Al-Almeri v Kensington and Chelsea Royal London Borough Council; Osmani v Harrow London Borough Council. Glasgow City Council, intervening
| Jurisdiction | UK Non-devolved |
| Judge | LORD BINGHAM OF CORNHILL |
| Judgment Date | 05 February 2004 |
| Neutral Citation | [2004] UKHL 4 |
| Court | House of Lords |
| Date | 05 February 2004 |
[2004] UKHL 4
HOUSE OF LORDS
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Scott of Foscote
Lord Walker of Gestingthorpe
(Conjoined Appeals)
My Lords,
The issue raised in these appeals was succinctly expressed by Simon Brown LJ in the opening sentence of his leading judgment in the Court of Appeal ( [2003] EWCA Civ 235, [2003] 1 WLR 1289, 1291):
"Is residence in a district in accommodation provided to a destitute asylum seeker under legislation which requires the provider to ignore any preference of the asylum seeker as to where he resides capable of being regarded as residence (in that district) of the asylum seeker's own choice?"
It is common ground that the respondents to these appeals (Mr Al–Ameri and Mrs Osmani, both of them former asylum seekers) were, in March 2002 and November 2001 respectively, entitled to be provided with accommodation for occupation by them and members of their families under the Housing Act 1996. The question is whether the duty to secure provision of such accommodation may have lain on the intervener (the Glasgow City Council) or whether it lay on the appellants (the Royal Borough of Kensington and Chelsea and the London Borough of Harrow) respectively. The answer turns on whether the respondents' residence in Glasgow as asylum seekers under the Immigration and Asylum Act 1999, pending determination of their applications for asylum, may have given rise to a local connection between the respondents and the Glasgow City Council in its capacity as the housing authority for the district in which the respondents, as asylum seekers, were resident. That in turn depends on whether, within the meaning of section 199(1)(a) of the Housing Act 1996, such residence was of the respondents' own choice.
The issue thus arises at the confluence of two streams of legislation, the general homelessness provisions under Part VII of the 1996 Act and the provisions governing support for asylum seekers in Part VI of the 1999 Act. If the respondents' residence in Glasgow pending determination of their asylum claims cannot in law have given rise to a local connection between the respondents and the district of the Glasgow City Council, then it was the duty of the appellant authorities respectively to secure that accommodation was available for occupation by the respondents. If that residence may in law have given rise to such a local connection, further enquiry into the facts will be necessary hereafter to decide whether, in these particular cases, such a local connection was established or not. While the respondents are parties to this litigation and not dispassionate onlookers, there are echoes of the old Poor Laws, under which parishes contended that paupers were settled in a parish other than their own (see Holdsworth, A History of English Law, vol x, p 257 et passim).
The central provision of the 1996 Act is section 193, which applies (subsection (1))
"where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally."
The authority must then (subsection (2)) "secure that accommodation is available for occupation by the applicant". But this duty imposed on the local housing authority is subject to an important qualification: "Unless the authority refer the application [for accommodation] to another local housing authority (see section 198), …".
So far as relevant to this appeal, section 198 provides:
"Referral of case to another local housing authority
(1) If the local housing authority would be subject to the duty under section 193 (accommodation for those with priority need who are not homeless intentionally) but consider that the conditions are met for referral of the case to another local housing authority, they may notify that other authority of their opinion.
(2) The conditions for referral of the case to another authority are met if –
(a) neither the applicant nor any person who might reasonably be expected to reside with him has a local connection with the district of the authority to whom his application was made,
(b) the applicant or a person who might reasonably be expected to reside with him has a local connection with the district of that other authority, …"
The meaning of the expression "local connection" used in section 198(2)(a) and (b) is elaborated in section 199:
"Local connection
The substance of what is now section 199, including what are now subsections (1), (2) and (3), was first enacted in section 18 of the Housing (Homeless Persons) Act 1977.
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(1) A person has a local connection with the district of a local housing authority if he has a connection with it –
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(a) because he is, or in the past was, normally resident there, and that residence is or was of his own choice,
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(b) because he is employed there,
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(c) because of family associations, or
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(d) because of special circumstances.
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(2) A person is not employed in a district if he is serving in the regular armed forces of the Crown.
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(3) Residence in a district is not of a person's own choice if –
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(a) he becomes resident there because he, or a person who might reasonably be expected to reside with him, is serving in the regular armed forces of the Crown, or
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(b) he, or a person who might reasonably be expected to reside with him, becomes resident there because he is detained under the authority of an Act of Parliament.
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(4) In subsections (2) and (3) ' regular armed forces of the Crown' means the Royal Navy, the regular forces as defined by section 225 of the Army Act 1955 or the regular air force as defined by section 223 of the Air Force Act 1955.
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(5) The Secretary of State may by order specify other circumstances in which –
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(a) a person is not to be treated as employed in a district, or
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(b) residence in a district is not to be treated as of a person's own choice."
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Section 202(1)(c) gives an applicant for accommodation the right to request a review of any decision of a local housing authority to notify another authority under section 198(1). If the applicant is dissatisfied with the outcome of a review or is not notified of the decision within a prescribed period, an appeal lies to the county court on any point of law arising from the decision under section 204.
Section 185 provides that persons subject to immigration control within the meaning of the Asylum and Immigration Act 1996 should not, generally, be eligible for housing assistance, and section 186 as originally enacted limited the rights of asylum seekers.
The exclusion of asylum seekers from entitlement to claim a range of social security benefits (including housing benefit) and accommodation under section 21 of the National Assistance Act 1948 was made plain by sections 115 and 116 of the 1999 Act which generally applied to persons subject to immigration control, including those who (like asylum seekers) required leave to enter or remain in the United Kingdom but did not have it. Their entitlement to support (if any) was to be governed by Part VI of the 1999 Act, entitled "Support for Asylum–Seekers", who are defined in section 94(1) to mean persons not under 18 who had made a claim for asylum which had been recorded by the Secretary of State but which had not been determined.
Section 95(1) of the 1999 Act empowers the Secretary of State to provide, or arrange for the provision of, support for
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(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."
Subsection (3) provides two possible grounds on which, for purposes of the section, a person may be destitute, namely 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."
If the asylum seeker has dependants, subsection (3) is to be read as if the references to him are references to him and his dependants taken together. Subsections (5) and (6) are directed to the Secretary of State's determination whether an asylum seeker's accommodation is adequate: to some matters set out in (6) the Secretary of State is not to have regard; matters may be prescribed to which he is to have regard. Matters may be prescribed to which the Secretary of State should and should not have regard in determining for purposes of the section whether an asylum seeker's essential living needs are met: subsection (7). Support may (subsection (9)) be provided subject to conditions.
Under section 96, 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); …."
Section 97(1) and (2) provide as follows:
"(1) When exercising his power under section 95 to provide accommodation, the Secretary of State must have regard to –
(a) the fact that the accommodation is to be temporary pending determination of the asylum–seeker's claim;
(b) the desirability, in general, of providing accommodation in areas in which there is a ready supply of accommodation; and
(c) such other matters (if any) as may be prescribed.
(2) But he may not have regard to –
(a) any preference that the supported person or his...
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