R (W and Others) v Croydon London Borough Council and another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws |
| Judgment Date | 04 April 2007 |
| Neutral Citation | [2007] EWCA Civ 266 |
| Date | 04 April 2007 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2006/0625, C1/2006/0617, C1/2006/0638, C1/2006/0644, C1/2006/0636 |
[2007] EWCA Civ 266
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Lloyd Jones
Insert Lower Court NC Number Here
Royal Courts of Justice
Strand, London, WC2A 2LL
The President of the Queen's Bench Division
Lord Justice Laws and
Lord Justice Scott Baker
Case No: C1/2006/0625, C1/2006/0617, C1/2006/0638, C1/2006/0644, C1/2006/0636
Ms Jenni Richards (instructed by The London Borough of Croydon) for the 1st Appellant
Mr Jonathan Cowen (instructed by The London Borough of Hackney) for the 2nd Appellant
Mr Stephen Knafler (instructed by Messrs Pierce Glynn (for AW) and Hackney Community Law Centre (for A and Y))
Ms Elisabeth Laing (instructed by The Treasury Solicitors)
Hearing dates : 6 March 2007
This is the judgment of the court, prepared by Laws LJ.
INTRODUCTORY
1. There are two live appeals before the court, which raise a single issue. In three other appeals also before us, application is made for an order that they be dismissed by consent. All five are appeals from decisions made by Lloyd Jones J in a composite judgment given in the Administrative Court on 16 December 2005. Lloyd Jones J was dealing with four applications for judicial review challenging decisions of local authorities relating to the support of failed asylum-seekers. One of the claimants, D, was given leave to withdraw her claim by order of Lloyd Jones J perfected on 28 February 2006. The other claimants were AW, A, and Y. By agreement of the parties the learned judge was concerned to decide three preliminary issues of law, one of which survives for this court's consideration on the two live appeals.
2. Given the nature of the issue before us it is unnecessary to set out the facts of the cases at any length. It is enough to say that each of the three claimants who remain in the case claimed asylum sometime after his or her date of entry into the United Kingdom, and accordingly (not having been granted temporary admission) was present in the United Kingdom in breach of the immigration laws within the meaning of s.11 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) which we need not set out. Their asylum claims were all refused by the Secretary of State. AW's appeal against that refusal was dismissed by the adjudicator. AW and A made further representations upon which by the date of Lloyd Jones J's judgment the Secretary of State had made no decision. Further representations put forward by Y had been rejected by the Secretary of State as not amounting to a fresh asylum claim. For the purpose of the surviving point in the case, each claimant was in the circumstances a failed asylum-seeker. Each applied to a local authority (AW to Croydon, A and Y to Hackney) for support under the provisions of s.21 of the National Assistance Act 1948 (“the 1948 Act”). The authorities have maintained that the claimants are not in law eligible for any such assistance.
3. As we have said Lloyd Jones J was dealing with three preliminary issues. The first was a point arising under Schedule 3 to the 2002 Act, which the judge decided against the claimants. The claimants obtained permission to appeal, but on 25 May 2006 in R(M) v Slough Borough Council [2006] EWCA Civ 655 this court arrived at the same conclusion as had Lloyd Jones J, and specifically approved his reasoning. Accordingly the claimants accept that in this court the point in question is concluded against them, and their three appeals, as we have foreshadowed, fall to be dismissed by consent.
4. The third preliminary issue determined by Lloyd Jones J is not the subject of any appeal or application for permission to appeal, and we need say no more about it.
THE ISSUE IN THE CASE
5. That leaves the second issue. It was formulated as follows:
“If in the case of a failed asylum-seeker who satisfies the criteria of section 21(1) and (1A) [of the 1948 Act] the provision of support is necessary for the purpose of avoiding a breach of his Convention rights within the meaning of paragraph 3 of Schedule 3 to [the 2002 Act], is that provision to be made by a local authority pursuant to section 21 [of the 1948 Act] or by the Secretary of State for the Home Department pursuant to section 4, Immigration and Asylum Act 1999?”
6. We shall, of course, explain the material statutory provisions. Lloyd Jones J answered the question thus posed against the local authorities; that is to say he held that such provision fell to be made by a local authority pursuant to s.21 of the 1948 Act. Against that decision the London Borough of Hackney and the London Borough of Croydon appeal with permission granted by Sedley LJ on 3 July 2006. These are the two live appeals before this court. They are resisted by the claimants and by the Secretary of State, who appeared as an interested party below as he does here.
THE LEGISLATION
7. The starting point must be the primary provisions under which support may be given, namely s.21 of the 1948 Act and s.4 of the Immigration and Asylum Act 1999 (“the 1999 Act”). First, s.21:
“(1) Subject to and in accordance with the provisions 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 and 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 1999 Act] (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 1999 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 substitute references to a local authority.
(2) In making 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 provided under this part thereof shall be construed as… including references to board and other services, amenities and requisites provided in connection with the accommodation except where in the opinion of the authority managing the premises their provision is unnecessary.
…
(8) … [N]othing 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.”
We will set out the relevant provisions of s.115 of the 1999 Act below. We should note that s.21(1) has effect as a duty owed by local authorities by force of directions made by the Secretary of State under that subsection. It is unnecessary to set out the directions, to which the judge below referred at paragraph 32 of his judgment.
8. Next, s.4 of the 1999 Act:
“(1) The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of persons –
(a) temporarily admitted to the United Kingdom under paragraph 21 of Schedule 2 to the [Immigration Act 1971];
(b) released from detention under that paragraph; or
(c) released on bail from detention under any provision of the Immigration Acts.
(2) The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a person if –
(a) he was (but is no longer) an asylum-seeker, and
(b) his claim for asylum was rejected.
…
(5) The Secretary of State may make regulations specifying criteria to be used in determining –
(a) whether or not to provide accommodation, or arrange for the provision of accommodation, for a person under this section;
(b) whether or not to continue to provide accommodation, or arrange for the provision of accommodation, for a person under this section.
(6) The regulations may, in particular –
(a) provide for the continuation of the provision of accommodation for a person to be conditional upon his performance of or participation in community activities in accordance with arrangements made by the Secretary of State;
(b) provide for the continuation of the provision of accommodation to be subject to other conditions;
(c) provide for the provision of accommodation (or the continuation of the provision of accommodation) to be a matter for the Secretary of State's discretion to a specified extent or in a specified class of case.”
9. S.21 of the 1948 Act and s.4 of the 1999 Act are, so to speak, the competing provisions for the purposes of the issue which falls for decision. But we should also set out part of s.95 of the 1999 Act:
“(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...
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