IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW v THE QUEEN [2002] EWCA Civ 1843

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(KENNEDY LJ and NELSON J)
[2002] EWCA Civ 1843Case No C1/02/0898Venue Royal Courts of Justice, Strand, London, WC2, Friday, 6 December 2002
Between
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEWTHE QUEENon the application ofCAMARA SATUClaimant/AppellantTHE LONDON BOROUGH OF HACKNEYDefendant/RespondentTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTInterested Party
Before
Lord Justice Simon BrownLord Justice KayLord Justice KeeneMR S KADRI QC and MR R KHUBBER (instructed by Aaronson & Co, London SW5 9BA) appeared on behalf of the AppellantMR A UNDERWOOD QC and MR K RUTLEDGE (instructed by Hackney Directorate of Law & Probity, London N11 0ZH) appeared on behalf of the RespondentMR P HAVERS QC and MR S RAHMAN (instructed by the Treasury Solicitor) for the Interested PartyDate 6 December 2002

LORD JUSTICE KEENE:

This

[1]appeal raises principally a short but important point about the lawfulness of the regulations concerned with the interim support scheme for asylum-seekers. In broad terms the scheme requires local authorities to provide financial support and accommodation for asylum-seekers who appear to be destitute or likely to become so in the very near future. There is now also in operation a more permanent scheme under which the Home Secretary is responsible for providing support for destitute asylum-seekers and their dependents. To that end there has now been established the National Asylum Support Service ("NASS") to whom applications for support have to be made by certain new asylum applicants. The two schemes are intended to provide support specifically for asylum-seekers instead of leaving them to claim more generally available benefits under the National Assistance Act 1948 and the Children Act 1989.[2]Camara Satu is an asylum-seeker who arrived in the United Kingdom in December 1995. Her claim for asylum was refused in 1998. An appeal by her against that refusal has been determined, but the claim against the authority continues under section 94(5). A daughter was born to her in December 1996 and a son in April 1999. From 6 December 1999 assistance previously given to her under the Children Act 1989 was provided under the interim support scheme by the London Borough of Hackney ("Hackney"). However, in 2001 solicitors on her behalf complained that she was receiving a lower level of financial support than would be provided by NASS. Hackney reviewed the rates it paid in comparison with those paid by other local authorities and NASS but by letter dated 17 August 2001 it stated that it was not required automatically to pay NASS rates and that it considered the level of support being provided to be sufficient for the family's essential needs.[3]The appellant sought to change that decision by way of judicial review. Permission to do so was refused on the papers but granted after an oral hearing on one ground only, namely, "whether the Defendant is entitled to set a rate under Asylum Support Interim Provisions Regulations 1999 for 'essential living needs' which is designedly less than the rate payable under the Asylum Support Regulations 2000 for persons eligible for assistance from NASS."[4]The Divisional Court before whom this matter came answered that question in the affirmative. Kennedy LJ (with whom Nelson J agreed) concluded that a local authority was not required to pay NASS rates and that a claimant could only succeed by showing that the rate paid cannot have been one which appeared to the local authority to meet the essential needs of a claimant and his or her dependents. The evidence did not establish that. The claim was therefore dismissed by the Divisional Court.[5]Permission to appeal to this court was refused on paper but when the application was renewed orally a wholly new argument was raised, one which persuaded Schiemann LJ to grant permission. It was to the effect that the regulations embodying the interim support scheme were and are ultra vires the parent statute, which is the Immigration and Asylum Act 1999 ("the 1999 Act").[6]Part VI of the 1999 Act deals with support for asylum-seekers. After section 94, which is a definition section, section 95 gives to the Secretary of State the power to provide, or arrange for the provision of, support for asylum-seekers or their dependents who appear to him to be destitute or likely to become so within a prescribed period: see section 95(1). It defines what is meant by "destitute" by section 95(3) and makes provision for various other aspects of such a support scheme to be dealt with by way of regulations. It is under this section, together with certain other sections of the 1999 Act and schedule 8 thereof, that the more permanent support scheme has been established now by the Asylum Support Regulations 2000. Schedule 8 is provided for by section 95(12).[7]However section 95(13) states:
"Schedule 9 makes temporary provision for support in the period before the coming into force of this section."
Schedule 9 is entitled "Asylum support: interim provisions". Paragraph 1(1) thereof states:
"The Secretary of State may by regulations make provision requiring prescribed local authorities or local authorities falling within a prescribed description of authority to provide support, during the interim period, to eligible persons."
There are then a definition of eligible persons and specific provision for the regulations to deal with a number of matters.[8]Paragraph 15 of that schedule is of central importance to this appeal. It states:
"'The interim period' means the period - (a) beginning on such day as may be prescribed for the purposes of this paragraph; and (b) ending on such day as may be so prescribed."
It will be observed that that definition of "the interim period" sets no limit to the duration of the period.[9]Section 95(13) of schedule 9 came into force on the passing of the 1999 Act by virtue of section 170(3); that is to say, on 11 November 1999. Schedule 9, paragraph 3 applies certain parts of section 95, namely subsections (3)-(8), for the purposes of regulations made under schedule 9; in other words, for the limited purpose of the regulations dealing with support in the interim period. The same subsections are also applied, by virtue of sections 116 and 117 of the 1999 Act, to new provisions thereby inserted into the National Assistance Act 1948, the Health Service and Public Health Act 1968 and the National Health Service Act 1977. Section 95(12) and schedule 8 were brought into force on 1 January 2000, as was section 95 generally, in so far as it provided for the making of subordinate legislation: see the Immigration and Asylum Act 1999 (Commencement No 1) Order 1999. Then, by the Commencement No 3 Order 2000, Part VI of the 1999 Act was brought into force on 3 April 2000, "save as not already in force and except section 117(5)".[10]Consequently, section 95 was in force by 3 April 2000 and indeed much of it was in force by 1 January 2000.[11]For the sake of completeness I add that Commencement Order No 1 was made on 27 November 1999 and Commencement Order No 3 on 24 February 2000.[12]Meanwhile, on 13 November 1999, the Secretary of State had made the Asylum Support (Interim Provisions) Regulations 1999 ("the interim provisions regulations"). They came into force on 6 December 1999 and were made in exercise of the powers conferred on the Secretary of State by a number of provisions of the 1999 Act, including paragraph 15 of schedule 9. The interim provisions regulations obliged local authorities to provide support with certain exceptions:
"during the interim period to eligible persons": Reg 3(1). Reg 2(5) then defined the interim period. It stated as follows: "
The interim period begins on the day on which these Regulations come into force and ends on 1st April 2002."[13]It can at once be seen that the interim period thus defined extended substantially beyond the date when section 95 came into force. It was beyond that date by some two years or more. Subsequently the Secretary of State made the Asylum Support (Interim Provisions) (Amendment) Regulations 2002 ("the amendment regulations"). He made those on 2 March 2002 and they came into force on 1 and 8 April 2002. Regulation 3 of the amendment regulations came into force on the earlier of those two dates and it amended regulation 2(5) of the interim provisions regulations so as to substitute for the words "1st April 2002" the words "5th April 2004". Thus the amendment regulations have extended the interim period to that later date in 2004.[14]It is submitted on behalf of the appellant that the interim provisions regulations were and are ultra vires or, alternatively, if they were intra vires then the recent extension of the interim period by the amendment regulations is in any event ultra vires. This argument is based on the wording of section 95(13) which states in terms that schedule 9, under which both sets of regulations are made, makes temporary provision for support "in the period before the coming into force of this section"; that is to say, section 95. Mr Kadri QC points out that section 95 was fully in force by 3 April 2000 and yet both sets of regulations define the interim period as extending beyond that date. He recognises that at the time when the interim provisions regulations were made, namely 13 November 1999, section 95 had not come into force so that those regulations might be seen as intra vires when made and when they came into force on 6 December 1999. But he submits, first, that they were no longer authorised once section 95 came fully into force on 3 April 2000 and, secondly, that the amendment regulations must clearly be ultra vires. They were made only on 2 March 2002, one year and 11 months after section 95 was fully in force. This, he contends, was unauthorised by the statute, since section 95(13) provides that schedule 9 provides for a support scheme only until section 95 comes into force.[15]It is argued that section 95(13) limits the powers conferred by schedule 9. The words within section 95(13) "in the period before the coming into force of this section" did not need to be there unless they were intended to have some effect. They must, says Mr Kadri, have some meaning. He accepts that Parliament must have appreciated that the Secretary of State might well not know, when prescribing the interim period, exactly when he would be able to bring section 95 into force, but it is submitted that the Secretary of State could have employed a formula to ensure that the interim period would come to an end when section 95 came into force. In an attractive argument, Mr Kadri emphasises that Parliament cannot have intended to give the Secretary of State a power to extend the so-called interim period indefinitely. He relies on a passage from the Inland Revenue Commissioners v Gittus (1921) KB 563, cited in Bennion on Statutory Interpretation, 3 _ rd edition, where Lord Sterndale MR said at page 576:
"If the Act says that the Schedule is to be used for a certain purpose and the heading of the part of the Schedule in question shows that it is prima facie at any rate devoted to that purpose, then you must read the Act and the Schedule as though the Schedule operated for that purpose, and if you can satisfy the language of the section without extending it beyond that purpose you ought to do it."
Here, therefore, schedule 9, it is said, must be read as operating subject to the limit imposed by section 95(13).[16]Were the appellant to succeed in this submission that the interim provisions regulations and their amendment were ultra vires, at least after 3 April 2000, the apparent benefit to her would be that she would obtain support, it is said, at NASS rates because the burden would then rest on the Secretary of State by virtue of section 122(3) and (4) of the 1999 act.[17]On behalf both of Hackney and the Secretary of State, it is contended that section 95(13) does not limit the powers given to the Secretary of State by schedule 9. Both these parties emphasise the wording of paragraph 15 of schedule 9 whereby the interim period means the period "ending on such day as may be so prescribed". No time limit is thereby imposed on the duration of the interim period. Mr Underwood QC on behalf of Hackney accepts that there must be some limit imposed by the concept at least of rationality on the period prescribed by the Secretary of State, but he contends that section 95(13) is descriptive in character and is not intended to be exhaustive in its reference to what is done by schedule 9. That schedule does indeed provide for the period before section 95 comes into force, but it does more as well. That, it is said, makes practical sense so that the Secretary of State could achieve an orderly transition from the interim support scheme to the more permanent one.[18]Mr Havers QC, for the Secretary of State, endorses those arguments. He emphasises that paragraph 15 of schedule 9 could have said that the interim period was to end when section 95 came into force. It did not do so. It is also submitted that a schedule to an Act of Parliament is not to be regarded as in any way subordinate to any inducing words in one of the sections of the Act. Schedule 9 is as much part of the 1999 Act as is section 95, and is not subordinate to that section.[19]That last proposition is one which I accept. Whether provisions in a statute go into a schedule or into a section or sections in the main body of an Act is often a matter of drafting preference, with no significance in terms of legislative force. As Brett LJ said in The Attorney General v Lamplough (1878) 3 Exch D 214 at 229:
"The schedule is as much a part of the statute, and is as much an enactment as any other part"
. That, however, does not resolve the difficulty in the present case. It is well established that, in interpreting a statute, it must be read as a whole so as to give effect to Parliament's intention: Lumsden v The Commissioners of Inland Revenue (1914) AC 877 . One cannot therefore simply focus one's attention on schedule 9 and ignore the wording of section 95(13).[20]Initially, at least, the appellant's arguments might seem to be persuasive. The wording of section 95(13) must be given some force and, if that provision is read together with schedule 9, paragraph 15, then one might construe the latter as enabling the Secretary of State to prescribe an interim period ending on the date so prescribed, but not later than the date when section 95 came into force.[21]This, however, does not seem to me to make sense. It cannot have been Parliament's intention that the interim scheme set up under these powers to support destitute asylum-seekers should cease before the more permanent scheme authorised by section 95 came into being. Likewise, Parliament cannot have intended that the Secretary of State should have the power to prescribe an interim period that would terminate before the more permanent scheme was in being. Otherwise these destitute people, including children, would have been left in some sort of limbo where they would have to resort to claiming under the National Assistance Act 1948 and the Children Act 1989. Such an eventuality would have been contrary to the whole purpose of this legislation. In other words, it cannot have been intended that the Secretary of State should prescribe an interim period which fell short of the date when section 95 came into force.[22]Why then did Parliament give to the Secretary of State this power to prescribe an end date to that interim period at all? It could instead have stipulated in schedule 9 that the interim period would end on the date when section 95 came into force. It can only be that Parliament intended the Secretary of State to have the power to prescribe an end date beyond the date when section 95 came into force. Otherwise, he did not need that power at all.[23]It would be entirely understandable for Parliament to have adopted that approach for good practical reasons. As Mr Underwood points out, there could well have been difficulties if all asylum-seekers being supported by local authorities under the interim scheme had to be transferred on the same day to the NASS scheme. The numbers involved are considerable and the transfer would be better achieved in an orderly, staged fashion. That could best be arranged by having the interim scheme and the more permanent scheme running in parallel for a time, as has in fact happened. It is a well-established principle of construction that where there is some ambiguity in a statute, the meaning which makes more practical sense and causes least inconvenience should be adopted: see The River Wear Commissioners v Adamson (1877) 2 AC 743 at 764-5 per Lord Blackburn and Shannon Realties v Ville de St Michel (1924) AC 185 at 192. That principle applies powerfully in the present case against the appellant's arguments.[24]As a matter of linguistic construction, I would accept the respondent's contention that section 95(13) is not intended to provide an exhaustive description of what is done by schedule 9. It is no more than a general summary, leaving the detail to be provided by the schedule. The latter does indeed provide for the period prior to section 95 coming into force as section 95(13) envisages. Schedule 9 also does more than that, but for the reasons already set out, I would not regard that as unintended. I conclude, therefore, that section 95(13) was not intended to limit the breadth of the powers conferred on the Secretary of State by schedule 9, paragraph 15.[25]That deals with the main issue in this appeal. Mr Kadri also seeks to advance afresh the arguments which were rejected by the Divisional Court. He is technically able to do so because his permission to appeal to this court was not limited to the ultra vires ground. Nonetheless, in my view these other grounds are without merit. Under the interim provisions regulations, regulation 5, the local authority is clearly entrusted with the task of determining what appears to it to be adequate accommodation and provision for the essential living needs of the asylum-seeker and dependents. It must make its own assessment. The regulations setting up the NASS scheme do not apply to that assessment and nothing requires a local authority to apply the NASS rates. There is no evidence to establish that Hackney has in the present case come to an irrational decision. The Divisional Court was right on this.[26]On the main issue I conclude that the interim provision regulations and the amendment regulations were and are intra vires and I for my part would dismiss this appeal.

LORD JUSTICE KAY: I agree.

LORD JUSTICE SIMON BROWN: I also agree.

ORDER

Appeal dismissed. Take order from computer. Permission to appeal to the House of Lords refused.

Cited in 1 later judgment