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

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Simon Brown
Judgment Date09 Jul 2003
Neutral Citation[2003] EWCA Civ 836
Docket NumberCase No: C1/2002/2255

[2003] EWCA Civ 836

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

(Mr Justice Wilson)

(QUEEN'S BENCH DIVISION)

Before:

Lord Justice Simon Brown

(vice-president Of The Court Of Appeal Civil Division)

Lord Justice Judge and Mr Justice Nelson

Case No: C1/2002/2255

Between:
The Queen (on The Application Of Mani)
Respondent
and
London Borough Of Lambeth
Appellant
and
The Secretary Of State For The Home Department
Intervener

James Goudie Esq, QC & Nigel Giffin Esq, QC (instructed by Messrs Sternberg Reed Taylor & Gill) for the Appellant

Stephen Knafler Esq (instructed by Messrs Pierce Glynn) for the Respondent

Neil Sheldon Esq (instructed by The Treasury Solicitor) for the Intervener

Lord Justice Simon Brown
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 was how Wilson J formulated the major question arising on this challenge (and two similar conjoined challenges) below. I gratefully take the relevant facts from his admirably clear and comprehensive judgment given on 18 April 2002, now reported at (2002) 5 CCLR 486.

2

The respondent, Mr Mani, is a destitute 24 year old Algerian asylum seeker. He suffers a congenital abnormality of the right leg. It is about one-half 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 —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 in times of stress.

3

Between November 2000 and April 2001 and again between June and July 2001, Mr Mani was provided with accommodation in the Eurotower Hotel (in the area of Lambeth) by the National Asylum Support Service ("NASS"), a division of the Home Office. Since August 2001, however, when Mr Mani declined NASS's further offers of accommodation and instead claimed to be accommodated by Lambeth LBC ("Lambeth"), Lambeth has been providing him with residential accommodation without prejudice to, and pending determination of, its liability to do so.

4

I have already said enough to indicate to those familiar with this area of the law that the central dispute arising here is whether the liability for Mr Mani's accommodation and support lies with NASS under s95 of the Immigration and Asylum Act 1999 ("the 1999 Act") or with the appellant authority (Lambeth) under s21 of the National Assistance Act 1948 as amended by the 1999 Act ("the 1948 Act"). Rather than rehearse all the relevant statutory provisions in yet another judgment I shall for the most part take them as read. The most directly relevant parts of s21 itself, however, must be set out:

"21(1) … a local authority … shall make arrangements for providing

(a) residential accommodation for persons aged 18 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 [subject to immigration control, including asylum seekers] 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."

5

It is convenient at this stage to summarise very briefly the development to date of the relevant jurisprudence.

6

In 1997 this court in R -v- Westminster City Council ex parte M (1997) 1 CCLR 85 held that all destitute asylum seekers, the able-bodied as well as the infirm, deprived of all benefit entitlement as they had by then become by the Asylum and Immigration Act 1996, could qualify for assistance under s21 of the 1948 Act. Lord Woolf MR, giving the judgment of the Court, said at p95:

"Asylum seekers are not entitled merely because they lack money and accommodation to claim they automatically qualify under s21(1)(a). What they are entitled to claim (and this is the result of the Act of 1996) 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. … It is for the authority to decide whether they qualify … In particular the authorities can anticipate the deterioration which would otherwise take place in the asylum seeker's condition by providing assistance under the section. They do not need to wait until the health of the asylum seeker has been damaged."

7

As Lord Hoffmann was later to observe in R (Westminster City Council) -v- National Asylum Support Service [2002] 1 WLR 2956, 2964, the decision in M "caused consternation" and in a 1998 White Paper proposing the creation of NASS and anticipating the 1999 Act, the government stated in paragraph 8.23:

"The 1948 Act will be amended to make clear that social services departments should not carry the burden of looking after healthy and able-bodied asylum seekers. This role will fall to the new national machinery."

8

The 1999 Act by s95 provided this new national support machinery for asylum seekers and at the same time by s116 introduced the new subsection (1A) into s21 of the 1948 Act.

9

In June 2000 this court in R -v- Wandsworth LBC ex parte O; R -v- Leicester CC ex parte Bhikha [2000] 1 WLR 2539 (a decision which I shall refer to simply as " Ex parte O") was concerned with two claimants, each subject to immigration control but neither an asylum seeker (each, in short, an overstayer). One had severe psychiatric problems; the other had recurring cancer of the duodenum which required continuous medical treatment. Both were destitute. The critical question arising on the appeals was whether the insertion of subsection (1A) into s21 of the 1948 Act had made them ineligible for accommodation under that section. In short, did their need for care and attention arise solely from the physical effects of their actual or anticipated destitution? This court held not. As I myself put it at p2548:

"[I]f an applicant's need for care and attention is to any material extent made more acute by some circumstance other than the mere lack of accommodation and funds, then, despite being subject to immigration control, he qualifies for assistance. Other relevant circumstances include, of course, age, illness and disability, all of which are expressly mentioned in section 21(1) itself. If, for example, an immigrant, as well as being destitute, is old, ill or disabled, he is likely to be more vulnerable and less well able to survive than if he were merely destitute."

Hale LJ agreed, pointing out (at p2553) that s21 "was not originally designed as the last refuge of the destitute", but concluding (at pp2557–2558) that:

"It makes no sense for the old, the sick or the disabled to be eligible for hospital and other health services but not for the community care services they need."

Kay LJ agreed with both our judgments.

10

The proceedings between Westminster and NASS followed, successively before Stanley Burnton J and this court in early 2001 and the House of Lords in 2002. Westminster -v- NASS, unlike Ex parte O, did concern a destitute asylum seeker and so for the first time the question was directly raised as to where, between NASS and local authorities, the responsibility lies for housing and supporting disabled asylum seekers. Mrs Y-Ahmed, the asylum seeker in that case, was both destitute and suffering from spinal myeloma. She required self-contained accommodation of at least two rooms near the hospital accessible by wheelchair and to community care services, accommodation which was found for her at a local hotel. The issue in the case was whether the liability for that accommodation lay with Westminster or with NASS. Westminster lost the case at all levels: it was held that support was available to Mrs Y-Ahmed as an infirm destitute asylum seeker under s21 of the 1948 Act, and that, having regard to the relevant provisions of the 1999 Act and the Asylum Support Regulations 2000, it was plain that she could not therefore be deemed destitute for the purposes of s95 and so could not look to NASS for support.

11

Although, I think it fair to say, we in the Court of Appeal had little difficulty in reaching our conclusion in Westminster -v- NASS, I for my part thought it right to consider the impact of that conclusion on our earlier decision in Ex parte O and I reflected in particular that Ex parte O itself would have an altogether wider effect than we had originally recognised. Paragraphs 42 —45 of my judgment in Westminster -v- NASS are in point and, as will appear, came to be relied on by the appellants in the present case:

"42. Looking back, I have little doubt that our thinking (or certainly my thinking) on asylum-seekers was this: Those who without support would deteriorate essentially through destitution would be entitled to...

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