R (Westminster City Council) v National Asylum Support Service
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,LORD JUSTICE BROOKE,LORD JUSTICE MANCE |
| Judgment Date | 10 April 2001 |
| Neutral Citation | [2001] EWCA Civ 512 |
| Docket Number | Case No: C/2001/0596 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 April 2001 |
[2001] EWCA Civ 512
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE STANLEY BURNTON
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Simon Brown
Lord Justice Brooke and
Lord Justice Mance
Case No: C/2001/0596
Mr Bryan Mcguire (instructed By Messrs. Creighton & Partners Of London Sw1a 2hn) For The Appellant
Mr John Howell Qc & Mr Pushpinder Saini (instructed By The Treasury Solicitor) For The Respondent
This appeal, brought with the permission of the judge below, raises an interesting and important question concerning the support of a particular category of asylum-seeker. The category in question are those who are not merely destitute (that is, without adequate accommodation and/or the means of meeting their other essential living needs) but who in addition have community care needs.
The critical question is whether the responsibility for housing and supporting this category of asylum-seeker now falls upon the respondents (NASS), a service within the Home Office established by the Secretary of State to provide support for asylum seekers under Part VI of the Immigration and Asylum Act 1999, or remains with local authorities still to be discharged (as before the 1999 Act it had been) under s.21(1) of the National Assistance Act 1948. 3. The issue arises here as a result of NASS's refusal to accept responsibility for providing accommodation and support for Mrs Sabiha Mirza Y-Ahmad, an Iraqi Kurd asylum-seeker, and her 13 year old daughter. Mrs Y-Ahmad is not merely destitute but suffers also from spinal myeloma for which she has been, and continues to be, treated at St Mary's Hospital, Paddington. On 23 November 2000, the appellant Council's social services department assessed her as requiring (on her discharge from hospital) assistance from a carer with her mobility indoors and outdoors, with transfer between bed, chair, bath and wheelchair, and with personal care in respect of washing, dressing and toilet. She also requires accommodation with disabled access and its own bathroom as close to St Mary's Hospital as possible and which has at least two rooms, one of them large enough to allow a carer to work around her. Since 20 December 2000 she has been accommodated in two rooms at a West London hotel at a cost of £176 per day.
Westminster's case is that Mrs Y-Ahmad and her daughter are entitled to be supported by NASS under s.95 of the 1999 Act at least to the extent of their accommodation expenses and the cost of meeting their essential living needs. (Although in their written skeleton argument Westminster appear to accept "that community care needs beyond accommodation and essential living needs would continue to be met by local authorities", on their wider argument I understand them to seek recoupment of these too under ss.99 and 110 of the 1999 Act.) NASS's contrary contention is that Westminster remains under an obligation to provide for these asylum-seekers' needs under s.21 of the 1948 Act.
Stanley Burnton J, acceding to NASS's argument and rejecting Westminster's challenge, did so with evident misgivings, expressing the view that his conclusion "leaves a number of incongruities". Westminster now appeal.
It is convenient at this stage to set out the principal legislative provisions under which NASS (for the Secretary of State) and Westminster are respectively either required to provide (or more accurately, in NASS's case, empowered to provide), or precluded from providing, the support here in question.
NASS
The most directly material provisions in s.95 of the 1999 Act are:
"(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
(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);
(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 reference 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 -
…
(d) the location of the accommodation.
(7) In determining, for the purposes of this section, whether a person's other essential living needs are met, 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.
(8) The Secretary of State may by regulations provide that items or expenses of such a description as may be prescribed are, or are not, to be treated as being an essential living need of a person for the purposes of this Part.
…
(12) Schedule 8 gives the Secretary of State power to make regulations supplementing this section."
Let me then turn to schedule 8:
"Schedule 8
Provision of Support: Regulations
General regulation-making power
The Secretary of State may by regulations make such further provision with respect to the powers conferred on him by section 95 as he considers appropriate.
Determining whether a person is destitute
(1) The regulations may provide, in connection with determining whether a person is destitute, for the Secretary of State to take into account, except in such circumstances (if any) as may be prescribed -
(a) income which the person concerned, or any dependant of his, has or might reasonably be expected to have, and
(b) support which is, or assets of a prescribed kind which are, or might reasonably be expected to be, available to him or to any dependant of his,
otherwise than by way of support provided under section 95.
(2) The regulations may provide that in such circumstances (if any) as may be prescribed, a person is not to be treated as destitute for the purposes of section 95."
(1) This regulation applies where it falls to the Secretary of State to determine for the purposes of s.95(1) of the Act whether -
(a) a person applying for asylum support [defined by regulation 2(1) to mean support provided under s.95 of the Act], or such an applicant and any dependants of his
is or are destitute
(2) In this regulation "the principal" means the applicant for asylum support
(3) The Secretary of State must ignore -
(a) any asylum support
which the principal or any dependant of his is provided with
(4) But he must take into account -
(a) any other income which the principal, or any dependant of his, has
(b) any other support which is available to the principal or any dependant of his"
Westminster
Once again I shall set out only the most directly relevant provisions.
Section 21(1) of the National Assistance Act 1948, before amendment by the 1999 Act, provided simply:
"a local Authority to such extent as [the Secretary of State] may direct, shall make arrangements for providing -
(a) residential accommodation [defined by s.21(5) to include 'references to board and other services, amenities and requisites provided in connection with the 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"
With effect from 1 April 1993 the Secretary of State duly did direct local authorities among other things to make arrangements in terms of s.21(1).
The 1999 Act amended s.21 of the 1948 Act to insert, after subsection (1):
"(1A) A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accomodation 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."
S.115 of the 1999 Act applies, by subsection 3, to "a person subject to immigration control" as defined by subsection 9, and, as we explained in R v Wandsworth LBC ex parte O [2000] 1 WLR 2539, 2543:
"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 anticipated...
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