R (A) v National Asylum Support Service
| Jurisdiction | England & Wales |
| Judge | Mr Justice Keith |
| Judgment Date | 24 June 2003 |
| Neutral Citation | [2003] EWHC 1402 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4998/2002 |
| Date | 24 June 2003 |
[2003] EWHC 1402 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Keith
Case No: CO/4998/2002
Ms Fenella Morris (instructed by Pierce Glynn) for the Claimant
Mr Parishil Patel (instructed by The Treasury Solicitor) for the First Defendant
Mr Bryan McGuire (instructed by The London Borough of Waltham Forest Legal Department) for the Second Defendant
Introduction
Prior to 1999, local authorities bore the cost of accommodating and supporting destitute asylum-seekers. That burden fell particularly heavily on those local authorities in whose areas asylum-seekers tended to congregate, especially the inner London boroughs. One of the aims of the Immigration and Asylum Act 1999 was to transfer this burden back to central government – at least as far as able-bodied asylum-seekers were concerned. But who was to be responsible for accommodating and supporting destitute asylum seekers and their dependants who were not able-bodied? In R (Westminster City Council) v. National Asylum Support Service [2002] 1 WLR 2956, the House of Lords considered what responsibilities were owed to them by local authorities under section 21 of the National Assistance Act 1948. The current case relates to the disabled children of a destitute asylum-seeker, and concerns the extent of what responsibilities are owed to them under other statutory provisions.
The statutory framework
The Immigration and Asylum Act 1999 ("the 1999 Act") . The provision of support for destitute asylum-seekers is governed by Part VI of the 1999 Act. It contemplates that the support will be provided by the Secretary of State, or in accordance with arrangements made by him, and it identifies the scope of his powers. The governing provision is section 95(1), which provides:
"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."
The nature of the support which can be provided is identified in section 96(1), which provides:
"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);
(b) by providing what appear to the Secretary of State to be essential living needs of the supported person and his dependants (if any)….."
In addition to providing adequate accommodation and essential living needs, the Secretary of State "may provide support under section 95 in such other ways as he considers necessary to enable the supported persons and his dependants ….. to be supported" if he considers the circumstances of a particular case to be exceptional (section 96(2)). And section 98 empowers him to provide support temporarily while he is considering whether to provide support under section 95.
The level of expenditure which the Secretary of State may incur when providing essential living needs is governed by section 97(5). He may limit that expenditure to a proportion of the applicable income support. The current regulations – the Asylum Support (Amendment) Regulations 2002 (SI 472/2002) ("the 2002 Regulations") – provide that the level of support for a qualifying couple is £59.26 a week, and £33.50 a week for a person under the age of 16.
Since the Secretary of State may make arrangements for the provision of support, rather than providing the support himself, local authorities are empowered to provide support in accordance with arrangements made by the Secretary of State under section 95. Thus, sections 99(1) and 99(2) provide:
"(1) A local authority may provide support for asylum-seekers and their dependants (if any) in accordance with arrangements made by the Secretary of State under section 95.
(2) Such support may be provided by the local authority –
(a) in one or more of the ways mentioned in section 96(1) and (2);
(b) whether the arrangements in question are made with the authority or with another person."
That support therefore includes accommodation and essential living needs. In addition, a local authority or a registered social landlord is required to co-operate when asked to assist the Secretary of State in the exercise of his power under section 95 to provide accommodation. Thus, sections 100(1) and 100(2) provide:
"(1) This section applies if the Secretary of State asks –
(a) a local authority, [or]
(b) a registered social landlord…..
to assist him to exercise his power under section 95 to provide accommodation.
(2) The person to whom the request is made must co-operate in giving the Secretary of State such assistance in the exercise of that power as is reasonable in the circumstances."
In that context, a local authority is required to supply the Secretary of State with such information about its housing accommodation as he may request from time to time (section 100(4)). The Secretary of State can make payments to local authorities to reimburse them for their expenditure in providing accommodation and essential living needs pursuant to such arrangements made by him (see section 110).
The powers which the Secretary of State has under section 95 to provide, or make arrangements for, support for destitute asylum-seekers and their dependants are supplemented by various duties imposed upon him to provide adequate accommodation and essential living needs for the dependant children of destitute asylum-seekers. The relevant obligations are set out in sections 122(3) and 122(4), but to understand them it is necessary to read sections 122(1) and 122(2) as well:
"(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."
The effect of these sub-sections is that if the dependant child of a destitute asylum-seeker is not being provided with adequate accommodation or if his essential living needs are not being met, the Secretary of State must provide adequate accommodation and essential living needs, or arrange for them to be provided by a local authority or a registered social landlord.
The Children Act 1989 ("the 1989 Act") . Section 17 of the 1989 Act imposes duties on local authorities to provide services for children in need and their families. A child is taken to be in need if he is disabled (section 17(10)(c)). The relevant provisions of section 17 are as follows:
"(1) It shall be the general duty of every local authority…..
(a) to safeguard and promote the welfare of children within their area who are in need; and
(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,
by providing a range and level of services appropriate to those children's needs.
(2) For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part 1 of Schedule 2.
(3) Any service provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child's welfare.
…..
(6) The services provided by a local authority in the exercise of functions conferred on them by this section may include giving assistance in kind or, in exceptional circumstances, in cash."
Para. 6 of Part I of Schedule 2 relates to disabled children. It provides:
"Every local authority shall provide services designed –
(a) to minimise the effect on disabled children within their area of their disabilities; and
(b) to give such children the opportunity to lead lives which are as normal as possible."
In addition, section 17A empowers local authorities to make such payments as they think fit to a disabled child's parent to enable the parent to obtain any of the services which they would otherwise have provided under section 17.
However, section 122(5) of the 1999 Act provides:
"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...
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