BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[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 >> AR, R (on the application of) v London Borough of Hammersmith and Fulham [2018] EWHC 3453 (Admin) (19 December 2018) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2018/3453.html Cite as: [2018] EWHC 3453 (Admin) |
[New search] [Context] [View without highlighting] [Printable PDF version] [Help]
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
SITTING AS A JUDGE OF THE HIGH COURT
____________________
THE QUEEN on the application of AR |
Claimant |
|
- and - |
||
LONDON BOROUGH OF HAMMERSMITH AND FULHAM |
Defendant |
____________________
Mr Hilton Harrop-Griffiths (instructed by Hammersmith and Fulham Legal Department) for the defendant
Hearing date: 21st November 2018
____________________
Crown Copyright ©
Upper Tribunal Judge Markus QC:
The Care Act 2014
(a) managing and maintaining nutrition;(b) maintaining personal hygiene;
(c) managing toilet needs;
(d) being appropriately clothed;
(e) being able to make use of the adult's home safely;
(f) maintaining a habitable home environment;
(g) developing and maintaining family or other personal relationships;
(h) accessing and engaging in work, training, education or volunteering;
(i) making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and
(j) carrying out any caring responsibilities the adult has for a child.
"[AR] has a complexity of acute medical conditions as highlighted throughout this assessment. [AR] nevertheless presents as someone who is able to live independently and undertake essential day to day tasks. Due to [AR]'s current social situation his ability to further his personal development including further education, retraining is severely compromised. In addition, being homeless can also enforce a sense of social isolation, impacting on [AR]'s confidence and feeling of belonging which could lead to further self medicating behaviour including substance abuse."
"I am of the view that there is no legal obligation to disregard accommodation when considering the application of the eligibility criteria. Where accommodation-related services are provided it is the services that are to be disregarded not the accommodation per se. I am also of the view that this is consistent with what the specified outcomes are seeking to identify…in my judgement those outcomes are seeking to identify whether adults can undertake various activities, such as maintaining a habitable home environment (Regulation 2(3)(f)) or 'accessing and engaging in work, training, education or volunteering' (Regulation 2(3)(h)) rather than, using the same examples, the provision of accommodation or work. This reinforces my view that there is no obligation to disregard accommodation. Accordingly, I reject this ground of challenge."
The Localism Act 2011
"1(1) A local authority has power to do anything that individuals generally may do.
(2) Subsection (1) applies to things that an individual may do even though they are in nature, extent or otherwise—
(a) unlike anything the authority may do apart from subsection (1), or
(b) unlike anything that other public bodies may do.
2(1) If exercise of a pre-commencement power of a local authority is subject to restrictions, those restrictions apply also to exercise of the general power so far as it is overlapped by the pre-commencement power.
(2) The general power does not enable a local authority to do—
(a) anything which the authority is unable to do by virtue of a pre-commencement limitation, or
(b) anything which the authority is unable to do by virtue of a post-commencement limitation which is expressed to apply—
(i) to the general power,
(ii) to all of the authority's powers, or
(iii) to all of the authority's powers but with exceptions that do not include the general power.
…
(4) In this section—
"post-commencement limitation" means a prohibition, restriction or other limitation expressly imposed by a statutory provision that—
(a) is contained in an Act passed after the end of the Session in which this Act is passed, or
(b) is contained in an instrument made under an Act and comes into force on or after the commencement of section 1;
"pre-commencement limitation" means a prohibition, restriction or other limitation expressly imposed by a statutory provision that—
(a) is contained in this Act, or in any other Act passed no later than the end of the Session in which this Act is passed, or
(b) is contained in an instrument made under an Act and comes into force before the commencement of section 1;
"pre-commencement power" means power conferred by a statutory provision that—
(a) is contained in this Act, or in any other Act passed no later than the end of the Session in which this Act is passed, or
(b) is contained in an instrument made under an Act and comes into force before the commencement of section 1."
"40. In my view, s.3 has the effect of preventing an authority from exercising the power in s.2 of the LGA to do that which is prohibited by s.21(1A). It is true that the phrase "under subsection (1)(a)" in s.21(1A) makes it clear that what is prohibited is the provision of residential accommodation under s.21(1)(a) for persons who satisfy the s.21(1)(a) conditions, but who are subject to immigration control, and whose need for care and attention arises solely because of destitution. Thus if (leaving s.2 of the LGA out of account for the moment) there were some other statutory power than s.21(1)(a) by which accommodation could be provided to persons who satisfy the s.21(1)(a) conditions, then the exercise of that power would not be prohibited by s.21(1A). But it is agreed that there is no other such power….
41 The effect of s.3(1) is to prohibit the doing of "anything" which a local authority is unable to do by virtue of any prohibition on its powers contained in any enactment. In the present context, the "thing" which is under consideration is the provision of residential accommodation to persons who, but for the prohibition in s.21(1A), would be entitled to accommodation under s.21(1)(a). It is that "thing" which the local authority is prohibited from providing by s.21(1A), and which it cannot provide under any other statutory power, unless it can do so under s.2. But the very reason why s.3(1) was enacted was to prevent s.2 being used to do that which is prohibited by another statute. If Mr Jay were right, it would seem that no statutory prohibition would trump s.2 of the LGA unless it stated expressly that it was a prohibition for the purposes of s.3 of the LGA…
42 But as Mr Swift points out, to interpret s.3 in this way is inconsistent with the language of s.3(1) itself, which refers to any prohibition etc which is contained in any enactment whenever passed.
43 So far as the policy consideration is concerned, I accept that s.2 has a broad purpose. The scope of the powers given by s.2 should not be narrowly construed. The local authority is given a wide discretion to exercise its powers to promote well-being. But the fact that s.2 should be construed broadly does not help in deciding the meaning and scope of a prohibition, restriction or limitation on the exercise of powers which is contained in another enactment whenever passed or made. It is clear from s.3 that Parliament did not intend to override legislative schemes that already existed. The prohibition contained in s.21(1A) of the NAA must be given its natural meaning. For the reasons that I have given, it cannot be circumvented by s.2 of the LGA. If the prohibition in s.21(1A) were trumped by s.2, the prohibition in s.3(1) would be severely emasculated and, at any rate in relation to pre-existing legislative schemes, of no practical effect, since they do not (and could not) refer to the LGA."
The Nationality Immigration and Asylum Act 2002, schedule 3
"…it is important to emphasise the extremely limited scope for the operation of articles 3 and 8 in this area. As the court said in Anufrijeva, the Strasbourg court has not yet given a decision that a State has infringed articles 3 or 8 as a result of failure to provide welfare support, but the court has recognised the possibility of such an infringement (para 30). Thus, while Strasbourg has recognised the possibility that article 8 may oblige a State to provide positive welfare support in special circumstances, it has made it plain that neither article 3 nor article 8 imposes such a requirement as a matter of course (para 33). It was hard to conceive of a situation in which the predicament of an individual will be such that article 8 requires him to be provided with welfare support, where his predicament is not sufficiently severe to engage article 3 (para 43)…"
Conclusion