R (Ouji) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE COLLINS |
| Judgment Date | 20 August 2002 |
| Neutral Citation | [2002] EWHC 1839 (Admin) |
| Docket Number | CO/1673/2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 August 2002 |
[2002] EWHC 1839 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Collins
CO/1673/2002
MR S KNAFLER (instructed by Tyndallwoods) appeared on behalf of the claimant
MISS J RICHARDS (instructed by the Treasury Solicitors) appeared on behalf of the defendant
Tuesday, 20th August 2002
The claimants in this case are father and daughter. Mr Ouji arrived with his family, consisting of his wife and two children, and sought asylum. I am told that the application has in fact been turned down by the Secretary of State, but that an appeal is pending. Accordingly, he is to be regarded as an asylum-seeker within the meaning of the relevant provisions in the Immigration and Asylum Act 1999. He is thus entitled to seek support under the provisions of part 6 of that Act from the Secretary of State through the National Asylum Support Service ("NASS"), which is the body which is responsible for dealing with support for asylum-seekers.
The daughter is now 13 years old. She has the misfortune to suffer from a number of physical disabilities. It is not necessary to go into any great detail: suffice it to say that they include severe problems with her ability to take food (she has a very limited diet, she is apparently unable to eat normally and she has, I gather, some physical disability in that her stomach is particularly small). She also has recurrent urinary tract infections, and there is a strong family history of renal calculus. Accordingly, she has problems with continence as well. She thus needs more by way of assistance than an average able-bodied child.
In January of this year the applicant's solicitors wrote to NASS asking that the support for the family be increased to meet her needs. What they said was that as a result of the disability extra expenditure was incurred and the standard amount allowable under the regulations was insufficient. The reply from the Home Office was that this was not possible, that the family was receiving the correct level of support in accordance with the regulations. This was subject to the possibility, which was apparently then accepted by NASS, that if a special bed and additional sheets could not be obtained from the local authority social services department, then they would consider the possibility of providing a more suitable bed and additional bedding. That is an offer which may be somewhat inconsistent with the approach now being adopted by NASS, but it would be wrong for me to draw any conclusion from it as to the correct outcome of the claim in this case.
Essentially, the dispute here is whether the extra requirements resulting from the daughter's disability should be met by the local authority, which in this case is Birmingham, or by NASS. Birmingham was originally a party to the proceedings, having been joined as the second defendant, but the claim against Birmingham was dropped and Birmingham has decided to take no active part in these proceedings. The reason that the claimant decided not to pursue the case against Birmingham was largely because Birmingham had accepted that it had responsibilities under relevant legislation which dealt with disabled children to provide some support for exceptional and special needs. As I understand it, although I have not gone into the details because it has not been necessary to do so, Birmingham has accepted that a substantial amount of the extra expenditure or the extra needs will be provided for. Indeed, that is consistent with the correspondence to which I have been referred in the earlier part of this year.
The question that arises is whether the expression used in part 6 of the 1999 Act, "essential living needs", relates to an individual, so that an individual's particular circumstances and condition have to be taken into account, or relates to a more general approach assuming an able-bodied person, and any special characteristics are the responsibility not of the Home Office, NASS, but of the local authority.
It is therefore necessary to refer to the material provisions of the Act and of regulations made under it.
Part 6 commences with section 94, which is a definition section. It is perhaps obvious that Maboubey, the daughter, is to be regarded as a dependant and, as I have already said, her father is an asylum-seeker within the meaning of section 94.
Section 95 is one of the most important of the relevant sections. Subsection (1) provides:
"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 [that period is 14 days]."
Then subsection (3) provides:
"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."
Subsection (4):
"If a person has dependants, subsection (3) is to be read as if the references to him were references to him and his dependants taken together."
Subsection (7) provides:
"In determining, for the purposes of this section, whether a person's other essential living needs are met, the Secretary of State —
(a) must have regard to such matters as may be prescribed for the purposes of this paragraph; but
(b) may not have regard to such matters as may be prescribed for the purposes of this paragraph."
And subsection (8) provides that:
"The Secretary of State may by regulations provide that items or expenses of such a description as may be prescribed are, or are not, to be treated as being an essential living need of a person for the purposes of this Part."
By subsection (12) the Secretary of State is given power through schedule 8 to make regulations supplementing section 95.
Section 96 deals with the ways in which support may be provided. Subsection (1) sets out five different ways which include the provision of accommodation, and, by (b), the provision of what appear to the Secretary of State to be essential living needs of the supporting person and his dependants, if any. Then there is a reference to the provision of expenses in connection with the asylum claim to enable attendance at bail proceedings. No doubt travel expenses would be the main feature of those particular subsections.
Subsection (2) reads:
"If the Secretary of State considers that the circumstances in a particular case are exceptional, he may provide support under section 95 in such other ways as he considers necessary to enable the supported person and his dependants (if any) to be supported."
I am told that section 96(2) is regarded as a provision which enables NASS to exercise discretion to provide support in exceptional circumstances which go outside support necessary to meet essential living expenses.
I have heard no argument as to whether that is or is not a correct view of the scope of section 96(2). Suffice it to say, as I indicated in argument, that I have some doubts since section 96(2) specifically refers to the provision of support under section 95. One has to go back to section 95 to see the circumstances in which support may be granted, and that is where the individual is or is likely to become destitute. However, I am not making any finding on that particular provision. It does, however, indicate, and indeed Miss Richards on behalf of NASS accepts, that there is a power to give more than what I might refer to as the standard amount; the standard amount being referable to regulation 10 of the Asylum Support Regulations 2000, to which I will come in due course.
In a number of sections beginning with section 115 there are specific exclusions from benefits other than those which are to be payable under part 6. Section 115 excludes effectively the ordinary benefits allowable to those who are permitted to remain in this country with the proper leave or are of course British citizens. They are all set out in section 115(1). They range from job seeker's allowance through the various benefits including disablement allowance, disability living allowance and disabled person's tax credit.
Sections 116 and 117 provide for amendments of sections 21 of the National Assistance Act 1948 and section 45 of the Health Services and Public Health Act 1968, which deal with the obligation of local authorities to provide for those who are otherwise in need of particular care. The relevant subsections which are included by virtue of section 116 and 117 are in the same form, and they exclude from the ambit of those Acts, and thus exclude from the possibility of local authority payments, those to whom section 115 of the Act applies solely because they are destitute or because of the physical effects or the anticipated physical effects of their being destitute. That provision has been construed by the Court of Appeal in a decision to which I will have to return in due course, R on the application of Westminster City Council v National Asylum Support Service 4 CCLR 143, a decision given on 10th April 2001. The Court of Appeal in that case decided that someone who had a physical disability which was independent of his being an asylum-seeker did not have a disability which applied solely because he was destitute or because of the physical effects or...
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