R (J) v Enfield London Borough Council

JurisdictionEngland & Wales
JudgeMr. Justice Elias
Judgment Date04 March 2002
Neutral Citation[2002] EWHC 432 (Admin)
Docket NumberCase No: 5054/2001
CourtQueen's Bench Division (Administrative Court)
Date04 March 2002

[2002] EWHC 432 (Admin)


Royal Courts of Justice


London, WC2A 2LL


The Honourable Mr. Justice Elias

Case No: 5054/2001

The Queen on the Application of J
London Borough of Enfield
Secretary of State for Health

Ms. Kate Markus (instructed by Bindman & Partners) for the Claimant

Mr. Bryan McGuire (instructed by London Borough of Enfield) for the Defendant

Mr. Philip Sales for Secretary of State for Health

Mr. Justice Elias

This application for judicial review is concerned with two decisions of the defendant authority made pursuant to section 21 of the National Assistance Act 1948 (“NAA”) and section 17 of the Children's Act 1989 respectively. The claimant maintains that she should be provided with accommodation under the former statutory provision; alternatively that she and her two year-old daughter should be provided with such financial assistance as would enable them to secure accommodation under the latter provision. She further maintains that the failure to help her to obtain accommodation, whether directly or through financial assistance, involves a breach by the authority of her rights under Article 8 of the European Convention on Human Rights and Fundamental Freedoms, which confers on everyone a right to respect for the home and family life. Accordingly she submits that if necessary the statutory provisions should be read so as to give effect to those rights, as required by section 3 of the Human Rights Act 1998 ( HRA). If they cannot be so construed, then it is suggested that the court should make a declaration of incompatibility pursuant to section 4 of the 1998 Act.


The local authority contends that it has no power in the circumstances to exercise either power in her favour. It accepts, however, that the failure to provide any assistance does infringe the claimant's Article 8 rights. However, it contends that it is not possible to construe the legislation in accordance with those rights even given the wide interpretative power conferred by section 3 of the HRA. There is a gap in the legislation which prevents the authority from lawfully giving effect to the claimant's rights. The authority suggests that the appropriate relief might be to make a declaration of incompatibility pursuant to section 4 of the HRA.


In view of this stance, it seemed to me at an early stage in the hearing that there was a realistic possibility that I might have to consider making such a declaration of incompatibility. Accordingly, I adjourned the proceedings in order to permit the Secretary of State to be joined as a party pursuant to RSC Part 19.4A. The Secretary of State chose to take up that opportunity and I have had helpful assistance from Mr. Sales. He has widened the debate by contending that the authority has a power under section 2 of the Local Government Act 2000 (“LGA”) to provide financial assistance to assist the claimant to secure accommodation for herself and her daughter. The significance of this submission, if correct, is that even if the authority's submissions on the scope of section 21 of the NAA and section 17 of the Children Act are right, there is still no gap in the legislation preventing it from giving effect to the claimant's human rights. Accordingly, submits Mr.. Sales, neither sections 3 nor 4 of the HRA need to be invoked at all.


The facts

The claimant came to the United Kingdom from Ghana in February 1995. She has over-stayed the period permitted on her visa for her to remain in the United Kingdom. She made an application to the Home Office for leave to remain in July 2000. That application has not yet been determined Prior to that application being made, her daughter F was born on the 26 February 2000. During her ante-natal care, the claimant was diagnosed with HIV. Her daughter has been regularly screened for the virus and has fortunately not yet tested positive; it is thought unlikely that she will now be affected by it.


Virtually since coming to the United Kingdom in 1995, the claimant has been living in premises in Enfield in a 3-bedroom house owned by a Ms. Anim. Initially the claimant had a small income and was able to pay some rent and support herself, but after the birth of her daughter the claimant was ill and in hospital for some three months and was not thereafter able to make any contribution towards household expenses. She was, however, allowed to stay, her accommodation and food being provided in return for the claimant cooking and cleaning the premises. In addition, she has been receiving some financial and other support from various charities, including in particular assistance from the church which she attends. There is some dispute as to whether she receives any money from her daughter's father; I return to that issue later.


Since last July 2001, Ms Anim has not lived in the premises. She has rented out the property to tenants. At about the same time Ms Anim asked the claimant to leave the house but has generously not as yet forced the issue because of the claimant's ill health. However, there are real difficulties resulting from the claimant remaining there. In particular, when Ms Anim moved out, her son moved into the house and he sleeps in the living room with the claimant and her daughter. The claimant says that there is nowhere she can go.


The claimant has been seeking the assistance of the local authority in obtaining accommodation since the early summer of 2001. I set out in some detail below the chronology of events. Initially judicial review proceedings were initiated on the assumption that the authority was refusing to carry out any assessment of needs either for the claimant under section 47 of the National Health Service and Community Care Act 1990 or for her daughter (whose needs assessment is made under both that provision and paragraph 3 of Schedule 2 to the Children Act). Subsequently it became clear that these assessments had in fact been carried out but for some reason the results were not received by the claimant, although the authority says that they were sent to her. The defendant assessed the claimant as being at low risk and requiring minimal care and support, and the daughter was found not to require any immediate assistance. Following this information, further medical evidence was submitted by the claimant, but this has not caused the authority to change its stance. In the light of these developments, the judicial review application has been amended to challenge both the initial assessments and the decision to maintain them in the light of the medical evidence.


Permission to take judicial review proceedings was granted by Newman J. on the 21 December 2001. He also ordered interim relief which required the defendant authority, if necessary, to provide accommodation for the claimant and her daughter. The reason for this was that it was expected at that time that Ms Anim would be returning in time for Christmas and was requiring the claimant and her daughter to leave the premises. In fact Ms Anim has been in Ghana and for certain reasons her return had been delayed; indeed, she still had not returned to this country by the date of the judicial review hearing on the 11 February 2002. Accordingly it has not been necessary for the authority to provide the accommodation, though they have very properly and fairly agreed that the interim order should stay in place until the outcome of the determination of this case.


The statutory context.

In order to understand why the claimant is seeking to rely upon these particular statutory provisions, it is necessary to understand certain aspects of her position. First, because of her immigration status as an overstayer she is not entitled to any state benefits save for child benefit in respect of her daughter. This means that even if she were able to find accommodation, she would not be in a position to maintain the rent through housing benefit and would have to raise money in some other way. However, she is only seeking financial assistance to enable her to secure accommodation. More specifically, she is asking for the deposit and the first month's rent on appropriate premises and assistance with the rent thereafter. She would apparently be content with this if no accommodation could be provided. In normal circumstances she would be eligible to claim that she should be housed by the local housing authority pursuant to Part VII of the Housing Act 1996 which deals with homeless applications. She would be entitled to priority need by virtue of the obligation to look after her young daughter. However, she is expressly excluded from the scope of those provisions by section 185 of the Act. This renders ineligible for the benefits conferred by Part VII persons from abroad who are not eligible for housing assistance. Those subject to immigration control are not so eligible unless they have been expressly made eligible by statutory regulations. No regulations have been made for overstayers like the claimant.


Were the claimant an asylum seeker, she would be able to apply for support, including accommodation, to the National Asylum Support Service (NASS) under the Immigration and Asylum Act 1999 (“IAA”) section 95. Moreover, section 94 provides that the concept of an asylum seeker under that Act includes someone who is claiming the right to remain not only on the grounds that the Geneva Convention is applicable, but also on the grounds that he is claiming that to return him to the home country would infringe his human rights. I mention this because I am informed that it is the intention of the claimant to seek to remain in the United Kingdom on the grounds that it would be a...

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