R (Pajazit and Others) v London Borough Lewisham Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rimer,Lord Justice Maurice Kay,Lord Justice Sedley |
| Judgment Date | 18 December 2007 |
| Neutral Citation | [2007] EWCA Civ 1351 |
| Date | 18 December 2007 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2007/1941 |
[2007] EWCA Civ 1351
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Newman)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Sedley
Lord Justice Maurice Kay and
Lord Justice Rimer
Case No: C1/2007/1941
Mr Richard Drabble QC and Mr Ranjiv Khubber (instructed by Cambridge House Law Centre) for the Appellants
Mr Bryan McGuire and Ms Sian Davies (instructed by London Borough of Lewisham) for the Respondent
Hearing date: 29 October 2007
Introduction
This is an appeal against an order dated 31 July 2007 by which Newman J refused the application of the claimants, Rasim and Hylkije Pajaziti, for judicial review of the decision of the respondent local authority, the London Borough of Lewisham (“Lewisham”), to refuse to provide them with accommodation and assistance under section 21 of the National Assistance Act 1948. The relief sought below was, and now on this appeal is, for a mandatory order requiring Lewisham to provide the claimants with such accommodation and assistance. The issues involve a close consideration of the relevant legislation, which I will set out straight away.
The legislation
The relevant material is in Part III, headed “Local Authority Services”, of the National Assistance Act 1948, as amended. Section 21 is in a sub-part headed “Provision of Accommodation” and provides, so far as material:
“21. Duty of local authorities to provide accommodation
(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 or any other circumstances are in need of care and attention which is not otherwise available to them; and …
(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. …
(8) Nothing in this section shall authorise or require a local authority to make any provision authorised or required to be made (whether by that or by any other authority) by or under any enactment not contained in this Part of this Act or authorised or required to be provided under the National Health Service Act 1977.”
Section 21(1)(a) imposes a duty upon local authorities only to the extent that the Secretary of State may direct; and by Department of Health Circular No. LAC (93) 10 the Secretary of State gave a general direction imposing a duty upon local authorities to make arrangements under that sub-section in relation to persons ordinarily resident in their area and others in urgent need. Hale LJ explained in Wahid v. Tower Hamlets London Borough Council [2002] EWCA Civ 287; (2002) 5 CCLR 247, at paragraph 30, that a local authority's duty under section 21(1)(a) only falls to be discharged if three conditions are satisfied: (i) the person must be in need of care and attention; (ii) the need must arise by reason of “age, illness, disability or any other circumstances”; and (iii) the care and attention that is needed must not be available otherwise than by the provision of accommodation under section 21(1)(a). There must, therefore, be a need for care and attention that can only be met by the provision of such accommodation. Section 21(1)(a) is a provision of last resort, a point underlined by section 21(8), which shows, for example, that a right to homelessness assistance under Part 7 of the Housing Act 1996 would exclude recourse to it.
The genesis of section 21(1A) requires explanation and it was lucidly provided by Lord Hoffmann in his speech in Regina (Westminster City Council) v. National Asylum Support Service [2002] UKHL 38; [2002] 1 WLR 2956, upon which I have gratefully drawn. Lord Hoffmann explained how the Asylum and Immigration Act 1996 removed from asylum seekers who did not claim asylum at the port or airport of entry the right to claim income support or housing under the homelessness legislation. That led to claims being made under section 21(1)(a) by destitute asylum seekers who had been so excluded from the normal social security system. The duty of local authorities to provide accommodation under that subsection for such claimants was established by the decision of this court in R v. Hammersmith and Fulham London Borough Council, Ex p M (1997) 30 HLR 10.
Lord Hoffmann explained that the consequence of the 1996 Act was to bring two classes of asylum seeker within the grasp of assistance under section 21(1)(a), whereas but for that Act neither would have been. The first class, illustrated by Ex p. M, included what he called “the able bodied destitute” who qualified for the provision of accommodation solely because they were destitute. The second class included what Lord Hoffmann called “the infirm destitute”, that is asylum seekers with some infirmity requiring the provision of care and attention, but who would not, but for the 1996 Act, have needed accommodation to be provided under section 21(1)(a) because it was available in other ways, for example the homelessness legislation.
The decision in Ex parte M carried with it the potential for a heavy cost burden upon local authorities resulting from claims by asylum seekers. With a view to reducing that burden, section 116 of the Immigration and Asylum Act 1999 introduced the new section 21(1A) to the 1948 Act. Lord Hoffmann explained, however, that its use of the word “solely” made it clear that only the able bodied destitute were excluded from the powers and duties of section 21(1)(a). As he said, “[t]he infirm destitute remain within. Their need for care and attention arises because they are infirm as well as because they are destitute.”
The exclusion of the able bodied destitute from the opportunity of assistance under section 21(1)(a) did not, however, result in their being left out in the cold. Section 95(1), within Part VI (“Support for Asylum Seekers”) of the 1999 Act, empowered the Secretary of State to provide, or arrange for the provision of, support for asylum seekers or their dependants who appear to the Secretary of State to be destitute or to be likely to become destitute within any prescribed period. Section 95(3) defined “destitute” 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.”
That new power became exercised through the National Asylum Support Service (“NASS”). The effect, therefore, was to shift to the national purse the burden of provision for those within the reach of section 95. Lord Hoffmann pointed out, however, that although section 21(1A) appeared to remove only the able bodied destitute from the opportunity of local protection under section 21(1)(a), the language of section 95(1) appeared on its face to extend NASS's duties to both the able bodied and infirm destitute.
The Westminster case concerned an infirm destitute asylum seeker. Westminster City Council had housed her but considered that NASS should pay for the accommodation pursuant to its powers under section 95 of the 1999 Act. NASS disagreed and asserted that it was Westminster's responsibility, under section 21(1)(a) of the 1948 Act. That issue was decided at all levels, including the House of Lords, in favour of NASS. The reasoning was that NASS's powers under the 1999 Act and regulations were residual powers, which could only be exercised if the asylum seeker was not entitled to accommodation under some other provision. In the Westminster case the asylum seeker, being an infirm destitute, was entitled to be housed by the local authority under section 21(1)(a), and so her case was excluded from NASS's regime. Had she been able bodied, she would have been excluded from section 21(1)(a) and would have qualified for accommodation under section 95(1).
The Westminster case therefore raised an issue as to which of the local authority and NASS was responsible for the provision of accommodation for the applicant. The present case raises a like issue.
The facts
I take these basically, but with some supplements, from the judge's judgment, his findings not being the subject of challenge. Mr and Mrs Pajaziti are from Kosovo. They arrived in the United Kingdom on 3 November 1997. Mr Pajaziti applied for asylum. His claim was refused on 28 January 1998 on the basis that he had already claimed asylum in Germany. He sought judicial review of this decision, a protracted proceeding that continued until at least the end of 2000.
Mr and Mrs Pajaziti and their family (which by February 1999 comprised three children of whom the eldest was six) were originally supported by Lewisham under the Asylum Support (Interim Provisions) Regulations 1999. Mr Pajaziti applied for support from NASS on 2 July 2004, but his application was refused on 15 September 2004 as he was still eligible for support under the Interim Support Scheme. On 11 November 2004 he applied for indefinite...
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