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Session 2001- 02
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Judgments - Westminster City Council v National Asylum Support Service

HOUSE OF LORDS

Lord Steyn Lord Slynn of Hadley Lord Hoffmann Lord Millett Lord Rodger of Earlsferry

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

WESTMINSTER CITY COUNCIL

(APPELLANTS)

v.

NATIONAL ASYLUM SUPPORT SERVICE

(RESPONDENTS)

ON 17 OCTOBER 2002

[2002[ UKHL 38

LORD STEYN

My Lords,

    1. I have had the advantage of reading the opinion of Lord Hoffmann. I share his view that this case should be decided on narrow grounds. I confine myself to expressing agreement with the views expressed by Lord Hoffmann in paragraph 49 of his opinion. I therefore agree that the appeal should be dismissed.

    2. There is, however, a point on which I want to comment. It relates to the status of Explanatory Notes which now accompany most public bills in their progress towards enactment by Parliament. The Explanatory Notes to the Immigration and Asylum Act 1999 were placed before the House and relied on as arguably assisting in the interpretation of sections of the Act. Lord Hoffmann has not relied on this material. I would also not do so in this case. On the other hand, since Explanatory Notes are now sometimes placed before the House, it would be sensible to clarify their status.

    3. The background is as follows. Brief explanatory memoranda used to be printed at the front of a Bill. Such a document was a précis and did not provide background. In addition ministers were provided with Notes on Clauses, which did by and large explain what a clause in a Bill was meant to do. Later, in an era of greater transparency, Notes on Clauses were made available to backbenchers.

    4. In 1999 a new system was introduced. It involves publishing Explanatory Notes alongside the majority of public bills introduced in either Houses of Parliament by a Government minister: see Christopher Jenkins QC, First Parliamentary Counsel, "Helping the Reader of Bills and Acts" (1999) 149 NLJ 798. The texts of such notes are prepared by the Government department responsible for the legislation. The Explanatory Notes do not form part of the Bill, are not endorsed by Parliament and cannot be amended by Parliament. The notes are intended to be neutral in political tone: they aim to explain the effect of the text and not to justify it. The purpose is to help the reader to get his bearings and to ease the task of assimilating the law. This new procedure has the imprimatur of the House of Commons Select Committee on Modernization and the House of Lords Procedure Committee. The Explanatory Notes accompany the Bill on introduction and are updated in the light of changes to the Bill made in the parliamentary process. Explanatory Notes are usually published by the time the legislation comes into force. Unlike Hansard material there are no costly researches involved. Explanatory Notes for both Bills and Acts are published by Her Majesty's Stationery Office. The notes are also available on the internet at: http://www.parliament.uk for Bills and http://www.legislation.hmso.gov.uk for Acts.

    5. The question is whether in aid of the interpretation of a statute the court may take into account the Explanatory Notes and, if so, to what extent. The starting point is that language in all legal texts conveys meaning according to the circumstances in which it was used. It follows that the context must always be identified and considered before the process of construction or during it. It is therefore wrong to say that the court may only resort to evidence of the contextual scene when an ambiguity has arisen. In regard to contractual interpretation this was made clear by Lord Wilberforce in Prenn v Simmonds [1971] 1 WLR 1381, 1384-1386, and in Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989, 995-996. Moreover, in his important judgment in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, 912-913, Lord Hoffmann made crystal clear that an ambiguity need not be established before the surrounding circumstances may be taken into account. The same applies to statutory construction. In River Wear Commissioners v Adamson (1877) 2 App Cas 743, 763, Lord Blackburn explained the position as follows:

    "I shall . . . state, as precisely as I can, what I understand from the decided cases to be the principles on which the courts of law act in construing instruments in writing; and a statute is an instrument in writing. In all cases the object is to see what is the intention expressed by the words used. But, from the imperfection of language, it is impossible to know what that intention is without inquiring farther, and seeing what the circumstances were with reference to which the words were used, and what was the object, appearing from those circumstances, which the person using them had in view; for the meaning of words varies according to the circumstances with respect to which they were used."

Again, there is no need to establish an ambiguity before taking into account the objective circumstances to which the language relates. Applied to the subject under consideration the result is as follows. Insofar as the Explanatory Notes cast light on the objective setting or contextual scene of the statute, and the mischief at which it is aimed, such materials are therefore always admissible aids to construction. They may be admitted for what logical value they have. Used for this purpose Explanatory Notes will sometimes be more informative and valuable than reports of the Law Commission or advisory committees, Government green or white papers, and the like. After all, the connection of Explanatory Notes with the shape of the proposed legislation is closer than pre-parliamentary aids which in principle are already treated as admissible: see Cross, Statutory Interpretation, 3rd ed (1995), pp 160-161. If used for this purpose the recent reservations in dicta in the House of Lords about the use of Hansard materials in aid of construction are not engaged: see R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349, 407; Robinson v Secretary of State for Northern Ireland [2002] UKHL 32, The Times, 26 July 2002, in particular per Lord Hoffmann, at paragraph 40. On this basis the constitutional arguments which I put forward extra-judicially are also not engaged: "Pepper v Hart: A Re-examination" (2001) 21 Oxford Journal of Legal Studies 59.

    6. If exceptionally there is found in Explanatory Notes a clear assurance by the executive to Parliament about the meaning of a clause, or the circumstances in which a power will or will not be used, that assurance may in principle be admitted against the executive in proceedings in which the executive places a contrary contention before a court. This reflects the actual decision in Pepper v Hart [1993] AC 593. What is impermissible is to treat the wishes and desires of the Government about the scope of the statutory language as reflecting the will of Parliament. The aims of the Government in respect of the meaning of clauses as revealed in Explanatory Notes cannot be attributed to Parliament. The object is to see what is the intention expressed by the words enacted.

LORD SLYNN OF HADLEY

My Lords,

    7. The unchallenged facts of this case and the legislative provisions are fully set out in the judgment of Stanley Burnton J.

    8. Mrs Y-Ahmed and her daughter came to the United Kingdom on a visit to her son. Following initial treatment in St Mary's Hospital, Paddington, she made a claim for political asylum as a Kurdish/Iraqi living in Kuwait. The case has proceeded on the basis that that was a genuine claim and the Home Office on the 22 March 2002 gave her and her daughter indefinite leave so that since then she has not been subject to immigration control or seeking asylum here. It is, however, plain that when she first sought asylum the cancer from which she suffered made medical attention and other care necessary. She did not have accommodation or the means for providing herself and her daughter with accommodation and she needed accommodation of two rooms near to St Mary's Hospital with wheelchair access and room for a carer to look after her physical needs.

    9. Which public authority, if any, should provide or pay for this accommodation was a matter of dispute. The respondent, National Asylum Support Service, as a part of the Home Office said that this was Westminster City Council's liability. Westminster City Council said that National Asylum Support Service must pay. The authorities recognised that this was an important case partly because of the difficulty of reading together provisions of the National Assistance Act 1948 and the Immigration and Asylum Act 1999 and regulations made thereunder, partly because of the potential impact of the decision on this question on a large number of other persons subject to immigration control and in particularly asylum seekers. Westminster City Council assessed Mrs Y-Ahmed's needs and is to be commended for having arranged and paid for her and her daughter's accommodation pending the resolution of this question. Stanley Burnton J and the Court of Appeal recognised that the question was not an easy one and in view of earlier decisions from the Court of Appeal and of first instance judges to which they referred, it was important that the matter should have come before your Lordships' House.

    10. Section 21(1) of the 1948 Act provided that a Local Authority "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 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them."

The Secretary of State gave a general direction that local authorities should make arrangements for persons ordinarily resident in their areas or in urgent need to be provided with care and attention. The Asylum and Immigration Act 1996, section 9, provided that housing accommodation under the Housing Act 1985 should not be provided for persons subject to immigration control unless they were of a class specified in an order of the Secretary of State and the orders made did not include asylum seekers who claimed asylum after entry into the United Kingdom. By the Housing Act 1996 a person subject to immigration control is also declared to be ineligible for housing assistance unless otherwise provided in Regulations made by the Secretary of State.

    11. The Court of Appeal in R v Hammersmith and Fulham London Borough Council, Ex p M (1997) 30 HLR 1998, held that destitute asylum seekers not entitled to welfare benefits could be in need of care and attention within the meaning of section 21 of the 1948 Act although they were no longer entitled to housing assistance or other social security benefits such as income support.

    12. If this applied across the board to all asylum seekers, it meant that local authorities in particular areas to which asylum seekers regularly went, would have to bear the cost of a large number of asylum seekers whereas the large majority of local authorities would have no or little liability.

    13. This on the face of it imposed a heavy burden on a few local authorities for what should have been a national problem. The Government accepted that the burden, or some of it, should be taken over nationally. The question in this appeal is how much of the burden has been transferred to the state. Mr Pleming for Westminster has argued forcefully that for all asylum seekers the cost of accommodation should be a national responsibility and that is what Parliament and the Secretary of State have done.

    14. Whether he is right depends on the construction of the Immigration and Asylum Act 1999. Under section 95 of that Act the Secretary of State may provide or arrange for the provision of support for asylum seekers who appear to the Secretary of State to be destitute. A person is destitute if "he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met) or "he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs". Under section 96 of the Act support may be provided for the purposes of section 95 "by providing accommodation appearing to the Secretary of State to be adequate for the needs of the supported person and his dependants" or by providing his essential living needs. It is to be noted here that the accommodation is to be "adequate for the needs" of the individual and if these provisions were all, it seems to me that the Secretary of State is given power to provide accommodation adequate for the needs which flow from a requirement of access or proximity to a particular hospital or which requires space for a carer to do his work.

    15. But these provisions are not all. Section 115 of the 1999 Act provides that persons subject to immigration control are, subject to those falling within categories prescribed by regulation, not entitled to certain social security benefits including housing benefit. By section 116 of the Act, section 21 of the 1948 Act is amended to add after subsection 21(1) the following:

    "(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 effects, of his being destitute."

Despite the arguments that Parliament must, in the interests of fairness to local authorities have wished to lay down that all provision of accommodation should be for the national authorities and despite the terms of section 95 it seems to me that the present question is concluded by this provision. However difficult it may be in particular cases to decide whether the need for care and attention has arisen "solely" because the person is destitute or because of the physical effects or anticipated physical effects of destitution, it seems that it has to be accepted that Parliament intended this distinction. The word "solely" can lead to no other conclusion.

    16. In relation to the argument that Parliament must have intended for political or sociological reasons to place the whole burden of looking after asylum seekers on the national authorities it is to be noted that the White Paper on the creation of the National Asylum Support Services, Fairer, Faster and Firmer - A Modern Approach to Immigration and Asylum (1998) (Cm 4018), stated in paragraph 8.23 that "[t]he 1948 Act will be amended to make clear that social services departments should not carry the burden of looking after healthy and able bodied asylum seekers. This role will fall to the new national support machinery" thereby apparently, even if not intentionally, drawing the distinction which I feel obliged to accept as flowing from section 21(1A).

    17. Accordingly, it follows that the only limitation of a local authority's liability to provide accommodation is where the need is "solely" due to destitution or its effects. Section 95 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 section 95, must take into account, by virtue of regulation 6(4) of the Asylum Support Regulations 2000 (SI 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 section 95, would be obliged to have regard to the liability of the local authority under section 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.

    18. I would, therefore, dismiss the appeal.

LORD HOFFMANN

My Lords,

    19. There was a time when the welfare state did not look at your passport or ask why you were here. The state paid contributory benefits on the basis of contribution and means-tested benefits on the basis of need. Some flat-rate non-contributory benefits like family allowances required residence in the UK for a minimum period of time. But immigration status was a matter between you and the Home Office, not the concern of the social security system.

    20. As immigration became a political issue, this changed. Need is relative, not absolute. Benefits which in prosperous Britain are regarded as sufficient only to sustain the bare necessities of life would provide many migrants with a standard of living enjoyed by few in the misery of their home countries. Voters became concerned that the welfare state should not be a honey pot which attracted the wretched of the earth. They acknowledged a social duty to fellow citizens in need but not a duty on the same scale to the world at large.

    21. The first to be denied income support (formerly national assistance) were people who clearly had no right to be here: illegal entrants and overstayers: see regulation 21(3) of and Schedule 7 to the Income Support (General) Regulations 1987 (SI 1987/1967). Those whose immigration status remained to be determined were also excluded from ordinary entitlement to benefit but could be treated as "urgent cases" and paid 90% of benefit. Asylum seekers were so treated while their applications were under consideration.

    22. The Asylum and Immigration Act 1996 removed altogether the right to income support and to housing under the homelessness legislation from asylum seekers who did not claim asylum at the port or airport of entry. The view was that bona fide asylum seekers could be expected to declare themselves as such when they arrived. Not being willing to do so was the badge of an economic migrant who should be discouraged from coming and, if here, encouraged to go home. For similar reasons, benefits were denied to asylum seekers whose applications had been refused and were pursuing an appeal. Whether on account of this change in the law or some other reason, the number of persons claiming asylum after entry did in fact fall from 29,555 in 1995 to 17,205 in 1996 and 15,915 in 1997: see the 1998 White Paper Fairer, Faster and Firmer - A Modern Approach to Immigration and Asylum (Cm 4018) at paragraph 1.9. But that still left a lot of people who were in the United Kingdom without any entitlement to a home or income.

    23. Some of these people were no doubt able to subsist on their own resources or the charity of relatives, friends or institutions. But others sought assistance from the social services departments of local authorities. They claimed that they were entitled to accommodation under Part III of the National Assistance Act 1948 (a benefit from which they had not been excluded) by virtue of the provisions of section 21(1):

    "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 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…"

    24. The Secretary of State has given a general direction imposing upon local authorities a duty to make arrangements under section 21(1)(a) in relation to persons ordinarily resident in their area and others in urgent need: see Department of Health Circular No LAC(93)10, Appendix 1, paragraph 2(1)(b).

    25. The provision of accommodation under this section (generally called "Part III accommodation") had previously been a relatively quiet backwater of the social welfare system, consisting principally of residential homes for the elderly and to a much lesser extent the sensorily disabled and mentally ill. Since the early 90s the provision of such accommodation has been largely contracted out to the private sector and the number of persons in homes staffed by local authorities has fallen from over 100,000 in 1990 to about 50,000 in 2001.

    26. It is apparent from the language of section 21(1)(a) that the power or duty to provide accommodation is dependent upon three conditions being satisfied: first, the person must be in need of care and attention; secondly, the need must arise by reason of age, illness, disability or "other circumstances" and, thirdly, the care and attention which is needed must not be available otherwise than by the provision of accommodation under section 21. (I take these conditions from the valuable analysis by Hale LJ in Wahid v Tower Hamlets London Borough Council [2002] EWCA Civ 287, (unreported) 7 March 2002, at paragraph 30.) The effect of the third condition is that, normally, a person needing care and attention which could be provided in his own home, or in a home provided by a local authority under the housing legislation, is not entitled to accommodation under section 21. That is why the use of the section had previously been for the most part limited to the provision of accommodation in specialist institutions like homes for the aged, in which the necessary care and attention could be provided more conveniently than in separate dwellings.

    27. The first test case to come before the Court of Appeal on whether local authorities were obliged to provide accommodation for asylum seekers under section 21 was R v Hammersmith and Fulham London Borough Council, Ex p M (1997) 30 HLR 10. This concerned four asylum seekers who were perfectly healthy and not in need of care and attention, but because they were destitute, without accommodation or subsistence, would soon become in need of care and attention unless something was done about it. The Court of Appeal decided that the local authority had an obligation under section 21 to provide them with accommodation.

    28. The stark facts of that case - able bodied asylum seekers having to be accommodated by the social services department of the local authority - caused consternation. Before the 1996 Act the local authorities would have had to provide them with accommodation under the homelessness legislation. But the rent would have been paid out of housing benefit from central funds. Now the entire burden was shifted onto the administrative resources and budget of the social services department. And the burden fell particularly heavily upon those local authorities where asylum seekers tended to congregate - Kent, for those landing at the Channel ports, Hillingdon and East Sussex for those landing at Heathrow and Gatwick and the inner London boroughs. As the new government said later in paragraph 8.14 of the White Paper Fairer, Faster and Firmer to which I have already referred:

    "The Court of Appeal judgment...meant that, without warning or preparation, local authority social services departments were presented with a burden which is quite inappropriate, which has become increasingly intolerable and which is unsustainable in the long term, especially in London, where the pressure on accommodation and disruption to other services has been particularly acute."

    29. What may have escaped notice in the aftermath of Ex p M was that the 1996 Act had brought into the scope of section 21 of the 1948 Act two distinct classes of asylum seekers who would not have been entitled to Part III accommodation if the 1996 Act had not excluded them from the normal social security system. The first class were the able bodied asylum seekers who qualified solely because, being destitute, they were already or were likely to become in need of care and attention. This was the class highlighted in Ex p M. I shall call them "the able bodied destitute", who came within section 21 solely because they were destitute. The second class were asylum seekers who had some infirmity which required the local social services to provide them with care and attention, but who would not ordinarily have needed to be provided with accommodation under section 21 because it was available in other ways, for example, under the homelessness legislation. They would not have come within the section 21 duty because they would not have satisfied the third condition which I have quoted from the judgment of Hale LJ in Wahid's case [2002] EWCA Civ 287, paragraph 30: the care and attention which is needed must not be available otherwise than by the provision of accommodation under section 21. I shall call this class "the infirm destitute".

    30. The White Paper, which proposed to solve the crisis created by the 1996 Act and Ex p M by creating a National Asylum Support Service ("NASS") as a division of the Home Office, with power to provide accommodation for asylum seekers, focused entirely on the able bodied destitute. It said in paragraph 8.23:

    "The 1948 Act will be amended to make clear that social services departments should not carry the burden of looking after healthy and able bodied asylum seekers. This role will fall to the new national support machinery."

    31. Nothing was said about the infirm destitute and, as I have said, I am not sure it was appreciated that their accommodation was also a new burden upon local authorities which had been created by the 1996 Act. However, the terms in which the 1948 Act was amended were in my opinion perfectly clear. Section 116 of the Immigration and Asylum Act 1999 introduced into section 21 a new subsection (1A):

    "A person [subject to immigration control, including asylum seekers] 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."

    32. The use of the word "solely" makes it clear that only the able bodied destitute are excluded from the powers and duties of section 21(1)(a). The infirm destitute remain within. Their need for care and attention arises because they are infirm as well as because they are destitute. They would need care and attention even if they were wealthy. They would not of course need accommodation, but that is not where section 21(1A) draws the line.

    33. In parallel with the amendment of section 21, section 95(1) of the 1999 Act gave the Secretary of State power to:

    "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."

 
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