Khan & Anor, R (on the application of) v Oxfordshire County Coucnil

Mrs Khan is a national of Pakistan. On 21 July 2001 she was granted leave to enter the United Kingdom to join her husband. She went to live with him in Oxford. Shortly thereafter, the marriage broke down as a result of her husband’s violence. In March 2002, he tried to strangle her and attacked her with a knife. Following a further attack, she left the matrimonial home. On 17 May 2002 she was kidnapped. She was taken by her husband and his family to Bolton and locked up in a house. She escaped and returned to Oxford. She was kidnapped again towards the end of June 2002 by her husband’s family, and again taken to Bolton. The police intervened, and found her a place in a women’s refuge. Since then, she has lived away from her husband at various addresses. In June 2002, she was referred to the Oxfordshire County Council (“the Council”) who undertook an assessment.

The assessment, dated 11^th June 2002 was made pursuant to section 47 of the National Health Service and Community Care Act 1990. It concluded that Mrs Khan’s needs were “safe and secure accommodation; access to money; legal advice”. By a letter dated 17 June 2002 to the Council, her solicitors requested inter alia accommodation under section 21 of the National Assistance Act 1948 (“NAA”) and the provision of financial support under section 2 of the Local Government Act 2000 (“LGA”). By its letter dated 20 June 2002, the Council replied sending a copy of the assessment that it had undertaken on the 11 June. The letter continued:

“Following that assessment, I am required to consider whether you meet Oxfordshire’s criteria for support under section 21 National Assistance Act 1948. Under the provisions of that Act, Oxfordshire County Council Social Services Department has to consider whether your need for care and attention is significantly made more acute by your circumstances other than your lack of accommodation and funds.

It is clear from the information known to Social Services that you have no significant needs either mentally or physically which would qualify you for support.

Unfortunately, the Social Services Department is therefore unable to provide you with any further support and we have notified your landlord”.

There followed correspondence, and a letter from Mrs Khan’s General Practitioner was sent to the Council. The Council undertook a further assessment on 19 July 2002. Her needs as recorded in this assessment were: “ financial assistance to cover rent and basic living costs; to register with a local GP if staying in the area where she is now; to register for English classes and to make contact with the local community”. By a letter dated 30 July 2002, the Council informed Mrs Khan that they did not accept that she met the “criteria for a service under the provision of section 21 of the National Assistance Act or section 47 of the National Health Service Community Care Act 1990”. By a further letter of the same date to Mrs Khan’s solicitors, the Council stated that they had no power to provide assistance under section 2 of the LGA, since the effect of section 21 (1A) of the NAA was a “restriction or limitation on the powers within the meaning of section 3 of the LGA”.

The Council was asked for reasons. These were given in a statement by Ms Frost, the Service Manager, dated 6 August 2002. She said:

“I note that Mrs Khan is not suffering from a physical disability, learning disability or mental health condition. It is clear from the assessment that Mrs Khan is not registered with a GP in Barking or receiving ongoing medical treatment/prescribed medication.

I am aware that Mrs Khan’s solicitors, Turpin and Miller, have raised the issue of the possibility of physical violence from her husband and suggests that if services are not provided she would be at risk of physical harm. I consider that Mrs Khan can take steps to prevent any violence from her husband by informing the police or taking out an appropriate injunction.

From the other information contained in the assessment I can find no evidence of severe physical or mental deterioration and it [is] clear from Ms Cousin’s report that Mrs Khan can look after herself and has no difficulties with personal care. In the circumstances I have considered that Mrs Khan does not qualify for support for Community Care services.

I am aware that Social Services has statutory obligations under section 21 of the National Assistance Act 1948.

The test of eligibility under this Act is whether Mrs Khan’s need for care and attention is to any material extent made more acute by circumstances other than lack of accommodation and funds. It is clear to me from the assessment that whilst Mrs Khan does lack accommodation and funds, there is nothing within the assessment which leads me to believe that there is some other circumstance that makes her need more acute”.

A further statement has been made by Ms Frost for the purpose of these proceedings. At paragraph 11 she says:

“In my opinion, Mrs Khan was not in need of care and attention within the scope of section 21 of the 1948 Act. Mrs Khan did need accommodation, but her need arose from her lack of funds. No need arose from any other cause. The fact that Mrs Khan had suffered abuse at the hands of her husband and his family was not in the circumstances of the present case the cause of any specific need, rather it was merely the reason why she had no funds to provide accommodation for herself. In my view her need for housing was a “housing need” rather than a need that arose for a “social services” reason (ie one falling within section 21 of the 1948 Act). In my summary of reasons I referred to the possibility that protection from her husband could be obtained either through the police or by seeking civil orders to restrain him from approaching her. I consider that this was (and is) an appropriate conclusion to reach. It reflected the fact that, based on the assessment it appeared that Mrs Khan’s own priority was to gain protection from her husband – ie “secure” accommodation. This desire for protection was not in my view a need for care and attention within the scope of section 21 of the 1948 Act”.

By virtue of section 115 of the Immigration and Asylum Act 1999 (“IAA”) it is agreed that Mrs Khan is not entitled to the benefits referred to in that section. Section 115(3) provides:

“This section applies to a person subject to immigration control unless he falls within such category or description, or satisfies such conditions as may be prescribed.”

By section 115(9):

“A person subject to ‘immigration control’ means a person who is not a national of an EEA state and who –

…

(b)

has leave to enter or remain in the United Kingdom which is subject to a condition that he does not have recourse to public funds.”

Mrs Khan was allowed to join her husband on the basis that she did not have recourse to public funds.

The position of someone such as Mrs Khan, who legitimately comes to this country to join her husband and is then forced out of the matrimonial home by violence, has been the subject matter of a stated policy of the Secretary of State, which includes:

“An applicant who has limited leave to enter or remain in the United Kingdom as the spouse or unmarried partner of a person who is present and settled in the United Kingdom and whose relationship breaks down during the probationary period as a result of domestic violence, may be granted indefinite leave to remain in the United Kingdom exceptionally outside the Immigration Rules provided that the domestic violence occurred during the probationary period whilst the marriage or relationship was persisting and the applicant was able to produce one of the following forms of evidence that domestic violence has taken place:

(1)

an injunction, non-molestation order or other protection order against the sponsor other than an ex parte or interim order, or

(2)

a relevant court conviction against the sponsor, or

(3)

full details of a relevant police caution issued against the sponsor.

Where a prosecution is pending against the sponsor the application may be granted further periods of six months limited leave to remain, subject to the same conditions, until the outcome of the criminal prosecution is known. Where a hearing seeking an injunction, non-molestation order or other protection order is pending a decision on the application will be delayed pending the outcome of that hearing.”

Pending such a prosecution or the obtaining of an injunction, or an order having a similar effect, as Moses J pointed out, the plight of Mrs Khan who, through no fault of her own has left the matrimonial home, is stark. She is not eligible under section 95 of the IAA because she is not an asylum seeker. She is, therefore, worse off than a person seeking asylum, even one who is appealing after refusal of asylum. She will be denied any assistance unless she can bring herself within the provisions of section 21 of the NAA or section 2 of the LGA.

Section 21 of the NAA provides:

“Duty of local authorities to provide accommodation

(1)

Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing –

(a)

residential accommodation for persons 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;

(1A) 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.”

Since the Secretary of State has made directions there is an obligation, and not merely a power, upon the local authority under section 21(1)(a).

Section 21(2) provides:

“In making any such arrangements a local authority shall have regard to the welfare of all persons for whom accommodation is provided, and in particular to the need for providing accommodation of different descriptions suited to different descriptions of such persons as are mentioned in the last foregoing subsection.”

Section 21(5) provides:

“References in this Act to accommodation provided under this part thereof shall be construed as references to accommodation provided in accordance with this and the five next following sections, and as including references to board and other services, amenities and requisites provided in connection with the accommodation except where in the opinion of the authority managing the premises their provision is unnecessary.”

Section 2 of the LGA provides:

“(1)

Every local authority are to have power to do anything which they consider is likely to achieve any one or more of the following objects –

(a)

the promotion or improvement of the economic well-being of their area,

(b)

the promotion or improvement of the social well-being of their area, and

(c)

the promotion or improvement of the environmental well-being of their area.

(2)

The power under subsection (1) may be exercised in relation to or for the benefit of –

(a)

the whole or any part of a local authority’s area, or

(b)

all or any persons resident or present in a local authority’s area.

(3)

In determining whether or how to exercise the power under subsection (1), a local authority must have regard to their strategy under section 4.

(4)

The power under subsection (1) includes power for a local authority to—

……..

(b)

give financial assistance to any person,

……..

(f)

provide staff, goods, services or accommodation to any person.”

By virtue of section 3(1):

“The power under section 2(1) does not enable a local authority to do anything which they are unable to do by virtue of any prohibition, restriction or limitation on their powers which is contained in any enactment (whenever passed or made).”

Mrs Khan sought to challenge the decisions of the Council (i) to refuse to make arrangements to provide her with residential accommodation under section 21(1)(a) of the NAA and (ii) to refuse to exercise its power to give her financial assistance, and provide her with goods, services and accommodation under section 2 of the LGA. In relation to the claim under section 21(1)(a) of the NAA, Moses J held that there was an error in the approach which had been adopted by the Council. Accordingly, he quashed the decision and ordered the Council to reconsider the matter. In relation to the claim under section 2 of the LGA, he held that section 21(1A) of the NAA was a prohibition within the meaning of section 3 of the LGA, so that the Council had no power to provide assistance under section 2 of that Act.

The Council appeals against the decision in relation to the claim under section 21(1)(a); and Mrs Khan cross-appeals against the decision in relation to section 2 of the LGA. She was granted indefinite leave to remain in the UK in May 2003. Accordingly, the outcome of both appeal and cross-appeal is of only academic interest to her. She was nevertheless given permission to cross-appeal by the Court of Appeal in view of the general importance of the issues raised as to the scope and application of section 2 of the LGA.

It is common ground that the Council purported to apply the correct test when it considered the application under section 21(1)(a) of the NAA. The meaning and effect of section 21(1A) was explained by Simon Brown LJ in R v Wandsworth LBC Ex Parte O [2000] 1 WLR 2539, 2548F:

“They [the applicants] submit that if an applicant’s need for care and attention is to any material extent made more acute by some circumstance other than the mere lack of accommodation and funds, then, despite being subject to immigration control, he qualifies for assistance. Other relevant circumstances include, of course, age, illness and disability, all of which are expressly mentioned in section 21(1) itself. If, for example, an immigrant, as well as being destitute, is old, ill or disabled, he is likely to be yet more vulnerable and less well able to survive than if he were merely destitute.

Given that both contended for constructions are tenable, I have not the least hesitation in preferring the latter. The word “solely” in the new section is a strong one and its purpose there seems to me evident. Assistance under the Act of 1948 is, it need hardly be emphasised, the last refuge for the destitute. If there are to be immigrant beggars on our streets, then let them at least not be old, ill or disabled.”

Moses J acknowledged that the Council applied the correct test (para 34). It was not contended on behalf of Mrs Khan that the decision was perverse in the Wednesbury sense. At para 43, the judge referred to para 11 of Ms Frost’s statement and said:

“ … the local authority appeared to me to have reached a conclusion that because domestic violence and the threat of violence was the cause of destitution, it was not itself the cause of any other need.”

At para 44, he said:

“As I have said, the local authority appear to have taken the view that, because domestic violence was the cause of destitution, domestic violence cannot have made the need for care and attention more acute and cannot have occasioned greater vulnerability. Whilst I accept the premise, I reject the conclusion. True it is that the domestic violence caused the destitution, but it does not follow that the need for care and attention arose solely from destitution. That which gave rise to destitution may also give rise to greater vulnerability. Domestic violence, whilst causing destitution, may equally make the claimant’s needs more acute.”

The judge summarised his view in the concluding paragraph of his judgment (para 45):

“Those passages in the reasoning of the local authority, paragraph 11, as emphasised in the outline written argument, revealed to my satisfaction an error in approach. They reveal a failure to recognise that the need for care and attention may arise from a circumstance additional to destitution, even though that circumstance was itself the cause of destitution. That failure, as it seems to me, taints the reasoning of the local authority. …”

Mr Swift submits that the judge misunderstood the evidence of Ms Frost. She did not take the view that, because domestic violence was the cause of the destitution, it could not have made the need for care and attention more acute and could not have occasioned greater vulnerability. At para 11 of her witness statement, she said:

“The fact that Mrs Khan had suffered abuse at the hands of her husband and his family was not in the circumstances of the present case the cause of any specific need, rather it was merely the reason why she had no funds to provide accommodation for herself ….” (emphasis added).

Mr Jay QC does not seek to support the judge’s reasoning on this point. In my judgment, he is right not to do so. It is clear that the judge was in error in holding that the Council considered that domestic violence could not have made the need for care and attention more acute. It is clear that Ms Frost acknowledged that domestic violence could in certain circumstances make the need for care and attention more acute. But she concluded that it did not do so on the facts of this case.

Mr Jay sought to uphold the judge’s decision on a different ground. He submitted that the decision of the Council was unreasonable in the sense that it failed properly to engage the case that was being made on behalf of Mrs Khan. It became clear as Mr Jay developed his submissions that his real point was that the decision was inadequately reasoned. The Council did not sufficiently explain why it concluded that the appalling treatment to which Mrs Khan had been subjected did not render her more vulnerable and less well able to survive than if she were merely destitute.

I cannot accept this submission. The statement of Ms Frost dated 6 August 2002 is important here. She stated in relation to Mrs Khan’s physical and emotional health:

“I note that Mrs Khan is not suffering from a physical disability, learning disability or mental health condition. It is clear from the assessment that Mrs Khan is not registered with a GP in Barking or receiving ongoing medical treatment/prescribed medication.

….

From the other information contained in the assessment I can find no evidence of severe physical or mental deterioration and it [is] clear from Ms Cousin’s report that Mrs Khan can look after herself and has no difficulties with personal care. In the circumstances I have considered that Mrs Khan does not qualify for support for community care services”.

It is clear from this that Ms Frost considered whether Mrs Khan had been rendered more vulnerable by her experiences, and concluded that she had not. She gave clear, albeit brief, reasons for this conclusion.

I should add that it had never been suggested on behalf of the claimant until Mr Jay made his submissions in this court, that the decision of the Council was flawed for lack of sufficient reasons. If such a challenge had been made at the outset, it is possible that the reasons given by Ms Frost would have been supplemented. Be that as it may, I consider that the Council’s appeal is well founded. I would accordingly allow its appeal.

The judge dealt with this issue very briefly at paras 27-33 of his judgment. He had no doubt that the restriction in section 21(1A) of the NAA falls within the meaning of section 3 of the LGA. Thus it was not open to the Council to provide assistance to the claimant under section 2 of the LGA.

It is common ground that there is a distinction between the definition of the scope of a power and the imposition of a prohibition, restriction or limitation on the exercise of a power. This distinction was articulated by Mr Philip Sales and apparently accepted by Elias J in R(J) v Enfield LBC [2002] LGR 390 at paras 53-57. As Mr Lewis points out in his skeleton argument, statutes frequently confer power on authorities to do specific acts in respect of specific categories of persons. The definition of the scope of a power by reference to particular criteria does not involve the imposition of a prohibition, restriction or limitation on the doing of an act in respect of person outside the scope of the criteria. Rather, the fact that the authority cannot do the act in such circumstances reflects the fact that it has not been given the power to act, and not that it has been prohibited from doing so, or subjected to any limitation or restriction.

Conversely, if statute expressly prohibits the use of a power to do a particular thing or prohibits the use of a power in respect of certain persons or in certain situations, that can constitute a prohibition, restriction or limitation within the meaning of section 3(1) of the LGA. But even here, as Elias J said at para 53:

“…it will be necessary in each case to scrutinise the legislation carefully to see whether, properly analysed, it is intended to provide a bar to its exercise at all, to whether it is merely intended to prevent the power being exercised under the particular legislation in which the restriction is to be found”.

I find this a helpful analysis, although it is not always easy to distinguish between a provision which defines the scope of a power and a provision which restricts or limits the exercise of a power. Nevertheless, Mr Jay accepts that section 21(1A) is a prohibition on the exercise of the power to make arrangements for providing residential accommodation pursuant to section 21(1)(a).

But he submits that (i) section 21(1A) only prohibits the provision of residential accommodation under section 21(1)(a), and not under any other statutory power, so that the power to provide accommodation under section 2(4)(f) is not affected; (ii) section 21(1)(a) does not give power to make payments for accommodation, so that section 21(1A) does not prohibit the making of such payments; (iii) section 21(1A) does not prohibit the provision of staff, goods, or services under section 2(4)(f); and (iv) even if section 21(1A) prohibits the making of payments, it only prohibits payments for accommodation as defined in section 21(5), and not other financial assistance pursuant to section 2(4)(b).

Mr Jay relies on the fact that (as is common ground) section 2(1) of the LGA confers broad and general powers on a local authority. Absent any prohibition, limitation or restriction, the power in section 2 can be used to provide accommodation or financial assistance to any person if the requirements of section 2 are met. The explanatory notes to the LGA are a legitimate aid to construction: see per Lord Hope in R v A [2002] UKHL 25, [2002] 1 AC 45 at 79 (para 82). They explain (at para 15) the broad purpose behind section 2:

“Together, these sections allow local authorities to undertake a wide range of activities for the benefit of their local area and to improve the quality of life of local residents, businesses and those who commute to or visit the area. This is intended to clear up much of the uncertainty which currently exists about what authorities can do. Sections 2 and 3 allow authorities to take any action, unless it is subject to statutory prohibitions, restrictions or limitations specifically set out in legislation. The intention is to broaden the scope for local authority action while reducing the scope for challenge on the grounds that local authorities lack specific powers.”

Mr Jay also points to the guidance given by the Office of the Deputy Prime Minister which explains how innovative actions by local authorities have been stifled by concerns over the scope of their powers (Chapter 1, para 5); that the purpose of these provisions in the LGA was to “reverse that traditionally cautious approach” (Chapter 1, para 6); that the new power is “wide-ranging” (Chapter 1, para 7); and that “the breadth of the power is such that councils can regard it as a “power of first resort”. Rather than searching for a specific power elsewhere in statute in order to take a particular action, councils can instead look to the well-being power in the first instance ....” (Chapter 1, para 10).

The first question, therefore, is whether section 21(1A) only prohibits the provision of residential accommodation under section 21(1)(a), or whether it prohibits the provision of residential accommodation under any statutory power (i) to any person who is over the age of 18 and in need of care and attention, and (ii) where the need arises by reason of age, illness disability or any other circumstances. I shall refer to these as “the section 21(1)(a) conditions”. I leave out of account the condition that the care and attention is not available otherwise than by the provision of residential accommodation under section 21(1)(a), because the question at issue is whether the provision of accommodation is otherwise available under section 2 of the LGA, notwithstanding the provisions of section 3.

Mr Jay emphasises the phrase “under subsection (1)(a)” in section 21(1A). He submits that this shows that the prohibition in section 21(1A) is on the exercise of the power under section 21(1)(a) (and no other) in relation to persons who satisfy the section 21(1A) criteria. I should add in parenthesis that the only two statutory provisions under which it has been suggested that the claimant might have been entitled to accommodation are section 21(1)(a) of the NAA and section 2 of the LGA.

Mr Jay referred to four decisions (apart from that of Moses J in the instant case) in which the court has considered the scope of sections 2 and 3 of the LGA. These are: R(J) v Enfield (to which I have already referred); R(W) v Lambeth BC [2002] EWCA Civ 613, [2002] 2 All ER 901; (2002) 45 CCLR 203 (a decision of the Court of Appeal; R(Theophilus) v Lewisham BC [2002] EWHC 1371, [2002] 3 All ER 851 (Silber J); and R(A,B,Z and Y) v East Sussex CC [EWHC] 2772 (Munby J). But in none of these cases did the court have to consider whether the prohibition in section 21(1A) of the NAA was caught by section 3 of the LGA. Moreover, what the Court of Appeal said in W (at paras 74-75) was plainly obiter dicta. During the course of argument, we were shown the statutory provisions that were in play in these cases. But I do not propose to examine these decisions, since ultimately, it is a question of construction whether a prohibition in any particular statute bars the exercise of the power conferred by section 2 of the LGA.

Mr Jay relies on the linguistic point to which I have referred (viz: “under subsection (1)(a)”) and seeks to derive support for his argument from the policy consideration that section 2 should be construed widely (and section 3 correspondingly narrowly) for the reasons already given.

In my view, section 3 has the effect of preventing an authority from exercising the power in section 2 of the LGA to do that which is prohibited by section 21(1A). It is true that the phrase “under subsection (1)(a)” in section 21(1A) makes it clear that what is prohibited is the provision of residential accommodation under section 21(1)(a) for persons who satisfy the section 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 section 2 of the LGA out of account for the moment) there were some other statutory power than section 21(1)(a) by which accommodation could be provided to persons who satisfy the section 21(1)(a) conditions, then the exercise of that power would not be prohibited by section 21(1A). But it is agreed that there is no other such power. Indeed, if there were, the section 21(1)(a) power could not be exercised in any event, since the condition that care and attention is not available otherwise than by the provision of residential accommodation under that particular power would not be satisfied.

The effect of section 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 section 21(1A), would be entitled to accommodation under section 21(1)(a). It is that “thing” which the local authority is prohibited from providing by section 21(1A), and which it cannot provide under any other statutory power, unless it can do so under section 2. But the very reason why section 3(1) was enacted was to prevent section 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 section 2 of the LGA unless it stated expressly that it was a prohibition for the purposes of section 3 of the LGA. An example of such a provision is to be found in para 1(2) to Schedule 3 to the Nationality and Asylum Act 2002. This provides that “a power or duty under a provision referred to in subparagraph (1) may not be exercised or performed in respect of a person to whom this paragraph applies”. One of the provisions referred to in sub-paragraph (1) is section 2 of the LGA..

But as Mr Swift points out, to interpret section 3 in this way is inconsistent with the language of section 3(1) itself, which refers to any prohibition etc which is contained in any enactment whenever passed.

So far as the policy consideration is concerned, I accept that section 2 has a broad purpose. The scope of the powers given by section 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 section 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 section 3 that Parliament did not intend to override legislative schemes that already existed. The prohibition contained in section 21(1A) of the NAA must be given its natural meaning. For the reasons that I have given, it cannot be circumvented by section 2 of the LGA. If the prohibition in section 21(1A) were trumped by section 2, the prohibition in section 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.

It follows in my judgment that accommodation cannot be provided under section 2(4)(f) of the LGA to persons to whom it cannot be provided under section 21(1)(a) of the NAA.

The next question is whether section 21(1A) prohibits the making of payments for accommodation under section 2(4)(b) of the LGA. It was held by this court in R v Secretary of State for Health ex p Hammersmith and Fulham BC [1999] LGR 354 that upon the true construction of section 21(1)(a) of the NAA a local authority does not have the power to make arrangements for destitute persons by providing cash payments in lieu of accommodation. Mr Jay, therefore, submits quite simply that the prohibition in section 21(1A) cannot touch an activity which is not empowered by section 21(1)(a). Since the giving of financial assistance is not within the section 21(1)(a) power, it is not prohibited by section 21(1A).

It is difficult to believe that Parliament intended to prohibit the direct provision of accommodation to persons like Mrs Khan, but not to prohibit its indirect provision by the giving of financial assistance for the securing of such accommodation. Mr Jay has not suggested that Parliament would have had any rational basis for drawing such a distinction, and no material has been place before the court to suggest that this is what Parliament in fact wanted to do. His point is quite simply that there is no power in section 21(1)(a) to give financial assistance, and the prohibition in section 21(1A) cannot apply to an activity which section 21(1)(a) does not empower.

At first sight, Mr Jay’s submission seems to have force. Mr Lewis counters with the broad submission that a local authority cannot do indirectly what it is prohibited from doing directly. This is a seductive proposition, but I think that it needs careful handling. A local authority can only do what it is authorised by statute to do. It must, therefore, always be a question of interpreting the relevant statutory provisions. It is undoubtedly true that the court will be reluctant to impute to Parliament an intention to permit by indirect means what it has prohibited being done by direct means. But if the language used by Parliament clearly and unequivocally leads to such a conclusion, then the court must give effect to it.

Parliament has in fact reversed the decision in Hammersmith. Section 57 of the Health and Social Care Act 2001 (“HSCA”) provides:

“(1)

Regulations may make provision for and in connection with requiring or authorising the responsible authority in the case of a person of an prescribed description who falls within subsection (2) to make, with that person’s consent, such payments to him as they may determine in accordance with the regulations in respect of his securing the provision of the service mentioned in paragraph (a) or (b) of that subsection.

(2)

A person falls within this subsection if a local authority (“the responsible authority”) have decided—

(a)

under section 47 of the 1990 Act (assessment by local authorities of needs for community care services) that his needs calls for the provision by them of a particular care service (within the meaning of section 46 of that Act”, or

(b)…….”

Section 46 of the 1990 Act defines “community care services” as services which a local authority may provide or arrange to be provided inter alia under Part III of the NAA (which includes section 21).

The effect of section 57 of the HSCA, therefore, is to reverse the Hammersmith decision and to enlarge the power conferred by section 21(1)(a) of the NAA. It permits a local authority to make payments to a person who satisfies the section 21(1)(a) conditions so as to secure for that person the provision of accommodation within the meaning of section 21(5). A local authority may provide accommodation directly or indirectly by giving financial assistance to enable a person to secure accommodation for himself or herself. I would hold that the prohibition in section 21(1A) applies to this extended power just as it does to the power in its original form, and that payments for accommodation cannot be made under section 2(4)(f) to persons for whom accommodation cannot be provided under section 21(1)(a) of the NAA.

So far, I have not considered the effect of section 3 of the Human Rights Act 1998 (“HRA”) which requires legislation to be read and given effect in a way which is compatible with rights under the European Convention on Human Rights (“the Convention”). Mr Jay submits that, in order to avoid the possible violation of a person’s rights under article 3 and/or 8 of the Convention, section 21(1A) of the NAA should be construed narrowly so that it only prohibits the provision of accommodation under section 21(1)(a), and does not affect any of the powers mentioned in section 2(4) of the LGA. He relies on the decision of this court in Anufrijeva and others v Southwark LBC [2003] EWCA Civ 1406, [2004] 1 All ER 833, as showing that articles 3 and/or 8 were capable of being infringed if the relevant facts were established, in cases involving the non-provision of welfare benefits.

But 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). See also R(Carson) v Secretary of State for Work and Pensions [2003] EWCA Civ 797,[2003] 3 All ER 577, para 26.

Mr Jay submits that section 21(1A) should be given the limited interpretation for which he contends because article 3 and 8 are “engaged”. What he means by this is that the wider interpretation (which I have earlier favoured) may lead to violations of article 3 and 8 rights. The effect of his submission is that, in order to cater for the possibility of such violations in a very small number of cases, it is necessary to give a narrow interpretation to section 21(1A) in every case. The practical result of this is to disapply section 21(1A) in all cases, because it will always be possible to achieve by section 2(4) what cannot be achieved by section 21(1)(a). Mr Jay did not cite any authority to support the proposition that section 3 of the HRA requires a statutory provision to be read down or otherwise construed for all purposes and in all cases because there might be a rare case where, unless so construed, the provision would violate a person’s Convention rights. This court said in Poplar Housing and Regeneration Community Association v Donoghue [2001] EWCA Civ 595, [2002] QB 48 at p 72 para 75:

“(a)

Unless the legislation would otherwise be in breach of the Convention, section 3 can be ignored (so courts should always first ascertain whether, absent section 3, there would be any breach of the Convention)”.

I do not accept that section 3 of the HRA requires a statutory provision to be interpreted in a particular way to provide for the possibility, however remote, that there would otherwise be a breach of the Convention.

As Mr Lewis points out, if a person’s condition is such that he or she is suffering degrading treatment, it is likely that the need for care and attention would not have arisen “solely” by reason of destitution, but would have been made more acute by circumstances other than destitution. In the rare case where a person is in need of care and attention solely by reason of destitution which is so severe that the failure to provide accommodation under section 21(1)(a) would amount to a violation of article 3, it would be possible to interpret the meaning of “solely” in section 21(1A) to avoid a breach of the Convention. But it would be exorbitant to interpret section 21(1A) as never applying to the provision of accommodation to anyone who satisfies the section 21(1)(a) conditions. I did not understand Mr Jay to submit that the plight of Mrs Khan was so severe that the refusal to provide her with accommodation and financial assistance violated her rights under article 3 or 8 of the Convention.

I conclude, therefore, that section 3 of the HRA does not require section 21(1A) to be read and given a different interpretation from that which I have expounded earlier in this judgment.

It is clear that the prohibition in section 21(1A) is on the provision of residential accommodation within the meaning of section 21(5): “a person…. may not be provided with residential accommodation under subsection (1)(a) if….”. A local authority is not barred by section 21(1A) from exercising the power to give financial assistance under section 2(4)(b) (other than for accommodation: see paras 45 - 50 above) or staff, goods or services under section 2(4)(f) of the LGA. This is clear from the plain language of the statutory provisions. Section 21(5) gives “accommodation” a very wide meaning. It includes “board and other services, amenities and requisites provided in connection with the accommodation except where in the opinion of the authority managing the premises their provision is unnecessary”. So it includes food, and other things which are necessary in connection with the accommodation. There must be a link between what is provided and the physical accommodation or premises. In my view, it is clear that the definition of accommodation, wide though it is, does not extend to all of a person’s essential living needs. An obvious example is clothes. It is not possible to say that, if provided, clothes would be services, amenities or requisites provided in connection with the accommodation. They have nothing to do with the accommodation.

It is possible to conceive of a case where a person is provided with accommodation and food by his family, but they have no money to pay for his clothes, toiletries etc. In my view, it is clear that such a person could not claim that his need for clothes, toiletries etc was a need for accommodation. Mr Lewis and Mr Swift submit otherwise. They say that the key to the understanding of the scope of section 21(1)(a) is the fact that the trigger for the exercise of the section 21(1)(a) function is that a person is in need of care and attention which is not otherwise available. This is true, but it does not tell us what the authority can provide for a person who is in need of care and attention. The statute plainly states that a person who is need of care and attention may be provided with accommodation (as defined). It does not, for example, say that a local authority may provide whatever is necessary to meet the person’s essential living needs, including accommodation.

Part II of the NAA was repealed by the Supplementary Benefit Act 1966. But its terms may well explain why section 21 (which is in Part III) is restricted to accommodation, albeit generously defined. Part II is entitled “National Assistance”. It provided for the setting up of the National Assistance Board. By section 4 it was the duty of the Board to assist persons who were without resources to meet their requirements. The question whether a person was in need of assistance, and the nature and extent of any assistance to be given, was to be decided by the Board (section 5(1)). The Board discharged its duty to give assistance by the making of grants in money (section 8(1)), or by assistance in kind (section 12). Clothing or money for clothing could be provided as assistance under Part II. It is not necessary to examine the provisions of Part II in any more detail. But they reinforce the view that I have already expressed that the definition of accommodation in section 21(5) does not extend to all essential living needs.

It follows that sections 2(4)(b) and 2(4)(f) do give a local authority the power to do things which do not fall within the scope of section 21(1)(a), and that the exercise of this power is not prohibited by section 21(1A) of the NAA.

I would, therefore, dismiss the cross-appeal save to the limited extent that sections 2(4)(b) and (f) of the LGA give the local authority the power to do things which do not fall within the scope of section 21(1)(a) of the NAA. I should point out that the judge did not have the benefit of detailed argument as to the limits of “accommodation” within the meaning of section 21(5). Since Mrs Khan has no interest in the outcome of this appeal, it would not be appropriate to quash the decisions made by the authority in the present case. It is sufficient if the court grants a suitably worded declaration, and I trust that counsel will be able to agree its terms.

I agree

I also agree