The King (on the application of TMX) v London Borough of Croydon
| Jurisdiction | England & Wales |
| Judge | Alan Bates |
| Judgment Date | 26 January 2024 |
| Neutral Citation | [2024] EWHC 129 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: AC-2023-LON-002522 |
[2024] EWHC 129 (Admin)
Alan Bates
(sitting as a Deputy Judge of the High Court)
Case No: AC-2023-LON-002522
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Gráinne Mellon and Nadia O'Mara (instructed by TV Edwards LLP) for the Claimant.
Lindsay Johnson (instructed by Croydon Council Legal Services) for the First Defendant.
Alan Payne KC and Sian Reeves (instructed by the Government Legal Department) for the Second Defendant.
Hearing date: 8 November 2023
Confidential draft judgment circulated: 22 January 2024
Judgment Released: 26 January 2024
Approved Judgment
This judgment was handed down remotely at 2:00 p.m. on 26 January 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives. I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This judicial review claim raises two main questions.
The first question concerns the interplay between the obligations of a local authority under the Care Act 2014 (the “Care Act”), and the obligations of the Secretary of State for the Home Department (the “Secretary of State”) under s.95 of the Immigration and Asylum Act 1999 (‘IAA 1999’).
The Care Act places on local authorities a duty to provide care and support to adults with social care needs, for meeting those needs. Asylum seekers are not generally excluded from being persons to whom Care Act duties are owed if they have relevant care needs. A person's needs for care and support may, depending on the circumstances, include what are known as “accommodation-related needs”, i.e. care needs that can only be met in an effective manner if the adult is provided with accommodation in which he or she can receive the care he requires and so that the provision of care would not be useless. Where an adult has been assessed as having accommodation-related needs, the local authority's Care Act duties may require that it provide accommodation for the adult if he or she otherwise has no entitlement to occupy, or to be provided with, suitable accommodation (such as an entitlement to be housed by the local authority under Part 7 of the Housing Act 1996).
Under s.95 of the IAA 1999 read with other legislation, the Secretary of State has a duty to provide accommodation and other basic support to asylum seekers (and their dependants) who would otherwise be “destitute”.
The question raised by the Claimant's first ground of claim (“Ground 1”) is essentially this:- Where an asylum seeker's physical or mental condition is such that they have accommodation-related care needs, who is responsible for providing accommodation for that person? Is the local authority responsible under the Care Act, or does responsibility lie with the Secretary of State under s.95 IAA 1999?
In the facts of the present case, the local authority (the First Defendant, “the Council”) accepts that the Claimant has care needs that it must meet. The Council has been providing him with some care and support, such as daily visits from a care assistant. But the Council denies that the Claimant has accommodation-related needs. That is because the Council takes the position that, in circumstances where the care required by the Claimant can be provided to him other than in a nursing or care home, the Secretary of State is responsible for providing suitable accommodation for him under s.95 of the IAA 1999. On that basis, the Council contends that the Claimant's needs under the Care Act do not include any need for accommodation, since he is entitled to continue being accommodated by the Secretary of State.
Both the Claimant and the Secretary of State (who has been joined to these proceedings as the Second Defendant) disagree. Their cases are that the Secretary of State's duty under s.95 to provide accommodation for asylum seekers and their dependants is “residual”, i.e. that such a duty arises only where an asylum seeker is “destitute” in the sense that he does not have an entitlement to accommodation under any other legal regime. That being so, the local authority is, they say, required to assess whether the Claimant has accommodation-related care needs ignoring the Secretary of State's s.95 duty to provide accommodation on a “residual” basis. In circumstances where, ignoring s.95, the Claimant has no other entitlement to accommodation, and his care needs are such that they can be met only if he is provided with accommodation, he has accommodation-related care needs that it is the Council's responsibility to meet. Accordingly, responsibility for providing suitable accommodation for the Claimant rests with the Council and not with the Secretary of State.
At the conclusion of the substantive hearing of this judicial review claim, I announced that I would give judgment for the Claimant, against the Council, on Ground 1, for reasons I would set out within my judgment on the claim as a whole, to be handed down at a later date. The reasons why I took that unusual course are explained at paragraphs 170 – 171 below.
The second main question raised by this claim is whether the Council has, by leaving the Claimant in his unsuitable current accommodation (a room in an asylum hostel provided by the Secretary of State under s.95 IAA 1999), breached the Claimant's Convention rights under the Human Rights Act 1998 (“ HRA”). The specific Convention rights that the Claimant contends have been breached by the Council are those mirroring Article 3 and Article 8 of the European Convention of Human Rights (“ECHR”).
The facts
The facts I now set out pertain to the Claimant's situation as at the time of the substantive hearing on 8 November 2023.
The Claimant is a 50-year-old asylum seeker whose asylum claim remains outstanding. He suffers from progressive multiple sclerosis (“MS”) and functional neurological disorder. He also suffers from paraesthesia, which causes severe and varied pain, such that he sometimes shouts out in extreme pain, including during the night. His witness evidence, which I accept, describes severe tingling, burning on his skin, muscle spasms, and a level of pain which is sometimes “ agonising”.
He has been accommodated by the Secretary of State in one ensuite bedroom in an asylum hostel facility in the Croydon area. That is a bedroom he shares with his wife and their two children (a 14-year-old girl and a 10-year-old boy). Its dimensions are approximately 5 meters x 3.5 metres.
The Claimant has been living in that hostel since 26 June 2022, when he was first accommodated there following his successful application to the Secretary of State for support under s.95 IAA 1999. Only a few weeks later, in mid-July 2022, he was admitted to hospital, where medics caring for him diagnosed his MS as having worsened and entered a progressive phase, meaning that his level of physical impairment had increased and would go on increasing without remission.
The bedroom in which the family live contains the Claimant's hospital bed, a single bed for his wife, and bunk beds for the children. The room also contains the Claimant's disability-related equipment, including his walking frame. The Claimant requires use of a ‘Sara-Stedy’ portable hoist but there is insufficient space in the room to store it. The Claimant is physically capable of mobilising for around 1 metre using his walking frame, but the lack of available space within the overcrowded room is such that there is no real scope for him to move around in it. He also has a standard wheelchair but there is no space for him to use it within the room. It is kept outside the room in a common area to which other residents have access. He has therefore been effectively bedbound.
The fact that the Claimant's MS is progressive means that his physical condition has worsened over the period for which he has been living in the hostel. He has recently had to start using a catheter for urinating. For much of the period during which he has been living in the hostel, however, he did not have a catheter and could have been assisted to go to the toilet to urinate, had he been in accommodation served by a bathroom he was able to access. But the ensuite bathroom attached to the bedroom in which the family live is too small to be accessed either by a wheelchair or by a walking frame, meaning that he cannot access it on his own. He had therefore been managing his bodily functions by way of urinating in a bottle, and defecating either on a pad in his bed, or in a commode in the bedroom shared with his wife and children, which his wife then removed/emptied. As his hands were shaking too much for him to hold the urine bottle, his wife had to hold the bottle in place whilst he urinated into it. This could take quite a long time, as one of the consequences of his MS was that he had difficulty in expelling a steady stream of urine.
The fact that he now has a catheter does not, of course, avoid the need for him to defecate – something he has no choice but to do on a pad or in a commode, given that he cannot access the bathroom. His catheter bag needs to be removed whilst he is in the family's shared bedroom, and then emptied and ‘flushed out’. Nursing visits take place for changing his catheter; an uncomfortable intimate procedure that takes place whilst he is in his bed in the family bedroom.
The shower in the ensuite bathroom is a small step-in shower which he cannot use. It is therefore not possible for him to take a shower or bath in his accommodation.
A physiotherapist was once able to lift his walking frame up and put it into the bathroom (at an angle),...
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