REGINA on the application of WESTMINSTER CITY COUNCIL v NATIONAL ASYLUM SUPPORT SERVICE [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
[2001] EWCA Civ 512Case No Case No: C/2001/0596Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Tuesday 10th April 2001
Between
REGINA on the application of WESTMINSTER CITY COUNCILClaimant/ AppellantNATIONAL ASYLUM SUPPORT SERVICEDefendant/ Respondent
Before
Lord Justice Simon BrownLord Justice BrookeLord Justice ManceMr Bryan McGuire (instructed by Messrs. Creighton & Partners of London SW1A 2HN) for the AppellantMr John Howell QC & Mr Pushpinder Saini (instructed by The Treasury Solicitor) for the RespondentDate 10 April 2001

LORD JUSTICE SIMON BROWN:

This

[1]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.[2]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.[4]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.[5]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.[6]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.[7]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."
[8]Let me then turn to schedule 8:
"Schedule 8 Provision of Support: Regulations General regulation-making power 1. 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 2. (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." 6. (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 ..."
Once again I shall set out only the most directly relevant provisions. "... 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 ..." "(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." "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 destitution." "Meaning of 'destitute' for certain other purposes 23(1) In this regulation 'the relevant enactments' means - (a) section 21(1A) of the National Assistance Act 1948 ... (2) The following provisions of this regulation apply where it falls to an authority ... to determine for the purposes of any of the relevant enactments whether the person is destitute. (3) Paragraphs (3) to (6) of regulation 6 apply as they apply in a case mentioned in paragraph (1) of that regulation, but as if references to the principal were references to the person whose destitution or otherwise is being determined and references to the Secretary of State were references to the authority ..." "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 subsection 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 the country and the fact that 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." "8.14 The result has been support arrangements which are messy, confusing and expensive, currently costing about £400 million a year and liable to rise to £800 million a year by 2001/02 if no action is taken to deal with the backlogs and delays in the process. The Court of Appeal judgment relating to the 1948 Act meant that, without warning or preparation, local authority social services departments were presented with a burden which is quite inappropriate, which has become increasingly intolerable, and which is unsustainable in the long term, especially in London, where the pressure on accommodation and disruption to other services has been particularly acute." "8.23 The 1948 Act will be amended to make clear that social services departments should not carry the burden of looking after healthy and able-bodied asylum-seekers. This role will fall to the new national support machinery." "The 1948 Act has an important role in delivering care to the community. Asylum-seekers with specific needs will continue to be eligible for such support. However, the Act was never intended to provide financial support and accommodation for asylum-seekers solely because of their destitution. When the clause takes effect, the Act will cease to be necessary for that purpose." "The strength of Westminster's case is that [Mrs Y-Ahmad] is indubitably destitute and is not excluded from being considered so by any circumstance prescribed under s.95(2). Nothing would have been easier than to have prescribed, or to have provided in s.95 itself, expressly, that a person whose needs arise not solely because of destitution is excluded from support under s.95. Furthermore, the obvious reading of the words 'he does not have ... any means of obtaining [accommodation]' in sub-section (3)(a) (and the similar wording in (b)), which define destitution, is that it refers to some means personal to the asylum-seeker: sufficient money of his own to obtain accommodation, or a relative with a house, or the like. The Act refers to 'support' when referring to public assistance, and one would have expected local authority support to be referred to as such if it was within the scope of s.95(3)(a) and (b). It is a curious mode of draftsmanship to provide that someone who is entirely dependent on either central or local government for support is not 'destitute'. ... Mr Pleming [then appearing for Westminster] is right to comment that the drafting of sub-section (3) is not suggestive of a test of eligibility but of personal wherewithal." "If we offer you accommodation we will try to choose the most suitable accommodation to meet your needs ... This includes ... health issues ... If you, or your dependants, suffer from any disability such as blindness, deafness, partial sight, damaged hearing, or problems moving around, you should let us know ... We will try to provide support that will meet your needs." "… if an applicant's need for care and attention is to any material extent made more acute by some circumstance other than the mere lack of accommodation and funds, then, despite being subject to immigration control, he qualifies for assistance. Other relevant circumstances include, of course, age, illness and disability, all of which are expressly mentioned in s.21(1) itself. If, for example, an immigrant as well as being destitute, is old, ill or disabled, he is likely to be yet more vulnerable and less well able to survive than if he were merely destitute" "The word ' solely' in the new section is a strong one and its purpose there seems to me evident. Assistance under the Act of 1948 is, it need hardly be emphasised, the last refuge for the destitute. If there are to be immigrant beggars on our streets, then let them at least not be old, ill or disabled." "Destitute asylum-seekers are now provided for under Part VI of the Act of 1999. As from 6 December 1999, they have their own system of support and no longer need to invoke s.21 of the Act of 1948 (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 ex parte M … )" "It may be anticipated that in future all those in the position of these applicants will make their claims for exceptional leave to remain specifically under Article 3 so as to become entitled to support as asylum-seekers." LORD JUSTICE BROOKE:

LORD JUSTICE MANCE:

"Asylum seekers are not entitled merely because they lack money and accommodation to claim they automatically qualify under s.21(1)(a). Where 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 subsection 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 that they have been subject to the stress of continuing in this country in circumstances which at least involve their contending [sic - ?continuing] 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)." "in relation to persons who are ordinarily resident in their area and other persons who are in urgent need thereof to provide residential accommodation for persons aged 18 and over who by reason of age, illness, disability or any other circumstances are in need of care and attention not otherwise available to them." "(1) This regulation applies where the Secretary of State has decided that asylum support should be provided in respect of the essential living needs of a person. (2) As a general rule, asylum support in respect of the essential living needs of that person may be expected to be provided weekly in the form of vouchers redeemable for goods, services and cash whose total redemption value, for any week, equals the amount shown in the second column of the following Table opposite the entry in the first column which for the time being describes that person. …." "(3) The Secretary of State must ignore: (a) any asylum support, and (b) any support under section 98 of the Act, which the principal … is provided with ….or ….might be provided with …" (4) But he must take into account- (a) any other income which the principal … has or might reasonably be expected to have … (b) any other support which is available to the principal … or might reasonably be expected to be …."

ORDER

Appeal dismissed with costs on a detailed assessment. Permission to appeal to the House of Lords refused. (Order does not form part of approved Judgment)

Cited in 6 later judgments