O, R (on the application of) v London Borough of Haringey & Anor [2003] EWHC 2798 (Admin)

Case No CO/327/2003

[2003] EWHC 2798 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Strand,

London, WC2A 2LL

Tuesday 25 th November, 2003

Before

THE HONOURABLE MR JUSTICE OUSELEY

Between

THE QUEEN ON THE APPLICATION OF “O”Claimant

LONDON BOROUGH OF HARINGEYDefendant

THE SECRETARY OF STATE FOR THE HOME DEPARTMENTInterested Party

(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

Stephen Knafler (instructed by Anthony Gold) for Claimant

Hilton Harrop-Griffiths (instructed by London Borough Haringey) for Defendant

John-Paul Waite (instructed by Treasury Solicitor) for Interested Party

Judgment

Date 2003-11-25

[1]The claimant is a citizen of Uganda, now 39 years old. Her husband, whom she married in 1996, came to the United Kingdom to study. In September 1998, the claimant, pregnant and HIV positive, came to the United Kingdom to join her husband on a 6 months’ multiple visa. In December 1998, her first child was born in Canada; she returned with him to the United Kingdom on a second 6 months’ visitor’s visa.

[2]In 1999, her husband was given a work permit; in 2000, the claimant applied for leave to remain as the spouse of a person with a work permit, but this application remains undetermined by the Secretary of State for the Home Department. At the end of 2001, the claimant gave birth to her second son.

[3]Unhappily, in November 2002, she left the matrimonial home because of domestic violence and since then the Defendant London Borough Council of Haringey has been providing her and her two sons with accommodation and subsistence, initially under the 1948 National Assistance Act and the 1989 Children Act.

[4]On 8th January 2003, she sought exceptional leave to remain: she claimed that her return to Uganda would breach her rights under

Article 3 ECHR

because she would be unable there to receive the treatment necessary to save her life. This application too remains undecided by the SSHD. She is thus an “asylum-seeker” for the purposes of Part V1 of the Immigration and Asylum Act 1999, by virtue of section 94 (1). Thereafter, she has been housed under section 21 of the 1948 Act; but Haringey LBC contends that it is not liable to provide for the children, a responsibility which it contends falls upon NASS.

[5]She seeks a declaration that the Defendant is under a duty or have a power to accommodate the children with her under the 1948 Act, or the Children Act 1989 or the Local Government Act 2000.

[6]Haringey LBC accepts that it owes a duty to the claimant, as an individual person, under section 21(1)(a) of the National Assistance Act 1948, to provide her with residential accommodation. This is because being HIV positive with her lack of resources means that she is a person who needs care and attention as the result of illness and “any other circumstances,” which is not otherwise available to her. This need, it is also accepted, has not arisen solely because of actual destitution or its potential physical effects; thus section 21(1A) does not exclude her from the operation of section 21(1)(a); she has “other support” available to her under the 1948 Act, and so any assessment of the need for asylum support from NASS has to take that into account, and through doing so, is itself excluded; R v Wandsworth LBC ex parte O,

[2000] 1 WLR 2539

, CA; R (Westminster CC) v NASS

2002 UKHL 38

[2002] 1 WLR 2956

[7]The issue in this case, as formulated by the parties, relates to whether or not Haringey LBC has any power or duty to provide accommodation for the two children in those circumstances. It would not wish or intend to separate mother from children or to subject the children to destitution.

[8]Haringey LBC contends that it is the responsibility of the SSHD to provide for the children, a responsibility which, it says, could and would be met by a sensible financial arrangement between the two public bodies to cover the costs of the single unit of accommodation which mother and children would occupy. The SSHD, as an interested party, contends that there is no such shared responsibility; it all belongs alone to Haringey LBC. The claimant agrees with the Secretary of State. The relevant statutory provisions

[9]First, the National Assistance Act 1948. Section 21, so far as material, provides as amended: “(1) Subject to and in accordance with the provision 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 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 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) Subsection (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 references in subsections (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local authority (2) In [making any 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. (8) …nothing 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.” (a) residential accommodation for persons aged eighteen 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,….” (b) because of the physical effects, or anticipated physical effects, of his being destitute.

[10]The Secretary of State’s Approvals and Directions of 1993 LAC (93) 10 provide:

“2. (1) The Secretary of State hereby … (b) directs local authorities to make arrangements under section 21(1) (a) of the Act 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 or over who by reason of age, illness, disability or any other circumstance are in need of care and attention not otherwise available to them.” (b) directs local authorities to make arrangements under section 21(1) (a) of the Act 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 or over who by reason of age, illness, disability or any other circumstance are in need of care and attention not otherwise available to them.”

[11]Second, the Immigration and Asylum Act 1999 provides in section 95: “(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 or to be likely to become destitute within such period as may be prescribed. (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); or (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 references to him were references to him and his dependants taken together.” who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed. (a) he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or (b) he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs.

[12]Section 122 provides: “(1) In this section “eligible person” means a person who appears to the Secretary of State to be a person for whom support may be provided under section 95. (2) Subsection (3) and (4) apply if any application for support under section 95 has been made by an eligible person whose household includes a dependant under the age of 18 (“child”). (3) If it appears to the Secretary of State that adequate accommodation is not being provided for the child, he must exercise his powers under section 95 by offering, and if his offer is accepted, by providing or arranging for the provision, of adequate accommodation for the child as part of the eligible person’s household. (4) If it appears to the Secretary of State that essential living needs of the child are not being met, he must exercise his powers under section 95 by offering, and if his offer is accepted by providing or arranging for the provision of, essential living needs for the child as part of the eligible person’s household. (5) No local authority may provide assistance under any of the child welfare provisions in respect of a dependant under the age of 18, or any member of his family, at any time when-(a) the Secretary of State is complying with this section in relation to him; or

(b) there are reasonable grounds for believing that- (i) the person concerned is a person for whom support may be provided under section 95; and (ii) the Secretary of State would be required to comply with this section if that person had made an application under section 95. (6) “Assistance” means the provision of accommodation or of any essential living needs. (7) “The child welfare provisions” means- (a) section 17 of the Children Act 1989 ….” (a) the Secretary of State is complying with this section in relation to him; or (i) the person concerned is a person for whom support may be provided under section 95; and (ii) the Secretary of State would be required to comply with this section if that person had made an application under section 95.

[13]Section 95(12) leads to Schedule 8 to the Act and empowers the Secretary of State to make Regulations supplementing this section and by subsection (13), Schedule 9 made temporary provision for support in the period before the coming into force of the section. The Asylum Support Regulations 2000 SI .704 (which govern asylum support from NASS and which came into force on 3rd April 2000) have been made under Schedule 8.

[14]The material parts of the Asylum Support Regulations are:

“5(1) Subject to paragraph (2), where an application in accordance with regulation 3(3) is for asylum support for the applicant and one or more dependants of his, in applying section 95(1) of the Act the Secretary of State must decide whether the applicant and all those dependants, taken together, are destitute or likely to become destitute within the period prescribed by regulation 7.” 6 (1) This regulation applies where it falls to the Secretary of State to determine for the purposes of section 95(1) of the Act whether - …. (a) a person applying for asylum support, or such an applicant and any dependants of his … is or are destitute …. 6(4)…[the Secretary of State] must take into account - … (b) any other support which is available to the [applicant for asylum support] or any dependant of his …. 12(1) This regulation applies where it falls to the Secretary of State to decide the level or kind of asylum support to be provided for - … (a) a person applying for asylum support, or such an applicant and any dependants of his …. 12(3) The Secretary of State must take into account … (b) support which is or might reasonably be expected to be available to [the applicant for support] or any dependant of his … otherwise than by way of asylum support. 16(1) This regulation applies where, in deciding the level of asylum support to be provided for a person who … will be a supported person, the Secretary of State is required to take into account …support…as mentioned in regulation 12(3). 16(2) The Secretary of State may- (a) set the asylum support at a level which does not reflect the…support…,and (b) require from that person payment by way of contributions towards the cost of the provision for him of asylum support.” (a) a person applying for asylum support, or such an applicant and any dependants of his … is or are destitute …. (b) any other support which is available to the [applicant for asylum support] or any dependant of his …. (a) a person applying for asylum support, or such an applicant and any dependants of his …. (b) support which is or might reasonably be expected to be available to [the applicant for support] or any dependant of his … otherwise than by way of asylum support. (a) set the asylum support at a level which does not reflect the…support…,and (b) require from that person payment by way of contributions towards the cost of the provision for him of asylum support.”

[15]Regulation 23 applies regulation 6 to situations where it is for a local authority to decide whether someone is destitute for the purposes of the National Assistance Act, in such a way that in determining this the authority cannot take the availability of asylum support from NASS into account. Such “other support” for the purposes of regulation 6(4)(b) includes support under the National Assistance Act section 21(1)(a).

[16]Third, the Children Act 1989. Section 17 provides:

“(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)- (a) to safe-guard and promote the welfare of children within their area who are in need; and (b) so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children’s needs. (3) Any service provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child’s welfare. (6) The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation and giving assistance in kind or, in exceptional circumstances, in cash.”

The reference to “accommodation” was inserted by the Adoption and Children Act 2002, section 116, with effect from 6th November 2002. (a) to safe-guard and promote the welfare of children within their area who are in need; and (b) so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children’s needs. Submissions

[17]Mr Knafler submitted correctly that the statutory structure meant that a destitute and seriously ill person, even if an asylum seeker, qualified for residential accommodation under section 21 (1)(a) and was not excluded under section 21 (1A) of the 1948 Act; such a person did not qualify for asylum support precisely because his qualification for residential accommodation under the 1948 Act meant that he was not destitute. The one-way operation of the Asylum Support Regulations required the SSHD to take local authority provision of residential accommodation into account, and precluded the local authority from taking into account asylum support when considering the need for residential accommodation for the destitute. The operation of the statutory provisions in that way was confirmed in R (Westminster CC) v NASS, and R (Mani) v Lambeth LBC

[2003] EWCA Civ 836

. It applies to the claimant as an “asylum seeker” within sections 94 and 95 of the 1999 Act by virtue of her human rights claim under

Article 3 ECHR

. This position, this far, is undisputed.

[18]He accepted that the duty to provide residential accommodation under section 21 was owed only to the adult applicant, who must be in need of care and attention. But, although no separate duty was owed to family members, the duty to the adult applicant alone to provide residential accommodation did not determine what the nature or quality of that residential accommodation should be. Section 21(2) was a broad power.

[19]Mr Knafler submitted that residential accommodation could be accommodation in a residential care or nursing home but could also be in a B&B hotel, flat or house. It could be accommodation capable of accommodating only the qualifying person, or it could be accommodation capable of accommodating the qualifying person together with family members (or others). Residential accommodation must be appropriate to the needs of the person who qualifies for it.

[20]This, he said, showed that it was not ultra vires for a local authority to provide residential accommodation for a qualifying applicant which provided more than that individual, taken alone, would need and showed that accommodation could lawfully be provided so that family members could live with the qualifying applicant. “Residential accommodation” was not a term of art; it meant no more than the place where someone lived, of which an obvious and common feature would be that family members could live there too. Homeless families were accommodated under section 21, before the Housing (Homeless Persons) Act 1977. Policy guidance emphasised the importance of living in the community, and normal living, with support for living in one’s own home. This was guidance to be followed; R v Islington LBC ex p. Rixon 1997-8 1CCLR 119.

[21]Section 21(2) required the accommodation provided to take into account the welfare of, and to meet the needs of the qualifying applicants. This included their psychological needs, though not their mere preferences, to live with a family member; R v Avon County Council ex p M

[1999] 2 CCLR 185

, a decision of 1993.

Article 8 ECHR

required section 21 to be interpreted so as to avoid separating family members who needed to be together.

[22]He referred to what Sullivan J said in R (Bernard) v Enfield LBC [2003] UKHRR 148

[2002] EWHC 2282 (Admin)

, at paragraph 10 in a case involving a disabled parent with children, including minors: “It is not disputed by the defendant that, in light of these assessments carried out by its social services department, it was under a duty, as the local social services authority responsible for the provision of community care services to the claimants, to make arrangements for, inter alia, the provision of suitably adapted accommodation for the second claimant under s 21(1)(a) of the National Assistance Act 1948: see R v Kensington and Chelsea Royal London Borough Council ex parte Kujtim [1994] 4 A11 ER 161, and R (Bantatu) v Islington London Borough Council

(2001) 33 HLR 76

. Policy guidance makes it plain that although the statutory duty is owed to the second claimant, every attempt must be made to ensure that the family can remain together.” (There was however no immigration control overlay in that case).

[23]Mr Knafler emphasised the last sentence in particular. Section 21 meant that local authorities always had the power, and in some cases a duty to provide accommodation to a qualifying applicant, capable of allowing family members to reside with him.

[24]Mr Knafler advanced his argument that section 21 contained the necessary power to accommodate family members, including minor children, by reference to examples of situations which ought to be catered for but which on the Defendant’s approach would not be. He instanced an elderly couple, only one of whom required section 21 care because of his illness and disability, pointing out that couples are not separated by local authorities in practice. What, he said, of the severely disabled mother who needed residential care – would her husband and young children be accommodated separately? Would a single mother in need of section 21 residential care be separated from her child? Would the person whose only home has been that of an elderly parent, who now needed residential care, be unable to be accommodated in the way which both of them would wish? At this stage, I need only note that these examples all assume a need for residential care; but section 21 can bite when there is a need for care and attention and impose an obligation to provide accommodation which that need itself did not generate.

[25]Mr Knafler relied on what Mance LJ said in Khana v Southwark LBC

[2002] HLR 31

[2001] EWCA Civ 999

, to the effect that it was reasonable for the local authority exercising its section 21 functions, to take the applicant’s wishes into account, but it was entitled to conclude that a residential care home where she could live with her husband sufficed; they had wished to be accommodated together elsewhere. Mr Knafler pointed out that the wish also to be accommodated with the adult daughter was not of itself regarded as legally irrelevant. In paragraph 54 and 56 Mance LJ said:

“In some circumstances, instanced by R.v.Avon CC ex p. M[1994] 2 FLR 1004, a person may have a need (in ex p. M psychological in nature), as distinct from a preference, to reside in a particular place. I would wholly endorse Mr Drabble’s general submission that section 21 of the 1948 Act and section 47 of the 1990 Act contemplate an assessment by the local authority of a person’s accommodation needs, which takes very full account of their wishes, including the very fundamental aim of preserving the independence of elderly people in the community and in their own homes for as long and as fully as possible. A certain degree of risk-taking is often acceptable, rather than compromise independence and break family or home links. But, where a local authority concludes, as Southwark did her, that “the only way in which Mrs Khana’s needs can properly be met is for her to go into full time “residential home” and makes a corresponding offer, and where this assessment and the reasonableness of the offer made cannot be challenged as such, then the local authority has in my judgment satisfied its duties under the legislation.”

[26]Alternatively, Mr Knafler submitted, section 17 of the Children Act provided the necessary power to enable social services authorities to provide accommodation to minor dependant children, and coupled with the obligation under section 21 owed to the adult, enabled the whole family to be accommodated. Where an asylum seeker is eligible for NASS support, the child and adult are both ineligible for accommodation under the Children Act 1989, by virtue of section 122(5) and (7) of the 1999 Act. Conversely, submitted Mr Knafler, where as here the asylum seeker is ineligible for NASS support, the Children Act powers are not excluded either in relation to the child or the adult member of his family. There was no express restriction supportive of the distinction between qualifying adult and dependant child, which the local authority sought to draw.

[27]Accommodation for the family including children was required in R v Wigan MBC ex p Tammadge

[1998] 1CCLR 580

. But as Mr Harrop-Griffiths pointed out in that case the availability of Section 17 Children Act powers was seen as a parallel power and there was no discussion about whether there was any limit on section 21, because the resultant care for the family as a whole would be unaffected by the statutory route. What was at issue was what was required. Mr Knafler pointed out that in R v Islington BC ex p Batantu

[2001] 4 CCLR 45

, where family accommodation was required to be provided under section 21, Mr Harrop-Griffiths, then appearing for Islington LBC, had not argued that the children fell outside its scope. Although there the unsatisfactory nature of the housing was part of the need for care, the reality however is that in that case, section 17 would have been available for the children and the issue was again not the statutory route, but the extent of the obligation; there was no immigration control overlay.

[28]Mr Knafler drew support from Regulation 6 of the 2000 Regulations: The SSHD had to take into account support available to a dependant, in deciding whether someone was destitute, and since accommodation was available for the qualifying adult under the 1948 Act, it was available to the child. This was either because the 1948 Act included the provision of accommodation for the dependant child, or because the adult necessarily fell within the scope of the Children Act, if the child were being accommodated. Either way, the result was the same.

[29]Mr Waite for the SSHD adopted Mr Knafler’s submissions. He emphasised the practical problems to which the local authority’s approach gave rise. There would have to be two separate applications, to two different bodies, each making separate decisions according to their own criteria on the differing parts of the one family. Parliament could not have intended such an outcome, without making explicit statutory provision for its management.

[30]He submitted that the insertion into the 1948 Act of the words “aged 18 or over” was simply to establish that those over 18 had no independent entitlement, not as the local authority contended, to prevent a child being accommodated with its parents. Accommodation was not suited to a person, nor provided with his welfare in mind, if an adult could not be accommodated with a dependant child.

[31]Mr Waite drew attention to what had been said in the Westminster case. Lord Slynn said at paragraph 17:

“Accordingly, it follows that the only limitation on a local authority’s liability to provide accommodation is where the need is “solely” due to destitution or its effects. Section 95 of the 1999 Act can therefore not be relied on to give a separate right against the Secretary of State where there is destitution plus disability. Even if that were a possible construction the Secretary of State, under s 95, must take into account, by virtue of reg 6(4) (b) of the Asylum Support Regulations 2000/704, “any other support which is available to the principal or any dependant of his, or might reasonably be expected to be so available in that period…”

Accordingly, the Secretary of State, even under s 95, would be obliged to have regard to the liability of the local authority under s 21 of the 1948 Act as amended for any asylum-seeker whose need for care and attention had not arisen solely because of his destitution.”

[32]Lord Hoffmann said at paragraph 35:

“ It will be seen that while s 21(1A) removes only the able-bodied destitute from the duty of the local social service departments, s 95(1) appears prima facie to give NASS power to accommodate all destitute asylum-seekers, whether able bodied or infirm. It is this apparent overlap between the powers of NASS and the duties of the local authority which has given rise to this appeal.”

At paragraph 41, he said:

“The clear purpose of the 1999 Act was to take away an area of responsibility from the local authorities and give it to the Secretary of State. It did not intend to create overlapping responsibilities.”

[33]Mr Pleming QC for Westminster had argued that to resolve the overlap against the local authority would be to enlarge the scope of the 1948 Act from its true limits simply because the claimant was an asylum seeker. However, Lord Hoffmann concluded at paragraph 49:

“ My Lords, I record these concerns, which seem to me, as they did to the Court of Appeal, not without substance. But the issues before your Lordships are narrow. The present case has been argued throughout on the footing that Mrs [A] has a need for care and attention which has not arisen solely because she is destitute but also (and largely) because she is ill. It is also common ground that she has no access to any accommodation in which she can receive care and attention other than by virtue of s 21 or under Pt V1 of the 1999 Act. The first question for your Lordships is whether in those circumstances she comes prima facie with s 21(1)(a) and, if so, the second is whether she is excluded by s 21(1A). In my opinion, the answers to these questions are Yes and No respectively. The third question is whether the existence of a duty under s 21 excludes Mrs Y-[A] from consideration for asylum support. Again, in agreement with the Court of Appeal, I think that the answer is Yes.”

[34]In effect, Mr Waite submitted, the claimant was claiming eligibility for both local authority and NASS support, whereas the claimant’s eligibility for support under section 21 removed her altogether, and her dependants from Part V1 of the 1999 Act. The only duties owed to her, and to her children, arose under the 1948 or 1989 Acts.

[35]Mr Harrop-Griffiths for the defendant submitted that its acceptance of a duty under section 21 of the 1948 Act to the claimant was predicated on the lack of powers available under any other statutory provision, including section 17 of the Children Act 1989, to provide support or accommodation. If such other support had been available, section 21(1)(a) or 21(8)of the 1948 Act would have precluded the availability of section 21. Before the 1999 Act, the practice had been for the adult to be accommodated under section 21, and the children with the adult, under the Children Act.

[36]The insertion of the words “aged eighteen and over” into the 1948 Act, by the Children Act, meant that for children under eighteen, the relevant provision was the 1989 Act. Section 21 could not be interpreted more broadly. Section 17 of the 1989 Act or section 122 of the 1999 Act meant that accommodation was “otherwise available” to them. Alternatively section 21(8) would disapply section 21 because of the other statutory functions available in respect of that accommodation. Section 122 would protect their Article 8 rights to family life.

[37]Mr Harrop-Griffiths contended that answers to the wider questions raised by Mr Knafler could be found, for example, in section 2 of the Local Government Act 2000 which gives a local authority very broadly expressed powers to promote the social well-being of its area for the benefit of all or any resident, including the provision of accommodation to any person. (However, by section 3(1), that power does not enable a local authority to circumvent any existing specific statutory restrictions.) He also submitted that section 17 of the 1989 Act would assist the young mother in Mr Knafler’s illustrations and that the accident victim would be unlikely to require housing which could not be provided under general social housing provisions. Hence, he submitted, there was no need to give section 21 the broader interpretation sought by the claimant; the practical problems would be dealt with in reality by some means or other. He did not take direct issue with Mr Knafler’s contention that the Avon County Council case meant that assessed psychological needs were relevant to the judgment as to what accommodation met the needs of a qualifying applicant, rather he contended that this claimant had no psychological need to be housed with her children.

[38]From there, he turned to section 122 of the 1999 Act. It had been assumed in the cases relied on by Mr Knafler, only because the contrary had not been contended, that the obligation in section 21 was sufficiently broad to cover close or dependant family members; the involvement of NASS and its statutory powers necessitated a re-examination of that assumption.

[39]Section 122 enabled a line to be drawn between those children for whose accommodation and subsistence NASS was responsible, and for whom NASS provided support, and those for whom it was not responsible. He drew upon R (Ouji) v SSHD

[2002] EWHC 1839 (Admin)

, in which Collins J had held that the needs of a disabled child of an asylum-seeker had to be met by the local authority but the “essential living needs” of the ordinary child of an asylum-seeker, and by the same reasoning “adequate accommodation”, had to be met by the SSHD. He further relied on R (A) v NASS and Waltham Forest LBC

[2003] EWHC 1402 (Admin)

, a decision of Keith J. who held that section 122 (5) prevented the local authority from providing assistance to the Claimant’s disabled children under section 17 of the Children Act.

[40]Mr Harrop-Griffiths relied on the pre-1999 Act White Paper “Fairer, Faster and Firmer” to show that the distribution of powers was intentional and as he contended for. It acknowledges in paragraphs 8.12-8.14 that in the past single asylum-seekers had been provided with support under section 21 of the 1948 Act, and that families with children had been dealt with under the 1989 Act. Reference seems to be made quite freely to this document in the cases as an aid to understanding Parliament’s intention. Paragraph 8.23 deals also with the removal of healthy and able bodied asylum seekers from the local authorities’ remit. Paragraph 8.24 then deals separately with families and unaccompanied children. It is clear that the safety net to which it refers is NASS support. It says:

“The Government will ensure that in providing a safety net for asylum seekers the needs of children are fully respected and their welfare and rights safeguarded. Appropriate access to education will continue to be afforded to the children of asylum seekers.”

[41]The application of section 122 to any given case had to be considered with section 95 and Regulation 6 of the Asylum Support Regulations. The family is not destitute if support is available to them all under section 21 of the 1948 Act, which provides for adequate accommodation and their essential living needs. If support is available to the mother alone, but that would provide for them all, they are not destitute. Otherwise, they all are destitute. They need to be examined together.

[42]So, examined, if the claimant is destitute, the SSHD may provide support for her as an eligible person within section 122 (1) and thereby a duty is owed to her children. The SSHD cannot evade this simply by asserting that the claimant has enough for herself. Thus analysed, the claimant alone has support under section 21; she taken together with her children are all destitute; section 122(5)(b) permits the local authority reasonably to believe that the 1999 Act applies, that NASS would be obliged to support them and hence the local authority can provide no support for any of them under section 17. NASS can however take into account, in assessing the level of support to be provided, the availability of support under section 21 for the adult. The Regulations do not say as much but it is implicit from the provisions for setting the level of support and in requiring contributions.

[43]Since the conclusion of oral argument in the case, two further decisions of some relevance have emerged upon which the parties have been invited to make submissions. First, the House of Lords decision in R (G, W and A) v Barnet and Lambeth London Borough Councils

[2003] UKHL 57

, 23rd October 2003. It concerned the effect of section 17 of the Children Act. The three children were living with their mothers; two of the three were homeless, one was disabled. There was no residential accommodation suitable for the children if they were to remain within the family unit. It was not at issue but that the local authorities had the power to provide residential accommodation for the family unit. The question was whether they were under a duty to the child to provide the child with accommodation so that he or she could live in the family unit.

[44]The children’s case was that section 17 (1) was a duty enforceable by each and every child in need individually, regardless of resources. The authorities argued that it only set out general principles to be applied when providing services to children in need. The majority of their Lordships concluded the latter – the duty was owed generally to all children, leaving a very wide discretion to the authorities as to how they were performed. Lord Hope said at paragraph 91 “I think that the correct analysis of section 17(1) is that it sets out duties of a general character which are intended to be for the benefit of children in need in the local services authority’s area in general. The other duties and the specific duties, which then follow, must be performed in each individual case by reference to the general duties which section 17(1) sets out. What the subsection does is to set out the duties owed to a section of the public in general by which the authority must be gained in the performance of those other duties: see R v London Borough of Barnet, Ex p B

[1994] ELR 357

…. . As Mr Goudie QC for the respondents accepted, members of that section of the public have a sufficient interest to enforce those general duties by judicial review. But they are not particular duties owed to each member of that section of the public of the kind described by Lord Clyde in R v Gloucestershire County Council, Ex p Barry

[1997] AC 584

, 610A which give a correlative right to the individual which he can enforce in the event of a failure in its performance.”

[45]He pointed out that the provision of residential accommodation to re-house a child in need so that he can live with his family is not the primary purpose of the legislation: the children would be looked after by the local authority in a variety of ways. An assessment that a child needed residential accommodation did not crystallise the general duty under section 17(1) into a specific duty owed to identified individual children.

[46]Lord Hope also concluded that section 23(6) of the 1989 Act did not impose a duty or an authority, which was looking after a child, to provide accommodation to a child’s parent to enable the child to live with the parent.

[47]As Lord Scott pointed out, in concluding that section 17 created a general duty owed to children as a class, it would be odd were section 17 (1) to have created a mandatory obligation to take specific steps, regardless of cost and resources, in the light of the later specific duties imposed in Schedule 2 to the 1989 Act.

[48]This decision therefore contemplates that a local authority may provide for children by removing them from parents, rather than allowing parents to use the Children Act as a means of obtaining family accommodation which was not available under the Housing Acts.

[49]Second, the decision of the Court of Appeal in R(A) v NASS and Waltham Forest London Borough Council

[2003] EWCA Civ 1473

, 23rd October 2003, is also of some relevance. The Court of Appeal rejected an approach which led to part of the needs of the disabled children of an able bodied asylum seeker being met by the local authority and part by NASS. Disabled children of asylum seekers fell outside the scope of section 21, because section 21 applied only to those over 18. Section 17, which would otherwise apply to them, was expressly excluded by section 122(5) to (7) of the 1999 Act. Only section 95 was available as the means of providing accommodation for the disabled child of an asylum-seeker. Adequacy of accommodation could not be judged by applying the standard appropriate for an able-bodied child, leaving only additional support to be provided by the local authority.

[50]Pointing out that the able-bodied destitute asylum seeker fell outside section 21, and for that reason then fell with the residual provision of section 95, Waller LJ said at paragraph 21, “The reason why disabled children of asylum seekers do not fall under section s21 is that that provision applies only to those over 18. The corresponding provision for disabled children would be s17 of the Children Act 1989. That section is expressly excluded by s122(5) and (6) of the 1999 Act. There is thus no provision other than s95 under which a disabled child of an asylum seeker can be provided with accommodation. It is for this reason that Keith J was by common consent wrong to hold that adequacy had to be tested by reference to able-bodied children of asylum seekers as opposed to disabled children of asylum seekers. It was in any event to misread the effect of the Westminster case to suggest that there was a division of responsibility as between NASS and a local authority, NASS being responsible for the normal accommodation and a local authority for that which related to disability in relation to any individual asylum seeker. The Westminster case demonstrated that an adult disabled asylum seeker fell outside the 1999Act altogether.”

[51]Thus the position of the children was determined by the position of the parent. In paragraph 53, Waller LJ pointed out:

“The context for asylum seekers is the provision of accommodation which prevents such people being destitute, and which provides for their essential living needs. Furthermore in considering adequacy or suitability the individual circumstance of each individual, including dependants, must be considered; thus the age of the children and whether any person including the children suffers from a disability will be relevant to the adequacy of accommodation and as to whether the family would be destitute. Lord Hoffmann accepted that s95(1) prima facie conferred power to accommodate all destitute asylum seekers, including disabled adult asylum seekers, but accepted the argument that regulations made under Part IV of the 1999 Act made clear that the power was “residual” and could not be exercised if the asylum seeker was entitled to accommodation under some other provision.”

[52]As to section 122 of the 1999 Act, Waller LJ said that it “excluded” the local authority from providing assistance where NASS should be complying with its obligations under section 95 and 122; paragraph 67. Conclusion

[53]I deal first with the argument that the statutory provisions permitted or required a shared responsibility. I was never much attracted by the submissions from Mr Harrop-Griffiths that responsibility was to be shared between NASS and the local authority, in some way or other. It was, however, an approach which has been applied in the past, perhaps in differing ways, in Ouji and in A v NASS, until the recent decision in the Court of Appeal.

[54]I was more persuaded by Mr Waite’s submissions that the administrative complexities of any form of shared responsibility made it unlikely that Parliament had intended such an outcome, and had yet failed to provide any mechanism for its implementation. None of the provisions relied on by Mr Harrop-Griffiths made explicit any such provision, which I would have expected had Parliament intended such a result. It was an understandable attempt to make sense of the somewhat circular legislation, and of relevant authority. But of all the possible solutions it had the least to commend it, and nothing compelled it.

[55]To require two sets of applications to two bodies, under different Acts with differing criteria with the scope for reasonable but differing assessments would be potentially fraught with delay, uncertainty, and litigation over bureaucratic differences even greater than those so often found in this area. Mr Harrop-Griffiths may be right that the two bodies would usually find some pragmatic solution, but there appears to be considerable scope for debate within the legislation as to where responsibility lies, and persistent litigation offers little cause for the optimism requisite for his submission to be accepted with confidence.

[56]Mr Harrop-Griffiths, after the decision of the Court of Appeal in R (A) v NASS, continued to urge a shared financial responsibility; he contended that the Asylum Support Regulations enabled responsibility to be shared and contribution sought. But to my mind the possibility of such shared responsibility is ended by that recent decision; the particular passages cited from Waller LJ’s judgment make that clear. That is wholly in line with the approach of the House of Lords in the Westminster case, see paragraph 41 per Lord Hoffmann. I do not consider that the legislative framework should be approached differently, on the basis that R (A) v NASS concerned the disabled children of an able-bodied asylum seeker, whereas this case concerns the able-bodied children of an asylum seeker who is in need of care and attention.

[57]The position is therefore, that either NASS or Haringey is responsible for the whole family. It has not been suggested by anyone that the relevant legislation should be construed or applied so as to split parent from children. Conversely, it may be that if one legislative route could permit that, it is an indication that the alternative route is to be preferred if it does not.

[58]It may have been assumed generally by the parties that if the shared responsibility as proposed by Haringey were rejected, Haringey would be responsible for the whole family, following its acceptance in obedience to its reading of the Westminster decision that it was responsible for the mother alone. I do not consider that the legal position should be established by what may be an erroneous assumption, however common between the parties, nor that my judgment should be trammelled by it if consideration of the arguments leads me to the conclusion that it is wrong.

[59]I do not consider, tempting though it is, that I can regard the issue as resolved by the decision of the House of Lords in the Westminster case itself. This case concerned a disabled asylum seeker, but she also had a 13-year-old daughter. It seems to have been assumed that the accommodation at issue should be for both of them and the only issue was whether it was a NASS or a local authority responsibility. The case was argued and decided on the implicit assumption that the mother’s position was determinative of the position of mother and daughter. The argument and reasoning however are what would have been necessary for the decision in relation to a single, childless claimant. That is the significance of the case. No point was argued at any stage, so far as I can see, about the significance of the position of the child for the decision as to who had responsibility for the mother or the family. The point has simply not been raised, argued or decided. I intend no disrespect, but a decision even of the House of Lords cannot be binding by its silence on an issue which it never considered, though it can, of course, be said that that supports the wisdom of the common assumption in this case.

[60]No one at any stage in this case has suggested that the Westminster case determined the outcome of this case, although the factual situation with which I am concerned was the same as arose in that case. Even when I indicated that I was minded to hold that the whole responsibility for this family lay with NASS, and invited further written submissions, no one suggested that the Westminster case in fact had already determined the issue. Mr Harrop-Griffiths submitted that the Westminster case continued to bind me in relation to the adult alone, but did not do so either in relation to the children, or in relation to mother and children as a family unit or household.

[61]Whilst I respect Mr Harrop-Griffiths’ integrity in not seeking to take advantage of a favourable line which he did not consider was open to him or to me, I do not follow his logic. If, as is his case and indeed his opponents’ position, Westminster is confined to the position of the adult and does not deal with the position of the child, it follows that it is not binding as to the adult when that adult has a child in the household. Neither child nor family were considered, nor the impact of a child on the position of the adult. I am naturally concerned that no Counsel is prepared to support my provisional view, but I do not consider that I should declare the law, and the law affecting many others, to be what I do not believe it to be.

[62]The starting point for the examination of which authority bears sole responsibility is the 1999 Act and not the 1948 Act, because it relates to support for an asylum-seeker and her dependants. It is clear that, putting section 21 to one side for the moment, the claimant and her dependants fall within section 95(3) and the SSHD has power to arrange for their support. It is important to recognise that consideration is required under that provision of the asylum-seeker and dependants together. Section 122 (3) then applies so as to impose a duty on the SSHD to offer accommodation “for the child as part of the eligibleperson’s household”; (my emphasis). This provision specifically treats the family or household as a whole. By section 122(5) the local authority’s powers to provide assistance for the child or any member of the family under section 17 of the Children Act 1989 are specifically removed in these circumstances, because there are reasonable grounds for believing that the claimant is an eligible person within section 95. This is clearly part of a legislative structure to place the responsibility for children, with their household, on NASS. Regulation 6(4)(b) however requires account to be taken of support which may available to the claimant or her children under e.g the 1948 Act, in determining whether she or they are destitute.

[63]I turn then to section 21 to see what may be available to her or her children. Even if the effect of the Westminster case is that the disabled adult and the disabled adult, who incidentally has dependant children, fall within section 21, there is still no duty owed to the children under it; she and she alone would fall within the duty in section 21. Her children have to be ignored for the purposes of seeing both whether she is destitute for the purposes of section 21(1A), and also whether her need for care and attention has arisen “solely” because of her destitution; section 21(1B). Once she is not excluded by section 21(1A) from section 21(1)(a), there is a duty owed exclusively to her. It is agreed, correctly, that there is no duty owed to the children under section 21; section 21 is quite explicit now in excluding those under 18 from its remit. The Secretary of State cannot and has not directed local authorities to provide accommodation under section 21 for those under 18, except for babies, through the obligation to “nursing mothers.” Those are the only parents covered.

[64]The disapplication of section 17 of the Children Act by section 122(5) of the 1999 Act does not cease just because an adult alone might be within section 21; “the person concerned”, whose eligibility for section 95 support is the trigger for that disapplication, is the adult or any dependant or the family taken together; section 95(3) and (4). However, even were that wrong, and “the person concerned” were only the adult, that does not revive the possibility of section 17 obliging the local authority to provide housing for the parent and child together, in the light of the decision of the House of Lords in G, W and A.

[65]It seems to me that in those circumstances, the intent and effect of the 1999 Act is that the provision of asylum support for families with dependant children should be governed by section 122 alone. That Act treats the dependants with the family as a unit for the assessment of destitution. Accommodation has to be provided for the family if it has to be provided for the dependant children, as section 122(3) makes clear. The accommodation would have to be “adequate” for the children under section 122(3) and also for the parent under section 95(3). The power in respect of the parent becomes a duty once it is coupled with the duty owed to the children under section 122(3). If

Article 8 ECHR

is a guide to the relevant provisions, the contrast with section 21 could not be more pointed or stark. Children are excluded from the ambit of its duties; they are to be ignored in the assessment of destitution. It is accepted by Mr Knafler that if a person, taken alone, qualifies under section 21 and is not excluded under section 21(1A), no duty is owed to the dependant children. Accordingly, nothing in the 1948 Act, as a matter of obligation, imposes any requirement in relation to dependant children upon which NASS can rely to show that the local authority is responsible for the children or for the family with children. These are strong considerations which point to the Westminster decision being confined to the disabled adult without minor children, and away from its being determinative of the position of the disabled adult with minor children, but without being determinative of the position of his or her children. They also point to the exclusive responsibility of NASS in such a case.

[66]This position is reinforced by the fact that if there is no power to provide accommodation for children under section 21, the duty to the children in section 122(3) cannot be satisfied by whatever is provided for the parent alone under section 21. The obligation then incontestably must fall on NASS under section 122(3) to provide for the children and in my judgment therefore also for the adult whose dependants they are. The parent is still an “eligible person” within section 95, and the obligation is owed to the child as part of that “eligible person’s” household, and hence to the adult whose dependant the child is. Any theoretical availability of section 21 for the parent alone then becomes irrelevant. The circle of statutory provisions, each applying only if the other is not available, is thus broken. Accommodation, care and attention would “otherwise be available” to the parent; the section 21(1A) exclusion only of those whose needs arise “solely” from destitution does not operate to include within section 21(1)(a) those who fall outside it anyway. The adequacy of accommodation then has to be judged against all their needs, including the parent’s needs, under sections 122(3) and 95(3). It could never appear to the SSHD that adequate accommodation was being provided under section 21 for the children; his duty to them has to be discharged by him and that brings in its train the duty to the parent, who thus never comes within section 21 and thus Regulation 6(4)(b) never bites.

[67]The exclusion of section 17 is not a mere consequence of the application of section 122; it is part of the legislative structure which makes the SSHD responsible for children and hence for their families. Subsections (3), (4) and (5) of section 122 need to be read together, as part of the provisions distributing responsibility for children, otherwise a further circularity is introduced: if section 17 is only excluded after section 122(3) is applied, it would prevent section 122 ever being used.

[68]I do not think that Parliament intended there to be overlapping or parallel powers with both NASS, under section 95 and 122, and the local authority under section 21 each having a power to accommodate the children with their families which only crystallised into a duty when the first one, whichever it might be, decided not to exercise its discretion to do so. Sections 95 and 122 point clearly away from that.

[69]Does a power to provide for the children nonetheless exist under section 21? I consider, leaving aside the immigration control overlay here, that although a power does exist enabling local authorities to accommodate dependant children with an adult qualifying for section 21 care and attention, that power does not arise under section 21 itself. Section 21(1)(a), first, by its very terms does not apply to minors; the ambit of section 21 is thus constrained and there is no need for any further express prohibition on providing for children, in order for the want of power to provide for them to be shown. A power to accommodate children arises under the Children Act under sections 17 and 20; section 21(8) of the 1948 Act then, second, precludes any such power arising under section 21(1)(a), even apart from the effect of the insertion of the words “aged eighteen or over.” Children and their parents are thus accommodated together, as a family, where there is no immigration control overlay, through a combination of section 21 of the 1948 Act (for the adult) and the 1989 Act (for the minor children). This, it seems to me, is the correct analysis of the decisions in Tammadge and Batantu.

[70]Given that combination or distribution of powers, there is no need for section 21 to be given any particularly strained reading in order that, by itself, it should meet

Article 8 ECHR

[71]It is not necessary to consider Mr Knafler’s more general arguments about whether there is a power in section 21 to accommodate some other person with the qualifying person. I am prepared to accept that he may be right; but there may also be other statutory powers involved, which permit such accommodation to be provided, without the power to provide the “extra” coming from section 21 itself. The Children Act, when not excluded by the effect of section 122(5) and the immigration control overlay, would be one such power. Having said that, I remain doubtful that the vague and general wording of section 2 of the Local Government Act 2000, linked as it is to an improvement strategy, constrained from permitting what is prohibited or restricted, is a source for an alternative power, notwithstanding the reference in section 2(4) to the provision of accommodation.

[72]The next question is whether the position set out above in relation to the powers in section 21 is altered by the immigration control overlay. I do not consider that it is, save that section 17 of the Children Act is not applicable. There is no reason to alter the scope of section 21 in relation to children. I do not see that the exclusion of section 17 from those who qualify under section 95 and 122 of the 1999 Act creates a power in section 21 to provide for children where there was otherwise none.

[73]There is again no reason to give a strained interpretation to section 21 to avoid a breach of

Article 8 ECHR

, because the duty exercised under section 122 keeps the parent and dependant children together. Were the claimant right, the power to accommodate children under section 21 would not depend on their needs but, first, on an assessment solely of the parent’s destitution and needs, including psychological needs, and second, on whether the authority under section 47(1)(b) of the National Health Service and Community Care Act 1990, then decided, having regard to that assessment, that those needs called on the authority to provide the services sought for that individual. This is provision for children by happenstance, which is wholly unsatisfactory. A parent’s psychological need to reside with his children may well not mirror their psychological need to reside with him. Moreover, the resultant provision for children under section 21 should not sensibly be more favourable to family life than that under section 17, but that would be the consequence of the claimant’s argument here. Section 21, in the light of the recent House of Lords’ decision, cannot have that effect. I take the view that if Article 8 bites on this analysis, it is to reaffirm Government’s obligations, through NASS, as expressed in sections 95 and 122, to provide for the family as a whole.

[74]I accept therefore Mr Harrop-Griffiths’ submissions as to the absence of a power to provide for children under section 21, but their logical consequence for asylum-seekers is that NASS is responsible for the whole family, rather than simply for the children. The framework of the legislation at first blush is circular: each Act applies only if the other does not; some break has to be found. The mechanism in the Westminster case does not apply here, because the relevant power in section 21 is not available for the children. It is the children’s position alone which dictates who bears responsibility for the family unit.

[75]Mr Knafler and Mr Waite submitted that the Secretary of State, even if he had a discretion only to provide for the whole family, also had a discretion, reasonably exercised here, to impose the entire obligation on the local authority. This is misconceived. If he thought he had a discretion there is no rational basis shown as to why the local authority and not him should bear responsibility. But in reality this is not a case about discretionary power. It is about who, on the proper construction of somewhat circular legislation, bears the obligation for “disabled” asylum-seekers with families. The Westminster case establishes the position for adults, but not for adults with children.

[76]They suggested that anomalies would arise if the adults’ position depended on the childrens’: what if a lone adult asylum-seeker qualifying for section 21 support, had a child? His position would then change and vice versa also, if the child reached 18, changing the asylum-seeker’s source of support. These are not unsatisfactory outcomes. They are the result of the application of the essential responsibility of NASS for asylum seeking families with children to the varied situations of such families, with children being born or reaching adulthood altering their lives. In any event, there can be changes in responsibility on their approach e.g. if a disabled adult recovers or an able-bodied one becomes disabled.

[77]I have reached that conclusion regardless of the pre-1999 White Paper, but it is a result consonant with the policy behind the Act. I regard it as clear that the intention of the White Paper was that families in general would be a NASS responsibility. I also consider that that conclusion better reflects the need for section 21 accommodation not to become the means whereby the priorities and procedures of the Housing Act are avoided or the clear intent of the 1999 Act becomes ineffective.

[78]I recognise that, in the Westminster case, it was NASS support which was seen as the last resort, with the Asylum Support Regulations and section 21(1A) switching the asylum support burden back to the local authority for disabled destitute adults. However, there is no such clear switch here, because of the children to whom no duty under section 21 is owed, who are outside its scope but who are, with their family, covered by section 122. The power and duty start with NASS and remain with it because of the duty in section 122 to the children, which then brings in the parent. Even starting with section 21, the powers and duties in sections 95 and 122 together preclude its application to the adult.

[79]Accordingly, this application is dismissed. - - - - - - - - - - - - - MR JUSTICE OUSELEY: For the reasons which are set out in the judgment which has been handed down, this application is dismissed. The case shall be reported and referred to only by "O". MR HARROP-GRIFFITHS: My Lord, in that case I ask for costs against the claimant and against the interested party. MR KNAFLER: I cannot resist, my Lord, subject to the usual Legal Aid proviso. MR WAITE: My Lord, I cannot resist that either. My Lord, I have an application for permission to appeal. MR JUSTICE OUSELEY: Yes, unless Mr Harrop-Griffiths has -- no, you have your permission. And the position in the interim? MR KNAFLER: Formally, my Lord, I ask for permission to appeal. MR JUSTICE OUSELEY: Yes, certainly, you can both have permission to appeal. MR HARROP-GRIFFITHS: We would hope these dates will be reserved, subject to arrangements by the Secretary of State and the other party to notarise the financial position in the light of the ultimate judgment in court. MR JUSTICE OUSELEY: Mr Harrop-Griffiths, it seems to me that is the most sensible thing, that and the local authority continue to provide accommodation as it is currently doing. MR HARROP-GRIFFITHS: My Lord, yes, it will be an accounting exercise. MR JUSTICE OUSELEY: If the judgment is upheld, the Secretary of State, in whole or in part, will pay, presumably, and no formal order is necessary in that respect. Would that be right? MR HARROP-GRIFFITHS: My Lord, entirely. MR JUSTICE OUSELEY: Very well, I believe there is an order in effect at the moment, dealing with accommodation, but is one necessary? If you indicated that you are going to provide accommodation until the hearing -- MR HARROP-GRIFFITHS: I do indicate that, my Lord. MR JUSTICE OUSELEY: Well, then I do not think any order is necessary. There will be an order for costs in favour of the defendant and against the claimant and interested party that, against the claimant, to be subject to the usual terms in relation to Legal Services Commission funding. Thank you very much.