R (M) v Slough Borough Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE COLLINS |
| Judgment Date | 27 April 2004 |
| Neutral Citation | [2004] EWHC 1109 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 April 2004 |
| Docket Number | CO/6886/2003 |
[2004] EWHC 1109 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand London WC2
Mr Justice Collins
CO/6886/2003
STEPHEN KNAFLER appeared on behalf of the CLAIMANT
MR ASHLEY UNDERWOOD QC appeared on behalf of the DEFENDANT
The claimant in this case, whom I shall refer to as M, is a 37 year-old Zimbabwean. He has claimed to be entitled to remain in this country because he has the misfortune to suffer from either AIDS or he is HIV positive; it is not entirely clear from the medical evidence before me whether his condition has crossed the border between HIV positive and full blown AIDS. It perhaps matters not because it is his case that were he to be returned to Zimbabwe, the unavailability of suitable treatment would mean that he would be likely to die in an unpleasant fashion within a relatively short period of time, whereas here he is able to receive treatment which gives him a reasonable quality of life and is likely to extend his expectation of life.
He claims that it would be a breach of article 3 of the European Convention on Human Rights to return him. That means that until that issue is decided by the Home Office he is, within the meaning of the relevant legislation, to be treated as an asylum seeker. There is a subsidiary complaint made by the defendant Council that it has taken altogether far too long a time for the Secretary of State to reach a decision upon his claim. It is said that those representing the claimant in his asylum application —not, I should say, those representing him in this particular claim —have been dilatory in pursuing the matter with the Home Office. That is criticism which is peripheral to the issues which I have to determine and in any event I am far from persuaded that there is an inherent probability lying behind those criticisms, having regard to my knowledge of the speed at which the Home Office in some instances deals with cases of this nature, or perhaps I should say the lack of speed.
In any event, the result is that he is an asylum seeker who suffers from a chronic illness. He requires continual medication and, in order for that medication to be effective, it has to be kept in refrigerated conditions. There is also medical evidence which is not contradicted, indeed it could not be contradicted, that if he does not have accommodation and the warmth and security that goes with it, that is to say if he were required to fend for himself on the streets, his medical condition would be likely to deteriorate. He would be more vulnerable than the able-bodied and in such a situation, even the able-bodied would be likely, in due course, to deteriorate if provided with no accommodation.
The reason why the claim is made against the defendant Borough Council is that, at present, the claimant is being accommodated by them. He had been able for a period of time to live with a cousin, but it is his evidence, and again there is no contradiction of this, that that situation is no longer possible and that he has effectively lost touch to a large extent with that cousin. There is no-one else who is available to provide him with accommodation. He is receiving assistance from charitable sources to enable him to buy food, or to have food, and from time to time he has been provided with small amounts of money. He is an intelligent man. He would be able to work were he to be permitted to do so and it may well be that despite his illness he would be able to find a job, but as an asylum seeker whose claim has not yet been determined, he is not permitted to work. Thus, he is not permitted to have any other source of income from the state and he is not entitled to any benefits other than those which are available to asylum seekers.
Those benefits are dealt with in section 95 of the Immigration and Asylum Act 1999. That provides, so far as material, in subsection 1 that:
"The Secretary of State may provide, or arrange for the provision of, support for:
"(a) asylum seekers, or
"(b) dependants of asylum seekers,
"who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed."
The period prescribed is 14 days. Subsection 3 of section 95 goes on to define destitution. Subsection 3 has been replaced by the provisions of section 44 of the Nationality Immigration Asylum Act 2002, but I am told that that has not yet been brought into effect. In reality, the amendments, although the language is slightly different, make no substantial change, certainly no change which could have any effect for the purposes of this case to the test in section 95(3) as originally enacted. That test is as follows:
"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."
So there are two possible ways in which a person can become destitute; either no accommodation, or accommodation but no means of meeting his other essential living needs.
The 1999 Act came into existence as a result of a decision of the Court of Appeal in R v Hammersmith and Fulham London Borough Council, ex parte M 30 HLR, 10. That was an appeal from a decision of mine in which I had decided that section 21(1)(a) of the National Assistance Act 1948 enabled, or indeed required, local authorities to provide support for asylum seekers who were deprived of any other means of support and who were thus destitute. Parliament had decided that all provision for such asylum seekers should be removed, so the question was whether section 21 of the 1948 Act was available and could properly be used to provide for their support if otherwise they would be destitute.
The Court of Appeal decided that section 21 could be so used. It provides as follows:
"Subject to, and in accordance with, the provisions of this part of this Act, a local authority may, with the approval of the Secretary of State, and to such extent as he may direct, shall make arrangements for providing:
"(a) residential accommodation for persons aged 18 or over whom by reason of age, illness, disability, or any other circumstances are in need of care and attention, which is not otherwise available to them."
An issue which has been raised before me by Mr Underwood on behalf of the defendant counsel is: what was the true extent and ratio of the decision in ex parte M. He has submitted that it has, effectively, been misunderstood not only by the Court of Appeal in subsequent cases but also, it would seem, by the House of Lords and that, in truth, its ambit was somewhat narrower than had been believed. In particular, what it required was that there should be an assessment as to whether an individual was in need of care and attention within the meaning of section 21(1)(a) and that was an assessment which it was for the local authority to determine. He draws particular attention to the passage in the judgment of Lord Woolf at page 20 of the report, in which he said this:
"It follows therefore that in general the approach of Collins J was correct and this appeal should be dismissed. Mr Beloff regards Collins J's judgment as being flawed because he treated section 21(1)(a) as 'a residual obligation to be engaged whenever other functions designed to alleviate hardship were not in place'. In particular it is submitted that Collins J was in error in interpreting 'or any other circumstances' as being 'intended to cover eventualities not foreseen and to ensure that there was a safety net to protect those who were in need of care and attention' (transcript page 23 E). It is also suggested that he was in error in saying 'But someone who is unable to provide for himself the basic necessities of life can properly be said to be in need of care and attention' (transcript 28 E/F). These comments and similar comments contained in Collins J's judgment may be the result of a misunderstanding, especially because of the judge's references to 'safety net'. The judge's comments should not be taken as indicating that section 21(1)(a) is a safety net provision on which anyone who is short of money and/or short of accommodation can rely and in so far as the judge intended them to be read literally he was in error."
May I say in parenthesis that he did not. The passage then continues:
"Section 21(1)(a) does not have this wide application. Asylum seekers are not entitled merely because they lack money and accommodation to claim they automatically qualify under section 21(1)(a). What they are entitled to claim (and this is the result of the 1996 Act) is that they can as a result of their predicament after they arrive in this country reach a state where they qualify under the subsection because of the effect upon them of the problems under which they are labouring. In addition to the lack of food and accommodation is to be added their inability to speak the language, their ignorance of this country and the fact they have been subject to the stress of coming to this country in circumstances which at least involve their contending to be refugees. Inevitably the combined effect of these factors with the passage of time will produce one or more of the conditions specifically referred to in section 21(1)(a). It is for the authority to decide whether they qualify. In making their decision, they can bear in mind the wide terms of the Direction to which...
To continue reading
Request your trial
-
R (Nassery) v London Borough of Brent
...the judge was not satisfied that there was any diminution in Mr Nassery's ability to cook (a matter not raised on this appeal). R (M) v Slough BC [2008] 1 WLR 1808 30 The leading authority on section 21(1) of the NAA is R (M) v Slough BC [2008] 1 WLR 1808. It concerns the meaning of the w......
-
R NM v The London Borough of Islington Northamptonshire County Council First (Interested Party) The Parole Board Second (Interested Party)
...or future conditional cases (see the approach to interpretation of community care legislation indicated by Lord Neuberger in R (M) v Slough Borough Council [2008] UKHL 52; [2008] 1WLR 1808 at para. [55]). 86 In the present case, I consider that the connection between the proposed considerat......
- Otkritie International Investment Management Ltd and Others v Yevgueni Jemai and Others
-
R Adalberto Jesus De Almeida v Royal Borough of Kensington and Chelsea
...it was agreed that I should proceed to consider the case on that basis. Interpretation of s.21(1)(a) NAA 1948 21 The case of R (M) v Slough Borough Council [2008] UKHL 52, [2008] 1 W.L.R. 1808, is the leading authority on the scope of s.21(1)(a) NAA 1948. Lady Hale's analysis, which was agr......