O, R (on the application of) v Barking and Dagenham Lbc [2010] EWHC 634 (Admin)

Case No CO/12357/2009[2010] EWHC 634 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 3 March 2010
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE CALVERT-SMITH
Between
THE QUEEN ON THE APPLICATION OF OClaimantv
Between
BARKING AND DAGENHAM LBCDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
MR T BULEY (instructed by Fisher Meredith) appeared for ClaimantMR K RUTLEDGE (instructed by Council Solicitors) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE CALVERT-SMITH: This claimant applied for permission to seek judicial review of a decision of the defendant of 9 October 2009 terminating his support. On 22 October, an application on his behalf for interim relief was listed by Mr Justice Silber for oral hearing on 26 October 2009 and on that day His Honour Judge Thornton QC approved a consent order whereby the parties agreed, amongst other things, that there should be an expedited rolled up hearing for the first open date after 31 November 2009.[2]In the course of the hearing yesterday Mr Rutledge, representing the defendant, indicated that in view of the potential importance of this decision to other cases, the defendant would not contest the grant of permission. Accordingly, I granted the applicant permission and the hearing proceeded as the substantive hearing.[3]The claimant is a 19-year old Eritrean asylum seeker. He was born on 6 July 1990. He arrived in the United Kingdom on 25 September 2007 and claimed asylum the next day. A few days later, the defendant carried out an assessment of his needs and accommodated him pursuant to section 20 of the Children Act 1989 until his 18th birthday on 6 July 2008. Thereafter, the defendant continued to accommodate the claimant for nearly a year. But by letter dated 1 June 2009 the defendant informed him that his case would be closed on 18 June that year, the Home Office having informed it that all of his appeals in respect of his asylum claim had been exhausted.[4]A few days after that, the claimant submitted fresh representations to the Secretary of State in respect of asylum. No decision has yet been made by the Secretary of State as to whether he will treat those representations as a fresh claim or certify them as manifestly unfounded.[5]The claimant's solicitors sent an urgent pre-action letter to the defendant on 24 June 2009 and after the exchange of a number of letters, the defendant agreed to continue to provide accommodation to the claimant pending the outcome of the fresh representations. In the meantime, the defendant continued to assess the defendant's needs and on 9 October 2009 the defendant informed the claimant's solicitors that his accommodation would be terminated with effect from 26 October 2009. It is this decision which is the subject of this challenge.[6]The decision is contained in the letter, to which I am about to refer, and a human rights assessment which accompanied the letter. The relevant parts of the letter from the defendant read:
"We note your client is a failed asylum seeker who has exhausted all his rights of appeal. He has recently submitted a fresh claim which means that until it is accepted as a fresh claim he remains unlawfully present. The local authority are prevented from providing him with the support he seeks through the Children Leaving Care Act provisions as a result of section 54 schedule 3 of the Nationality, Immigration and Asylum Act 2002. He needs to therefore seek support from the Secretary of State through section 4 Hard cases support. "
Our assessment of why the withdrawal of support will not breach his Human Rights are as set out in the Human Rights assessment. Your client has the support of the Secretary of State whilst he awaits the acceptance of his fresh claim. "You will note that a power or a duty under schedule 3 section 1(1) may not be exercised or performed in respect of a person to whom the schedule applies regardless of whether the person has been in respect of support under the [I suspect that should have read receipt but it says respect] provision. "Our client will however continue to provide a personal advisor and pathway plan. We are providing your client with 14 days notice commencing 12 October 2009 when all support (with the exception of a pathway plan and personal advisor) will be withdrawn. Should your client wish to seek help in the completion of a section 4 support form then our client can offer this support. In any event the landlord will be notified of the local authority's decision to discharge its duties towards your client."[7]The human rights assessment which accompanied the letter is a lengthy document dealing in large part with the matters set out by the claimant in support of his asylum claim. At section 3 of the assessment, the defendant argues -- though it has not sought to maintain that argument in these proceedings -- that the fresh representations would not be such as to result in a finding that the claim was, indeed, a fresh claim and that, therefore, on that ground the defendant was entitled to withdraw support.[8]But the assessment also repeated what was said in the letter, namely that the defendant's opinion was that the claimant had available to him section 4 support would not, therefore, be destitute or entitled to be accommodated at the expense of the defendant.[9]On 23 October 2009, the claimant's solicitors were sent an e-mail by the defendant with a string of earlier e-mails attached to it, indicating that the claimant had been informed by the Border Agency in July of his eligibility to apply to it for National Asylum Support Service (NASS) support.[10]Following the consent order, to which I have referred, the defendant has continued to accommodate the claimant and accepts that other duties imposed upon it in connection with the claimant remain in place, whatever the result of these proceedings. Before turning from the facts to the legal framework and the arguments, it is perhaps worth considering the reality of this claimant's position which is, as the court understands it, that he will be housed at public expense whether by the defendant, the National Asylum Support Service (NASS) or a combination of the two until either he is removed from this country or he persuades the authorities of this country to grant him asylum.[11]It is possible, though by no means certain, that his accommodation would remain the same. The only question is which of the two, the defendant or NASS, will be primarily or solely responsible for providing and paying for that accommodation. There is no actual possibility, therefore, of his becoming homeless and, therefore, of his rights under the European Convention on Human Rights being infringed.[12]If the burden falls on NASS, there is a risk that he might be dispersed to another part of the country. As will become clear, variants on the question before this court -- though not this question in particular -- have already occupied many days of court time, including that in the Court of Appeal and House of Lords. Four issues have been raised at various stages of the proceedings of which only two were in the end the subject of argument.[13]The first two, which arise directly from the decision and have implications not simply for this claimant but, no doubt, for many others may be stated as follows:[14]1. May a local authority use the provisions of section 23C of the Children Act 1989 to provide accommodation to"former relevant children." If so;[15]2. May a local authority refuse to provide such accommodation to a former relevant child because accommodation can or will be provided to him by the National Asylum Support Service (NASS) by virtue of section 95 or section 4(2) of the Immigration and Asylum Act 1999, the 1999 Act.[16]The third issue originally before the court was as to whether the claimant falls to be considered as a "asylum seeker" or as a "failed asylum seeker" within the meanings of paragraph 1(7) of schedule 3 to the National Immigration and Asylum Act 2002 because although he has exhausted all avenues so far as his original application is concerned, he has submitted fresh representations to the Secretary of State for the Home Department. Both sides agreed that although the question was an interesting one, it was not one which fell for decision in this case.[17]A fourth issue which did arise from the decision letter was as to whether the defendant had erred in this case in concluding that the claimant's fresh claim was manifestly unfounded so that he could be expected to leave the United Kingdom without waiting for the fresh representations to be considered by the Secretary of State, and whether its consequent refusal on that ground to continue to supply accommodation had led to a breach of the claimant's human rights. The defendant conceded that ground in this case, without conceding that it would never be inappropriate to make such a decision.[18]I turn to the legal framework. There are two linked bodies of legislation, subordinate legislation and guidance. The link, in one case at least, is a clearly defined one. In the case of R (Westminster City Council) v NASS [2002] 1 WLR 2956 and in the case of R (AW) v Croydon Borough Council [2007] 1 WLR 3168 the courts have held that the connected legislation created two mutually exclusive schemes. No decision has been found by either side in these proceedings which assists directly as to the answer to the two questions in this case.[19]The first body of legislation is that which concerns the accommodation of 18 to 20 year olds generally. First, the National Assistance Act 1948 section 21(1):[20]"Subject to and in accordance with the provisions 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 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."[21]By section 116 of the Immigration and Asylum Act 1999 sub-section 1A and 1B were added to section 21 of the 1948 Act. Section 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."
[22]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."
[23]Sub-section 1A was inserted in order to deal with the drastic effects of a judgment of the Court of Appeal in the case of R v Hammersmith and Fulham London Borough Council ex parte M [1997] HLR 10.[24]Part 3 of the Children Act 1989. Section 17, headed "Provision of services for children in need, their families and others." Sub-section 6:
"The services provided by a local authority in the exercise of functions conferred on them by this section may include giving assistance in kind or, in exceptional circumstances, in cash."
[25]Section 20(5), again dealing with children:
"A local authority may provide accommodation for any person who has reached the age of sixteen but is under twenty-one in any community home which takes children who have reached the age of sixteen if they consider that to do so would safeguard or promote his welfare."
[26]Then the sections at the centre of these proceedings; sections 23A, 23B, 23C, 24a and 24B. All were inserted into the Children Act by the Children (Leaving Care) Act 2000 and have since been amended in various ways. Section 23A and B contain definitions of a relevant child and a responsible local authority and set out the duties owed by a responsible local authority to relevant children.[27]There is no dispute that until his 18th birthday the claimant was such a relevant child and no dispute either that the defendant is the responsible local authority. The duties include keeping in touch with the child, appointing a personal advisor for him, and, carrying out an assessment of his needs with a view to determining what advice and support it would be appropriate for them to provide him under this part, as well as preparing a pathway plan for him and supporting him by "providing him with or maintaining him in suitable accommodation." Section 23C(1) contains the definition of a former relevant child. It is common ground too between the parties that this claimant is a former relevant child.[28]The duties owed by local authorities to former relevant children are then set out. Sub-section 2:
"It is the duty of the local authority to take reasonable steps - "(a) to keep in touch with a former relevant child whether he is within their area or not; and "(b) if they lose touch with him, to re-establish contact."
[29]3:
"It is the duty of the local authority - "(a) to continue the appointment of a personal adviser for a former relevant child; and "(b) to continue to keep his pathway plan under regular review."
[30]I pause to note that the defendant in this case has continued to perform those duties and assured the court that it will continue to do so following these proceedings. Sub-section 4:
"It is the duty of the local authority to give a former relevant child - "(a) assistance of the kind referred to in section 24B(1), to the extent that his welfare requires it; "(b) assistance of the kind referred to in section 24B(2), to the extent that his welfare and his educational or training needs require it; "(c) other assistance, to the extent that his welfare requires it."
Sub-section 5:
"The assistance given under sub-section 4C may be in kind or, in exceptional circumstances, in cash."
Section 24A(1):
"The relevant authority shall consider whether the conditions in subsection (2) are satisfied in relation to a person qualifying for advice and assistance."
Those conditions are there set out. Sub-section 4:
"Where as a result of this section a local authority are under a duty, or are empowered, to advise and befriend a person, they may also give him assistance."
Sub-section 5:
"The assistance may be in kind and, in exceptional circumstances, the assistance may be given - "(a) by providing accommodation and if in the circumstances assistance may not be given in respect of the accommodation under section 24B; or "(b) in cash."
Section 24B(1):
"The relevant local authority may give assistance to any person who qualifies for advice and assistance by virtue of section 24(2)(a) by contributing to expenses incurred by him in living near the place where he is, or will be, employed or seeking employment."
Sub-section 2:
"The relevant local authority may give assistance to a person to whom subsection (3) applies by - "(a) contributing to expenses incurred by the person in question in living near the place where he is, or will be, receiving education or training; or "(b) making a grant to enable him to meet expenses connected with his education or training."
Still on the first body of legislation, the Homelessness (Priority Need for Accommodation (England) Order 2002. Paragraph 2, priority need for accommodation:
"The descriptions of person specified in the following articles have a priority need for accommodation for the purposes of Part 7 of the Housing Act 1996."
Paragraph 4, young people under 21:
"(1) A person (other than a relevant student) who - "(a) is under twenty-one; and "(b) at any time after reaching the age of sixteen, but while still under eighteen, was, but is no longer, looked after, accommodated or fostered."
Such persons are specified as having a priority need for accommodation. Also in this context, various paragraphs from the Children (Leaving Care) Act 2000 regulations and guidance are relevant. Its foreword at page 3 of the guidance begins:
"This guidance is issued under section 7 of the Local Authority Social Services Act 1970, which means that it must be followed by councils unless there are exceptional circumstances which justify a variation."
Part 2 of the guidance, paragraph 10, reads:
"One aspect of the NASS arrangements is that asylum seekers may be dispersed around the country. However NASS will treat such 18 year-old asylum seekers sympathetically, and will not seek to disperse them, except in exceptional circumstances. In such a case NASS would contribute up to a pre-set limit to the cost of accommodation and utilities in the area where the young person was living, and if possible the same accommodation which he was already occupying. The responsible authority would be responsible for identifying and managing suitable accommodation. The responsible authority would invoice NASS for the cost of accommodation and utilities at a rate agreed by the Home Office and the Department of Health. If the actual costs exceeded this agreed amount, the responsible authority would pay the balance using section 23C in the same way as for any other former relevant child, or section 24 for a qualifying person."
Paragraph 27 of part 3 reads:
"Local authorities should also note that they have powers under section 20(5) to provide accommodation for young people aged 16–20 in their area if this is necessary to safeguard or promote their welfare. The provision of accommodation under section 20 of the Children Act 1989 may be a desirable course of action if it is not possible to provide suitable accommodation in any other way for a young person who has left care.

(b) "

A number of paragraphs were cited from part 8 of the guidance. Under the heading Duties, paragraph 4:
"The responsible authority will continue - "
To provide the young person with a Young Person's Adviser; " To review and revise the Pathway Plan regularly; and "To keep in touch." 5:
"Responsible authorities' duty to provide accommodation and maintenance for care leavers ends when they reach 18. However they have duties - "
To provide general assistance (23C(4)(c)); "To provide assistance with the expenses associated with employment (23C(4)(a)); "To provide assistance with the expenses associated with education and training (23C(4)(b)); and "To provide vacation accommodation (or the funds to secure it) to care leavers in Higher Education or in residential Further Education (24B(5))." 6:
"Local authorities also have a power under section 20(5) of the Children Act to accommodate young people over the age of 16 up to the age of 21 in a community home."
Under the heading "general assistance" paragraph 18 of this guidance reads:
"The responsible authority does not have a primary financial-support role for this group. Former relevant Children should derive their income from the same sources as their peers - through employment, student loans, welfare benefits and so on."
Under "assistance with education and training" at paragraph 23, the guidance reads:
"In addition, authorities are under a duty to provide vacation accommodation, or funds to secure it to all local authority care leavers in Higher Education who need it. The duty also extends to Further Education courses which require a student to live away from home."
Finally on this body of legislation, section 47(1) of the National Health Service and Community Care Act 1990 which provides:
"Where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority shall - "(a) carry out an assessment of his need for those services; and. "(b) having regard to the result of that assessment shall then decide whether his needs call for the provision by them of any such services."
The second body of legislation concerns asylum seekers and failed asylum seekers and it comes under the broad heading, "NASS." First, sections 95(1) and (3) of the Act. Sub-section 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."
Sub-section 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."
I have already referred to the link section, 115, which inserted section 21(1)A into the National Assistance Act 1948. Section 4(2) of the 1999 Act as inserted by section 49 of the Nationality, Immigration and Asylum Act 2002 extends the potential provision of support to failed asylum seekers. Section 4(1):
"The Secretary of State may provide or arrange for the provision of facilities for the accommodation of persons - "(a) temporarily admitted to the United Kingdom under paragraph 21 schedule 2 to the 1971 act; "(b) released from detention under that paragraph; or. "(c) released on bail from detention under any provision of the Immigration Act.."
Sub-section 2:
"The Secretary of State may provide or arrange for the provision of facilities for the accommodation of a person if - "(a) he was, but is no longer, an asylum seeker; and. "(b) his claim for asylum was rejected."
Schedule 3 of the Nationality, Immigration and Asylum Act 2002, in particular paragraphs 1 and 7 were referred to. However, in view of the fact that the third issue to which I referred earlier has not been effectively litigated, it passed out of the purview in this case. The Argument. The claimant submits that the power under section 23C(4)(c) to provide "other assistance to the extent that his welfare requires it" must include the provision of accommodation. In support of that submission he prays in aid the Ejusdem generis rule and the fact that sub-sections A and B and sections 24B(1) and (2) are all concerned with accommodation in one way or another. Further, he submits that there is undoubtedly a power under section 20(5) of the Children Act in local authorities to accommodate persons such as the claimant.[31]He further submits that the argument is not a novel argument, it having been deployed in litigation before, in particular before Mr Andrew Nichol QC, as he then was, in the case of (Indistinct) v London Borough of Southwark. However, as is clear from the judgment at paragraph 35, the judge simply noted the fact that the argument had been deployed without deciding on its merits.[32]He further relies on paragraph 10 of chapter 2 of the Department of Health guidance on the leaving care provisions which explicitly envisages the provision of assistance under section 23C to those who may still be in accommodation supplied by the local authority but being paid for primarily by NASS.[33]In reply to Mr Rutledge's oral submissions, Mr Buley for the claimant relied for the first time on the case of W v Lambeth London Borough Council [2002] EWCA Civil 613 as authority for the proposition that even before the Adoption and Children Act 2002 inserted the words "and accommodation" into section 17(6) of the Children Act, that section envisaged the provision of accommodation. He relied on a passage at paragraph 83 of the judgment in which the court expressed its conclusions.[34]The defendant submits to the contrary. It submits that the plain reading of sections 23B and 24A and the surrounding sections inserted by the Children (Leaving Care) Act means that the only respect in which accommodation may be provided and paid for by a local authority under the section is effectively in connection with work or educational needs and that sub-section (4)(c) of section 23B does not bear the weight that Mr Buley has put on it. He further submits that a reading of other parts of the Act, in particular section 17(6), suggest that when the Act intends to refer to what Mr Rutledge described as "ordinary accommodation" it does so in clear terms.[35]Section 20(5) deals specifically with community homes and section 24B and the statutory instrument of 2000, the Homeless Order, deal with particular homes which need to be provided for particular purposes. The Department of Health guidance, he submits, is only concerned with accommodation under section 23 in the very restricted circumstances described in paragraph 10, i.e. as providing a top-up support to accommodation actually being provided by NASS and it is not right to take the paragraph as implying that the provision of accommodation is a part of the services envisaged by section 23B.[36]He further submits that paragraph 4 of the Homelessness Order would be otiose in the event that there was already a duty to provide accommodation contained within the words of section 23C(4)(c). In other words, there would be no need to list 18 to 20 year olds in the category of those with priority needs under part 7 of the Housing Act if accommodation was available to such persons whose welfare required it by the Children Act.[37]It was submitted that the case of W v Lambeth was concerned with a power rather than a duty and that, in any event, the most that could be drawn from paragraph 83 are the words of

Lord Justice Brooke as follows:

"It is true that section 17 imposes on a council what has been called a target duty, but in relation to individual children it only has a power, and it has given intelligible and adequate reasons why it is not willing to exercise its power in this case, given all the other pressures on its resources. It is understandable, in the light of the evidence it has furnished, why it is reluctant to continue a "safety net" policy in respect of all the families who cannot receive Part VII help and who may, in theory at least, one day be on the streets. Experience has shown, it says, that in practice these families do not subsequently present themselves as needing section 20 help."
[38]Then the key words:
"This judgment has shown that in an extreme case, where all else has failed, the council does have power to help under section 17, but it is entitled, if it sees fit, to reserve this power to cope with extreme cases, which W's has not yet become."
[39]I accept the arguments of the defendant on the structure of the sections in particular. The point of the Leaving Care provisions is to help 18 to 20 year olds who were formally in care to start to stand on their own two feet by providing a point of contact, an advisor, a pathway plan and assistance either in securing employment or in following a course of education or training and, therefore, if necessary, accommodation or alternatively accommodation in a community home by section 20(5). The provisions of section 23A(4)(a) and (b) and (5) and section 24B(1) and (2) suggest strongly that the provision of accommodation is to be limited to the circumstances there described.[40]That finding, as the claimant conceded, is fatal to his claim. What now follows, therefore, is not essential to this decision. In deference, however, to the careful arguments addressed on the second point, and because of its potential significance in other cases, I set out the arguments and my decisions on them.[41]The claimant submitted that the reasoning of the House of Lords in Westminster v NASS [2002] 1 WLR 2956 and AW v Croydon [2007] 1 WLR 3168 should apply to the situation in this case. In those cases the provision of section 95 and section 42 of the 1999 Act "trumped" the local authority's submissions, since by section 21 of the National Assistance Act 1948 the local authority was under a duty to provide accommodation and the Secretary of State was bound to consider that duty when deciding if NASS support was appropriate. Former relevant children should be in the same category, it was submitted, as the "infirm, destitute" or "destitute plus" persons concerned in those cases.[42]The court's attention was invited to the judgment of Simon Brown LJ, as he then was, in Westminster where he set out the possible ways in which a claimant might make a claim. At paragraph 24 he said:
"Let us suppose that Mrs Y-Ahmad's application for support had been made first to NASS. True, at that point she would indeed in common parlance have been destitute, but whether she would have been destitute for section 95(1) purposes would depend on whether 'any other support was available to her' within the meaning of section 6(4)(b) of the regulations. This regulation by virtue of section 95(12) at paragraph 2(1)(b) in schedule 8 supplements section 95, therefore defeats Westminster's reliance on the reference in section 95(3) only to the asylum seeker's means of obtaining accommodation rather than the availability of other 'support'. "
Look at it then from the other standpoint and assume that Mrs Y-Ahmad had first applied to Westminster. Would they have been entitled to reject her claim under section 21(1)(a) of the 1948 Act on the basis that she was eligible for section 95 asylum support from NASS and so was not in need of care and attention because it was 'otherwise available' to her?" Paragraph 26:
"To my mind the answer to this question is no. A statutory concept of destitution only entered the 1948 Act by the 1999 Act's introduction of the new section 21(1)A. The new section 21(1)B then dictates how the local authority for its part is to determine whether a person is destitute or not. Regulation 6(3)(a) applies mutatis mutandis, if I may refer to the Latin, to the local authority and they, therefore, must ignore 'any asylum support'. It follows that Westminster would be bound to regard Mrs Y-Ahmad as destitute. The relevance and only relevance of that from their point of view, of course, is that it raises the question posed by section 31(1)(A): does Mrs Y-Ahmad's need for care and attention arise solely because of her destitution or its actual or anticipated physical effects? Plainly, it does not.

(A) "

[43]That reasoning was adopted in the speech of Lord Hoffman in the House of Lords. At paragraph 41 of his speech, he said:
"The clear purpose of the 1999 Act was to take away an area of responsibility from local authorities and give it to the Secretary of State. It did not intend to create overlapping responsibilities. Westminster. complains that Parliament should have taken away the whole of the additional burden which fell on local authorities as a result of the 1996 Act. It should not have consigned itself to the able-bodied destitute, but it seems to me inescapable that this is what the new section 21(1)A of the 1948 Act has done. As Lord Justice Simon Brown said in the Court of Appeal, paragraph 29, what was the point of section 31(1)A if not to draw the line between responsibilities of local authorities and those of the Secretary of State?"
[44]In the Croydon case, albeit decided on a slightly different basis in that the sections were section 21 of the National Assistance Act, and section 4(2) of the 1999 Act, Laws LJ in giving the judgment of the Court of Appeal in that case summed-up the effect of Westminster and of the legislation, and then at paragraph 29 said:[45]"The case (Westminster) demonstrates that the enactment of section 21(1)A was intended to affect a distribution of responsibility between the Secretary of State and local authorities assigning the duty to provide for the able-bodied destitute to the former but retaining the duty to provide for the infirm destitute on the shoulders of the latter."[46]Mr Buley further submitted that reference to schedule 3 of the 2002 Act which excludes certain persons from assistance from NASS support unless their ECHR rights demand it lumps both section 21 and section 23A assistance in the same paragraph, albeit in different sub-paragraphs. So, for the purposes of the schedule at least, the two are treated together.[47]The defendant submits that reliance on the two cases is misplaced. First, it submits that the case concerned a different class of person, namely the "infirm destitute". Second, that the result of the legislation and the cases is that two regimes which are mutually exclusive were created and the decision was simply made as to which of the two regimes those two -- the "infirm destitute" -- fell. Third, it is impossible to infer, it is submitted, a Parliamentary intention from the words of section 23A(4)(c) and those of sections 95(4)(2) and paragraph 6. of the Asylum Support Regulations 2000 to place asylum seekers and failed asylum seekers the same side of the line as the infirm and destitute.[48]Further, he submits that the key words, as he would suggest, in the speech of Lord Hoffman in Westminster are to be found at paragraph 38. The ground upon which Mr Justice Stanley Burnton J as he then was found for the Secretary of State was that although section 95(1) prima facie confers a power to accommodate all destitute asylum seekers, other provisions and part 6 of the 1999 Act and regulations made under it make it clear that the power is residual and cannot be exercised if the asylum seeker is entitled to accommodation under some other provision. In such a case, he or she is deemed not to be destitute. If Mrs Y-Ahmad had been able-bodied destitute she would have been excluded from section 31 and, therefore, qualified for accommodation under section 95(1), but as she was infirm destitute, her first port of call should be the local authority.[49]On this point, again, I accept the respondent's argument. The speech of Lord Hoffman set out the history of the various provisions which have dealt with the provision by the state in one form or another of housing since 1948.[50]In 1996, the decision of the Court of Appeal in Hammersmith, the Hammersmith case, resulted in a white paper designed to relieve certain hard pressed local authorities of the unfair burden of funding the housing needs of asylum seekers, who tended to reside in boroughs close to air or sea ports, and to transfer it to central government and what became NASS.[51]There is a clear practical purpose, it seems to me too, in the solution on the one hand in the infirm destitutes cases and, on the other hand, in asylum cases. Those who are both in need of accommodation and have particular medical needs, whether asylum seekers or no, are better looked after by local authorities who have the facilities and knowledge to do so, whereas those who are able-bodied are better suited to being looked after at the stage at which this claimant has reached by a central government organisation.[52]I therefore come to the following conclusions. First, section 23C(4)(c) of the Children Act 1989 is not concerned with the provision of accommodation. Second, on the assumption that the above finding is mistaken the defendant was entitled to base its decision on the likelihood of NASS provision at least until the result of any application for NASS support was known.[53]As a footnote to this judgment, I express some surprise that the Secretary of State for the Home Department chose not to take part in this hearing despite, as the court was told, his having been supplied with copies of all the relevant papers. The case has potential consequences for NASS. Not, of course, the sort of consequences that followed M and Hammersmith, but certainly significant ones. The single judge did not dismiss the claim out of hand but ordered it in for a rolled-up hearing and all four questions originally before the court were ones upon which the Secretary of State would almost certainly have a strong view as to what the correct answer was.[54]It may be that the reason can be found in the correspondence referred to earlier in the judgment that indicates that the Secretary of State was expecting and would perhaps, in ordinary circumstances, grant a claim of support for a claimant in this claimant's position. It would also, of course, have been of some help to the parties, and no doubt the court, to know what stage the application for fresh representations to be considered as a fresh claim has got to in the pending tray.[55]MR RUTLEDGE: I am much obliged, my Lord, and in particular for expressing his views very clearly on the second limb. My Lord, at page 122A of the bundle is a letter which contains an undertaking by the borough that in the event that the claimant is unsuccessful it will continue to provide accommodation for and money for --[56]MR JUSTICE CALVERT-SMITH: You were kind enough to inform me of that at the beginning of the hearing, yes.[57]MR RUTLEDGE: Yes. Of course, in addition, the borough will continue its other duties under the Children (Leaving Care) provisions until the claimant ceases to be a former relevant child, is removed from the United Kingdom or there is a chance for responsibilities as I mentioned yesterday.[58]My Lord, in the light of the court's judgment I would propose a four point order. Firstly, that permission to apply for judicial review be granted. Secondly, the claim be dismissed. Thirdly, that the defendant receive its costs subject to section 11 of the Access to Justice Act 1999 and, fourthly, that there be a detailed assessment of the claimant's (indistinct) costs. I anticipate that my Lord may be asked to add a fifth item to that.[59]MR JUSTICE CALVERT-SMITH: Yes, I thought I might be. Mr Buley?[60]MR BULEY: My Lord. First of all I am grateful to my learned friend and in terms of the orders points one to four of the orders he proposes, I cannot disagree with any of those.

MR JUSTICE CALVERT-SMITH: I will make those orders.

[62]MR BULEY: I am grateful. I have a standard form of words, I do not know if your associate would be assisted in relation to -- I can see nodding so we will submit that to the court if that will assist. Your Lordship can guess where I am going next.

MR JUSTICE CALVERT-SMITH: Yes.

[64]MR BULEY: My Lord, I do have an application for permission to appeal and I may have another application but they will depend upon the outcome of your Lordship's order on that so I will deal with that first.

MR JUSTICE CALVERT-SMITH: Quite, yes.

[66]MR BULEY: My Lord, in relation to permission to appeal your Lordship will know and --[67]MR JUSTICE CALVERT-SMITH: I think I would like to hear from Mr Rutledge, do you have any submissions to make?[68]MR RUTLEDGE: Thank you, my Lord, for allowing me to do so. Very briefly, obviously it is an important point but under the rules importance alone does not secure permission to appeal, my Lord has to be satisfied that there is a real prospect of success before the appellant court. My Lord has looked at the statutory scheme and taken, if I may say so, a very clear view, a view which appears to be supported by the Secretary of State's guidance, that there is no power and on that ground -- interesting though the case is -- the claimant has no case. In my respectful submission, on the basis of my Lord's very clear and firm judgment, he cannot be satisfied that there is a real prospect and importance alone does not secure permission.[69]MR JUSTICE CALVERT-SMITH: No, thank you. I am inclined to grant you leave.[70]MR BULEY: I do not need to say anything further about that.[71]MR JUSTICE CALVERT-SMITH: Not only is it important but it seemed to me to be arguable and, if I may say so, you argued it very well.[72]MR BULEY: Thank you very much. My Lord, on any view it is a difficult issue, or difficult issues. My Lord, in light of your Lordship's grant of permission to appeal then may I just mention some other consequential matters.

MR JUSTICE CALVERT-SMITH: Yes.

[74]MR BULEY: My Lord, some will be easier than others. The difficult one is your Lordship does have, in those circumstances, having granted permission to appeal, does also have jurisdiction to grant a stay or equivalent form of relief. If this matter is to go to the Court of Appeal we would say that it would be appropriate to grant a stay or effect a continuation of interim relief and I say that for two --[75]MR JUSTICE CALVERT-SMITH: The interim relief has so far been by consent throughout? No judge has ever ordered a stay, as I understand it.[76]MR BULEY: Yes, I am using the word stay loosely. When this matter came before the court previously for interim relief the way I put my submission, and it ended up as an undertaking so we did not need to get an order, what the court can simply do is stay the effect of the decision under challenge. I think that is probably, if your Lordship was not minded to grant the interim relief, that would probably be the simplest way of doing it and that might require your Lordship to stay the effect of the judgment. So as to mechanism, that is how it would be done.[77]My Lord, it is obviously right, as your Lordship said in the judgment, if this were a case where my client were going to be homeless without a stay, I would say pretty obvious that a stay would be appropriate.

MR JUSTICE CALVERT-SMITH: Quite.

[79]MR BULEY: I well appreciate that is not so, because he can go off to (indistinct). But in circumstances where if your Lordship, I think, has accepted that there is a real prospect of success, if one thinks about the balance of convenience. I know that your Lordship expressed the view that there was -- I think you put it in terms of likelihood that he might stay in the same accommodation. With great respect, my Lord, I do not think we share your Lordship's confidence on that point. Whether he will be dispersed may be different, but certainly I am not sure it is right to say that the likelihood would be that he would stay in the same accommodation.[80]MR JUSTICE CALVERT-SMITH: I was simply looking at the guidance which seems to suggest that all other things being equal people are normally allowed to stay where they were.[81]MR BULEY: I did make the point, my Lord. We understand and this is based on the experience of those instructing me, that guidance was intended at the time and has never been applied outside of the context of support under section 95 so it does not apply. I mean, this is one of the points, it is quite important why it does make a difference, you see. In respect of section 4 cases, we do not understand the Secretary of State to apply any such policy and, indeed, that is one of the reasons why we are probably here. What happens in section 95 cases is that it does not matter very much, it matters much less, but there are section 4 cases as well. So, my Lord, the likelihood is --[82]MR JUSTICE CALVERT-SMITH: Right. It is only possibility not a likelihood, you would submit?[83]MR BULEY: I think it is a possibility but I do not think I can say it is any more than a possibility.

MR JUSTICE CALVERT-SMITH: Yes.

[85]MR BULEY: My Lord, certainly if my client were to be dispersed that would have very serious consequences in terms of him pursuing his course of study. It would be very regrettable, in my submission, for a young man of 19 if his studies were to be interrupted and if, as is a possibility, the Court of Appeal were later to say your Lordship had got it wrong. So, my Lord, I would say there are powerful reasons in this case to impose a stay.[86]I would just make a point, if your Lordship looks at cases. I think most of these cases, Westminster v NASS is an example, it is quite clear that the interim relief that was granted then continued throughout. What was not done was to take away or to change the status quo and in my respectful submission that is a strong indication of the way one should look at these cases. I think in particular the potential implications on my client's course of study, I would respectfully submit that it is appropriate to continue a form of relief pending a decision.[87]The only other point I should make, and we can come back to this, is that it is perfectly possible if that course is a problem from the point of view of the local authority that the impact can be mitigated by appropriate expedition in the Court of Appeal. However, if my client's course of study is interrupted even by a short period expedition does not really solve the problem because the chances are he would have to start over again. The balance of convenience in those circumstances, I would suggest, do favour continuation of interim relief.[88]My Lord, those are my submissions on that point. Does your Lordship want to rule on that issue --

MR JUSTICE CALVERT-SMITH: Is your next submission consequent on my decision on this one?

[90]MR BULEY: There are issues about expedition and transcripts and so forth which are much easier anyway, but I think it is probably helpful to know where we stand on the matter.

MR JUSTICE CALVERT-SMITH: Mr Rutledge?

[92]MR RUTLEDGE: My Lord, if it assists I certainly would not oppose an application for expedition.[93]MR JUSTICE CALVERT-SMITH: No. What about the first matter?[94]MR RUTLEDGE: The stay.[95]MR JUSTICE CALVERT-SMITH: My inclination at the moment is to leave that to the good judgment of one of their Lordships in the Court of Appeal to decide as to whether it is appropriate or not.[96]MR RUTLEDGE: That would be my submission. I am happy to support it with reasons.[97]MR JUSTICE CALVERT-SMITH: That can be done. There is an immediate Court of Appeal judge presumably, if it was that urgent, who can deal with urgent applications.[98]MR RUTLEDGE: My Lord, yes, and indeed expedition.[99]MR JUSTICE CALVERT-SMITH: That is what I meant, really. He or she can then look at the case in the round and think, well, I will grant a stay or I will not and I will make sure it is listed by the end of term or whenever.[100]MR RUTLEDGE: They often go together, those matters.

MR JUSTICE CALVERT-SMITH: That is my inclination.

[102]MR RUTLEDGE: Yes.[103]MR BULEY: My Lord, I see the force of that, frankly. I will not press your Lordship on, as it were, an open-ended stay. Can I just deal with the other points that need to be gone through and then just come back to one issue relating to that.

MR JUSTICE CALVERT-SMITH: Yes.

[105]MR BULEY: My Lord, in those circumstances first of all I think, if I may say so, it would be helpful to all the parties if we could not only have a transcript but if that could be expedited. If your Lordship would be content to order that your Lordship would need to do so.

MR JUSTICE CALVERT-SMITH: You are telling me, I did not know.

[107]MR BULEY: The position is that a transcript will follow automatically --

MR JUSTICE CALVERT-SMITH: The sooner the better.

[109]MR BULEY: -- but if it is to be expedited that needs to be reflected in your Lordship's order.[110]MR JUSTICE CALVERT-SMITH: Yes. Perhaps you can put that in the order, it is obviously sensible in this case.[111]MR BULEY: Yes, my Lord. Secondly, I am just thinking about how to do this, if -- I mean, the one thing that might be of assistance and possibly to the Court of Appeal if it has to think about a stay and so forth would be to have a copy of your Lordship's judgment. I wonder if your Lordship would therefore be willing to grant a limited stay for a period following on from the grant of -- let us say, I do not know, a week or two weeks from receipt of your Lordship's judgment so the position can be protected for that short period without committing the council to any lengthy --

MR JUSTICE CALVERT-SMITH: You have 14 days, as it were.

[113]MR BULEY: We have 14 days but I think it is unlikely we will get a transcript in 14 days. I mean, I am in your Lordship's hands. I entirely see the force of the point that the Court of Appeal should decide interim relief in the longer terms.[114]MR JUSTICE CALVERT-SMITH: It seems to me this should be dealt with by the Court of Appeal. Mr Rutledge, obviously you cannot bind your client and you need to take instructions. If it turned out that the transcript was due the day after the 14 days had expired, I cannot imagine your clients would --[115]MR RUTLEDGE: I cannot bind my client. I have taken instructions, my friend mentioned this outside court and I took instructions. On my Lord's judgment what the borough is doing at the moment is ultra vires.

MR JUSTICE CALVERT-SMITH: Absolutely, yes.

[117]MR RUTLEDGE: Also they make the very good point to me that this claimant is not in a class of one and they cannot treat him differently until they treat their other former relevant children --[118]MR JUSTICE CALVERT-SMITH: I see that. Of course, the point was made against you, although it would seem to me to be a valid one in the argument, that you might have been acting ultra vires for some considerable time before June 2009.[119]MR RUTLEDGE: Well, that is possible. Fortunately they did it so as to provide accommodation for a young man.[120]MR JUSTICE CALVERT-SMITH: Quite, exactly. They would be doing that if they did it for a few more days after 14, would they not?[121]MR RUTLEDGE: I respectfully see the force of that argument. May I say --[122]MR JUSTICE CALVERT-SMITH: I am not inclined to grant a stay to Mr Buley. I see the force of his argument but it does seem to me if we got up, even with an expedited transcript, 14 days before a judge of the Court of Appeal had a chance to look at it --[123]MR RUTLEDGE: My Lord, I cannot commit the borough but, my Lord, it is a responsible borough.

MR JUSTICE CALVERT-SMITH: Well, it has acted with great responsibility thus far.

[125]MR RUTLEDGE: You have seen the correspondence, the way it has dealt with matters.

MR JUSTICE CALVERT-SMITH: Yes.

[127]MR RUTLEDGE: It is extremely unlikely that there will be any difficulty. That is as far as I can go.[128]MR JUSTICE CALVERT-SMITH: Thank you. Well, Mr Buley, I think that is as far -- it is on the transcript and I would hope that my encouragement would be sufficient.[129]MR BULEY: Yes. My Lord, I think the only other matter then is, you will say it is slightly contrary to what I have been saying. Again, this is to protect the position and I hope this will not be necessary, but just in order to do so. Time normally runs from today, can I ask that time for submitting an appellant's notice should be two weeks from receipt of the transcript? It may be it will go long before that anyway for reasons you will appreciate, but in order we are not shut out and, in the event we decide we want to consider the transcript. That is a fairly standard order.[130]MR JUSTICE CALVERT-SMITH: I am really in your hands. It is not familiar territory to me.[131]MR RUTLEDGE: I do not object, it seems rather odd having asked for expedition.

MR JUSTICE CALVERT-SMITH: I know.

[133]MR RUTLEDGE: The rules are 21 days, they were enlarged to give extra time for this sort of situation. I am not sure why five weeks is necessary.[134]MR BULEY: I accept, I mean, it is obviously contrary to what I have said. I just want to cover all the bases. We will need to think about where we go from here obviously and I suggest it is a sensible order.

MR JUSTICE CALVERT-SMITH: Very well.

[136]MR BULEY: I am grateful, my Lord. Thank you. I think my learned friend and I will agree an order then which we can --

MR JUSTICE CALVERT-SMITH: Can you let me have it as soon as possible?

[138]MR BULEY: Of course.

MR JUSTICE CALVERT-SMITH: I say that because I am not here again from next week, I am elsewhere.

[140]MR BULEY: If not this afternoon then certainly tomorrow morning.

MR JUSTICE CALVERT-SMITH: Tomorrow morning would be best please, thank you.

[142]MR BULEY: I am grateful.

MR JUSTICE CALVERT-SMITH: Thank you both very much indeed.

Cited in 1 later judgment