R v Wandsworth London Borough Council, ex parte O

JurisdictionEngland & Wales
Judgment Date22 June 2000
Judgment citation (vLex)[2000] EWCA Civ J0622-2
Docket NumberCase Nos: C/1999/0747, C/1999/7342
CourtCourt of Appeal (Civil Division)
Date22 June 2000

[2000] EWCA Civ J0622-2



Royal Courts of Justice


London, WC2A 2LL


Lord Justice Simon Brown

Lady Justice Hale and

Lord Justice Kay

Case Nos: C/1999/0747, C/1999/7342


London Borough Of Wandsworth
Leicester City Council
Secretary Of State For The Home Department

Mr S. Knafler (instructed by The Wandsworth & Merton Law Centre Limited) for 'O'

Mr M. Supperstone QC & Mr A. Cheshire (instructed by Judge & Priestley of Bromley, solicitors) for London Borough of Wandsworth

Mr Manjit Gill QC & Mr R. de Mello (instructed by Jasvir Jutla & Co. of Leicester LE2 0PF, solicitors) for Bhikha

Mr R. McCarthy QC (instructed by Leicester City Council Legal Services, Leicester LE1 6ZG) for Leicester City Council

Mr M. Bishop (instructed by Treasury Solicitor, London) for Intervenor/Secretary of State for the Home Department


These appeals raise a number of difficult and important questions as to the entitlement of certain immigrants to basic subsistence under the National Assistance Act 1948 (the 1948 Act). Their position must be considered both before and after Part VI of the Immigration & Asylum Act 1999 (the 1999 Act) came into force on 6 December 1999, in particular against the background of the law as it has developed in relation to destitute asylum seekers. The essential questions arising are first, as to the true construction and application of s.116 of the 1999 Act, and second, as to whether certain immigrants, even assuming that they would otherwise be entitled to assistance under the 1948 Act, are nevertheless disentitled from such assistance on the ground that a person cannot take advantage from his own wrongdoing.


With that briefest of introductions let me turn at once to the governing legislation and the developing law.


Section 21(1) of the 1948 Act provides:


"� a local authority, � to such extent as [the Secretary of State] may direct, shall make arrangements for providing (a) residential accommodation for persons aged 18 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 �"


Section 21(5) provides:


"References in this Act to accommodation � shall be construed � as including references to board and other services, amenities and requisites provided in connection with the accommodation �"


With effect from 1 April 1993 the Secretary of State published Approvals and Directions under s.21(1) of the 1948 Act directing local authorities among other things, to make arrangements in terms of the sub-section.


Section 47(1) of the National Health Service and Community Care Act 1990 (the 1990 Act) provides:


"Where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority (a) shall carry out an assessment of his needs for those services; and (b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services."


Destitute asylum seekers and the 1948 Act


It was held by this Court in R v Westminster CC & Ors ex parte M, P, A & X [1997] 1 CCLR 85 that destitute asylum seekers, deprived by the Asylum and Immigration Act 1996 of all benefit entitlement, could qualify for assistance under s.21. As Lord Woolf MR said:


"The destitute condition to which asylum seekers can be reduced as a result of the 1996 Act coupled with the period of time which, despite the Secretary of State's best efforts, elapses before their applications are disposed of means inevitably that they can fall within a class who local authorities can properly regard as being persons whose needs they have a responsibility to meet by the provision of accommodation under s.21(1)(a). The longer the asylum seekers remain in this condition the more compelling their case becomes to receive assistance under the sub-section. There is nothing remarkable in this since there is no dispute as to their entitlement to treatment from the Health Service and if Parliament has left the entitlement to treatment there is no obvious reason why they should not take the same course as to care and attention under s.21. (p.94)


Asylum seekers are not entitled merely because they lack money and accommodation to claim they automatically qualify under s.21(1)(a). What they are entitled to claim (and this is the result of the 1996 Act) is that they can as a result of their predicament after they arrive in this country reach a state where they qualify under the sub-section because of the effect upon them of the problems under which they are labouring. In addition to the lack of food and accommodation is to be added their inability to speak the language, their ignorance of this country and the fact they have been subject to the stress of coming to this country in circumstances which at least involve their contending to be refugees. Inevitably the combined effect of these factors with the passage of time will produce one or more of the conditions specifically referred to in s.21(1)(a). It is for the authority to decide whether they qualify. � In particular the authorities can anticipate the deterioration which would otherwise take place in the asylum seeker's condition by providing assistance under the section. They do not need to wait until the health of the asylum seeker has been damaged." (p.95)


Although this Court subsequently held in R v Kensington & Chelsea RLBC ex parte Kujtim [1999] in 2CCLR 340 that the s.21 duty is not absolute, that was in the context of an asylum seeker who, having been assessed as needing residential accommodation and provided by the local authority with bed and breakfast accommodation, then behaved disruptively. Potter LJ said this:


"� the duty of the local authority is not absolute in the sense that it has a duty willy-nilly to provide such accommodation regardless of the applicant's willingness to take advantage of it. � if an applicant assessed as in need of Part III accommodation either unreasonably refuses to accept the accommodation provided or if, following its provision, by his conduct he manifests a persistent and unequivocal refusal to observe the reasonable requirements of the local authority in relation to the occupation of such accommodation, then the local authority is entitled to treat its duty as discharged and to refuse to provide further accommodation." (p.354)


Later he added:


"To withdraw Part III accommodation in respect of persons with such needs is likely to reduce such persons to living and sleeping on the streets; not only does it tend to defeat the overall purpose of the 1948 Act as well as Community Care, but it produces the socially undesirable effect of increasing rather than alleviating deprivation and encourages return to the practice of begging in the streets." (p.355)


Part VI of the Immigration & Asylum Act 1999


Destitute asylum seekers are now provided for under Part VI of the 1999 Act. As from 6 December 1999, they have their own system of support and no longer need to invoke s.21 of the 1948 Act (save only where their need for care and attention is for more specific reasons than the sort of deterioration through destitution contemplated by the court in the Westminster case). Consistently with this new provision, the 1948 Act has been amended by s.116 of the 1999 Act to include, after s.21(1):


"(1A) A person to whom s.115 of the Immigration & Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under sub-section 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) [This provision applies inter alia s.95(3) of the 1999 Act to the new s.21(1A) of the 1948 Act]"


S.95(3) provides that:


"� 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"


S.115 applies (by sub-section 3) to "a person subject to immigration control" (subject to exceptions not presently material). S.115(9) provides:


"'A person subject to immigration control' means a person who is not a national of an EEA state and who -


(a) requires leave to enter or remain in the United Kingdom but does not have it;


(b) has leave to enter or remain in the United Kingdom which is subject to a condition that he does not have recourse to public funds;


(c) has leave to enter or remain in the United Kingdom given as a result of a maintenance undertaking; or


(d) has leave to enter or remain in the United Kingdom only as a result of paragraph 17 of schedule 4 [i.e. where leave is continued during any appeal from a decision to vary or refuse to vary a limited leave]"


The effect of all this is that (i) overstayers or illegal entrants, (ii) persons here with leave but with a condition of no recourse to public funds or following a maintenance undertaking, and (iii) those who are appealing against a decision to vary or refuse to vary limited leave (in each case whether or not asylum seekers) have no access to assistance under s.21(1) if their need arises solely because of the physical effects of actual or...

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