|Judgments - Westminster City Council v National Asylum Support Service
34. This power is exercised through NASS. Section 95(3) provides that a person is destitute if -
35. It will be seen that while section 21(1A) removes only the able bodied destitute from the duty of the local social service departments, section 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.
36. Mrs Y-Ahmed, over whom the dispute has arisen, was at the relevant time an infirm destitute asylum seeker. She is of Iraqi Kurdish origin but comes from Kuwait, where she had lived for 40 years, latterly with her husband and children. In 1996 she was diagnosed as having spinal cancer and although treatment in Kuwait initially produced a remission, she had a relapse in 1999. In July 2000 she and her 13 year old daughter came to London on a visit to her eldest son, who was living here with his wife and child. She was given leave to enter on condition that she should not have recourse to public funds. But she soon sought treatment at St Mary's Hospital, Paddington and upon being discharged in November 2000 made a claim for political asylum. She also said that she was unable to return to her son's flat and was entirely without funds.
37. Westminster City Council ("Westminster"), within whose area she had until then been resident, assessed her community care needs pursuant to section 47 of the National Heath Service and Community Care Act 1990. In conjunction with the hospital they assessed her and her daughter as requiring self-contained accommodation of at least two rooms near the hospital, accessible by wheel chair and to community care services. This was found at an hotel. Westminster considered that NASS should pay for the accommodation pursuant to its powers under section 95(1) and NASS said that Westminster should provide it under section 21. When NASS refused to pay, Westminster commenced proceedings for judicial review, seeking orders quashing its decision and requiring NASS to accommodate Mrs Y-Ahmed. Stanley Burnton J dismissed the application and his order was unanimously upheld by the Court of Appeal. On 11 June 2001 an Appeal Committee gave leave to appeal to your Lordships' House. On 22 March 2002 the Secretary of State gave Mrs Y Ahmed indefinite leave to remain. So she is no longer an asylum seeker or subject to immigration control. But the appeal has been pursued in respect of the time when she was, because it raises an important point of principle.
38. The ground upon which Stanley Burnton J and the Court of Appeal 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 of Part VI 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-Ahmed had been able bodied destitute, she would have been excluded from section 21 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.
39. The provisions relied upon by the Secretary of State are, first, section 95(12), which enacts Schedule 8, giving the Secretary of State power to "make regulations supplementing this section." Paragraph 1 of the Schedule says in general terms that the Secretary of State may make "such further provision with respect to the powers conferred on him by section 95 as he considers appropriate". More particularly, paragraph 2(1)(b) says that the regulations may provide that in connection with determining whether a person is destitute. the Secretary of State should take into account "support which is, or might reasonably be expected to be, available to him or any dependant of his."
40. The next step is to look at the regulations made under these powers, the Asylum Support Regulations 2000. Regulation 6(4) says that when it falls to the Secretary of State to determine for the purposes of section 95(1) whether a person applying for asylum support is destitute, he must take into account "any other support" which is available to him. As an infirm destitute asylum seeker, support was available to Mrs Y-Ahmed under section 21. Therefore she could not be deemed destitute for the purposes of section 95(1).
41. My Lords, like Stanley Burnton J and the Court of Appeal, I find this argument compelling. 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. Westminster complains that Parliament should have taken away the whole of the additional burden which fell upon local authorities as a result of the 1996 Act. It should not have confined itself to the able bodied destitute. But it seems to me inescapable that this is what the new section 21(1A) of the 1948 Act has done. As Simon Brown LJ said in the Court of Appeal ((2001) 4 CCLR 143, 151, para 29) what was the point of section 21(1A) if not to draw the line between the responsibilities of local authorities and those of the Secretary of State?
42. Mr Pleming, who appeared for Westminster, submitted that even if Mrs Y-Ahmed was not excluded by section 21(1A), she did not come within section 21(1)(a) in the first place. This was because her need for care and attention did not entail a need to be provided with accommodation. It was care and attention which could be provided in her own accommodation. If she had been an ordinary UK resident, she would never have been assessed as requiring Part III accommodation.
43. The difficulty about this argument is that it seems to me to run counter to the reasoning in R v Hammersmith and Fulham London Borough Council, Ex p M 30 HLR 10. The able bodied destitute asylum seekers in that case would never have been given Part III accommodation if they had not been subject to immigration control. They would have been given income support and Housing Act accommodation. They had to be given accommodation because otherwise there was nowhere else they could receive care and attention. Mr Pleming did not challenge the correctness of Ex p M and I do not think it would be open to him to do so, because the whole of Part VI of the 1999 Act proceeds on the assumption that it is correct. But the present seems to me an a fortiori case.
44. Mr Pleming also argued that "support" in regulation 6(4) was limited to support from private sources. But this seems to me an impossible contention. "Support" is the word which the 1999 Act uses to describe the benefits which the Secretary of State is empowered to provide. When the regulations want to distinguish it from other forms of support, it calls it "asylum support". "Income support" is an example of another statutory form of support which immediately comes to mind. Mr Pleming referred to the application forms prescribed by the regulations, which ask questions about private support and various state cash benefits but not accommodation under section 21. He also drew attention to questions in the form about the medical needs or disabilities of the applicant, which did not suggest an assumption that the infirm destitute would be excluded. These points are indeed suggestive, but what they suggest is that the Home Office may not fully have appreciated, either when the legislation was promoted or afterwards, the limited relief which the new section 21(1A) gave the local authorities. But the application forms cannot be used to alter the meaning of the statute.
45. Mr Pleming said that the Court of Appeal in the present case did not appreciate the full enormity of what they were doing by leaving local authorities fully responsible for the infirm destitute. R v Wandworth London Borough Council, Ex p O  1 WLR 2539 concerned an overstayer who was not an asylum seeker. She applied for accommodation under section 21 on the ground that she had mental and physical health problems which made it necessary for her to have care and attention which she could not receive unless accommodation was also provided. The Court of Appeal had to consider the scope of the new section 21(1A). The local authorities argued that it excluded their duty if the applicant would have been able, if not destitute, to provide her own accommodation in which to receive whatever care and attention was needed. That is the argument which Mr Pleming now advances. But the Court of Appeal rejected it. Simon Brown LJ said, at p 2548, that if the applicant's need for more care and attention was "to any extent made more acute by some circumstance other than the mere lack of accommodation and funds" e.g. because she is old, ill or disabled, then she is not excluded by section 21(1A).
46. As Simon Brown LJ confessed in his judgment in the Court of Appeal in this case, at 4 CCLR 143, 153, para 42, he had assumed in Ex p O that his construction of section 21(1A) would have a limited impact on asylum seekers because destitute asylum seekers would be entitled to section 95 support "irrespective of whether they were particularly vulnerable through age, ill health or disablement". Having reconsidered the matter in the present case, he was not so sure. A person subject to immigration control, whether or not an asylum seeker, was either excluded from local authority responsibility by section 21(1A) or he was not. If he was not, then he was not entitled to asylum support under section 95(1). But Simon Brown LJ, at p 154, para 45, expressed the hope that NASS:
47. Mr Pleming pointed out that this was an invitation to NASS to act upon the very construction of section 21(1A) which the Court of Appeal had rejected in Ex p O  1 WLR 2539, namely that it excluded those who would not need accommodation if they were not subject to immigration control (and therefore entitled to be accommodated under the homelessness legislation). Whether this would be lawful is somewhat doubtful. In more recent cases, judges in the Administrative Court have taken the reasoning in Ex p O and of the Court of Appeal in this case to its logical conclusion. In R (Mani) v Lambeth London Borough Council  EWHC Admin 735, The Times, 8 May 2002 for example, Wilson J decided that a destitute asylum seeker who, on account of a leg abnormality, sometimes needed help with bedmaking, hoovering and heavy shopping, was in need of care and attention which, as he had no accommodation, could not be given to him otherwise than in accommodation provided under section 21.
48. Mr Pleming said that this case demonstrated the absurd consequences of the decision of the Court of Appeal. If Mr Mani had been an ordinary resident, his disability would never have entitled him to accommodation under a statute intended to provide institutions for the old and retreats for the mentally handicapped. His entitlement as found by Wilson J arises simply from the fact that he is an asylum seeker. Such a conclusion is inconsistent with the policy of having a national support system specifically for asylum seekers. Furthermore, the decision undermines the policy of dispersal followed by NASS, which is intended to prevent asylum seekers from gravitating to London boroughs or other local authority areas of their choice. An asylum seeker who can produce a disability, physical or mental, which makes his need for care and attention "to any extent more acute" than that which arises merely from his destitution, can play the system and secure accommodation from the local authority of his choice.
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 Y-Ahmed 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 section 21 or under Part VI of the 1999 Act. The first question for your Lordships is whether in those circumstances she comes prima facie within section 21(1)(a) and, if so, the second is whether she is excluded by section 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 section 21 excludes Mrs Y-Ahmed from consideration for asylum support. Again, in agreement with the Court of Appeal, I think that the answer is yes.
50. Your Lordships are not however concerned to decide whether the test laid down by the Court of Appeal in R v Wandworth London Borough Council, Ex p O  1 WLR 2539 (and applied by Wilson J in Mani's case, The Times, 8 May 2002) for determining whether the need for care and attention has arisen "solely because he is destitute" was correct. It would not be right to express any view on this point because it affects the rights of everyone subject to immigration control, whether an asylum seeker or not, and they were not represented before your Lordships.
51. I would therefore dismiss the appeal.
52. I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Hoffmann. I agree with it, and for the reasons he gives I too would dismiss the appeal.
LORD RODGER OF EARLSFERRY
53. I have had the privilege of reading the speech of my noble and learned friend Lord Hoffmann in draft. I agree with it and for the reasons that he gives I too would dismiss the appeal.
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