section 122(5) and (6) of the 1999 Act. There is thus no provision other than section 95 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 1999 Act altogether. This also casts doubt on the reasoning of Collins J in the Ouji case. It is right to say that the order of Jackson J in this particular case (see para 48 below) seems to have divided the responsibility as between the local authority and NASS in a way consistent with the reasoning of Keith J and Collins J but again before us it was accepted that that should not have happened."
(a) where an individual requires support specific to his or her needs – such that an individual needs assessment is a necessary pre-requisite – the statutory scheme envisages that those needs assessments are carried out by the local authority and not the Secretary of State;
(b) this reflects the in-principle division of responsibilities between the able-bodied and the destitute plus;
(c) so far as relates to the payment of cash support, rather than accommodation, the system is not designed to cater for individual needs of asylum seekers (which may differ from case to case). Essential living needs (within the meaning of s.96(1)(b)) is to be read as meaning the needs of the normal asylum seeker;
(d) if the Claimant's construction is correct, then the position will be that either the Secretary of State will be required to carry out individual needs assessments in all these cases, or instead be required to raise the general rates of support to ensure that these classes of supported persons have their specific needs met through the provision of cash support. This is not what the statutory scheme requires. In particular, the UK legislation clearly provides that any needs assessment is for the local authority – as a precursor to the provision of necessary support by them.
"23 Following the Westminster case, certain matters are now clear and common ground:
i) The single able-bodied destitute is the responsibility of NASS. This is because any need for "care and attention" under section 21 arises "solely" from his destitution, and he is therefore excluded from that section by section 21(1A).
ii) The same applies to an able-bodied destitute who has dependant children even if the children are themselves disabled. This was decided by this Court in R (A) v NASS and Waltham Forest LBC  EWCA Civ 1473. Furthermore in such a case any responsibility of the authority for the children under section 17 of the 1989 Act is excluded by section 122(5) of the 1999 Act."
It is apparent from paragraphs  to  that Carnwath LJ had in mind in that case not just accommodation support but also other essential living needs, and this is the context in which the statement of principle in the last sentence of [23(ii)] must be understood.
"where an asylum seeker has a dependant child who has a care need, the UK Border Agency will provide accommodation and support adequate for the needs of the child, and the local authority must assess whether any additional care support is necessary and provide that care support under the Children Act 1989".
Issue 2: Particular needs not identified
Who defines "needs"?
"The provisions of Directive 2003/9 must also be interpreted in the light of the general scheme and purpose of the Directive and, in accordance with recital (5) in the Preamble to the Directive, while respecting the fundamental rights and observing the principles recognised in particular by the Charter. According to that recital, the Directive aims in particular to ensure full respect for human dignity and to promote the application of Articles 1 and 18 of the Charter."
(1) asylum support be set at a level which promotes, protects and ensures full respect for human dignity, so as to ensure a dignified standard of living: Recitals (5) and (7) and Article 1 of the Charter;
(2) asylum support be set at a level which seeks to promote the right to asylum of those who are refugees within the meaning of the Geneva Convention: Recital (5) and Article 18 of the Charter;
(3) asylum support be provided which is adequate to ensure asylum seekers can maintain an adequate standard of health and meet their subsistence needs: Article 13.1 of the Directive; and
(4) the special needs of vulnerable people are provided for so as to meet this minimum standard of living: Article 13.2 and Article 17 of the Directive.
(1) enough food, including fresh fruit and vegetables, to maintain an adequate standard of health;
(2) clothing, including shoes, warm clothing during the winter months and school uniform for children;
(3) essential household goods such as washing powder, cleaning materials and disinfectant;
(4) essential toiletries and sanitary items including sanitary protection for women;
(5) nappies, formula milk and other special requirements of babies and children;
(6) sufficient books, games and toys to promote the development and welfare of children;
(7) non-prescription medication such as painkillers, cold and flu remedies, plasters;
(8) essential travel costs, including travel to attend medical and counselling appointments where this is not covered by the NHS travel scheme and to attend appointments with legal advisors where this is not covered by reimbursement by way of legal aid;
(9) telephone calls to maintain contact with families and legal representatives, and for necessary communication to progress asylum claims, such as with legal representatives, witnesses and others who may be able to assist with obtaining evidence in relation to the claim;
(10) writing materials where necessary for communication and for the education of children;
(11) childcare facilities to enable parents to attend essential appointments, particularly for lone parents;
(12) the opportunity to maintain interpersonal relationships and a minimum level of participation in educational, social, cultural, religious and political life, including by means of transportation to activities of this type.
(1) sufficient food to keep those on support in health and to avoid illness or malnourishment;
(2) for those in receipt of asylum support for any length of time, the provision of suitable clothing to avoid any danger of illness.
(3) essential toiletries;
(4) the means to travel to appointments where they are out of reach;
(5) some means of communication with emergency services;
(6) access to education for children as well as a contribution to wider socialisation costs to promote their development;
(2) essential household goods such as washing powder, cleaning materials and disinfectant;
(3) nappies, formula milk and other special requirements of new mothers, babies and very young children;
(4) books, games and toys for children;
(5) non-prescription medication;
(7) telephone access;
(8) writing materials where necessary for communication and for the education of children;
(10) the opportunity to maintain interpersonal relationships and a minimum level of participation in educational, social, cultural, religious and political life, including by means of transportation to activities of this type.
(2) Essential household goods such as washing powder, cleaning materials and disinfectant
(3) Nappies, formula milk and other special requirements of new mothers, babies and very young children.
(4) Books, games and toys for children
(5) Non prescription medication
(1) Travel to the shops for those unable to walk. The Secretary of State is entitled to treat the cohort of asylum seekers for whom support is provided under s. 96(1)(b) as the able bodied. These may reasonably be expected to be able to walk to and from shops. The infirm who have mobility problems will often be the responsibility of the local authority under s. 21 of the 1948 Act and/or s. 2 of the 1970 Act. Those within the vulnerable categories identified in Article 17 of the Directive may to differing degrees and for different reasons find walking to the shops a real struggle although not physically impossible. It may be a real struggle, for example, for some lone parents with very young children, or those of advancing age, or with significant but less serious physical debilities. But I am not persuaded that public transport for them is something which the Secretary of State was bound to treat as a need which is essential other than in exceptional cases. It is within the range of judgments open to her that unless walking is not reasonably practicable, the cost of transport is not an essential living need. That is not incompatible with the minimum standards of health or dignity required by the Reception Directive, and there is no reason to read down Regulation 9(4)(d) in this respect. If there are any individual cases where the distances involved and personal circumstances of the asylum seeker's household make walking to the shops an unreasonably impractical proposition, and for whom assistance is not provided by local authorities, their transport needs will be exceptional and outside the scope of support by the cash provided as a general rule to all asylum seekers under s. 96(1)(b). Accordingly there is no error of law in the Secretary of State excluding from essential living needs the cost of public transport to and from shops.
(2) Travel to and from a GP. The NHS does not cover the cost of such travel. The Defendant's response is that GP surgeries are generally within walking distance. The same considerations apply here as to travel to the shops.
(3) Travel to appointments with Freedom from Torture. I was told that such travel costs are normally paid for those living outside the Greater London area (the London centre is near Finsbury Park). No payments are made for those within the Greater London area, but the evidence is that accommodation is not usually provided to asylum seekers in the London area. These are exceptional cases and therefore fall for consideration as such; the cost of this category of travel is not a need which has to be provided for in the cash support under s 96(1)(b) to all asylum seekers.
(4) Travel to attend appointments with legal advisors, where this is not covered by reimbursement by way of legal aid. Under Policy Bulletin 28 travel costs are paid for journeys over three miles to attend asylum interviews, appeal hearings, bail hearings and asylum support appeal hearings. This is pursuant to the powers in s. 96(1)((b)-(d). But this does not cover any attendance on legal advisors for the purposes of pursuing the asylum claim or pursuing any incidental applications or appeals, the travel costs for which are paid out of public funds, if at all, by legal aid. Regulation 9(4)(d) of the AS Regulations 2000 precludes the Secretary of State from providing such travel expenses under s. 95. I was told that legal aid will only cover appointments at which advice is given, and so will not cover appointments which involve, for example, the advisor updating the asylum seeker on the process, or the collection of information and documentation by the advisor from the asylum seeker for the purposes of progressing the claim. To the extent that such travel expenses are a necessary cost for an asylum seeker in being able to communicate effectively with a legal advisor for the purposes of seeking to establish his status as a refugee, the prohibition in Regulation 9(4)(d) might well be inconsistent with the Reception Directive, and in particular its objective of promoting the application of Article 18 of the Charter, whose purpose is to ensure that asylum is granted to those who are refugees within the meaning of the Geneva Convention. If asylum seekers were by reason of destitution denied the ability to communicate effectively with a legal advisor for the purposes of seeking to establish their status as a refugee, there is a powerful argument that this would fundamentally undermine their rights under the Convention and Article 18 of the Charter. That raises the question whether the payment of travel expenses for non advice appointments is necessary for the effective pursuit of asylum claims in the normal, non exceptional case. This was not explored in the evidence, and it would be wrong for me to seek to draw on my limited judicial experience of asylum claims to express any concluded view. Since the outcome of this challenge is that the decision will fall for reconsideration by the Secretary of State, this is a matter which will call for informed consideration by her. Also for consideration will be whether the prohibition in Regulation 9(4)(d) is in this respect inconsistent with Article 14.2(b) of the Reception Directive. My view is that it is not, because Article 14.2 is concerned with access not funding: see below.
(7) Telephone calls to maintain contact with families and legal representatives, and for necessary communication to progress asylum claims, such as with legal representatives, witnesses and others who may be able to assist with obtaining evidence in relation to the claim.
"Modalities for material reception conditions
1. Where housing is provided in kind, it should take one or a combination of the following forms:
(a) premises used for the purpose of housing applicants during the examination of an application for asylum lodged at the border:
(b) accommodation centres which guarantee an adequate standard of living:
(c) private houses, flats, hotels or other premises adapted for housing applicants.
2. Member States shall ensure that applicants provided with the housing referred to in paragraph 1(a), (b) and (c) are assured:
(a) protection of their family life:
(b) the possibility of communicating with relatives, legal advisers and representatives of the United Nations High Commissioner for Refugees (UNHCR) and non-Governmental organisations (NGOs) recognised by Member States."
(8) Writing materials where necessary for communication and for the education of children
(10) The opportunity to maintain interpersonal relationships and a minimum level of participation in educational, social, cultural, religious and political life, including by means of transportation to activities of this type.
"89. Art. 1 para. 1 of the Basic Law declares human dignity to be inviolable and requires all state authorities to respect and protect it. If persons do not have the necessary material resources to ensure a dignified existence, because they are not available either from employment income or from their own assets or through third-party grants, the state is required, within its mission to protect human dignity and in fulfilling its remit to provide a social state, to ensure that the material conditions for the needy are available (cf. BVerfGE 125, 175 <222>). As a human right, this fundamental right is available to German and foreign nationals resident in the Federal Republic of Germany alike. This objective obligation under Art. 1 para. 1 of the Basic Law is matched by an individual entitlement to benefits, because the fundamental right must protect the dignity of every individual (cf. BVerfGE 87, 209 <228>) and in such difficulties it can only be secured through material support (cf. BVerfGE 125, 175 <222 f.>).
90. The immediate constitutional entitlement to benefits in order to secure a decent minimum level of subsistence extends only to those resources which are essential to maintaining a dignified existence. It guarantees the entire minimum level of subsistence through a uniform fundamental right which covers both the physical existence of a human being, i.e. food, clothing, household items, shelter, heating, sanitation and health, and the opportunity to maintain interpersonal relationships and a minimum level of participation in social, cultural and political life, since a human being as a person necessarily exists in social relationships (cf. BVerfGE 125, 175 <223> with further references)."
Conclusion on Issue 2
(1) Essential household goods such as washing powder, cleaning materials and disinfectant.
(2) Nappies, formula milk and other special requirements of new mothers, babies and very young children.
(3) Non-prescription medication.
(4) The opportunity to maintain interpersonal relationships and a minimum level of participation in social, cultural and religious life.
(1) Travel by public transport to attend appointments with legal advisors, where this is not covered by legal aid.
(2) Telephone calls to maintain contact with families and legal representatives, and for necessary communication to progress their asylum claims, such as with legal representatives, witnesses and others who may be able to assist with obtaining evidence in relation to the claim.
(3) Writing materials where necessary for communication and for the education of children.
Issue 3: Assessment of the amounts sufficient to meet the needs
"Or, put more compendiously, the question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?"
Erosion of rates
2007: 18-24 yr olds: £32.80; 25 plus: £41.41
2008: 18-24 yr olds: £33.39; 25 plus: £42.16
2009: all (other than legacy 25 plus): £35.13
2010: all (other than legacy 25 plus): £35.52
2011: all (other than legacy 25 plus): £36.62
2012: all (other than legacy 25 plus): £36.62
2013: all (other than legacy 25 plus): £36.62
Qualifying couple 7.4%
Lone parent 11.9%
25 plus single adult 26.6%
18-24 single adult 7.3%
16 &17 yr olds 7.4%
Children under 16 7.4%
Other surveys and materials
(1) The submissions made by a number of organisations to the Home Affairs Select Committee Inquiry into Asylum ("the HASC Inquiry") in April 2003 expressing serious concerns about the inadequacy of asylum support to meet asylum seekers' essential living needs.
(2) The conclusions of a cross party Parliamentary Inquiry into Asylum Support for Children and Young People published in January 2013, which found that "the current levels of support provided to families are too low to meet children's essential living needs... [and] do not enable parents to provide for their children's wider needs to learn, grow and develop".
(3) The findings of the Claimant's own research conducted through interviews with asylum seekers receiving asylum support in late 2012 and completed in May 2013, which was in part provided in evidence to the HASC Inquiry and was further explained in the witness statements of Mr Garratt and Sile Reynolds, the Claimant's former Policy and Information Manager, in this application. This included statistical analysis of the answers of those surveyed and also examples, based on the Claimant's work, of particular difficulties faced by asylum seekers in accessing healthcare; problems faced by pregnant women; the need for warm clothing; the lack of informal networks of assistance and support; problems caused by inability to use public transport; and lack of childcare.
(4) The witness statements of five individuals who have been granted asylum or leave to remain by the Defendant following a period of time spent on asylum support, all of whom describe an inability to meet their essential needs.
(5) A report produced by Freedom from Torture ("FFT") in July 2013, "Poverty Barrier: the Right to Rehabilitation for Survivors of Torture in the UK", supplemented by a witness statement of its researcher, Jo Pettit, which explains in detail the findings of FFT's research with torture survivors about their ability to meet their essential needs while living on asylum support.
(6) Evidence from the Helen Bamber Foundation ("HBF"), a specialist organisation working with survivors of torture, war, genocide, human trafficking, gender based violence and domestic violence, detailing the findings of research carried out with its client group regarding their ability to meet their essential needs on asylum support.
(1) Many of the asylum seekers who were interviewed by the Claimant, FFT and HBF respectively said that they regularly had to miss meals and parents had to prioritise feeding their children over themselves.
(2) Women may be unable to afford adequate sanitary protection.
(3) Pregnant and nursing mothers, particularly those who are single parents, are unable to afford adequate food to eat a healthy balanced diet recommended to them as essential for the health of their child.
(4) Asylum seekers struggle to buy adequate clothing, particularly during the winter months, or to replace items of clothing and shoes when they wear out.
(5) Many asylum seekers struggle to buy adequate toiletries or household cleaning products, and non-prescription medications.
(1) Taking into account irrelevant or erroneous information
(a) inflationary considerations;
(b) Income Support rates;
(c) ONS survey data about average household spending, in particular the expenditure for the lowest 10% of households in the UK;
(d) rates of support paid by EU partners;
(e) the value of Red Cross food parcels given to destitute persons;
(f) evidence acquired on visits to asylum seeker accommodation.
(a) Inflationary considerations
(b)Income Support Rates
(c) ONS data
(1) The figure of £29.90 for food does not comprise all food costs included in the ONS data. Further food costs are identified in item 11 for eating out or takeaways, which amount to another £7.10 per week. Even on the basis that such food needs for asylum seekers should be met by cooking and eating in, an increase to the £29.90 figure for food is required.
(2) No allowance is made for household cleaning materials (£1.10: item 5.6.1); for medicines and healthcare products (£1.20: item 6); or for personal care items such as toiletries, toilet paper, soap (c. £3: item 12.1 with some reduction).
(3) The figures are 2011 figures which would require to be increased for inflation.
(4) The clothing costs assume a significant wardrobe, for which these figures represent the cost of routine replacement; whereas destitute asylum seekers not infrequently arrive with no more than the clothes they stand up in so that the asylum support has to provide for an initial stock of sufficient clothing and footwear for the English climate.
(d) Comparison with other EU member states.
(e) Red Cross parcels
(2) Failing to take account of relevant information; inadequate investigation or ignored material
16 and 17 year olds
(1) they "are transitioning to adulthood";
(2) while those who attend college may have higher costs than adults due to the costs of transport, stationery and possibly uniform, education is not compulsory for post-16 year olds; and
(3) they "will have lower clothing costs given the reduced rates of growth (as evidence by WHO child growth charts)".
Conclusion on Issue 3
(1) She erroneously treated the rates as being increased by 11.5% from their 2007 levels.
(2) She failed to identify and take into account the extent of the decrease in rates in real terms since 2007.
(3) She misunderstood or misapplied information which she treated as important in reaching her decision, namely:
(a) a comparison with Income Support rates; and
(b) a comparison with costs in the lowest 10% of UK households according to the ONS data.
(4) She failed to take reasonable steps to gather sufficient information to enable her to make a rational judgment in setting the asylum support rates for 2013/2014.
(5) She misdirected herself as to the legal position in relation to 16 and 17 year olds.
Second Ground: PSED
(1) The PES applied the wrong test to those suffering from disability in saying that "the decision to freeze rates is not so harsh as to make it impossible for some currently receiving support to meet their essential living needs."
(2) The PES was not considered by the Secretary of State prior to her decision, but was a tick box exercise after the event; her decision was not informed by any personal consideration of her PSED duties. The process failed to comply with the principles summarised by McCombe LJ in R (Bracking) v Secretary of State for Work and Pensions  EWCA Civ 1345 at .
"Those who are within scope of this decision have been deemed to be able to care for themselves on a day-to-day basis including in matters of monitoring household budgets. Though it may be harder for some to adjust than others, it is considered that the decision to freeze rates is not so harsh as to make it impossible for [those] some [who find it harder to adjust than others] currently receiving support to meet their essential living needs."
Third Ground: s. 55 of the 2009 Act