Al-Ameri v Kensington & Chelsea

Is residence in a district in accommodation provided to a destitute asylum seeker under legislation which requires the provider to ignore any preference of the asylum seeker as to where he resides capable of being regarded as residence (in that district) of the asylum seeker’s own choice? That in the last analysis is the issue raised on these appeals and, as will appear, its resolution is not as obvious as it might seem. In thus formulating it I have sought to paraphrase and interrelate the two most central provisions of the governing legislation, respectively s97(2)(a) of the Immigration and Asylum Act 1999 and s199(1)(a) of the Housing Act 1996. To see more precisely how the issue arises it is convenient at once to explain (and where necessary set out) the relevant parts of both Acts.

A person who satisfies a local housing authority that he is homeless, eligible for assistance, in priority need, and not homeless intentionally, is entitled under s193 of the 1996 Act to accommodation. The local housing authority’s duty under s193 is to “secure that accommodation is available for occupation by the applicant” for up to two years. Pending a decision upon whether that duty is owed (and, if so, by which authority) the authority are under a corresponding interim duty under s188 (and, in cases of possible referral to another authority, under s200(1)).

Section 208(1) provides that:

“So far as reasonably practicable a local housing authority shall in discharging their housing functions under this Part [Part VII which includes sections 188, 193 and 200] secure that accommodation is available for the occupation of the applicant in their district.”

An authority which would otherwise be liable to provide accommodation under s193 is in certain circumstances entitled to refer the case to another local housing authority for them to discharge the duty. Section 198(2) of the 1996 Act provides:

“The conditions for referral of the case to another authority are met if-

(a)

neither the applicant nor any person who might reasonably be expected to reside with him has a local connection with the district of the authority to whom his application was made,

(b)

the applicant or a person who might reasonably be expected to reside with him has a local connection with the district of that other authority and,

(c)

neither the applicant nor any person who might reasonably be expected to reside with him will run the risk of domestic violence in that other district.”

The critical question arising on these appeals is whether the appellants have a local connection with the district of “that other authority” - whether, in other words, condition (b) is satisfied. For convenience I shall henceforth refer to “that other authority” as authority B and the authority to whom the application was made as authority A.

Section 199 of the 1996 Act is cross-headed “Local connection” and lies at the heart of these appeals. I must set it out almost in full:

“(1)

A person has a local connection with the district of a local housing authority if he has a connection with it-

(a)

because he is, or in the past was, normally resident there, and that residence is or was of his own choice,

(b)

because he is employed there,

(c)

because of family associations, or

(d)

because of special circumstances.

(2)

A person is not employed in a district if he is serving in the regular armed forces of the Crown.

(3)

Residence in a district is not of a person's own choice if-

(a)

he becomes resident there because he, or a person who might reasonably be expected to reside with him, is serving in the regular armed forces of the Crown, or

(b)

he, or a person who might reasonably be expected to reside with him, becomes resident there because he is detained under the authority of an Act of Parliament.

(4)

… [This defines “regular armed forces of the Crown”]

(5)

The Secretary of State may by order specify other circumstances in which-

(a)

a person is not to be treated as employed in a district, or

(b)

residence in a district is not to be treated as of a person's own choice.”

Part VI of the 1999 Act took effect in April 2000. It excludes those who are subject to immigration control from access to general community care services, accommodation and benefits and provides in its place a new system of support administered by the National Asylum Support Service (“NASS”), part of the Immigration and Nationality Directorate (“IND”), under the control of the Secretary of State for the Home Department. Section 95(1) of the 1999 Act allows the Secretary of State to provide support for asylum seekers or their dependents who appear to him to be destitute (or imminently likely to become so). Destitution is defined by s95(3):

“(3)

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.”

Section 96 allows support to be provided under s95 inter alia “(a) by providing accommodation appearing to the Secretary of State to be adequate for the needs of the supported person and his dependents (if any)”.

Section 97 provides:

“(1)

When exercising his power under section 95 to provide accommodation, the Secretary of State must have regard to-

(a)

the fact that the accommodation is to be temporary pending determination of the asylum-seeker's claim;

(b)

the desirability, in general, of providing accommodation in areas in which there is a ready supply of accommodation; and

(c)

…

(2)

But he may not have regard to-

(a)

any preference that the supported person or his dependants (if any) may have as to the locality in which the accommodation is to be provided; or

(b)

…”

Those, then, are the principal provisions of the primary legislation giving rise to the issue now before us.

Before turning to the facts it is convenient next to indicate something of the background to the NASS dispersal scheme and of its operation in practice. Although this material is before us in the greatest detail, I propose to summarise it very briefly.

In July 1998, at a time when asylum seekers were being supported by the Benefits Agency and by local authorities, the government issued a White Paper entitled “Fairer, Faster, Firmer - a Modern Approach to Immigration and Asylum” on the introduction of a new national support system for asylum seekers. It was stated in paragraph 8.21 of the White Paper that: “[s]upport … will be available only where it is clearly necessary while an application is awaiting decision or appeal. Accommodation, in such circumstances, will be provided on a no choice basis, with no cash payment for this purpose being made to the asylum seeker”. Paragraph 8.22 of the White Paper stated that “Asylum seekers would be expected to take what was available, and would not be able to pick and choose where they were accommodated, but where possible, placements would take account of the value of linking to existing communities and the support of voluntary and community groups”.

Consistently with the White Paper and with the provisions of the 1999 Act, IND issued a number of policy bulletins on the operation of the dispersal system. These bulletins, and the annexed draft letters to be sent to asylum seekers applying under the scheme, emphasise that, although account is taken of the person’s individual circumstances, accommodation is allocated on a no choice basis and those who fail to travel as instructed are liable to lose all support.

Turning to the facts of these appeals it is convenient first to summarise the position in a very few sentences. Both appellants were asylum seekers allocated by NASS to accommodation in Glasgow. As asylum seekers they were not eligible for assistance under the 1996 Act. Both, however, later became eligible, Mr Al-Ameri, an Iraqi, on being granted exceptional leave to remain, Mrs Osmani, an Afghani, on obtaining indefinite leave to remain as a refugee. Their entitlement to accommodation under the NASS scheme thereupon ended. Both came south to London and sought accommodation from the respondent authorities under the 1996 Act, Mr Al-Ameri from the Royal Borough of Kensington and Chelsea (“K&C”), Mrs Osmani from the London Borough of Harrow (“LBH”). Both were found to satisfy the requirements for accommodation under s193. In each case, however, the respondent authority considered that the conditions were met for referring the case to Glasgow City Council (“GCC”) and, pursuant to s198(1), notified GCC of their opinion. Both appellants - pursuant to s202(1)(c) - requested a review of the respondents’ decision to refer but in each case the respective authority confirmed their decision. Both appellants then appealed to the County Court on a point of law pursuant to s204 of the 1996 Act. On each of the appeals the judge held that the respective respondent authority was entitled to be satisfied that the appellant had a local connection with the district of GCC because each “in the past was normally resident there, and that residence … was of his own choice” within the meaning of s199(1)(a) of the 1996 Act. Both appellants now appeal to this court with the permission of Potter LJ who characterised the point as one of public importance. I myself subsequently granted GCC leave to intervene in the appeals.

The question of law identified by all counsel appearing before us (and, consistent I think, with my own formulation at the outset) is this:

“Whether accommodation occupied pursuant to the NASS dispersal scheme can give rise to local connection under s199(1)(a).”

The appellants, supported by GCC as intervener, submit that it cannot. The respondents contend that it can and that whether or not it does is always a question of fact.

Although, as it seems to me, no further exposition of the facts of these cases is strictly necessary for the resolution of the issue now arising, convention dictates that some further details at least should be provided.

Mr Al-Ameri is an Iraqi national who arrived in the UK with his wife and two young daughters on 10 May 2001, immediately claiming asylum. He was provided with emergency accommodation in a local reception area and told by the Refugee Arrivals Project:

“You do not have the right to choose where you live unless you have friends or relatives who are able to help you. … All asylum seekers receiving assistance from the government will be distributed throughout the country on a non voluntary basis and only in exceptional circumstances will anyone be allowed to stay in London …”

On 15 May 2001 he received a letter from IND stating that arrangements had been made for him to travel by group dispersal on 22 May 2001 to Glasgow. The letter required him to “note that accommodation is provided on a no-choice basis” and that if he failed to accept it he should not expect an alternative to be offered; it warned him that a failure to travel when required would breach the terms of his agreement with NASS with the result that all support could be discontinued. Mr Al-Ameri and his family duly travelled to Glasgow and remained there until 6 March 2002 when GCC required him to leave. Meantime, although his asylum claim was refused on 26 June 2001, he was granted exceptional leave to remain and in February 2002 allowed to work.

On 8 March 2002 Mr Al-Ameri applied to K&C for accommodation as a homeless person. On 25 March 2002 the respondent borough stated that although they were satisfied that the conditions for homelessness assistance were met it was their opinion that Mr Al-Ameri had no local connection with them but rather had such a connection with GCC so that his case would be referred to them. On review K&C confirmed their decision by letter dated 22 May 2002. (Although the 1996 Act does not apply in Scotland, equivalent provisions apply by virtue of the Housing (Scotland) Act 1987 as amended - see particularly s42.)

Mr Al-Ameri’s appeal against that review decision was heard by His Honour Judge Reynolds in the Central London County Court on 29 August 2002. Judge Reynolds, by order made pursuant to s204(3) of the 1996 Act, confirmed K&C’s decision. His admirably clear judgment concludes with regard to the issue now arising:

“37

Although it is an issue I have not found easy I rule that the accommodation in Glasgow was a residence of choice and that the local authority correctly applied Mohamed in this case.”

Mohamed -v- London Borough of Hammersmith and Fulham [2002] 1 AC 547 is a comparatively recent decision of the House of Lords around which much of the argument in the present case has turned. I shall return to it shortly.

Mrs Osmani is an Afghani national who arrived in the UK on 7 December 2000 together with her two sons, her parents, her brother, his wife and their son. All immediately sought asylum on entry. Having been provided with emergency accommodation Mrs Osmani’s application for accommodation and subsistence was approved by NASS on 15 February 2001, the accommodation being by way of a licence to occupy a self contained flat provided by GCC in Glasgow. Her parents were granted a similar licence to occupy another flat in the same block. Mrs Osmani received a similar letter to that sent to Mr Al-Ameri (see paragraph 18 above).

On 3 May 2001 Mrs Osmani was granted indefinite leave to remain as a refugee and was informed that she would have to leave her NASS accommodation. Having heard nothing further about this, in the event she remained in Glasgow until 2 September 2001 when she moved to London. For the first night she stayed with her brother who by then had been given exceptional leave to remain and, on a homelessness application to LBH, had been granted an assured shorthold tenancy in Harrow. On 3 September 2001 she herself made a homelessness application to LBH. Initially LBH decided that she was not homeless because she could reside with her brother. That, however, proved impossible and on 19 October 2001, pursuant to s188, they provided Mrs Osmani and her children with temporary accommodation in the London Borough of Hillingdon.

On 5 November 2001 LBH decided that Mrs Osmani was entitled to accommodation under s193 of the 1996 Act but proposed to refer her to GCC on the grounds that her only local connection was with them. LBH upheld that decision on review on 8 January 2002.

Mrs Osmani’s appeal was heard by Her Honour Judge Dangor in the Willesden County Court. Three grounds of appeal were advanced: first, that the appellant had a local connection, through her brother, with LBH; secondly, that she did not have a local connection with Glasgow; thirdly, that LBH ought in any event not to exercise their s198 discretion to refer the case to GCC. On the first day of the hearing (which came to extend over four days in June, July and September 2002), it was agreed that the second ground should be tried by way of preliminary issue. In her ruling on that preliminary issue on 18 September 2002, Judge Dangor dismissed that ground of appeal. She did so on two grounds: first and principally by reference to Mohamed; secondly and additionally, however, because she held that, on a proper construction of s199 of the 1996 Act, only the Secretary of State may prescribe further categories of applicants who are not to be regarded as having exercised a choice as to residence.

Against that factual background I come at once to Mohamed, to my mind the only really helpful authority on the issue now confronting us. Before turning to Lord Slynn’s speech in the House of Lords (his being the only reasoned speech), it is useful first to turn to Henry LJ’s judgment (with which Potter LJ agreed) in the Court of Appeal. Mohamed’s case was at that stage considered together with another appeal raising the same issues, Ealing LBC -v- Surdonja, and it is under the latter name that the Court of Appeal’s decision is reported at [2001] QB 97.

In each case (Mohamed and Surdonja) the local housing authority to whom the homelessness application was made (authority A) were seeking to refer the applicant’s case to another local housing authority (authority B) on the grounds that the applicant had no local connection with them but did have a local connection with authority B under s199(1)(a) of the 1996 Act. In each case authority A had provided the applicant with accommodation in their own district pursuant to their interim duty under s188. The two central issues arising on each appeal were, first, what is the material date for determining on review whether the applicant has a local connection, and, secondly, can occupation by the applicant of interim accommodation pending that determination constitute “normal residence of [his] own choice” for the purposes of s199(1)(a)?

The Court of Appeal’s answers to those questions, in each case upheld by the House of Lords, were, first, the relevant date is the date of the statutory review of authority A’s decision, and, secondly, yes, interim accommodation can constitute normal residence of the applicant’s own choice. It follows, of course, that, authority A, by providing an applicant with interim accommodation within its own district may by the date of review have lost the right to refer the applicant to authority B.

Judge Dangor’s conclusion in Mrs Osmani’s appeal that only the Secretary of State may prescribe further categories of applicants who are to be regarded as not having exercised a choice as to residence was, it appears, founded on the following two paragraphs in Henry LJ’s judgment:

“11)

The requirement that to operate as a qualifying cause, normal residence must be ‘of his own choice’ does not exclude all involuntary reasons for non-qualifying residence. Subsection (3) identifies two disqualifying causes: service in the armed forces, or detention under Act of Parliament (eg prison). Subsection (5) gives the Secretary of State power to specify ‘... other circumstances in which: ... (b) residence in a district is not to be treated as of a person’s own choice’ and he has not so specified.

…

39)

This [the question whether occupation by the applicant of interim accommodation pending decision and review constitutes normal residence ‘of his own choice’] seems to me to be a question of statutory construction. As set out in paragraph 11 of this judgment, it is clear that section 199(3) gives a restricted statutory meaning to the phrase ‘of his own choice’, that meaning can only be extended by the Secretary of State, and he has not extended it. Therefore, even if the applicants did not occupy the interim accommodation out of choice (an existential concept not explored) their occupation would be of their own choice for the purposes of section 199(3).”

I shall return later to those paragraphs of Henry LJ’s judgment and to Judge Dangor’s conclusion based upon them. For the moment it is sufficient to note that in the end, as I understood their arguments, neither respondent authority sought to maintain that approach. Rather they recognise that there may be other categories of case where an applicant’s residence is not to be regarded as being of his “own choice”.

Of some relevance to the principal issue now before us are the following further paragraphs of Henry LJ’s judgment:

“45

… I accept that there was a redistributive ‘spreading the load between LHAs’ purpose to the Act. But that purpose was to be achieved not by any merit-free reallocation formula, but by rewarding applicants who had a local connection with the borough of their choice, where they applied. It was to be achieved by providing that the receiving LHA was not entitled to refer the statutory responsibility elsewhere when the applicant had a local connection with them. That is a statutory purpose which must equally be taken into account. The statute’s redistributive mechanisms are certainly no more significant when construing the Act than the reward the Act gives to those who have, by satisfaction of the local connection rules, become an active part of the community. That seems to me to be as important a purpose as a straight redistributive purpose.

46

Second, recognising good (or more significantly, involved) citizenship is a worthy legislative intention, and the incentive to applicants to establish a local connection with the LHA to which they apply more than compensates, in the balance sheet of public good, for the fact that other applicants whose section 188 housing is outside the district are not so well placed. Insofar as it may seem unfair in that such persons do not have the same opportunity as those whose interim housing is within the borough, that is not a reason for denying the latter the benefit of a local connection if that is what they have created by the time of the review.”

To these I shall return.

I come now to that part of Lord Slynn’s speech in the House of Lords which dealt with the second issue raised in the Court of Appeal: whether the applicant’s occupation of interim accommodation pending the relevant decision can constitute “normal residence of [his] own choice” for the purposes of s199(1)(a). It is helpful to set out paragraphs 17 - 22 of the speech in their entirety:

“17.

Thus on this appeal it is accepted that the respondent was homeless, was eligible for assistance, had a privileged need and was not intentionally homeless. The question is accordingly whether it can be said that he had no local connection with the district of the appellant authority and in that regard the principal question is whether it can be said that he is, or in the past was, normally resident in the district of that authority. The authority's principal argument is that the occupation of interim accommodation pending a decision of his application under the Act is not (ie cannot be) ‘normal residence’ for the purposes of section 199(1)(a) of the Act. The respondent has lost his normal residence and has asked for and was given only temporary shelter until replacement accommodation is provided. At the relevant time accordingly he had no normal residence so that he could not establish a local connection on the ground of residence. For that purpose ‘normally resident’ is to be given the same meaning as ordinarily resident. In R v Barnet London Borough Council, Ex p Shah [1983] 2 AC 309, 343 which was concerned with ordinary residence it was said that that phrase referred to:

‘a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration’.

18.

It is clear that words like ordinary residence and normal residence may take their precise meaning from the context of the legislation in which they appear but it seems to me that the prima facie meaning of normal residence is a place where at the relevant time the person in fact resides. That therefore is the question to be asked and it is not appropriate to consider whether in a general or abstract sense such a place would be considered an ordinary or normal residence. So long as that place where he eats and sleeps is voluntarily accepted by him, the reason why he is there rather than somewhere else does not prevent that place from being his normal residence. He may not like it, he may prefer some other place, but that place is for the relevant time the place where he normally resides. If a person, having no other accommodation, takes his few belongings and moves into a barn for a period to work on a farm that is where during that period he is normally resident, however much he might prefer some more permanent or better accommodation. In a sense it is "shelter" but it is also where he resides. Where he is given interim accommodation by a local housing authority even more clearly is that the place where for the time being he is normally resident. The fact that it is provided subject to statutory duty does not, contrary to the appellant authority's argument, prevent it from being such.

19.

Although the point is not conclusive counsel for the respondent are entitled as they do to point to the fact that Parliament has specifically provided in section 199 that residence due to service in the armed forces or through detention under statutory powers is not ‘of choice’ and the Secretary of State may specify other circumstances in which residence in a district is not to be treated as of a person's own choice, but nothing has been done to exclude residence under the homelessness provisions with which this appeal is concerned as not being of a person's own choice. If it had been intended to exclude such accommodation it would have been easy to have done so in the section or by the exercise of powers by the Secretary of State under section 119(5).

20.

The appellant authority contends that interim accommodation cannot lead to the creation of a local connection attributable to normal residence even ‘if a person is in interim accommodation for an extensive period, eg years’ though it recognises that local connection through other factors specified (eg special circumstances) can arise during the occupation of interim accommodation. The authority says that to allow such interim accommodation to count as normal residence defeats the purpose intended by the Act. Such accommodation was not intended to give an applicant the chance to build up a local connection; to take such interim accommodation into account benefits those whose cases demand long inquiry to the disadvantage of those whose cases can be dealt with quickly.

21.

I agree with Henry LJ [2001] QB 97, 109, para 45 that although there is a re-distributive purpose to the Act, it has to be read with the other statutory purpose of providing for people to stay in a borough with which they have established a local connection and that there is no overriding reason or principle why interim accommodation should not count as normal residence for that purpose.

22.

In R v Eastleigh Borough Council, Ex p Betts [1983] 2 AC 613, 628 Lord Brightman stressed that ‘the real exercise will be to decide whether the normal residence has been such as to establish a subsisting local connection’. In my opinion the occupation of interim accommodation can be taken into account in deciding whether such a local connection exists.”

Both the earlier House of Lords authorities there referred to, R -v- Barnet LBC ex parte Shah [1983] 2 AC 309 and R -v- Eastleigh Borough Council ex parte Betts [1983] 2 AC 613, were extensively discussed before us. It is unnecessary to say much more about either of them than Lord Slynn said. Shah was concerned with the meaning of “ordinary residence” in the context of a statutory duty upon local education authorities to “bestow awards on persons who … are ordinarily resident in [their] area”. Betts involved a judicial review challenge to a referral by authority A to authority B (under the Housing (Homeless Persons) Act 1977, the antecedent legislation, via Part III of the Housing Act 1985, to the 1996 Act), the applicant unsuccessfully challenging authority A’s opinion that his five months residence in its district did not give rise to a local connection with it. That opinion had been based on a guideline laid down in the 1977 Agreement on Procedures for Referrals of the Homeless entered into by the majority of housing authorities to govern arrangements between them for sharing the burden of housing the homeless, a guideline which provided that “residence up to six months … shall be disregarded for the purpose of defining ‘normal residence’”. The opinion was held to be lawfully arrived at.

At the core of the respondents’ case before us is the submission that, by the same token that the occupation of interim accommodation provided by authority A in its own district is capable of being regarded as normal residence of the applicant’s own choice in that district, so too should the occupation of accommodation provided by authority B pursuant to the NASS scheme be capable of being regarded as normal residence of the applicant’s own choice in the district of authority B. To my mind, however, there is a critical distinction between the two situations: on any view of the facts in Mohamed (and Surdonja) the applicants there were resident at the material time in the locality of their own choice: they were occupying interim accommodation within the district of authority A, the authority they wanted to house them. The issue in those cases was whether that interim accommodation could be regarded as “normal residence”. The question arising on the present appeal, therefore, simply never arose. True it is that in paragraph 18 of his speech in Mohamed Lord Slynn held that a person’s accommodation will be his normal residence even though “he may prefer some other place” and “might prefer some more permanent or better accommodation”. In my judgment, however, whilst that says much about what is meant in this legislation by “normal residence”, it casts no light on the further pre-condition to be satisfied before establishing the possibility of a local connection under paragraph (a) of s199(1), namely that “that residence is or was of his own choice”.

Let me at this stage deal with the appellants’ argument that some degree of voluntariness is already implicit in the concept of normal residence so that the concept of “own choice”, a separate and further element of this ground of local connection, introduced by a comma and the word “and” at the end of sub-paragraph (a), must necessarily connote some significant further degree of volition. The argument, of course, builds upon what Lord Scarman said in Shah (set out in paragraph 17 of Lord Slynn’s speech in Mohamed - see paragraph 32 above) and Lord Slynn’s adoption in paragraph 18 of the word “voluntary” when specifically addressing the meaning of “normal residence” in the 1996 Act. The argument cannot, however, be taken too far. After all, as the respondents point out, it seems implicit in s199(3)(b) that for the purposes of this legislation a prisoner is to be regarded as normally resident in the district of his prison; he is only excluded from having a local connection with that district on the basis that his residence there is not of his own choice.

It is convenient at this stage to return, as I said I would, to those paragraphs in Henry LJ’s judgment in Surdonja (set out in paragraph 29 above) which deal with deemed lack of choice. As already indicated, neither respondent now seeks to support the view that only those described in s199(3) (or others specified by the Secretary of State were he to exercise his s199(5) power), assuming them to be normally resident in a district, are nevertheless to be regarded as not so resident of their own choice. Another category the respondents accept may be regarded as normally resident but not of their own choice is that described by Mr Carnwath (as he then was) in his 1978 commentary upon the 1977 Act:

“A present or past residence in the area will constitute a local connection, but only if it was by choice. Apart from the special cases dealt with … (servicemen and detainees) this formula would exclude the case of a person who only lived in an area as a child with his parents. That would not be ‘of choice’.”

Further excluded cases are suggested in the current local authorities agreement annexed to the Secretary of State’s Code of Guidance issued in July 2002:

“The Local Authority Associations recommend that the following circumstances should also be considered as exceptions for the purposes of determining a local connection: … time spent in hospital; … time spent in an institution in which households are accepted only for a limited period (eg mother and baby homes, refuges, rehabilitation centres).”

All that the respondents now say with regard to subsections (3) and (5) of s199 is that some account at least should be taken of the Secretary of State’s decision not to specify residence in a district under the NASS scheme as a further excluded category - essentially the point accepted by Lord Slynn in paragraph 19 of his speech in Mohamed.

Let me return, then, to consideration of just what is involved in the concept of choice in s199(1)(a). Mr Drabble QC for the Intervener submits that the minimum requirement to be satisfied before normal residence in a district can be said to be of the occupant’s own choice is that the occupant is not there at someone else’s dictation. Such an approach, he points out, is in fact more stringent than that adopted in the current local authorities agreement: ordinarily one has a measure of choice as to which hospital or refuge to attend. Asylum seekers under the NASS scheme, Mr Drabble submits, have been dispersed to the district where they come to reside not of their own choice but at the Secretary of State’s direction and upon his choice, just as soldiers serve in garrison towns, convicts in prisons and patients reside in mental hospitals not of their choosing but as directed by the relevant authorities. That, runs the argument, is the relevant analogy here; it is not with the person whose choice of residence is constrained by economic reality: someone undertaking work on a farm (see paragraph 18 of Lord Slynn’s speech) or, say, someone who moves to a different district because his employment depends upon it.

For my part I find this argument compelling. No doubt prisoners and soldiers have even less choice as to where they are required to reside than asylum seekers under the NASS scheme. Prisoners, even those kept in open prisons, will be subject to criminal sanctions if they abscond as too will members of the armed forces who desert. But the severity of the sanctions attending an asylum seeker’s failure to accept the NASS accommodation to which he is directed should not be under-estimated either. He is, by definition, destitute. He risks losing not only all prospect of accommodation but also the prospect of financial support to meet his other essential living needs. Indeed, it goes further than this: it is a term of the asylum seeker’s temporary admission to the UK that he resides where directed or otherwise notifies IND of his address. If in fact homeless, an asylum seeker is at serious risk of detention until his claim is determined.

The respondents argue that choice includes Hobson’s choice: the question raised is simply whether or not the person’s will has been overborne. Even accepting, as they do, that the options facing an asylum seeker are between going where he is directed under the NASS dispersal scheme and a life of destitution and possible detention, their submission is that his decision to travel is indeed a choice.

The respondents further argue that in the allocation of accommodation there is no real difference between the factors to be taken into account in the decision making process whether the decision is being taken under the NASS scheme or under the 1996 Act. They point out that both the s188 interim duty and the s193 full duty may be satisfied by housing the applicant out of authority A’s district. As Lord Williams of Mostyn said in the House of Lords when moving the second reading of the 1999 Act:

“Accommodation will be offered to asylum seekers on a no-choice basis. This is no different from what can happen in respect of UK residents who present themselves as homeless, usually because accommodation is more readily available in places outside London and the south-east.”

In this connection the respondents further refer us to the Homelessness (Asylum-Seekers) (Interim Period) (England) Order 1999 which modifies Part VII of the 1996 Act for those asylum seekers whose asylum claims were made before April 2000 and who, under the transitional provisions of the 1999 Act, continue to be cared for under pre-existing arrangements rather than under the NASS scheme. Paragraph 3 of the 1999 Order amends s198 of the 1996 Act with regard to these asylum seekers by introducing a provision for the referral of their cases by agreement between authorities. By s198(4B) it is provided:

“When reaching the agreement referred to … the local housing authority to whom the application was made and the other authority need not have regard to-

(a)

any preference that the applicant, or any person who might reasonably be expected to reside with him, may have as to the locality in which the accommodation is to be secured; or

(b)

whether the applicant, or any person who might reasonably be expected to reside with him, has a local connection with the district of any local housing authority.”

None of these arguments do I find ultimately persuasive. I cannot accept that accommodation is to be regarded as in a locality of the occupant’s own choice simply because his will is not overborne by forces even stronger than the fear of the consequences of declining an offer of accommodation under the NASS scheme. Nor do I accept that the position of NASS asylum seekers is the same as that of UK residents eligible for accommodation under the homelessness legislation. In the first place the housing authority are obliged by s208 to secure accommodation for the applicant in their own district if that is reasonably practicable and, even supposing it is not, the authority are likely to have regard to any preferences he may have; certainly they are not expressly forbidden by Parliament from doing so as is the position under s97(2)(a) of the 1999 Act. Nor are they required to have regard to the fact that the accommodation is only temporary or to the desirability of sending the applicant where there is a ready supply of accommodation as s97(1) of the 1999 Act requires. Secondly, unlike the NASS asylum seeker, the homeless applicant is not shut out from all other sources of benefit and relief.

As for the pre-April 2000 asylum seeker who, pursuant to the 1999 Order, may become subject to an agreement between local authorities that, irrespective of any preference of his own, he may be referred by authority A to authority B, it is unnecessary to decide whether, upon such a referral, his residence in authority B’s locality is properly to be regarded as being of his own choice. Similarly it is unnecessary to resolve another doubt raised by the decision in Mohamed: the question whether eligible homeless applicants, temporarily housed by authority A in authority B’s district (because it was impracticable to accommodate them in authority A’s own district) could, after six months of such residence, be referred by authority A to authority B on the basis that they had throughout that time been residing there of their own choice. For present purposes I say no more than that to my mind this by no means necessarily follows from Mohamed. After all, in paragraph 21 of his speech, Lord Slynn agreed with what Henry LJ had said in paragraph 45 of his judgment in Surdonja (see paragraph 31 above), namely that one of the purposes of the 1996 Act is to “reward … those who have, by satisfaction of the local connection rules, become an active part of the community”. That theme was continued in paragraph 46 of Henry LJ’s judgment. If applicants are housed under s188 not inside but outside authority A’s own district, there is no question of “rewarding” them by contending, contrary to their wishes, that they have an out of borough local connection. Even more obviously is that so in the case of the present appellants.

The respondents advance one further argument which I must deal with before concluding this judgment, an argument based on the consequences of accepting the appellants’ contention that residence in accommodation allocated under the NASS scheme cannot be residence of the occupant’s own choice. One consequence, of course, is that, in cases like the present, the applicant, once he becomes eligible for accommodation as a homeless person, is entitled to be housed by whatever authority he chooses to apply to, and, indeed, housed within their own district assuming this is reasonably practicable. For my part I have no difficulty in accepting this consequence. The 1999 Act and the White Paper before it are silent as to what was to happen in the case of asylum seekers who eventually achieve refugee status and thereby become eligible for housing on a par with the indigenous population. But why at that stage should they be penalised for having had to accept dispersal while their asylum claim was established? Why, indeed, should the local housing authority which accommodated them under the NASS dispersal scheme find themselves still obliged to provide housing once their responsibility under the NASS scheme has ended, and provide it moreover not only against their will but against the asylum seeker’s will too? In short, the asylum seeker granted refugee status seems to me in a similar position to, say, a soldier who, after ten years in Aldershot, completes his military service and becomes homeless: he can apply for accommodation to whichever authority he chooses.

The second consequence of accepting the appellants’ case is that they themselves cannot assert a local connection based on residence during their time as asylum seekers. Quite why they should want to is a little difficult to understand. If, on achieving refugee status, they apply to the authority to whose district they were dispersed, that authority would in any event be obliged to house them unless by chance one of the s199(1) grounds exist which enable them to refer the applicant to another authority - unlikely in the case of most asylum seekers. Take the present appellants. Had they chosen to apply to GCC, that authority, as it accepts, would have had to house them, irrespective of whether they could establish any local connection with Glasgow on any of the four statutory grounds. True it is that Mrs Osmani is herself asserting as against LBH a local connection with its district “because of family associations” through her brother’s residence there. Had she wished to remain in Glasgow, however, she would plainly not have done so and in those circumstances it cannot be thought that GCC themselves would have sought to rely on this relationship. Note, indeed, what the current local authorities agreement has to say on the point:

“Family associations normally arise when an applicant or a member of the household has parents, adult children or brothers or sisters who have been resident in the area for a period of at least five years at the date of application and the applicant indicates a wish to be near them. … [A] referral should not be made to another local authority on the grounds of family associations if the applicant objects to those grounds.”

That, indeed, is a good illustration, consistent to my mind with the approach adopted in Surdonja and Mohamed, of regard being had to the applicant’s own wishes when determining, pursuant to the approach required by Betts, whether indeed a local connection exists and, therefore, which authority is under an obligation to provide him with housing.

Were it, however, necessary in any particular case for the asylum seeker himself, once granted refugee status, to assert a local connection with the district where he had resided under the NASS dispersal scheme, I have no doubt that he could do so by reference to the “special circumstances” ground - s199(1)(d). Obviously he could not rely for this purpose upon his residence as such. Insofar, however, as through such residence he had developed community ties and established other connections within the district, for example by putting his children into school there, I cannot see why these should not avail him.

I recorded in paragraph 15 above the respondents’ contention that whether or not NASS accommodation gives rise to local connection under s199(1)(a) is in every case a question of fact. Mr Underwood QC submitted that it would depend not merely on the length of time spent in the district but upon the extent to which, for example, the applicant had become integrated into the local community. For my part I have some difficulty with this approach. In the first place it seems to me to sit uneasily with the respondents’ central contention which is that Hobson’s choice is nonetheless a choice. Secondly, however, it would require in every one of these NASS cases a detailed exploration of the facts. Better, to my mind, that a clear position be established . I would hold that residence in NASS accommodation is never to be regarded as residence of the applicant’s own choice.

Returning to the question I posed at the outset of this judgment, if the provider of accommodation cannot even pay regard to the applicant’s preference as to its locality, it cannot, in my judgment, be right then to characterise residence in that locality as being of the applicant’s own choice That is the bottom line. I would allow these appeals.

I find myself driven to a view of this appeal different from that which commends itself to my Lords. In explaining why that is, I gratefully adopt the account of the case, and the notations, to be found in the judgment of Simon Brown LJ.

At least to me, it only became clear at a comparatively advanced stage of the appeal that the issue, and the only issue, that we are called on to decide (thought to require the attention of nine counsel, all remunerated at public expense), is whether a person occupying accommodation provided under the NASS scheme can ever be normally resident, for the purposes of s199(1)(a) of the 1996 Act, in the district of the local housing authority in which that accommodation is situated; or, to state the reverse of that question, whether (as the appellants contend) it is possible for a person occupying such accommodation to have or develop a local connection with that district on the basis of s199(1)(a) of that Act.

That issue has to be seen in the context of the guidance given by Lord Brightman, with the concurrence of the rest of the House, in R v Eastleigh BCex p Betts [1983] 2 AC 613 at p 627A-E. Although the underlying statutory structure has changed somewhat since 1983, this court specifically held in Ealing LBC v Surdonja [2001] QB 97 at p 107[12] that Lord Brightman’s analysis remains relevant to any investigation in this field. Lord Brightman said that in construing the predecessor section to s199 the fundamental question was not, as this court had thought, whether the applicant was normally resident in the district: the fundamental question was the existence of a local connection. That means much more than just residence:

“[Local connection] must be built up and established; by a period of residence; or by a period of employment; or by family associations which have endured in the area; or by other special circumstances which spell out a local connection in real terms”: [1983] 2 AC at p 627E.

Lord Brightman’s formulation underlines that the issue of local connection is not at large. Although local connection is different from the four factors set out in s199(1), it has to be established, and can only be established, on the basis of one (or more) of those factors.

In the case of a displaced or socially disadvantaged person, whether an asylum seeker or otherwise, the most likely basis on which a local connection will be asserted will be that of residence. The appellants’ argument, accepted by my Lord in §50 of his judgment, is that residence under a NASS scheme, however long it endures, and whatever else the asylum seeker does whilst in the allocated district, cannot be the basis on which the asylum seeker can establish a local connection. Whatever his actual circumstances, he cannot even start to establish a local connection unless he can demonstrate one of the other bases set out in s199 (1) (b)-(d).

That is a serious conclusion, because it means that once persons emerge from the NASS scheme they are able to present themselves to any local authority that they like under s193(1) of the 1996 Act, with that local authority being effectively obliged to accommodate them irrespective of how long they have been living in another district, and irrespective of how they have become integrated into the life of that other district, provided that that integration did not take the form of employment or family association. (I have not overlooked the further category of “special circumstances”, to which my Lord refers in §49 of his judgment; but a case based on special circumstances is presented in the Act as something different from a case based on “residence”, and I very much doubt whether it would be legitimate, in a case where the applicant was resident in accommodation in the normal sense of the word but disqualified by statute from relying on that residence, nonetheless to treat his case under a different sub-sub-section of s199). Thus, for instance, no account can be taken, as this court took account in Ealing BC v Surdonja [2001] QB 97 at p 108[45], of the fact that the applicant’s children attend school in the district: because that was seen by this court, and on the structure of the section had to be seen, as turning normal residence into local connection, and the NASS applicant does not have and cannot have that residence to start with. And a homeless person of United Kingdom origin who goes to another district unsuccessfully looking for work and resides there is potentially liable to be returned there under s198, when a NASS applicant would not be, because the person of United Kingdom origin does fall within the terms of s199(1)(a).

Four arguments were advanced as to why such results followed as a matter of statutory construction. They to some extent overlap, and I have not lost sight of the necessity urged by Mr Luba QC of standing back and looking at the statutory scheme in the round. It will however assist exposition first to set out the separate arguments:

The concept of “voluntariness” is extremely elusive. Its core meaning would seem to be that a physical movement (or a failure to move out of a particular situation when circumstances required such movement) cannot be said to have been voluntary if the subject did not (or even, probably, could not) direct his will to the movement or lack of movement in question. The concept was put thus, in general terms, by Lord Simon of Glaisdale in DPP (NI) v Lynch [1975] AC 653 at p689F:

“ ‘Volition’ I take to be synonymous with ‘will’ (i.e., the power of directing action by conscious choice); so that an ‘act’ is a voluntary physical movement, and an involuntary physical movement is not an ‘act’”

Closer to home, and more expansively, Lord Scarman said in respect of residence in Shah [1983] 2 AC 309 at p344:

“The residence must be voluntarily adopted. Enforced presence by reason of kidnapping or imprisonment, or a Robinson Crusoe existence on a desert island with no opportunity of escape may be so overwhelming a factor as to negative the will to be where one is.”

That would appear to be the limit of the element of voluntariness that is accepted in Shah and in the revenue case that it followed, IRC v Lysaght [1928] AC 234 at p243 per Viscount Sumner, to be a precondition to recognition of “residence”, viewed as a word with a normal meaning in the English language. Persons dispersed under the NASS scheme do not lack the “will” to be where they are in the sense posited by Lord Scarman, however much they may see being where they are as only an alternative to other and even less welcome fates. But, in any event, the issue of whether persons under the NASS scheme are “resident” in the place to which they are dispersed is, as Mr Underwood pointed out, concluded for the purposes of the 1996 Act by the assumptions on which Parliament legislated in s199(3). It is there taken as given that a person who is in a district because of service in the armed forces; and, even more strikingly, because he is imprisoned there; is “resident” in that district. That must follow a fortiori of a person in the district under the NASS scheme. And that latter conclusion is in accordance with the natural and ordinary meaning of “residence” that was stressed in Lysaght, and in particular by Lord Scarman in Shah [1983] 2 AC at p344D. I have no doubt that the ordinary citizen of Glasgow, if asked the question during the appellants’ occupation of NASS accommodation, would have said that they were resident in Glasgow; albeit subject to doubts as to whether they had chosen that residence: to which doubts I now turn.

This is the most formidable aspect of the appellants’ case, and that which is said to prevent their ever developing a local connection, on the basis of s199(1)(a), with the district of the local housing authority to which they were dispersed under the NASS scheme.

It will be convenient in discussing this issue to refer to the arrangements under the NASS scheme as an example of the type of residence that is said not to be residence of choice. We must, however, bear in mind that at this stage of the argument what is in issue is the true construction of the 1996 Act, which was passed several years before the NASS scheme came into being. Accordingly if, as the appellants contend, the NASS scheme cannot be brought within the terms of the 1996 Act, other housing arrangements that offer “choice” as attenuated or more attenuated than that available under the NASS scheme must equally fall outside the 1996 Act; and, by the same token, if the 1996 Act does embrace such housing arrangements, that is a strong pointer to its terms equally embracing the NASS scheme.

The salient features of the NASS scheme that are relied on in support of the argument that the scheme does not involve “choice” in the terms used in the 1996 Act are that only one offer of accommodation is made, on a take it or leave it basis; and that the result of refusing an NASS offer is that all support in respect of accommodation is withdrawn, and also, where presence at an identified address is seen by the authorities as necessary for processing the asylum claim, the asylum seeker might in an extreme case render himself liable to detention. The “choice” was therefore between accepting the NASS placement and, at best, uncertainty, at worst (and in many cases possibly very likely) destitution, or detention. It was powerfully argued that those alternatives were not ones of “choice” at all. A man does not make a choice, and certainly does not make his own choice, to go to Glasgow when he goes there at, and only at, the dictation of others: Glasgow is chosen for him by the Secretary of State. And one cannot make a choice between local housing authority districts when only one such district is on offer.

It has to be remembered that the appellants’ case is that occupation of accommodation under the NASS scheme can never constitute residence for the purposes of s199(1)(a): so, if my conclusion as to “residence” is correct, that point can only be made good by establishing that it is an impossible construction of the expression “of his own choice” to extend it to a case where a person accepts under the NASS scheme accommodation in a place where he does not want to be. This is not an easy point, not least because it depends to some extent on impression, but with some reluctance I am driven to conclude that the ordinary meaning of choice cannot be so limited.

The dilemma in which a person made an unwelcome offer under the NASS scheme finds himself is extremely unattractive. That, however, is because of the limited nature of the assistance that is available to asylum seekers. Because of those limits, his alternatives are to accept an offer of accommodation in a place where he does not want to be; and to remain where he is, with no accommodation at all. If he opts for the former alternative, he is, in any normal use of language, making a choice. For the language of choice to be impossible to apply, the alternative would have to be not just deeply unattractive, but impossible: which refusal of the offer cannot be said to be. As it was put in argument, Hobson’s Choice is still a choice; just as “Sophie’s Choice” was not a misnomer, agonising though the dilemma was in which the choice was made. And the choice is indeed the subject’s own choice. It is simply not right to say that it is made for him by someone else, however much the authorities arrange matters to push him in one direction rather than another.

Perhaps because he appreciated this difficulty with the normal meaning of the word “choice”, Mr Luba for the appellants argued that the statutory language was limited not so much by the nature of the act of choosing as by the nature of the alternatives between which the choice was made. As the argument is summarised in § 58(ii) above, the only choice that could qualify as a choice under s199 was a choice between various offers of accommodation. I cannot see any justification, either in the wording of the section or otherwise, for such a limitation to be read into its plain wording. The question posed by the statute is whether the fact of residence in the district in which he finds itself was of the applicant’s “own choice”. That would seem only to exclude the case where the applicant was residing in the district of a particular housing authority after exercising no choice at all. Much clearer wording would in my view be required before the precondition of choice could be said to be limited to choice between different accommodations, or between different districts. The choice presented to the asylum seeker is between going to the place offered by NASS and staying where he was when the offer was made. If, as I incline to think, it is not possible to say that acceptance of the place in those circumstances involves no choice at all, then there is no reason to disqualify that choice from fulfilling the statutory definition.

Moreover, if the choice had to be between different residences (and I can see arguments for saying that that would be a natural construction in a housing statute), it is not possible to understand why s199(3) assumes that in principle prisoners and soldiers are where they are out of choice. Mr Underwood disclaimed reliance on what appears to have been the view of Henry LJ, in Ealing BC v Surdonja [2001] 1 QB at p 107[39], that “of his own choice” in s199(1) has a restricted or special meaning, with the only cases that are excluded from “choice” being the cases specified in s199(3) and any others added to the list by the Secretary of State. However, the more general implications of s199(3) cannot be ignored. Parliament clearly thought that it was necessary to provide that residence in a district was not of the subject’s “own choice” when he was there because he was a prisoner or under military orders. That provision is only explicable if, either, it was thought necessary to meet an argument that a prisoner or soldier had chosen his residence when he chose to commit the crime or join the Army; or to meet an argument that in relation to the particular residence a prisoner or soldier had or might have the option of escaping or deserting. If, in the first case, Parliament thought that the residence was of choice, by the same token a choice was exercised by the asylum seeker when he decided to seek asylum. And in the second case the dilemma for the escaper or deserter is quite as difficult as that for the subject under the NASS scheme; but, apparently, his decision to stay where he is is still regarded as a choice, requiring specific exemption from the terms of s199(1)(a).

This parallel between the position of the asylum seeker under the NASS scheme and the soldier in barracks or the convict in prison indeed featured in the argument for the intervener, to which my Lord has referred in §39 of his judgment. They all find themselves where they are not of their own choosing but as directed by the relevant authorities. But lack of “choosing” here cannot mean lack of exercise of choice in the terms of s199(1), because if it did mean that in the case of the prisoner or convict s199(3) would beat the air. In that connexion, I note with respect the suggestion of Carnwath LJ in §86 of his judgment, that s199(3) may be intended merely to be illustrative of claimants who could not be regarded as exercising “choice”, or was inserted for the avoidance of doubt. While I of course accept that a provision may serve either of those purposes, I for my part would expect that purpose to be more clearly signalled than it is in s199(3).

I accordingly also find the parallel with prisoners and servicemen compelling, but I fear in a different direction from that which was urged by the intervener. If soldiers and convicts required special exemption from the concept of “choice” as used in the 1996 Act, then I cannot see how that concept can be said of its statutory meaning to exclude asylum seekers under the NASS scheme.

Nor can we entirely ignore Mohamed in this connexion. I quite agree with my Lord, in § 34 of his judgment, that in the House of Lords the issue now before us, of residence of the applicant’s own choice, never arose. That, however, was because, as Lord Slynn recorded, [2002] 1 AC at p547[16], the appeal proceeded on the basis of the finding of this court that interim residence could constitute residence of the applicant’s own choice, and no attempt was made by the very experienced advocates who appeared before the House to disturb that finding: even though, if the argument advanced before us is correct, it would have provided a complete answer to that part of the appeal without the need to descend into argument about “residence”. It would have provided that answer because the interim accommodation duty under s188 of the Housing Act 1996 that was under consideration in Mohamed, although it by the application of s208 requires the authority to accommodate applicants within their own area where practicable, as I understand it no more permits the applicant a choice of where he is to live than does the NASS scheme. True it is that the applicants in Mohamed itself did not complain about where they were allocated. That, however, was an adventitious piece of good fortune, not essential to or in any way guaranteed by the scheme. And it was the interim accommodation scheme that was under consideration in Mohamed.

I do not suggest that there is anything either in Mohamed or in Surdonja that by way of authority compels any particular decision in the present case. It is, however, striking that if the present appellants are right two schemes for the temporary housing of homeless people, neither of which obliges the preference of the applicant to be followed, will have been found to produce different outcomes when the terms of s199 are applied to them.

I for my part would conclude that all of these considerations point in the direction of “choice” having been regarded in s199 as a word of ordinary meaning, which extends to any exercise of will between two alternatives, however unpalatable one of those alternatives may be. On the true construction of the 1996 Act, therefore, a decision on the part of the appellants to go to Glasgow was the exercise of their own choice.

The final question in the appeal is whether Parliament intended, by introducing the NASS scheme in the special terms adopted in the 1999 Act, to take residence under that scheme out of the reach of s199 of the 1996 Act. It will be appreciated that the appellants are only obliged to go that far if I am correct in thinking that, as the words are employed in the 1996 Act, residence means residence and choice means choice. If those expressions as used in that Act are limited as the appellants urge, then there is no need on their part to go further and argue that the 1999 Act took the NASS scheme out of the 1996 Act in any event.

My Lord has set out, in §§11-12 of his judgment, the terms in which the accommodation element in the NASS scheme was presented to Parliament. They make grim reading for asylum seekers. Those limits on the asylum seeker’s freedom were underlined in s 97(2) of the 1999 Act by the Secretary of State being specifically forbidden, when exercising his power to provide accommodation, from having regard to

“any preference that the supported person or his dependants (if any) may have as to the locality in which the accommodation is to be provided”

The argument accordingly is that in introducing the scheme in these terms, Parliament must have been aware of the provisions and meaning of the 1996 Act. Even if, when construed on its own, the 1996 Act, employing the ordinary meaning of “choice”, encompassed the asylum seeker under the NASS scheme; nonetheless, in actually creating the NASS scheme in 1999 Parliament did so in terms that specifically excluded those allocated accommodation under it from the choice-related provisions of the 1996 Act.

Again, I recognise the force of this argument. Again, I regret that I cannot agree with it. In that regard, I respectfully agree with the view of Carnwath LJ, in §87 of his judgment, as to the difficulty of speculating as to what, if anything, was intended to be the relationship between the two statutes. For my own part, I would briefly add the following.

First, I am by no means certain that the actual language of the 1999 Act is inconsistent with, or can be taken to have modified in the present case, the construction that I have ventured to place on the 1996 Act. The “preference” of the asylum seeker cannot be taken into account: but, for reasons already explained, when he accepts accommodation that is not his preference, he is still exercising a choice. Indeed, to the extent that the point runs at all, it seems more likely that the draftsman, in speaking of preference rather than of choice, was avoiding a conflict between the provisions for the NASS scheme and the requirements of the 1996 Act.

Second, however, and in my view conclusively, if Parliament had wished to provide that residence under the NASS scheme did not qualify under s199(1)(a) it had a very simple means to hand whereby to put that beyond doubt, by adding by amendment of the 1996 Act another case to those already to be found in s199(3). In Mohamed [2002] 1 AC 547 at p 553[19] Lord Slynn of Hadley regarded it as significant that no steps had been taken to add residence under the homeless provisions to that list. I would, with respect, go further, and say that an argument that the 1999 Act’s intention was to take the NASS scheme out of the provisions of the 1996 Act must fail unless either the easily-available amendment was made to the 1996 Act, or extremely cogent language to that effect is to be found in the 1999 Act: and language of sufficient cogency is not to be found there.

This is a difficult case for the lawyers, but an even more difficult case for those who have to administer two schemes, each of them severely underfunded but each of them catering for elemental and pressing need: the provision of housing for the homeless, and the provision of the basic requirements of life for asylum seekers. And, it goes without saying, that the difficulty is many times more severe, indeed of a completely different order, for those who have the misfortune to be the subjects of those two types of social provision. I am conscious that the view that I have expressed in this judgment may be found unattractive. That, indeed, is a characterisation that I would apply to it myself. But that criticism flows from the intractable nature of the underlying social problem that the legislation under consideration addresses. All that the court can do is to give the language used by Parliament in addressing that dilemma its proper meaning according to the normal rules of construction. Applying that approach, I find myself driven to dismiss the appeals.

I agree entirely with the judgment of Simon Brown LJ. However, since the Court is divided on this question, I shall add some comments of my own.

The critical issue is whether the applicants’ residence in Glasgow was of “their own choice”. In answering that question, one needs to have in mind the purpose of the section. It is to identify the area (if any), within this country, with which a person has a local connection. It is not concerned with the form of accommodation; nor, relevantly to this case, with the choice whether to seek asylum in this country, or the choice whether to take any accommodation, rather than face destitution.

If one asks whether these claimants have “chosen” Glasgow, as opposed to some other area on the country, the answer seems to me clear. Under the NASS scheme the applicant has no choice. Even his preferences are specifically excluded from consideration. As the White Paper rightly said, under this scheme accommodation is provided “on a no-choice basis”.

That being as I see it the natural application of the section to these facts, the only arguments against it, are based, first, on the decision in Mohamed v Hammersmith and Fulham LBC [2002] 1 AC 547, and, secondly, such implication as may be drawn from s199(3). As to the former, I agree with Simon Brown LJ that the issue of “choice” under s199(1) did not arise, because the applicants had in fact been given interim accommodation in the boroughs of their choice. The question before the House was the interpretation of “normal residence”.

Section 199(3) is of more relevance, since it might be expected to throw some light on the legislature’s understanding of the expression “of his own choice”. Unfortunately, as so often in relation to questions of interpretation, it can be read both ways. One view, which attracted Henry LJ in Surdonja [2001] QB 97 (para 39), is that, by specifically excluding servicemen and prisoners, the legislature was giving “a restricted statutory meaning” to the words “of his own choice”. The fact that it was necessary to provide specifically for the exclusion of those categories, implies that otherwise they would have been within sub-section (1). The difficulty with this approach, in my view, is that it imputes to legislature a wholly unnatural meaning of the words “of his choice”, as applied at least to prisoners. In political language, one may talk of a prisoner having “chosen the time by doing the crime”; but even in that usage it can hardly be said that he chooses the area in which to serve his sentence.

The alternative, and to me preferable, view is that sub-section (3) was intended to underline and illustrate the categories of claimant who would not be regarded as exercising “a choice” for the purposes of sub-section (1), and to resolve possible doubt in particular cases, such as that of servicemen. Indeed, no-one before us argued that the categories in 199(3) are exclusive, nor that we were bound by Surdonja so to hold. One example, which attracted general agreement, was that of children, whose “normal residence” with their parents could not properly be said to be “of their own choice”. In my view, there is nothing in s199(3) which restricts the application of the ordinary meaning of the term “choice” in sub-section (1).

I do not find it helpful to speculate as to whether the draftsman of the 1999 Act had this issue in mind, or how he would have resolved it if he had. The 1996 Act was clearly before him, since he included detailed provisions to exclude asylum seekers from its operation (1999 Act, s117(4)). However, he made no express provision for what is to happen when that exclusion ceases to apply. Again the policy arguments can be read both ways. The policy might have been to encourage the former asylum seeker to remain in any place with which he had built up a connection, regardless of the forced circumstances which took him there. Alternatively, it might have been thought that the best hope of integrating him into the community is to allow him some degree of choice in deciding where to begin; and that, accordingly, having become eligible for assistance for the first time, he should be able to start with a clean sheet.

In any event, I am satisfied that my preferred construction involves no unfairness from the claimants’ point of view. For the reasons given by Simon Brown LJ, the construction which we favour is unlikely in practice to result in the forced relocation of anyone, who has in fact built up a genuine connection with the area to which he has been sent, and wishes to remain there. On the other hand, from the point of view of the authorities involved, it is important to keep in mind that the issue is not whether this particular category of claimants should be entitled to accommodation, but how the load of accommodating them is to be shared between authorities. In the absence of any clear direction from the legislature, the Court can only determine the matter in accordance with the wording of the Statute. The practical and budgetary implications of our decision will no doubt be taken into account in the future arrangements between central and local government.

Finally, I emphasise that my reasoning is directed to this particular statutory context. As I have said, the 1999 Act was drafted with the 1996 Act in mind. Whether or not the draftsman had this issue in mind, the Court should as far as possible seek to construe the two Acts so as to achieve a consistent scheme. To me it is a contradiction in terms to hold that a person, whose preferences under one Act are required to be left wholly out of account in the selection of accommodation, is to be regarded, under the other, as becoming resident “of his own choice” in a particular area. It does not follow that the same considerations would apply in cases where the applicant has an element of choice or preference, even though it is narrowly constrained by practical or economic realities.

Accordingly, in agreement with Simon Brown LJ, I would allow these appeals.