R (A) v National Asylum Support Service

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Waller,Lord Justice Clarke,Lord Justice Brooke
Judgment Date23 Oct 2003
Neutral Citation[2003] EWCA Civ 1473
Docket NumberCase No: C1/2003/1605(A)

[2003] EWCA Civ 1473

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

MR JUSTICE KEITH

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before:

Lord Justice Brooke

Lord Justice Waller and

Lord Justice Clarke

Case No: C1/2003/1605(A)

Between
The Queen (on The Application Of A)
Claimant/Appellant
and
(1) National Asylum Support Service
(2) London Borough Of Waltham Forest
Defendants/Respondents

Alison Foster QC & Fenella Morris (instructed by Pierce Glynn solicitors) for the Applicant

Robert Jay QC & Adam Robb (instructed by the Treasury Solicitor) for the First Respondent

Bryan McGuire & Mark Baumohl (instructed by London Borough of Waltham Forest solicitors) for the Second Respondent

Lord Justice Waller

Introduction

1

This appeal is concerned with a family of asylum seekers with two disabled children who without "adequate" accommodation would be destitute. It raises the questions as to what is "adequate" accommodation for such a family, and who owes the duty to provide it. As regards destitute but also disabled adult asylum seekers, in R (Westminster City Council) v National Asylum Support Service [2002] UKHL 38, [2002] 1 WLR 2956, the House of Lords upheld the ruling of the Court of Appeal that it was a local authority who owed the duty to provide accommodation under s21 of the National Assistance Act 1948 (the 1948 Act) as amended. They held that the Immigration and Asylum Act 1999 (the 1999 Act), passed to relieve local authorities of a burden imposed by the decision of the Court of Appeal in R v Hammersmith & Fulham London Borough Council ex parte M (1997) 30 HLR 10, did not apply. They held that s21(1A) of the 1948 Act (inserted by s116 of the 1999 Act) excluded from a local authority's obligation to provide accommodation under s21(1A) only asylum seekers whose need for care and attention arose solely because they were destitute and did not exclude those who needed care and attention because they were infirm as well as destitute.

2

In the instant case Keith J followed what he perceived to be the reasoning in the Westminster case as applied by Collins J in The Queen on the application of Ouji v Secretary of State for the Home Department [2002] EWHC 1839 (Admin). In Ouji Collins J was concerned to interpret s122(4) of the 1999 Act relating to "essential living needs". Keith J and Collins J reasoned that basic support and basic essential needs by reference to non-disabled asylum seekers would be provided by the Secretary of State under the 1999 Act, but that any additional support needed as a result of disabilities would be provided by local authorities under s21 of the 1948 Act. Keith J thus held that adequacy under the 1999 Act fell to be tested by reference to able-bodied children and not disabled children. On that basis he held that the accommodation offered to the A family in the instant case was adequate.

3

No counsel supported Keith J's conclusion or reasoning. It was submitted by all counsel, including Mr Jay QC for the Secretary of State, that the ruling in this case and in the Ouji case in so far as they suggested that the 1999 Act took no account of the disability of a dependant child in assessing either the adequacy of accommodation or essential living needs, could not stand.

4

Keith J also held that Article 8 of the Convention on Human Rights was not engaged. He held that he did not believe that it could be said that the family life of the As had been affected when one focused on their relationships with one another, on their ability to support one another emotionally and on their ability to enjoy family life together. Once again no counsel, including Mr Jay for the Secretary of State, was prepared to support Keith J's application of Article 8.

5

I can say at the outset that it seems to me that the judge's reasoning in the two respects identified cannot be supported. But that does not provide an easy answer to this case. It simply means there are facets, and difficult facets, with which the judge did not need to grapple and with which this court must grapple for the first time.

6

There is furthermore an important point to bear in mind. We are considering the provisions of the 1999 Act and the "adequacy" of accommodation for this family including the disabled children. If we were concerned with a disabled adult asylum seeker we would be concerned, following the language of s21 of the 1948 Act, with whether accommodation "suited" to that disabled adult had been provided. Clearly the words "suited" or "adequate" could mean different things, but it seems scarcely likely that Parliament intended disabled children to receive less favourable treatment at the hands of the state, than a disabled adult would receive at the hands of a local authority. In any event since Article 8 of the Convention on Human Rights is, it is common ground, engaged in both instances, less favourable treatment for disabled children as compared with disabled adults would be likely to fall foul of Article 14. That would lead to it being necessary pursuant to s3 of the Human Rights Act 1998 to read both provisions so as not to discriminate.

7

This judgment will follow the following sequence. I will set out the relevant provisions of the 1999 Act. I will then look at the provisions of the 1948 Act. I will then set out the relevant facts. I will then discuss the provisions of the 1999 Act by reference to the facts of this case. I will thereafter deal with two specific points on the construction of first s118 of the 1999 Act and then s122(5) of that Act. I will then come back to consider what should be the answer in this case by reference to the provisions of the 1999 Act. Finally I will consider how a disabled adult asylum seeker might have been dealt with under s21 of the 1948 Act to cross-check whether any relevant distinction might be drawn between the treatment of disabled children and disabled adults. Finally I shall consider Article 8 so far as necessary.

The Immigration and Asylum Act 1999

8

The following relevant provisions of the 1999 Act are all contained in Part VI headed "Support for Asylum Seekers". s94 is a definitions section where the only relevant definitions are the following:

"asylum-seeker" means a person who is not under 18 and has made a claim for asylum which has been recorded by the Secretary of State but which has not been determined; …..

"dependant", in relation to an asylum-seeker or a supported person, means a person in the United Kingdom who-

(a) is his spouse;

(b) is a child of his, or of his spouse, who is under 18 and dependent on him; or

(c) ….."

9

Section 95 is the governing section. It provides:

"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.

(2) In prescribed circumstances, a person who would otherwise fall within subsection (1) is excluded.

(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.

(5) In determining, for the purposes of this section, whether a person's accommodation is adequate, 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 or to any of the matters mentioned in subsection (6).

(6) Those matters are-

(a) the fact that the person concerned has no enforceable right to occupy the accommodation;

(b) the fact that he shares the accommodation, or any part of the accommodation, with one or more other persons;

(c) the fact that the accommodation is temporary;

(d) the location of the accommodation. ….."

10

Section 96 identifies the nature of the support when the Secretary of State provides or arranges support under Section 95:

"96. (1) Support may be provided under section 95—

(a) by providing accommodation appearing to the Secretary of State to be adequate for the needs of the supported person and his dependants (if any); …..

(2) If the Secretary of State considers that the circumstances of 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. ….."

11

Section 97 identifies both matters to which the Secretary of State must have regard and also certain matters to which he may not have regard. It is from this section that it appears that the Secretary of State will contemplate in general dispersing asylum seekers to different parts of the country:

"97. (1) When exercising his power under section 95 to provide accommodation, the Secretary of State must have regard to—

(a) the fact that the accommodation is to be temporary pending determination of the asylum-seeker's claim;

(b) the desirability, in general, of providing accommodation in areas in which there is a ready supply of accommodation; and

(c) such other matters (if any) as may be prescribed.

(2) But he may not have regard to-

(a) any preference that the supported person or his dependants (if any) may have as to the locality in which the...

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