R (O) v Haringey London Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Carnwath,Lord Justice Rix,The Lord Chief Justice |
| Judgment Date | 04 May 2004 |
| Neutral Citation | [2004] EWCA Civ 535 |
| Docket Number | Case No: C1/2003/2615 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 May 2004 |
[2004] EWCA Civ 535
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT LIST
Mr Justice Ouseley
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Lord Chief Justice of England and Wales
Lord Justice Rix
Lord Justice Carnwath
Case No: C1/2003/2615
Mr Stephen Knafler (instructed by Anthony Gold) for the Appellant
Mr Hilton Harrop-Griffiths (instructed by London Borough of Haringey) for The London Borough of Haringey
Miss Elisabeth Laing (instructed by The Treasury Solicitor) for the Secretary of State for the Home Department
These are appeals against Ouseley J's decision upon an application for judicial review. It concerns the responsibility of the National Asylum Support Service ("NASS") for "infirm" asylum seekers with dependent children, under the arrangements established by the Secretary of State under Part VI of the Immigration and Asylum Act 1999 ("the 1999 Act").
The applicant is a 39-year-old Ugandan citizen who is HIV positive. She has two children aged 3 and 5. She has been in this country for 8 years, having come originally to join her husband, who was lawfully in the country. In November 2002, she left the matrimonial home due to domestic violence. Since then the London Borough of Haringey has provided her and her two sons with accommodation and subsistence. In January 2003 she sought exceptional leave to remain, on the grounds that her removal to Uganda would breach her rights under Article 3 of the Human Rights Convention, because she would be unable to receive medical treatment there necessary to save her life. This application remains undetermined. Accordingly she is currently an "asylum-seeker" for the purposes of the relevant provisions.
The appellants are the applicant herself, and the Secretary of State. They maintain that responsibility for the whole family rests on Haringey, principally relying on section 21 of the National Assistance Act 1948 ("the 1948 Act"). The Judge decided that the responsibility for the whole family falls on NASS under the 1999 Act.
Haringey accepts (differing in this respect from the Judge) that it owes a duty to the applicant herself. In this it follows Lord Hoffmann in R (Westminster City Council) v NASS [2002] 1WLR 2956:
'….only the able bodied destitute are excluded from the powers and duties of section 21(1)(a). The infirm destitute remain within. Their need for care and attention arises because they are infirm as well as because they are destitute." (para 32)
Under this terminology, O is an "infirm destitute". However, Haringey submits that it has no duty under section 21 (or any other provision) to support O's dependent children, who are therefore the responsibility of the NASS under the 1999 Act. It accepts that in practice the children should live with their mother. The issue therefore is not where they should live but who should pay for them.
The legislation
The 1999 Act applies to asylum seekers generally. It was introduced following the 1998 White Paper "Firmer, Fairer, Faster – A Modern Approach to Immigration and Asylum". The background was described by Lord Hoffmann in the Westminster case.
The White Paper proposed creating a national state-financed and operated asylum system by the creation of NASS as a division of the Home Office. Paragraph 8.23 of the White Paper referred to the proposed new "safety net", and the consequences for the 1948 Act:-
"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 support machinery"
Paragraph 8.24 explained the position in relation to "Families and unaccompanied children":
"Families and unaccompanied children account for a relatively small proportion of asylum applicants, around 15%. The Government will ensure that in providing a safety net for asylum seekers the needs of children are fully respected and their welfare and rights safeguarded. Appropriate access to education will continue to be afforded to the children of asylum seekers. Provision will continue to be made under the Children Act 1989 and the Children (Scotland) Act 1995 for unaccompanied children claiming asylum, but social services departments will no longer be expected to provide for asylum seeking families in the absence of special needs requiring a social services response. Where the need can be demonstrated, families will be provided with safety net support. The Government recognises that this will involve additional considerations to those which apply to single adults, and special care will be taken to ensure that provision for accommodation, clothing, food and other living essentials is sufficient and flexible enough to support the children's well-being during the period when their asylum application is under consideration."
These proposals were given effect in the 1999 Act. The material provisions are as follows.
Section 95 provides:
"(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 is headed "Support for children". The relevant provisions are:
"(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) Subsections (3) and (4) apply if an application for support under section 95 has been made by an eligible person whose household includes a dependant under the age of 18 ('the 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 (local authority support for children and their families)…."
The relevant parts of section 21 of the National Assistance Act 1948, as amended, are:
"(1) Subject to and in accordance with the provision of this Part of the 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; and
(aa) residential accommodation for expectant and nursing mothers who 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) Subsections (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 the 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….
(5) References in this Act to accommodation under this Part thereof shall be construed…as including references to board and other services,...
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