R (Pajazit and Others) v London Borough Lewisham Council

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
Judgment Date31 Jul 2007
Neutral Citation[2007] EWHC 1874 (Admin)
Docket NumberCase No: CO/3357/2007

[2007] EWHC 1874 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Before:

The Honourable Mr Justice Newman

Case No: CO/3357/2007

Between
The Queen on the Application of
(1) Rasim Pajaziti
(2) Hylkije Pajaziti
Claimants
and
London Borough of Lewisham
Defendant
and
Secretary of State for the Home Department
Interested Party

Ranjiv Khubber (instructed by Cambridge House Law Centre) for the Claimants

Bryan McGuire (instructed by London Borough of Lewisham) for the Defendant

Hearing date: 13 th July 2007

Judgement

THE HON. MR JUSTICE NEWMAN

The Hon Mr Justice Newman:

1

This case raises an issue as to whether the Claimants, being destitute asylum seekers, qualify for accommodation under section 21(1) of the National Assistance Act 1948 ("the 1948 Act") because they have fulfilled "the destitute plus" test, a test developed by case law and approved by the House of Lords in ( Westminster City Council) v National Asylum Support ServiceR (2002) 1 WLR 2956. The Defendant concluded that the test had not been fulfilled because, on the evidence, the Claimants did not have a need for care and attention made materially more acute by some circumstance other than a need for accommodation and funds (see R v LB Wandsworth ex parte O. [2000] 1 WLR 2539).

2

The Secretary of State's position, being an Interested Party in these proceedings, is that:

(a) if the Defendant's current assessment(s) of the Claimants' needs, pursuant to section 47 of the National Health Service and Community Care Act 1990 ("the 1990 Act") is/are lawful, the Secretary of State is responsible for supporting the Claimants and their children under Part VI of the Immigration and Asylum Act 1999 ("the 1999 Act") but

(b) if those assessments are unlawful, the Defendant is responsible for supporting any claimant who has an assessed need for care and attention (under section 21 of the Act 1948) and the Secretary of State is responsible for supporting any claimant who does not and for supporting the Claimants' children.

3

It follows that the Court must determine whether the Defendant has erred in law in its assessments of the Claimants' needs. The First Claimant applied to the National Asylum Support Service (NASS) (the Home Office agency with responsibility for administering asylum support on behalf of the Secretary of State) on 4 th April 2006 and the claim for support was accepted, but the Claimants section 21 of the 1948 Act. The Secretary of State accepts responsibility for the Claimants' support, but any such support will be conditional on the Claimants accepting the Secretary of State's offer of accommodation in a dispersal area.

The background facts

4

The First Claimant arrived from Brussels on 3 rd November 1997. He applied for asylum on 12 th January 1998. His claim was refused on 28 th January 1998 on the basis that he had already claimed asylum in a safe third country, Germany.

5

The First Claimant and his family were supported by the Defendant under what was known as the Interim Support Scheme whereby local authorities supported eligible asylum seekers.

6

The First Claimant applied for support from NASS on 2 nd July 2004. That application was refused by a refusal letter dated 15 th September 2004 as he was then a person to whom the Interim Support Scheme applied.

7

He applied for indefinite leave to remain ("ILR") under the Family ILR Exercise on 11 th November 2004. This application was refused on 21 st March 2006. By a letter dated 7 th September 2006 the First Claimant asked for a reconsideration under the Family ILR Exercise. No decision has yet been made on the application. By a letter dated 30 th April 2006 the First Claimant made representations purporting to be a further fresh human rights claim under Article 8 which was said to supplement a claim under Article 6 made by a letter dated 3 rd May 2005. Neither claim has been determined.

8

The Secretary of State has made two attempts to remove the First Claimant and his family—on 2 nd November 2004 and 9 th March 2005—but the removal was not effected.

9

In 2005 the Interim Scheme Project ("ISP") was set up by the Secretary of State to replace the Interim Support Scheme. The aim of the ISP was to transfer the responsibility for supporting eligible asylum seekers from local authorities to NASS.

10

The First Claimant applied again to NASS for support on 4 th April 2006 because of the introduction of the ISP. He submitted medical evidence about the conditions of his wife and their son. This was submitted to a medical adviser whose advice was that they could readily be treated outside London and the family could therefore be dispersed.

11

NASS accepted the application for support and made arrangements to disperse the First Claimant and his family as follows:

(a) booked travel to Nottingham on 6 th June 2006: he failed to travel;

(b) booked travel to Bristol on 18 th August 2006: he failed to travel;

(c) booked travel to Bristol on 2 nd November 2006: he failed to travel;

(d) booked travel to Barnet, Hertfordshire on 7 th November 2006: he failed to travel;

(e) booked travel to Birmingham on 19 th April 2007: he failed to travel.

12

On 18 th April 2007 NASS wrote to the First Claimant to say that his application for accommodation to be provided by NASS in London on medical grounds had been considered and refused on the grounds that the NASS medical adviser had advised that proximity to London was not necessary on medical grounds and that all necessary medical treatment would be available in the dispersal area.

13

As a result of the First Claimant's failure to accept the conditions on which support was provided (i.e. that he travel to a dispersal area), no support has been provided to him by NASS. There has been no challenge to the decision to disperse the First Claimant and his family or to the fact that no support has in fact been provided by NASS.

14

In the meantime the First Claimant applied to the Defendant for assistance under section 21 of the 1948 Act and the Defendant carried out various assessments of the First Claimant and his wife and decided that neither was eligible for support under section 21. It is these decisions which are under challenge.

15

The Defendant summarised the position in a letter of 15 th November 2006 as follows:

"The assessment of your client Hylkije Pajaziti showed her as not requiring any care services at all and managing all her own needs. She identified any difficulties she does have by way of minor reactive ailments, such as headaches, as being attributable to the possibility of dispersal….. Similarly, Mr Rassim Pajaziti has some minor medical needs which could be well managed in any part of the United Kingdom. Other than these, he did not display any difficulties save reactive minor ailments about his immigration status".

16

Most recently the Claimants served lengthy medical reports on the Defendant dated 10 th April 2007. The content of these reports will require attention in so far as constitutes the factual basis for the Claimants' submission that there is an entitlement to support under section 21 of the 1948 Act. Before setting out these essential facts it will be convenient to summarise the relevant law.

The Law

17

Section 21(1) of the 1948 Act gives a local authority a power to such extent as the Secretary of State approves and a duty to such extent as he may direct to:

"…. 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…"

The Secretary of State has directed social services authorities to make arrangements under section 21(1)(a) in relation to persons ordinarily resident in their area and others in urgent need. Section 21(2) provides that:

"In making any such arrangements a local authority shall have regard to the welfare of all persons for whom accommodation is provided, and in particular to the need for providing accommodation of different descriptions suited to different descriptions of such persons as are mentioned in the last foregoing subsection."

Once a local authority has assessed a person as having a need for care and attention, that crystallises a duty to that person to provide accommodation under section 21.

The scope of section 21 of the 1948 Act and the cases in relation to support for asylum seekers.

18

In order to see how the issue in this case arises, it is necessary to understand a little about the legal position before the enactment of the 1999 Act. Much of this emerges from the speech of Lord Hoffman in the Westminster case. The Asylum and Immigration Act 1996 ("the 1996 Act") deprived asylum seekers who did not claim asylum at the port of entry, and those whose applications had failed and were appealing, of income support and of housing under the homelessness legislation. This led to applications to social services authorities for assistance under section 21 of the 1948 Act from asylum seekers and illegal immigrants. Those who claimed asylum at their port of entry, on the other hand, were entitled to income support and housing assistance from local authorities until those entitlements were removed by the 1999 Act.

19

In R v Hammersmith and Fulham London Borough Council ex parte M., P., A. and X. (1997) 1 CCLR 69 four asylum seekers challenged decisions of a local authority to refuse to provide them with accommodation and support under section 21. They were healthy and not in need of care and attention....

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