R (O) v Haringey London Borough Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY |
| Judgment Date | 25 November 2003 |
| Neutral Citation | [2003] EWHC 2798 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 November 2003 |
| Docket Number | Case No: CO/327/2003 |
[2003] EWHC 2798 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Ouseley
Case No: CO/327/2003
Stephen Knafler (instructed by Anthony Gold) for the Claimant
Hilton Harrop-Griffiths (instructed by London Borough Haringey) for the Defendant
John-Paul Waite (instructed by Treasury Solicitor) for the Interested Party
The claimant is a citizen of Uganda, now 39 years old. Her husband, whom she married in 1996, came to the United Kingdom to study. In September 1998, the claimant, pregnant and HIV positive, came to the United Kingdom to join her husband on a 6 months' multiple visa. In December 1998, her first child was born in Canada; she returned with him to the United Kingdom on a second 6 months' visitor's visa.
In 1999, her husband was given a work permit; in 2000, the claimant applied for leave to remain as the spouse of a person with a work permit, but this application remains undetermined by the Secretary of State for the Home Department. At the end of 2001, the claimant gave birth to her second son.
Unhappily, in November 2002, she left the matrimonial home because of domestic violence and since then the Defendant London Borough Council of Haringey has been providing her and her two sons with accommodation and subsistence, initially under the 1948 National Assistance Act and the 1989 Children Act.
On 8 th January 2003, she sought exceptional leave to remain: she claimed that her return to Uganda would breach her rights under Article 3 ECHR because she would be unable there to receive the treatment necessary to save her life. This application too remains undecided by the SSHD. She is thus an "asylum-seeker" for the purposes of Part V1 of the Immigration and Asylum Act 1999, by virtue of section 94 (1). Thereafter, she has been housed under section 21 of the 1948 Act; but Haringey LBC contends that it is not liable to provide for the children, a responsibility which it contends falls upon NASS.
She seeks a declaration that the Defendant is under a duty or have a power to accommodate the children with her under the 1948 Act, or the Children Act 1989 or the Local Government Act 2000.
Haringey LBC accepts that it owes a duty to the claimant, as an individual person, under section 21(1)(a) of the National Assistance Act 1948, to provide her with residential accommodation. This is because being HIV positive with her lack of resources means that she is a person who needs care and attention as the result of illness and "any other circumstances," which is not otherwise available to her. This need, it is also accepted, has not arisen solely because of actual destitution or its potential physical effects; thus section 21(1A) does not exclude her from the operation of section 21(1)(a); she has "other support" available to her under the 1948 Act, and so any assessment of the need for asylum support from NASS has to take that into account, and through doing so, is itself excluded; R v Wandsworth LBC ex parte O, [2000] 1 WLR 2539, CA; R (Westminster CC) v NASS 2002 UKHL 38, [2002] 1 WLR 2956.
The issue in this case, as formulated by the parties, relates to whether or not Haringey LBC has any power or duty to provide accommodation for the two children in those circumstances. It would not wish or intend to separate mother from children or to subject the children to destitution.
Haringey LBC contends that it is the responsibility of the SSHD to provide for the children, a responsibility which, it says, could and would be met by a sensible financial arrangement between the two public bodies to cover the costs of the single unit of accommodation which mother and children would occupy. The SSHD, as an interested party, contends that there is no such shared responsibility; it all belongs alone to Haringey LBC. The claimant agrees with the Secretary of State.
The relevant statutory provisions
First, the National Assistance Act 1948. Section 21, so far as material, provides as amended:
"(1) Subject to and in accordance with the provision 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,…."
(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) Subsection (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 references in subsections (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local authority
(2) 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.
(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."
The Secretary of State's Approvals and Directions of 1993 LAC (93) 10 provide:
"2. (1) The Secretary of State hereby …
(b) directs local authorities to make arrangements under section 21(1) (a) of the Act in relation to persons who are ordinarily resident in their area and other persons who are in urgent need thereof, to provide residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstance are in need of care and attention not otherwise available to them."
Second, the Immigration and Asylum Act 1999 provides in section 95:
"(1) 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.
(3) 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.
(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."
Section 122 provides:
"(1) In this section "eligible person" means a person who appears to the Secretary of State to be a person for whom support may be provided under section 95.
(2) Subsection (3) and (4) apply if any application for support under section 95 has been made by an eligible person whose household includes a dependant under the age of 18 ("child").
(3) If it appears to the Secretary of State that adequate accommodation is not being provided for the child, he must exercise his powers under section 95 by offering, and if his offer is accepted, by providing or arranging for the provision, of adequate accommodation for the child as part of the eligible person's household.
(4) If it appears to the Secretary of State that essential living needs of the child are not being met, he must exercise his powers under section 95 by offering, and if his offer is accepted by providing or arranging for the provision of, essential living needs for the child as part of the eligible person's household.
(5) No local authority may provide assistance under any of the child welfare provisions in respect of a dependant under the age of 18, or any member of his family, at any time when-
(a) the Secretary of State is complying with this section in relation to him; or
(b) there are reasonable grounds for believing that-
(i) the person concerned is a person for whom support may be provided under section 95; and
(ii) the Secretary of State would be required to comply with this section if that person had made an application under section 95.
(6) "Assistance" means the provision of accommodation or of any essential living needs.
(7) "The child welfare provisions" means-
(a) section 17 of the Children Act 1989 …."
Section 95(12) leads to Schedule 8 to the Act and empowers the Secretary of State to make Regulations supplementing this section and by subsection (13), Schedule 9 made temporary provision for support in the period before the coming into force of the section. The Asylum Support Regulations 2000 SI .704 (which govern asylum support from NASS and which came into force on 3 rd April 2000) have been made under Schedule 8.
The material parts of the Asylum Support Regulations are:
"5(1) Subject to paragraph (2), where an application in accordance with regulation...
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