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|Judgments - R (On The Application of M) (Fc) V Slough Borough Council
HOUSE OF LORDS
 UKHL 52
on appeal from: EWCA Civ 655
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
R (on the application of M) (FC) (Respondent) v Slough Borough Council (Appellants)
Lord Bingham of Cornhill
Lord Scott of Foscote
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
Lord Neuberger of Abbotsbury
John Howell QC
(Instructed by Slough Borough Council )
David Pannick QC
(Instructed by Hackney Community Law Centre )
9 and 10 JUNE 2008
WEDNESDAY 30 JULY 2008
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
R (on the application of M) (FC) (Respondent) v Slough Borough Council (Appellants)
 UKHL 52
LORD BINGHAM OF CORNHILL
1. I have had the benefit of reading in draft the opinion of my noble and learned friend Baroness Hale of Richmond. I am in complete agreement with it, and would, for the reasons which she gives, allow the Councils appeal.
LORD SCOTT OF FOSCOTE
2. I have had the advantage of reading in draft the opinion of my noble and learned friend Baroness Hale of Richmond and, for the reasons she gives, with which I am in full agreement, I too would allow this appeal.
BARONESS HALE OF RICHMOND
3. The issue before us is whether a local social services authority is obliged, under section 21(1)(a) of the National Assistance Act 1948, to arrange (and pay for) residential accommodation for a person subject to immigration control who is HIV positive but whose only needs, other than for a home and subsistence, are for medication prescribed by his doctor and a refrigerator in which to keep it. The answer to that issue turns on the meaning of the words in need of care and attention which is not otherwise available to [him] in section 21(1)(a). But there is also an issue as to whether, if he does need care and attention, that need arises solely because of his destitution, in which case section 21(1A) provides that the local authority is not obliged to accommodate him. If the local authority is not so obliged, it is common ground that, in this particular case, his needs for housing and subsistence will be met by the National Asylum and Support Service (NASS).
The facts and these proceedings
4. M is 42 years old, a citizen of Zimbabwe, where his wife and children still live. He arrived here as a visitor in 2001 and was given six months leave to enter. He has remained here without leave ever since that leave expired in May 2002. In November 2002 he was diagnosed HIV positive. In 2003, he applied to the local authority for an assessment of his needs. The local authority concluded that he needed medication, which had to be kept in refrigerated conditions, and to see a doctor once every three months. The National Health Service provided the medical checks and the medication. Otherwise his illness did not affect him and he was able to look after himself. His only other need was for accommodation if he did not have it. Accordingly, the local authority took the view that he was not currently owed any duty under section 21(1)(a) of the 1948 Act because he had no current need for care and attention; and that if later such a duty might arise, it would be excluded by section 21(1A) because the need would arise solely from his destitution.
5. Ms proceedings to challenge the local authoritys decision have been going on since December 2003. The authority was ordered to provide him with accommodation in January 2004, and in April 2004, Mr Justice Collins granted his application for judicial review:  EWHC 1109 (Admin),  LGR 657. In his view, the fact that medication and regular medical attention were required was sufficient to show a need for care and attention. That need arose from a combination of destitution and illness and not solely from destitution. The Court Appeal dismissed the local authoritys appeal in May 2006:  EWCA Civ 655,  LGR 225. Care and attention could extend to the provision of shelter, warmth, food and other basic necessities. If the need was made more acute by some other circumstance than mere lack of accommodation and funds, it did not arise solely from destitution and the local authority was responsible. The local authority now appeals to this House.
6. In the meantime, the Secretary of State and the immigration appellate authorities have been seized of Ms claim that his rights under article 3 of the European Convention on Human Rights would be infringed if he were to be returned to Zimbabwe. We understand that those proceedings are still continuing and for that reason the respondent would be entitled to NASS accommodation and support if the local authority is not obliged to accommodate him under section 21(1)(a).
Section 21(1)(a) and the other responsibilities of local social services authorities
7. It is fair to say that, until 1996, it would not have occurred to anyone that section 21(1)(a) might cover this sort of case. There was no need for it to do so. And it was not designed to do so. As originally enacted, section 21(1) imposed a duty on every county and county borough council to provide two kinds of accommodation: (a) residential accommodation for persons who by reason of age, infirmity or any other circumstances are in need of care and attention which is not otherwise available to them; and (b) temporary accommodation for persons who are in urgent need thereof . . . Paragraph (a) was principally used to provide old peoples homes, while paragraph (b) was used to house those homeless people who qualified for help. The post- World War II welfare state never purported to provide housing, as opposed to the means of obtaining it, for all. Accommodation could be provided in premises managed by the local authority, or by another local authority (s 21(4)), or by a voluntary organisation (s 26(1)), and, after 1968, in privately run care homes (Health Services and Public Health Act 1968, s 44). Local authorities were and remain also required to provide a range of welfare services for disabled people under section 29 of the 1948 Act and for old people under section 45 of the Health Services and Public Health Act 1968.
8. Under the Local Authority Social Services Act 1970, these local authority welfare services for the old, the disabled and the homeless were combined with their child care services into generic social services departments. Following the Local Government Act 1972, there was power to provide all of these services with ministerial approval and the duty to do so to such extent as he might direct: ministerial approvals and directions under section 21 and 29 of the 1948 Act were first given in Department of Health and Social Services Circular No LAC 13/74 and under section 45 of the 1968 Act in DHSS Circular No 19/71.
9. Separately from these welfare services, local health authorities used to provide a variety of health services, such as midwifery, health visiting and district nursing, under Part III of the National Health Service Act 1946. These included, in section 22, the duty to make arrangements for the care of expectant and nursing mothers and children under five; in section 28, the provision of services for the prevention of illness, the care of people suffering from illness or mental defectiveness", or the after-care of such persons; and in section 29, the power to provide domestic help for certain households. Section 28 was replaced and expanded by section 12 of the Health Services and Public Health Act 1968, which made it clear that there was power to provide residential accommodation for this purpose. This power was used to provide homes for mentally ill and mentally handicapped people. These services were also transferred to the new social services departments in 1970, except to the extent that it was proper for them to remain part of the National Health Service (1970 Act, ss 2(1)(a), (3), (4), and Schedule 1). The relevant ministerial approval and directions were first given in Department of Health and Social Security Circulars Nos LAC 19/74 and LAC (74)28. LAC 19/74 specifically approved the provision of residential accommodation for people who were or had been suffering from mental disorder. All three were later consolidated in the National Health Service Act 1977, Schedule 8, and again in the National Health Service Act 2006, Schedule 20. The other functions of local health authorities were transferred to the National Health Service under the National Health Service Reorganisation Act 1973.
10. In 1974, therefore, local social services authorities had power to provide residential accommodation for people needing care and attention and temporary accommodation for people in urgent need, both under section 21 of the 1948 Act; and for expectant and nursing mothers and young children under section 22 of the 1946 Act; they shared with the health service the power to provide residential accommodation for the prevention, care and after care of illness, and were specifically required to take this responsibility for people with mental disorders. And they were required to provide a range of welfare services for disabled people, under section 29 of the 1948 Act as expanded by the Chronically Sick and Disabled Persons Act 1970, for old people, under section 45 of the 1968 Act, and home help services under section 29 of the 1946 Act.
11. The next step was to remove their responsibility for providing temporary accommodation for homeless people. A joint circular from the Department of the Environment (Circular 18/74) the Department of Health and Social Security (Circular 4/74) and Welsh Office (Circular 34/74) signalled that henceforth the responsibility for housing the homeless should be undertaken as a housing rather than a social services function. This was followed by the Housing (Homeless Persons) Act 1977 which repealed section 21(1)(b) of the 1948 Act and imposed specific statutory duties upon local housing authorities. In areas where there were two tiers of local government, these were the district rather than the county councils. As before, the 1977 Act duties (now contained in the Housing Act 1996) were targeted at particular classes of homeless people and did not require a home to be provided for everyone who might need one.
12. Another major upheaval came with the National Health Service and Community Care Act 1990. The main object was to try and achieve a professional assessment of what the people in these various client groups really needed, rather than to allow them to enter residential homes for which the social security scheme would have to foot the bill. Hence local social services authorities should have the task of ensuring that the needs of individuals within the specified groups are identified, packages of care are devised and services co-ordinated (Sir R. Griffiths, Community Care: Agenda for Action: A Report to the Secretary of State for Social Services, 1988, page vii, para 24). Local authorities retained all their previous responsibilities; but all their powers to provide or arrange residential accommodation for the various adult client groups were brought together in an amended version of section 21(1) of the 1948 Act:
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; and
(aa) residential accommodation for expectant and nursing mothers who are in need of care and attention which is not otherwise available to them.
13. It will be seen that the insertion of illness, disability into section 21(1)(a) imported the residential component of the services for the care of the sick from paragraph 2 of what was then schedule 8 to the National Health Service Act 1977; and the insertion of section 21(1)(aa) did the same for pregnant and nursing mothers from paragraph 1 of the same schedule. The purpose was to bring them all within the same assessment and charging regime. New approvals and directions covering sections 21(1) and 29 of the 1948 Act and paragraphs 1 and 2 of Schedule 8 to the National Health Service Act 1977 (now Schedule 20 to the 2006 Act) were given in Department of Health Circular LAC(93)10, which is still current. As with the previous Circulars, this imposed a duty to make arrangements under section 21(1)(a) for people ordinarily resident in the area and for other people in urgent need thereof and a power to do so for people with no settled residence or who lived in the area of another local authority (Appendix 1, para 2(1)). A mysterious paragraph (para 2(2)) also directs them to make arrangements under section 21(1)(a) to provide temporary accommodation for persons who are in urgent need thereof in circumstances where the need for that accommodation could not reasonably have been foreseen". This repeats word for word the repealed provision in section 21(1)(b). It may simply have been a slip, repeating paragraph 3(b) of Circular No LAC 13/74. Or it may have been retained so as to impose a temporary obligation where the need arose in unforeseen circumstances. But it could not impose any obligation going beyond that provided for in section 21(1)(a) and so it must be confined to people in need of care and attention which is not otherwise available to them".
14. Unlike the services provided by the National Health Service, section 21(1)(a) accommodation has never been free. It was a point of pride in 1948 that people going into local authority old peoples homes were not going into the poor house. They were expected to pay what they could, up to the full cost if they could afford it. The criterion for eligibility was the reason why such accommodation was needed rather than the need for accommodation as such. As Lord Hoffmann observed in R (Westminster City Council) v National Asylum Support Service  1 WLR 2956, para 32, (NASS) the obligation under section 21(1)(a) was owed to the wealthy as well as the poor.
15. Thus it has always been assumed that the words which is not otherwise available to them govern the words care and attention and not the words residential accommodation in both section 21(1)(a) and (aa). A person may have a roof over her head but still be in need of care and attention which is not available to her in that home and therefore qualify for residential accommodation under section 21(1)(a) or (aa). Old people who had homes of their own were and are regularly accommodated in old peoples homes under this provision when no longer able to cope in their own homes.
16. The alternative construction, that the words which is not otherwise available to them govern the words residential accommodation", is grammatically attractive. But not only would it defeat the main purpose of the section, which is to make special provision for those with special needs; it would be contrary to the construction which has twice been adopted in this House, in Steane v Chief Adjudication Officer  1 WLR 1195, 1202, and Chief Adjudication Officer v Quinn  1 WLR 1184, 1194; and to the understanding of Parliament when it enacted section 21(2A), which begins: In determining for the purposes of paragraph (a) or (aa) of subsection (1) of this section whether care and attention are otherwise available to a person . . . This time Parliament got the grammar right and the meaning is plain.
17. Section 21(1)(a) did not feature in the law reports at all until after the 1990 Act came into force. A handful of cases were triggered by the decisions of local social services authorities either to transfer their own old peoples homes to voluntary organisations or the private sector or to close them down altogether: see R v Wandsworth London Borough Council, Ex parte Beckwith  1 WLR 60; and Quinn and Steane above.
The impact of immigration control
18. As Lord Hoffmann also observed in the NASS case, at paras 19-20, there was a time when the welfare state did not look at your passport or ask why you were here. . . As immigration became a political issue, this changed". A brief account of the progressive withdrawal of social security benefits from immigrants and asylum seekers may be found in my judgment in R v Wandsworth London Borough Council, Ex parte O; R v Leicester City Council, Ex parte Bhikha  1 WLR 2539, 2555 (Ex parte O). With the total withdrawal of all benefits from some claimants, the trickle of cases about section 21(1)(a) soon became a flood.
19. As is well known, the Social Security (Persons from Abroad) Miscellaneous Amendment Regulations 1996 (1996 SI No 30) purported to remove the entitlement to social security benefits of asylum seekers who failed to claim asylum at the point of entry. In R v Secretary of State for Social Security, Ex parte Joint Council for the Welfare of Immigrants  1 WLR 275, the Court of Appeal declared that it was not possible to make such a momentous change, reducing such people to utter destitution, by delegated legislation. Parliament responded by passing the Asylum and Immigration Act 1996, validating the 1996 social security regulations and the associated denial of public housing assistance under Part III of the Housing Act 1985 by the Housing Accommodation and Homelessness (Persons Subject to Immigration Control) Order 1996 (1996 SI No 1982), thus also reversing the effect of R v Royal Borough of Kensington and Chelsea, Ex parte Kihara and others, unreported, 25 June 1996.
20. With all other avenues of support and housing denied to them, asylum seekers turned to section 21(1)(a) of the National Assistance Act 1948. In R v Hammersmith and Fulham London Borough Council, Ex parte M (1997) 30 HLR 10 (Ex parte M), the Court of Appeal held that they could do so. The Court rejected the argument that the words any other circumstances had to be construed ejusdem generis with age, illness, disability and held that they could cover people whose need for care and attention had arisen from having to sleep rough and go without food. Equally, however, the Court rejected the idea that section 21(1)(a) is a safety net provision on which anyone who is short of money and/or short of accommodation can rely". The crucial passage is this, at p 20:
What [asylum seekers] are entitled to claim (and this is the result of the 1996 Act) is that they can as a result of their predicament after they arrive in this country reach a state where they qualify under the subsection because of the effect upon them of the problems under which they are labouring. In addition to the lack of food and accommodation is to be added their inability to speak the language, their ignorance of this country and the fact that they have been subject to the stress of coming to this country in circumstances which at least involve their contending to be refugees. Inevitably the combined effect of these factors with the passage of time will produce one or more of the conditions specifically referred to in section 21(1)(a). It is for the authority to decide whether they qualify.
21. Thus far, the decision is uncontroversial. The need for care and attention is a condition precedent to entitlement under section 21(1)(a). A mere need for housing and financial support is not a need for care and attention. But its consequences, especially when combined with other factors making the claimant more vulnerable, may eventually lead to such a need. When it does so, section 21(1)(a) applies. However, the Court went on to say, at p 21, that the authorities can anticipate the deterioration which would otherwise take place in the asylum seekers condition by providing assistance under the section. They do not need to wait until the health of the asylum seeker has been damaged. This is the only part of the decision with which Mr John Howell QC, who appears for the local authority in this case, takes issue.
22. The result of the decision was a general perception that local social services authorities had become responsible for the housing and support of those asylum seekers who were denied the help of the social security and housing authorities because of the 1996 Act. In 1998, the Government published a White Paper, Fairer, Faster and Firmer - A Modern Approach to Immigration and Asylum, Cm 4018. It commented at para 8.14:
The Court of Appeal judgment relating to the 1948 Act 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.
The white paper proposed the setting up of a national asylum support scheme, separate from the welfare schemes available to people with an established right to live here, and specifically intended as a safety net of last resort for people with nowhere else to turn. It was recognised that the scheme might be used to promote specific policy objectives, including the deterrent effect of making the claimants situation less eligible (to use a 19th century poor law concept). Thus, in para 8.17:
In considering what form support arrangements for asylum seekers should take, the Government believes that they should satisfy the following objectives:* To ensure that genuine asylum seekers cannot be left destitute, while containing costs through incentives to asylum seekers to look first to their own means or those of their communities for support; * To provide for asylum seekers separately from the main benefits system; * To minimise the incentive to economic migration, particularly by minimising cash payments to asylum seekers.
Meanwhile, at para 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.
23. The new system of asylum support was set up under Part VI of the Immigration and Asylum Act 1999. This allowed the Secretary of State to provide support for asylum seekers. (The Act also contains a power to provide accommodation facilities for some others, including failed asylum seekers, in section 4). But section 115 excluded any person subject to immigration control", unless falling within an excepted category, from all social security cash benefits. It is possible, therefore, that some people may be excluded from social security benefits but not qualify for any asylum support. It must, however, be remembered that the Secretary of State is not permitted to subject anyone to inhuman or degrading treatment as a result of the package of restrictions and deprivations affecting him: R (Limbuela) v Secretary of State for the Home Department  UKHL 66;  1 AC 396.
24. Section 116 of the 1999 Act added two new subsections to section 21 of the 1948 Act. Section 21(1A) reads as follows:
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.
Subsection 21(1B) incorporated the definition of destitution, together with its ancillary provisions, from section 95(3) of the 1999 Act:
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.
Our lives would have been a great deal easier if section 21(1A) had simply provided that local social services authorities were under no obligation at all to persons subject to immigration control". It did not do that, no doubt because it was accepted that people with particular health or care needs should have still access to the National Health Service and social services. So the question was where to draw the line between those for whom the social services were responsible and those for whom they were not, for some of whom the asylum support service might be responsible and for some of whom there might be no-one responsible at all.