R (M) v Slough Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Sir Peter Gibson,Lord Justice Ward |
| Judgment Date | 25 May 2006 |
| Neutral Citation | [2006] EWCA Civ 655 |
| Date | 25 May 2006 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2004/1027/QBACF |
[2006] EWCA Civ 655
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (COLLINS J)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Maurice Kay and
Sir Peter Gibson
Case No: C1/2004/1027/QBACF
CO/6886/03
Mr John Howell QC and Mr Kelvin Rutledge (instructed by Slough Borough Council) for theAppellant
Mr Stephen Knafler (instructed by Hackney Community Law Centre) for the Respondent
Mr Jonathan Swift (instructed by The Treasury Solicitor) for the Secretary of State for the Home Department (Intervener)
There are two, mutually exclusive, sources of provision for destitute asylum-seekers whose claims for international protection have not been finally determined by the Secretary of State and the appellate structure. One is administered on behalf of central government, the other by local authorities. The responsibility for the former is set out in section 95 of the Immigration and Asylum Act 1999, which provides:
"(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 such period as may be prescribed …
(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."
Provision pursuant to section 95 is administered by the National Asylum Support Service (NASS) . The prescribed period under section 95(1) is 14 days ( Asylum Support Regulations 2000, regulation 7) .
The responsibility of a local authority derives from an earlier statute – the National Assistance Act 1948 – the original enactment of which was purely domestic welfare provision, but which later became important in the context of asylum-seekers, particularly after R v Westminster City Council, ex parte M, P, A and X (1997–8) 1 CCLR 85. I shall have to return to that decision later. At this stage I simply record that it gave rise to an amendment to the 1948 Act, the material parts of which (as amended by section 116 of the Immigration and Asylum Act 1999) now provide:
"(1) 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 eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them …
(1A) A person to whom section 115 of the Immigration and Asylum Act 1999 … applies may not be provided with residential accommodation under subsection (1) (a) if his need for care and attention has arisen solely –
(a) because he is destitute; or
(b) because of the physical effects, or anticipated physical effects, of his being destitute."
The Secretary of State has given relevant approvals and directions under section 21(1) . The mutual exclusivity of the NASS system and the system operated by local authorities under section 21 of the 1948 Act is ensured by regulations 6 and 23 of the Asylum Support Regulations 2000 and section 21(8) of the 1948 Act.
Leaving aside section 55 of the Nationality, Immigration and Asylum Act 2002 (which does not impact on the present case) , a destitute asylum-seeker will usually come within one or other of the two regimes. In the language often used by practitioners in this field, the purely destitute are the business of NASS, while "destitution plus" cases are the preserve of local authorities. The resource implications are considerable for both and it is inevitable that disputes will arise concerning the appropriate categorisation of an individual claimant. This is such a case.
M is a citizen of Zimbabwe who arrived in this country in November 2001 on a six month visa. He has since been diagnosed as being HIV-positive and may be suffering from AIDS. In June 2003 he claimed that, in view of his medical condition and the lack of suitable treatment in Zimbabwe, the Secretary of State could not return him to that country without breaching M's rights under Article 3 of the ECHR. In 2003 he made no claim under the Refugee Convention but he nevertheless fell to be treated as an asylum-seeker for present purposes. This is because, by section 18(3) of the 2002 Act, a claim for asylum includes a claim that to remove a person from, or to require him to leave, the United Kingdom would be contrary to the United Kingdom's obligations under Article 3 of the ECHR.
On 30 April 2003 M requested Slough Borough Council ("Slough") to undertake an assessment with a view to his being provided with accommodation under section 21 of the 1948 Act. Following an assessment and a series of reviews between August 2003 and March 2004, Slough concluded that M did not qualify for the provision of accommodation under section 21. The reasoning behind that conclusion can be seen in a letter from the Principal Solicitor dated 8 January 2004 and in an assessment of 5 March 2004. The letter states:
"This authority has considered whether M is, for practical purposes, able-bodied. When Miss Rigby … spoke to him on 24 December last he agreed that he felt fit and well. It was her opinion, as an experienced social worker, that M was not physically limited by his illness. He appeared to be a calm intelligent man, with a sense of humour. He walks to his local shops and can attend to all his own personal care needs …
M is coping without assistance from social services and it is clear therefore that he does not require assistance to maintain his health. He simply needs accommodation and support. He has both at present. Any problems arising from the loss of his current accommodation would, in this authority's view, merely be the physical effects of destitution …
…should he lose the accommodation currently available to him, any problems he experiences as a result would be due to the physical effects of his homelessness. Accordingly, his case would be one to which section 21(1A) would apply."
The accommodation which M had had at his disposal was with a cousin but that was limited in time. On 22 December 2003 an application for permission to apply for judicial review was issued. On 29 January 2004 Henriques J granted permission, together with an interim order requiring Slough to provide M with residential accommodation. To this day, he remains in accommodation provided by Slough and, through Mr Knafler, he has praised the care and professionalism of Slough's social workers.
The assessment of 5 March 2004 states:
"… there is currently no immediate risk to M provided he complies with his healthcare regime. Any risk to health is currently being managed due to adherence to medication and three monthly checks, the latest of which in February 2004 has not resulted in raising any concerns either to M or to the social worker …
M has no current eligible needs for Slough Social Services … He is freely independent in all areas of assessed need and is managing his healthcare needs with appropriate support from healthcare professionals. M requires access to appropriate resources to maintain his health and well being. His stated principal need is for accommodation and he has no other social care need over and above meeting this requirement."
It was and is common ground that it is necessary that M's accommodation should include provision for refrigeration in respect of his medication.
On 27 April 2004 the application for judicial review was heard by Collins J on the basis of an amended claim form which sought the quashing of the assessment of 5 March. He granted the application and quashed the assessment. Slough now appeal against that order. The appeal requires consideration under two headings: (1) Was Collins J correct to find that this case fell within section 21 of the 1948 Act? (2) Even if he was, have subsequent events taken the case outside section 21? The subsequent events include the Secretary of State's refusal of the Article 3 claim on 12 November 2004, the issue of removal directions on 5 March 2005, M's successful appeal against the removal directions on asylum (not Article 3) grounds on 30 December 2005 and the Secretary of State's application for a statutory review of the decision of the Asylum and Immigration Tribunal dated 30 December 2005 (which application is currently stayed in the Administrative Court, pending judgment in the Court of Appeal in the case of AA, concerning involuntary return to Zimbabwe, which judgment was given, in the Secretary of State's favour on 12 April 2006: [2006] EWCA Civ 401) . Before considering the present appeal under the two headings to which I have referred, it is necessary to summarise the judgment of Collins J [2004] EWHC 1109 (Admin).
The judgment of Collins J
In his judgment, Collins J considered the authorities on the relationship between section 95 of the 1999 Act and section 21 of the National Assistance Act. In concluding that this is a section 21 case, he said:
"…someone suffering from this condition … is clearly – and the medical evidence confirms this – more vulnerable than the able-bodied. So if he loses his accommodation and becomes destitute, his need for care and...
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