|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> O, R (on the application of) v Barking and Dagenham Lbc  EWHC 634 (Admin) (03 March 2010)
Cite as:  EWHC 634 (Admin),  BLGR 597
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF O||Claimant|
|BARKING AND DAGENHAM LBC||Defendant|
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
MR K RUTLEDGE (instructed by Council Solicitors) appeared on behalf of the Defendant
Crown Copyright ©
"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notice commencing 12 October 2009 when all support (with the exception of a pathway plan and personal advisor) will be withdrawn.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."
"(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."
"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."
"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."
"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."
"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."
"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."
"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."
"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."
"The assistance given under sub-section 4C may be in kind or, in exceptional circumstances, in cash."
"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."
"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."
"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."
"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. There is, of course, a duty to provide accommodation if a child is in need and section 20(3) applies, and to provide accommodation for relevant children under section 23B(8)(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."
"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))."
"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."
"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.."
"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 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.
"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."
"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."
"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?"
"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. Accordingly, Westminster are not relieved of their duty to provide her with residential accommodation under section 31(1)(A)."
"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?"