R (Mani) v Lambeth London Borough Council ; R (Tasci) v Enfield London Borough Council; R (J) v Same

JurisdictionEngland & Wales
JudgeMr Justice Wilson,MR JUSTICE WILSON
Judgment Date18 April 2002
Neutral Citation[2002] EWHC 735 (Admin)
Date18 April 2002
CourtQueen's Bench Division (Administrative Court)
Docket NumberNos: CO/3323/01, CO/321/02, CO/398/02

[2002] EWHC 735 (Admin)

IN THE HIGH COURT OF JUSTICE

Royal Courts of Justice

Strand, London, WC2A 2LL

Before

The Honourable Mr Justice Wilson

Nos: CO/3323/01, CO/321/02, CO/398/02

Between
R. (on the Application of Mani)
Claimant
and
London Borough of Lambeth
Defendant
R. (on the Application of Tasci)
Claimant
and
London Borough of Enfield
Defendant
R. (on the Application of J)
Claimant
and
London Borough of Enfield
Defendant

Mr D. Seddon of Counsel (instructed by Messrs Pierce Glynn, 1 Trinity Street, London SE1) appeared for the Claimant, Mr Mani

Mr S. Knafler of Counsel (instructed respectively by Messrs Pierce Glynn aforesaid and by Messrs Birnberg Peirce & Partners, 14 Inverness Street, London NW1) appeared for the Claimants, Mr Tasci and Mr J

Mr N. Giffin of Counsel (instructed by Messrs Sternberg Reed Taylor and Gill, Focal House, 12–18 Station Parade, Barking, Essex) appeared for the Defendant, The London Borough of Lambeth

Mr B. McGuire of Counsel (instructed by its solicitor) appeared for the Defendant, The London Borough of Enfield

Mr Justice Wilson
1

1. Does a local authority have a duty to provide residential accommodation for a destitute asylum-seeker who suffers a disability which, of itself, gives rise to a need for care and attention which falls short of calling for the provision of residential accommodation? That is the major question raised by these three applications, which have been heard together, for judicial review of, in the first case, a decision by the London Borough of Lambeth and, in the second and third cases, decisions by the London Borough of Enfield, to refuse to provide accommodation in such circumstances.

2

2. A second question is common only to two of the applications, namely those of Mr Mani and Mr Tasci. That question is: if a local authority is liable to make such provision for an asylum-seeker in the circumstances identified by the first question, is it relieved of liability by the fact that the National Asylum Support Service (“NASS”), operated by the Home Office, has offered accommodation to him?

3

3. A third and final question is raised only in the case of Mr Mani: even if the other criteria for provision to him of local authority residential accommodation are satisfied, are his connections with Lambeth or other circumstances such as to make Lambeth responsible for its provision?

4

4. All three claimants are asylum-seekers who are not only destitute but also suffer varying degrees of disability.

(a) Mr Mani, who is Algerian, is 24 years old and suffers a congenital abnormality of the right leg. It is about one half of the length of his left leg. He seeks to cope with this disability by the use of crutches but also at other times by fitting a prosthetic extension to his right leg. But his mobility is impaired: whichever be his chosen means of movement, he experiences pain after walking about 100 to 150 metres. The movement of walking with the prosthesis gives him pain in his lower back; and he has difficulties at times when he needs to remove it, such as when washing or taking a bath. On days when he is in pain he cannot undertake basic tasks such as bed-making and hoovering; and he needs help in carrying heavy shopping. He also has a history of mental health difficulties arising in adolescence and he is vulnerable to psychotic illness which is likely to result in a reduced capacity to cope at times of stress. Since August 2001, in response to the issue of his claim, Lambeth has been providing him with residential accommodation without prejudice to, and pending determination of, its liability to do so.

(b) Mr Tasci, who is a Turkish Kurd, is 50 years old and suffers from severe ankylosing spondylitis with no movement in his neck and very slight mobility in his lumbar spine. About a year ago he had both hips replaced. He suffers pain in his neck, spine, hips and knees; his sight and hearing have deteriorated; and he suffers from depression. He can move with the aid of a stick but only for short distances; and stairs are difficult for him to negotiate. He needs help with bathing, washing, dressing and going to the lavatory. Since his arrival in the United Kingdom with his wife and son in July 2001, they have been staying in overcrowded conditions with his sister. His wife, together with other family members, seeks to assist him as far as possible with the day-to-day round of essential functions. But she herself is also unwell. He takes a variety of medications and receives out-patient care from a consultant psychiatrist. Enfield has assessed him as needing ground-floor accommodation, special equipment in the home and the attendance of a care worker two or three times a week.

(c) Mr J, who is a citizen of the Dominican Republic, is 43 years old and is HIV-positive at an advanced stage. That is why I have directed that he be identified by initial. He has a number of severe associated conditions including renal failure, blocked arteries and veins in his arm, encephalitis, gastro-intestinal bleeding and swollen feet; and he has recently been diagnosed as diabetic. He takes about 17 different types of medication and requires dialysis three times a week. Following his arrival in England in July 2001 he lived with his mother in Enfield; but she is in poor health and unable to provide the moderate degree of day-to-day assistance which, being weak and exhausted, he needs. From September 2001 until January 2002 he was in hospital. Since then Enfield has provided him with residential accommodation under interim order pending determination of its liability to do so.

5

5. The argument raised in all three cases turns upon the proper construction of section 21 of the National Assistance Act 1948 as amended. This provides:

“(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,[and

(aa) residential accommodation for expectant and nursing mothers who 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 (exclusion from benefits) 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.

(1B) Subsections (3) and (5) to (8) of section 95 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule 8 to that Act, apply for the purposes of subsection (1A) as they apply for the purposes of that section, but for the references in subsections (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local authority.]”

6

The approvals and directions foreshadowed in what are now the opening words of subsection (1) are collected in Local Authority Circular (93) 10 but do not need to be considered until §33 below.

7

6. I need to look at the history behind the insertion into section 21 of the Act of 1948 of subsection (1A), which was effected by section 116 of the Immigration and Asylum Act 1999. The history begins with sections 9 and 11 of the Asylum and Immigration Act 1996, which deprived asylum-seekers who claimed asylum any later than at point of entry into the United Kingdom of entitlement to public housing assistance and to social security benefits. Four such late able-bodied asylum-seekers reacted by claiming, in R v. Westminster City Council and others, ex p. M, P, A and X [1997] 1 CCLR 85, that, thus rendered destitute, they were entitled to residential accommodation provided by local authorities under section 21(1)(a) of the Act of 1948. In the Court of Appeal, as at first instance, their claims succeeded. At 93 C-E the Court of Appeal said:

“[The local authorities] contend that asylum seekers’ needs are for food and accommodation and not for care and attention and consequently asylum seekers cannot avail themselves of section 21(1)(a).

Clearly that proposition is too broadly stated. A late-claiming asylum seeker who was old, ill or disabled could certainly rely on the section. But even excepting such asylum seekers, it is at this final stage that the appellants’ argument breaks down. The fact that asylum seekers have a need for food and accommodation which would but for the statutory prohibition contained in the 1996 Act be met under other statutory provisions does not mean that they cannot qualify as having a problem which results in their needing care and attention which is a condition precedent to their being entitled to rely on section 21(1)(a) of the 1948 Act.”

8

7. This judgment was soon perceived to have created problems. In July 1998 the government presented to Parliament a White Paper (Cm 4018) entitled “FAIRER, FASTER AND FIRMER—A MODERN APPROACH TO IMMIGRATION AND ASYLUM”. In it the government proposed a mass of changes to the treatment of asylum-seekers. In paragraph 8.14 it stated:

“The Court of Appeal judgment relating to the 1948 Act meant that, without warning or preparation, local authority social services departments were presented with a burden which is quite inappropriate, which has become increasingly intolerable and which is unsustainable in the long term, especially in London, where the pressure on accommodation and disruption to other services has been particularly acute.”

9

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