AW & Ors, R (on the application of) v London Borough of Croydon & Ors

There are two live appeals before the court, which raise a single issue. In three other appeals also before us, application is made for an order that they be dismissed by consent. All five are appeals from decisions made by Lloyd Jones J in a composite judgment given in the Administrative Court on 16 December 2005. Lloyd Jones J was dealing with four applications for judicial review challenging decisions of local authorities relating to the support of failed asylum-seekers. One of the claimants, D, was given leave to withdraw her claim by order of Lloyd Jones J perfected on 28 February 2006. The other claimants were AW, A, and Y. By agreement of the parties the learned judge was concerned to decide three preliminary issues of law, one of which survives for this court’s consideration on the two live appeals.

Given the nature of the issue before us it is unnecessary to set out the facts of the cases at any length. It is enough to say that each of the three claimants who remain in the case claimed asylum sometime after his or her date of entry into the United Kingdom, and accordingly (not having been granted temporary admission) was present in the United Kingdom in breach of the immigration laws within the meaning of s.11 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) which we need not set out. Their asylum claims were all refused by the Secretary of State. AW’s appeal against that refusal was dismissed by the adjudicator. AW and A made further representations upon which by the date of Lloyd Jones J’s judgment the Secretary of State had made no decision. Further representations put forward by Y had been rejected by the Secretary of State as not amounting to a fresh asylum claim. For the purpose of the surviving point in the case, each claimant was in the circumstances a failed asylum-seeker. Each applied to a local authority (AW to Croydon, A and Y to Hackney) for support under the provisions of s.21 of the National Assistance Act 1948 (“the 1948 Act”). The authorities have maintained that the claimants are not in law eligible for any such assistance.

As we have said Lloyd Jones J was dealing with three preliminary issues. The first was a point arising under Schedule 3 to the 2002 Act, which the judge decided against the claimants. The claimants obtained permission to appeal, but on 25 May 2006 in R(M) v Slough Borough Council [2006] EWCA Civ 655 this court arrived at the same conclusion as had Lloyd Jones J, and specifically approved his reasoning. Accordingly the claimants accept that in this court the point in question is concluded against them, and their three appeals, as we have foreshadowed, fall to be dismissed by consent.

The third preliminary issue determined by Lloyd Jones J is not the subject of any appeal or application for permission to appeal, and we need say no more about it.

That leaves the second issue. It was formulated as follows:

“If in the case of a failed asylum-seeker who satisfies the criteria of section 21(1) and (1A) [of the 1948 Act] the provision of support is necessary for the purpose of avoiding a breach of his Convention rights within the meaning of paragraph 3 of Schedule 3 to [the 2002 Act], is that provision to be made by a local authority pursuant to section 21 [of the 1948 Act] or by the Secretary of State for the Home Department pursuant to section 4, Immigration and Asylum Act 1999?”

We shall, of course, explain the material statutory provisions. Lloyd Jones J answered the question thus posed against the local authorities; that is to say he held that such provision fell to be made by a local authority pursuant to s.21 of the 1948 Act. Against that decision the London Borough of Hackney and the London Borough of Croydon appeal with permission granted by Sedley LJ on 3 July 2006. These are the two live appeals before this court. They are resisted by the claimants and by the Secretary of State, who appeared as an interested party below as he does here.

The starting point must be the primary provisions under which support may be given, namely s.21 of the 1948 Act and s.4 of the Immigration and Asylum Act 1999 (“the 1999 Act”). First, s.21:

“(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 aged eighteen and over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them...

(1A) A person to whom section 115 of [the 1999 Act] (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.

(1B) Subsections (3) and (5) to (8) of section 95 of [the 1999 Act]... apply for the purposes of subsection (1A) as they apply for the purposes of that section, but for the references in subsections (5) and (7) of that section and in that paragraph substitute references to a local authority.

(2)

In making 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.

...

(5)

References in this Act to accommodation provided under this part thereof shall be construed 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.

...

(8)

... [N]othing in this section shall authorise or require a local authority to make any provision authorised or required to be made (whether by that or by any other authority) by or under any enactment not contained in this Part of this Act or authorised or required to be provided under the National Health Service Act 1977.”

We will set out the relevant provisions of s.115 of the 1999 Act below. We should note that s.21(1) has effect as a duty owed by local authorities by force of directions made by the Secretary of State under that subsection. It is unnecessary to set out the directions, to which the judge below referred at paragraph 32 of his judgment.

Next, s.4 of the 1999 Act:

“(1)

The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of persons –

(a)

temporarily admitted to the United Kingdom under paragraph 21 of Schedule 2 to the [Immigration Act 1971];

(b)

released from detention under that paragraph; or

(c)

released on bail from detention under any provision of the Immigration Acts.

(2)

The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a person if –

(a)

he was (but is no longer) an asylum-seeker, and

(b)

his claim for asylum was rejected.

...

(5)

The Secretary of State may make regulations specifying criteria to be used in determining –

(a)

whether or not to provide accommodation, or arrange for the provision of accommodation, for a person under this section;

(b)

whether or not to continue to provide accommodation, or arrange for the provision of accommodation, for a person under this section.

(6)

The regulations may, in particular –

(a)

provide for the continuation of the provision of accommodation for a person to be conditional upon his performance of or participation in community activities in accordance with arrangements made by the Secretary of State;

(b)

provide for the continuation of the provision of accommodation to be subject to other conditions;

(c)

provide for the provision of accommodation (or the continuation of the provision of accommodation) to be a matter for the Secretary of State’s discretion to a specified extent or in a specified class of case.”

S.21 of the 1948 Act and s.4 of the 1999 Act are, so to speak, the competing provisions for the purposes of the issue which falls for decision. But we should also set out part of s.95 of the 1999 Act:

“(1)

The Secretary of State may provide, or arrange for the provision of, support for –

(a)

asylum-seekers, or

(b)

dependants of asylum-seekers,

who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed.

...

(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.

...

(5)

In determining, for the purposes of this section, whether a person’s accommodation is adequate, the Secretary of State –

(a)

must have regard to such matters as may be prescribed for the purposes of this paragraph; but

(b)

may not have regard to such matters as may be prescribed for the purposes of this paragraph...

...

(7)

In determining, for the purposes of this section, whether a person’s other essential living needs are met, the Secretary of State –

(a)

must have regard to such matters as may be prescribed for the purposes of this paragraph; but

(b)

may not have regard to such matters as may be prescribed for the purposes of this paragraph.”

S.99(1) provides:

“A local authority... may provide support for persons in accordance with arrangements made by the Secretary of State under section 4 [or] 95...”

Lastly, s.115, which as will be recalled is referred to in s.21(1A) of the 1948 Act:

“(1)

No person is entitled to income-based jobseeker's allowance under the Jobseekers Act 1995 or to [then a full list of benefits is specified, including income support, child benefit and housing benefit] while he is a person to whom this section applies.

...

(3)

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.”

Now, the potential application of s.21 of the 1948 Act or s.4 of the 1999 Act in these present cases arises by a particular route, which we should explain. Paragraph 1(1) of Schedule 3 to the 2002 Act provides that a person to whom that paragraph applies shall not be eligible for support or assistance under s.21 of the 1948 Act or any provision of the 1999 Act (or a large number of other welfare provisions). Paragraph 1(2) provides:

“A power or duty under a provision referred to in sub-paragraph (1) may not be exercised or performed in respect of a person to whom this paragraph applies (whether or not the person has previously been in receipt of support or assistance under the provision).”

Paragraph 1 of Schedule 3 may be taken, for the purposes of these appeals, to have applied to the claimants because (as we have indicated) they are in the United Kingdom in breach of the immigration laws within the meaning of s.11 of the 2002 Act and are no longer asylum-seekers: Schedule 3 paragraph 7. However paragraph 3 of Schedule 3 provides so far as relevant:

“Paragraph 1 does not prevent the exercise of a power or the performance of a duty if, and to the extent that, its exercise or performance is necessary for the purpose of avoiding a breach of –

(a)

a person’s Convention rights...”

The Convention rights are of course those arising under the European Convention on Human Rights (“ECHR”), not least Article 3 which outlaws torture or inhuman or degrading treatment or punishment. Thus by force of paragraph 1 of Schedule 3 to the 2002 Act the claimants in these appeals would be ineligible for support under s.21 of the 1948 Act or s.4 of the 1999 Act unless its being withheld would, in effect, constitute a violation of their rights under ECHR Article 3. We are not concerned, nor was the judge, to decide on the facts whether without support there would be such a violation; the case has so far been limited to the determination of preliminary issues, as we have explained.

Assuming that one or more of these failed asylum-seekers is or are entitled (by force of paragraph 3 of Schedule 3) to support either from a local authority under s.21 or from the Secretary of State under s4, the question posed by the sole issue in the case is – which? In our judgment the beginnings of the answer are to be found in s.4(5), which empowers the Secretary of State to “make regulations specifying criteria to be used in determining” whether provision is to be made under the section. Such regulations have been made: they are the Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005 (“the 2005 Regulations”). Regulation 3 provides in part:

“(1)

Subject to regulations 4 and 6, the criteria to be used in determining the matters referred to in paragraphs (a) and (b) of section 4(5) of the 1999 Act in respect of a person falling within section 4(2) or (3) of that Act are –

(a)

that he appears to the Secretary of State to be destitute, and

(b)

that one or more of the conditions set out in paragraph (2) are satisfied in relation to him.

(2)

Those conditions are that –

...

(b)

he is unable to leave the United Kingdom by reason of a physical impediment to travel or for some other medical reason.”

Regulation 2 defines the term “destitute”:

“In these Regulations –

...

‘destitute’ is to be construed in accordance with section 95(3) of the 1999 Act”.

As we have seen s.95(3) of the 1999 Act establishes two senses of destitution: the lack of adequate accommodation (or the means of obtaining it), or an inability to meet other essential living needs. S.95(5) and (7) then provide, in relation to each of these two senses respectively, that two sets of matters may be prescribed: (a) matters to which the Secretary of State must have regard in deciding whether either sense applies, and (b) matters to which he must not have regard in so deciding.

These two sets of matters have indeed been prescribed by subordinate legislation, in the Asylum Support Regulations 2000 (“the 2000 Regulations”). Regulation 2 defines “asylum support” as support provided under s.95 of the 1999 Act. Then Regulation 6(1) provides in part:

“This regulation applies where it falls to the Secretary of State to determine for the purposes of section 95(1) of the Act whether –

(a)

a person applying for asylum support... or

(b)

a supported person...

is... destitute...”

Regulation 6(3) provides for matters to be ignored by the Secretary of State. Then 6(4):

“But he must take into account –

...

(b)

any other support which is available to the principal [sc. the applicant for asylum support] or any dependant of his, or might reasonably be expected to be so available within that period [sc. where the question is whether destitution is likely within a particular period]...”

In light of certain submissions advanced by Miss Richards for Croydon, which we will consider in due course, we should also set out part of Regulation 23 of the 2000 Regulations:

“(1)

In this regulation ‘the relevant enactments’ means –

(a)

section 21(1A) of [the 1948 Act];

...

(2)

The following provisions of this regulation apply where it falls to an authority, or the Department, to determine for the purposes of any of the relevant enactments whether a person is destitute.

(3)

Paragraphs (3) to (6) of regulation (6) apply as they apply in the case mentioned in paragraph (1) of that regulation, but as if references to the principal were references to the person whose destitution or otherwise is being determined and references to the Secretary of State were references to the authority or (as the case may be) Department.”

Miss Laing for the Secretary of State invited the judge below, as she has invited us, to embark on what is quite an elaborate paper chase through these interlocking provisions so as to arrive at the following analysis. (a) The scope of the Secretary of State’s duty (as it would be if its performance were the only recourse to avoid a violation of ECHR Article (3)) to provide accommodation under s.4 of the 1999 Act is circumscribed by criteria to be specified in regulations made under s.4(5). (b) Such criteria have been specified in the 2005 Regulations. (c) The relevant criterion for present purposes is that given by Regulation 3(1)(a) of the 2005 Regulations, namely “that [the applicant for support] appears to the Secretary of State to be destitute”. (d) By Regulation 2 “‘destitute’ is to be construed in accordance with section 95(3) of the 1999 Act”. (e) S.95(3) gives two senses of destitution, namely a lack of adequate accommodation or an inability to meet other essential living needs. (f) S.95(5) and (7) then empowers regulations to be made in order to prescribe what is, and what is not, to be taken into account in deciding whether either or both of those two senses are fulfilled. (g) That prescription has been made in the 2000 Regulations. (h) Regulation 6(4) of the 2000 Regulations requires the Secretary of State to take into account any other available support. (i) Such other available support will include provision made pursuant to s.21 of the 1948 Act. (j) That being so, the Secretary of State cannot conclude that a person to whom such support is available is destitute, nor therefore that such a person is within the scope of his function (or duty) under s.4 of the 1999 Act. (k) It follows that persons in the position of the claimants in these appeals must look first to the local authority under s.21.

The learned judge below accepted this chain of reasoning: see paragraphs 45 and 47 of the judgment. So do we. But it is not entirely unproblematic, and it might be thought at least surprising that the imposition of what is a very pressing, and also very uneven, burden on local authorities should be effected by so intricate and obscure a statutory route. It is right that the court should acknowledge this pressing and uneven burden. While it cannot, of course, itself amount to a self-standing basis for the correct interpretation of the material statutory provisions, it might have a part to play if the provisions’ true construction required the court to consider and apply issues of policy.

In this connection we have been shown the statement of Simon Wadsworth, who is a Service Development Manager in what is called the Social Inclusion Service in the London Borough of Croydon. He speaks of the particular burdens placed on Croydon, not least arising from the location of the Immigration and Nationality Directorate of the Home Office within the borough: “many asylum seekers and failed asylum seekers upon leaving the Home Office immediately make their way to Croydon council seeking support” (paragraph 1). He states (paragraph 4) that the burden on Croydon is disproportionate. He refers to the pressure on Croydon’s resources. He describes its financial impact, and states (paragraph 13) that while the council has set aside a budget (we assume annual) of £263,000 to meet the cost of support for asylum seekers and failed asylum seekers, “[t]he actual cost of service provision is in the region of £900,000”.

Croydon is not alone in bearing especially onerous responsibilities arising out of the primacy of s.21 over s.4 as the genesis of the duty to make provision for cases such as those of the claimants. In particular some other London boroughs, including Hackney, are seriously affected. And Miss Richards rightly submitted – it is a point that applies to all local authorities bearing these responsibilities – that neither her clients, nor any other local authority, possess any power or influence to control the length of time for which a failed asylum-seeker might remain in the United Kingdom.

We have also been provided by Mr Knafler for the claimants with a helpful note on the “practical implementation of the asylum and asylum support scheme” which gives some details of past and present practice relating to the dispersal of asylum-seekers and failed asylum-seekers to areas where accommodation and other resources are more readily available. Dispersal of asylum-seekers was a major policy aim of the 1999 Act (we need not set out the material provisions), there being presumably a hope or expectation that local authorities which were especially hard pressed would to some extent be relieved. Mr Knafler’s note ends with the observation that “local authorities are currently entitled to require immigration information both from applicants and the Home Office (which has a dedicated fax information line for local authorities)”.

It is plain, without rehearsing further details of what happens in practice, that the division of responsibility for the support of asylum-seekers and failed asylum-seekers is a difficult and contentious area. It is therefore, we think, particularly important that we should consider whether there are any pointers which may confirm or undermine the chain of reasoning we have described at paragraph 15. A principal factor in this exercise is the decision of their Lordships’ House in R (Westminster City Council) v NASS [2002] UKHL 38, [2002] 1 WLR 2956, a case which so nearly touches the issue we must decide that we are plainly obliged in any event to give careful consideration to its impact.

Westminster concerned an asylum-seeker (not a failed asylum-seeker) who, being homeless and without funds, sought assistance from the local authority. The local authority took the view that it was not obliged under s.21(1)(a) to pay for the accommodation which the asylum-seeker required because s.21(1A), as inserted by s.116 of the 1999 Act, excluded destitute asylum-seekers from entitlement under the section, and the National Asylum Support Service (“NASS” – an emanation of the Secretary of State) was in fact obliged to pay for the accommodation pursuant to s.95(1) of the 1999 Act. NASS however declined to pay, on the ground that the responsibility was that of the local authority under s.21(1)(a). The local authority sought judicial review of NASS’ decision. The claim was dismissed by Stanley Burnton J at first instance, and his judgment was upheld both in the Court of Appeal and the House of Lords.

Miss Laing submits that the provision made by s.21(1A) of the 1948 Act is of prime importance for an understanding of the rationale behind the division of statutory responsibility between s.21 and s.4, and that a careful reading of their Lordships’ decision in Westminster makes this clear. As she says (skeleton argument paragraph 7) much of the relevant background is explained in the speech of Lord Hoffmann. The Asylum and Immigration Act 1996 deprived asylum seekers who did not claim asylum at the port of entry, and those whose applications had failed and were appealing, of income support and of housing under the homelessness legislation. This led to applications by asylum seekers and illegal immigrants to local social services authorities for assistance under s.21: see Westminster paragraphs 22 – 23. Lord Hoffmann proceeds to refer (paragraph 27) to “[t]he first test case to come before the Court of Appeal on whether local authorities were obliged to provide accommodation for asylum seekers under section 21”: this was M, P and X (1997) 30 HLR 10. The case concerned four asylum-seekers who were perfectly healthy and not in need of care and attention, but (as Lord Hoffmann put it – paragraph 27) “because they were destitute, without accommodation or subsistence, would soon become in need of care and attention unless something was done about it”. This court held that the local authority was obliged under s.21 to provide them with accommodation.

Lord Hoffmann continued:

“28.

The stark facts of that case - able bodied asylum seekers having to be accommodated by the social services department of the local authority - caused consternation. Before the 1996 Act the local authorities would have had to provide them with accommodation under the homelessness legislation. But the rent would have been paid out of housing benefit from central funds. Now the entire burden was shifted onto the administrative resources and budget of the social services department. And the burden fell particularly heavily upon those local authorities where asylum seekers tended to congregate - Kent, for those landing at the Channel ports, Hillingdon and East Sussex for those landing at Heathrow and Gatwick and the inner London boroughs. As the new government said later in paragraph 8.14 of the White Paper Fairer, Faster and Firmer...:

‘The Court of Appeal judgment... meant that, without warning or preparation, local authority social services departments were presented with a burden which is quite inappropriate, which has become increasingly intolerable and which is unsustainable in the long term, especially in London, where the pressure on accommodation and disruption to other services has been particularly acute.’

29.

What may have escaped notice in the aftermath of [M, P and X] was that the 1996 Act had brought into the scope of section 21 of the 1948 Act two distinct classes of asylum seekers who would not have been entitled to Part III accommodation if the 1996 Act had not excluded them from the normal social security system. The first class were the able bodied asylum seekers who qualified solely because, being destitute, they were already or were likely to become in need of care and attention. This was the class highlighted in [M, P and X]. I shall call them ‘the able bodied destitute’, who came within section 21 solely because they were destitute. The second class were asylum seekers who had some infirmity which required the local social services to provide them with care and attention, but who would not ordinarily have needed to be provided with accommodation under section 21 because it was available in other ways, for example, under the homelessness legislation. They would not have come within the section 21 duty because they would not have satisfied the third condition which I have quoted from the judgment of Hale LJ in Wahid’s case [2002] EWCA Civ 287, paragraph 30: the care and attention which is needed must not be available otherwise than by the provision of accommodation under section 21. I shall call this class ‘the infirm destitute’.”

The White Paper to which Lord Hoffmann referred (which was effectively translated into law by the 1999 Act) proposed to establish NASS as a division of the Home Office empowered to provide accommodation for asylum-seekers. As Lord Hoffmann stated (paragraph 30) it was

“...focused entirely on the able bodied destitute. It said in paragraph 8.23:

‘The 1948 Act will be amended to make clear that social services departments should not carry the burden of looking after healthy and able bodied asylum seekers. This role will fall to the new national support machinery.’

31.

Nothing was said about the infirm destitute and, as I have said, I am not sure it was appreciated that their accommodation was also a new burden upon local authorities which had been created by the 1996 Act. However, the terms in which the 1948 Act was amended were in my opinion perfectly clear. Section 116 of the Immigration and Asylum Act 1999 introduced into section 21 a new subsection (1A)...”

After setting out the terms of s.21(1A) Lord Hoffmann noted:

“32.

The use of the word ‘solely’ [in s.21(1A)] makes it clear that only the able bodied destitute are excluded from the powers and duties of section 21(1)(a). The infirm destitute remain within. Their need for care and attention arises because they are infirm as well as because they are destitute. They would need care and attention even if they were wealthy. They would not of course need accommodation, but that is not where section 21(1A) draws the line.”

Thus the statutory source of s.21(1A) of the 1948 Act was the 1999 Act, whose provisions of course also contained s.95. Lord Hoffmann observed:

“35.

It will be seen that while section 21(1A) removes only the able bodied destitute from the duty of the local social service departments, section 95(1) appears prima facie to give NASS power to accommodate all destitute asylum seekers, whether able bodied or infirm. It is this apparent overlap between the powers of NASS and the duties of the local authority which has given rise to this appeal.”

The contrast in Westminster was between the Secretary of State’s function under s.95 of the 1999 Act and that of the local authorities under s.21 of the 1948 Act, whereas here it is between s.4 and s.21. However in concluding that the proper legal recourse for the infirm destitute asylum-seeker (“destitute plus” in the patois the lawyers have adopted) was under s.21 and not s.95, Lord Hoffmann followed a chain of reasoning to which the judge’s approach in the present case, which we have explained, is plainly analogous. He said:

“38.

The ground upon which Stanley Burnton J and the Court of Appeal found for the Secretary of State was that although section 95(1) prima facie confers a power to accommodate all destitute asylum seekers, other provisions of Part VI of the 1999 Act and regulations made under it make it clear that the power is residual and cannot be exercised if the asylum seeker is entitled to accommodation under some other provision. In such a case, he or she is deemed not to be destitute. If Mrs Y-Ahmed had been able bodied destitute, she would have been excluded from section 21 and therefore qualified for accommodation under section 95(1). But as she was infirm destitute, her first port of call should be the local authority.”

Lord Hoffmann proceeded to note that by paragraph 2(1)(b) of Schedule 8 to the 1999 Act regulations may provide that in connection with determining whether a person is destitute the Secretary of State should take into account ‘support which is, … or might reasonably be expected to be, available to him or any dependant of his’. That led directly to Regulation 6(4) of the 2000 Regulations, which as we have shown is also a key provision in the present case. Lord Hoffmann stated:

“40... Regulation 6(4) says that when it falls to the Secretary of State to determine for the purposes of section 95(1) whether a person applying for asylum support is destitute, he must take into account ‘any other support’ which is available to him. As an infirm destitute asylum seeker, support was available to Mrs Y-Ahmed under section 21. Therefore she could not be deemed destitute for the purposes of section 95(1).

41.

My Lords, like Stanley Burnton J and the Court of Appeal, I find this argument compelling. The clear purpose of the 1999 Act was to take away an area of responsibility from the local authorities and give it to the Secretary of State. It did not intend to create overlapping responsibilities. Westminster complains that Parliament should have taken away the whole of the additional burden which fell upon local authorities as a result of the 1996 Act. It should not have confined itself to the able bodied destitute. But it seems to me inescapable that this is what the new section 21(1A) of the 1948 Act has done. As Simon Brown LJ said in the Court of Appeal ((2001) 4 CCLR 143, 151, para 29) what was the point of section 21(1A) if not to draw the line between the responsibilities of local authorities and those of the Secretary of State?”

It is plain, with respect, that the Westminster case is important for the purposes of these appeals. In particular that is so, first, because (as we have said) Lloyd Jones J’s reasoning (accepting Miss Laing’s argument), traced through to Regulation 6(4) of the 2000 Regulations, follows that of Lord Hoffmann. Secondly, the case demonstrates that the enactment of s.21(1A) was intended to effect a distribution of responsibility between the Secretary of State and local authorities, assigning the duty to provide for “the able-bodied destitute” to the former, but retaining the duty to provide for “the infirm destitute” on the shoulders of the latter. This undid the result arrived at in this court in M, P and X.

Overall, in considering the distribution of responsibility effected by the legislation in the light of the Westminster case, it is we think useful to discern the following classes of case:

What is the relation between these classes and sub-classes for the purpose of the distribution of statutory support under the 1948 Act and the 1999 Act? Members of class (i) are on the face of it supported by the local authorities under s.21(1)(a) of the 1948 Act. Members of class (ii) are on the face of it supported by the Secretary of State under s.95 (sub-class (a)) or s.4 (sub-classes (b) and (c)) of the 1999 Act. Mr Knafler submitted, rightly, that some failed asylum-seekers will meet the conditions prescribed by s.4(1) and will thus fall within sub-class (b); but not all. Other failed asylum-seekers, not so covered, will fall within sub-class (c).

Clearly there will as a matter of fact be persons who fall into more than one class or sub-class. Any member of class (ii) will also be a member of class (i) if he is in need of care and attention within the meaning of s.21(1)(a). Some asylum-seekers will be members both of sub-class (a) and sub-class (b). Some failed asylum-seekers will be members both of sub-class (b) and sub-class (c). Overlaps between sub-classes (a) – (c) are for present purposes insignificant because members of all these sub-classes are entitled to be supported by the Secretary of State under the 1999 Act (Miss Laing had a submission, by reference to AW (Kenya) [2006] EWHC Admin 3147, a decision of Sir Michael Harrison, that the support regime under s.4 is more Spartan than that under s.95; we will make further brief reference to this below).

The critical point for the resolution of this appeal is the relation between class (i) and class (ii). Their Lordships’ decision in Westminster shows that a person who as a matter of fact falls within both class (i) and class (ii) sub-class (a) must look to the local authority under s.21(1)(a), and not to the Secretary of State under s.95(1). These are the persons whom Lord Hoffmann called “the infirm destitute” – the “destitute plus”. The effect of s.21(1A), modifying the decision of this court in M, P and X, was to confine the scope of s.21(1)(a) relief (so far as relevant) to the “destitute plus”. The paper chase through the legislation, ending at Regulation 6(4) of the 2000 Regulations, confirms that where on the facts a claimant (being “destitute plus”) is eligible for s.21(1)(a) support, he is not to be treated as destitute for the purpose of s.95(1). That was Lord Hoffmann’s conclusion at paragraphs 38 – 41 of Westminster. It is to our minds inescapable that this result, which concerns the relation between class (i) and class (ii) sub-class (a) (which was the Westminster case), applies also to the relation between class (i) and class (ii) sub-class (c) (which is the present case). This is so despite Miss Richards’ elegant submissions to the contrary, essentially encapsulated in paragraph 19 of her skeleton, to which we should briefly turn.

Miss Richards submits that in the context of the present case the 2000 Regulations do not produce the result that the Secretary of State is required to take account of the support available from local authorities, nor that the local authority is required to disregard the availability of support from the Secretary of State under s.4 of the 1999 Act. As regards the first of these propositions she says that Regulation 6 only applies to the Secretary of State’s decision-making process when he is considering the exercise of his powers under s.95. As regards the second, she submits that Regulation 6 read with regulation 23 only requires the local authority to disregard the availability of “asylum support”, and “asylum support” is defined as support under s.95; it does not include support under s.4. Indeed, Miss Richards submits by contrast that the 2000 Regulations in fact require, in the present context, that the local authority should take account of the support available from the Secretary of State under s.4. She says this result is effected by Regulation 23 read with Regulation 6(4)(b), which provides that the local authority must take into account any other support which is available to the claimant.

However Miss Richards’ arguments ignore, with respect, the chain of reasoning – the paper chase – which we have described. In particular none of her three propositions engages with the fact that the scope of Regulation 6(4) for the purposes of this case is conditioned by its being pressed into service for the very purpose of providing criteria for the application of s.4, including of course s.4(2). At paragraph 45 of his judgment Lloyd Jones J said this:

“... the opening words of Regulation 6(1) of the 2000 Regulations – ‘This Regulation applies where it falls to the Secretary of State to determine for the purposes of section 95(1) of the Act...’ – must be read as referring to the new purpose required by the 2005 Regulations i.e. the purposes of section 4(2) of the Act. In the same way, subsections (5) and (7) and the 2000 Regulations are transposed so as to apply to section 4(2).”

We think this reasoning is correct.

Miss Richards advanced further submissions, in particular to the effect that the local authorities’ function under s.21 of the 1948 Act was a recourse of last resort, and the case against her (and the judge’s conclusion) was inconsistent with that position. She referred to s.21(8), which we have set out, and also to the decision of this court in Wahid v Tower Hamlets LBC [2002] EWCA Civ 287. In that case Hale LJ as she then was stated (paragraph 34):

“Nothing in section 21 allows, let alone requires, a local social services authority to make any provision authorised or required to be made, whether by them or by any other authority, by or under any enactment other than Part III of the 1948 Act. The asylum seekers succeeded because there was no other power, let alone duty, to provide them with the care needed to sustain life and health”.

But Wahid was not at all concerned with the question that presently confronts us. The principal point established by the case was that the duty provided for by s.21 of the 1948 Act only arises in respect of a person who has been properly assessed as being in need of care and attention. The court was not confronted with any question as to the competing responsibilities of central and local government, whether in relation to failed asylum-seekers or at all.

More generally, no appeal to the general truth that s.21 provides a recourse of last resort can prevail, as it seems to us, against the specifics of this case: particular provision has been made that the “destitute plus” should look to the local authority.

Miss Richards had some other points. One (skeleton argument, paragraphs 22 – 23) concerned the significance to be attached to the way in which s.4 had been amended by the 2002 Act. That was makeweight at best. Another, relating to Regulation 3(2)(b) of the 2005 Regulations, was also taken up by Mr Cowen for Hackney, and we shall address it in dealing specifically with his submissions.

It is convenient next to deal separately with a particular argument advanced both by Miss Richards and by Mr Cowen. It is one of statutory construction, designed to cut the paper chase in the middle. It is to the effect that the importation by the 2005 Regulations of the s.95(3) meaning of “destitute”, for the purpose of providing criteria within the meaning of s.4(5) of the 1999 Act, does not require the further importation of the provisions of s.95(5) and (7). As we have shown these subsections are the gateway (and the appellants submit the only gateway) to the requirement given by Regulation 6(4) of the 2000 Regulations to take into account “other support” – in effect, support available under s.21(1)(a) of the 1948 Act. If that gateway is shut, so the argument runs, there is nothing in the legislation to make s.21, as opposed to s.4, the first port of call for persons in the position of the claimants. The progression from s.95(3) to s.95(5) and (7) appears at steps (e) and (f) in our description of the paper chase at paragraph 15 above.

We will assume that the incorporation of s.95(5) and (7), and thus Regulation 6(4), is necessary to the result contended for by the Secretary of State and the claimants. We should say that both Miss Laing and Mr Knafler disavow such a proposition; they submit, in summary, that the overall legislative intention to create a hierarchy of support systems such that the “destitute plus” should look to the local authorities under s.21 of the 1948 Act is plain in any event. They may well be right: it is notable, we think, that in Westminster Lord Slynn considered (paragraph 15) that the question, which authority was responsible, was “concluded” by the terms of section 21(1A) alone. That said, it seems to us that the route through s.95(5) and (7) to Regulation 6(4) of the 2000 Regulations is an important answer, or at least an important part of the answer, to Miss Richards’ submissions deployed at paragraph 19 of her skeleton argument which we have already considered.

However that may be, making the assumption we have outlined we are clear that this argument of construction advanced for the appellant local authorities, that for the purpose of providing criteria within the meaning of s.4(5) of the 1999 Act there should be no read-across from s.95(3) to s.95(5) and (7), is bad.

It is true that Regulation 2 of the 2005 Regulations merely states that “‘destitute’ is to be construed in accordance with section 95(3) of the 1999 Act”: there is no reference to ss.(5) and (7). It is true also (as Mr Cowen was at pains to point out) that s.21(1B) of the 1948 Act makes express reference to ss.(5) and (7); so, submits Mr Cowen, where the draftsman wishes to incorporate or refer to those subsections he does so. However it seems to us that the draftsman had to refer to ss.(5) and (7) in setting out s.21(1B), because s.21(1B) modifies the effect of those subsections. More deeply, we do not consider that s.95(3) can sensibly be divorced from the provision made by s.95(5) and (7). These two subsections provide a lexicon for the application of s.95(3). In our judgment they do so just as surely where s.95(3) gives criteria for the application of s.4 as where it applies directly for the purposes of s.95(1).

We should next refer to a possible argument in favour of the claimants which was raised by the court at the hearing. We suggested that so far as the chain of reasoning accepted by the judge below depended on the effect of subordinate legislation, there might be a question whether the primary statutes which enabled the relevant regulations (of 2000 and 2005) to be made conferred on the subordinate legislator sufficient vires to effect by regulation a strategic distribution of the duty to support failed asylum-seekers as between local authorities and the Secretary of State; and to impose, within that distribution, such significant burdens as have indeed been placed on the former. However the alignment of this case with the Westminster decision in our judgment gives the lie to any such argument. The strategy (if that is the right word) is in essence the strategy of the main legislation. The paper chase through the regulations is important, and we have set it out first in our analysis of the issue in the case. But as Westminster shows the regulations are building blocks in a structure whose principal foundations are the statutes themselves, notably s.21(1A).

Mr Cowen had a number of submissions spread over several skeleton arguments. We are afraid they possessed something of a scatter-gun quality. A principal submission concerned Schedule 3 to the 2002 Act. As we understand it the argument is that, given the parenthesis in paragraph 1(2) of Schedule 3 (“whether or not the person has previously been in receipt of support or assistance under the provision”), Parliament cannot have intended that destitute plus failed asylum-seekers who are ineligible for support by force of paragraph 7 should automatically continue in receipt of the same s.21 support as had been accorded to them while they were asylum-seekers. Yet that, it is said, is the effect of construction of the material provisions accepted by the judge below.

There is nothing in this. As Miss Laing submitted (skeleton argument, paragraph 23):

“[Mr Cowen’s submissions] give no weight to the fact the issue for the Judge was which (of the Secretary of State or local authorities) is responsible for a destitute plus FAS if support is necessary to avoid a breach of Convention rights. If that is the issue, the provisions of Schedule 3 can have no bearing on the answer. This does not deprive Schedule 3 of any useful effect. The point of Schedule 3 is that support is only permitted to the extent that its provision is necessary to avoid a breach of Convention rights. Thus if a destitute-plus person’s asylum claim has been refused (and his appeal rights exhausted), and there are no impediments to his return, the provision of support under section 21 is not necessary to avoid a breach of his Convention rights and it must cease. If, on the other hand, he has made fresh submissions which purport to be a fresh claim for asylum, support under section 21 must continue. For the purposes of the issue in this case, Schedule 3 operates in the background. It cannot affect the analysis, for example, by casting doubt on the reasoning in Westminster v NASS, or the application of that reasoning to this case.”

Another argument which seemed to be at the forefront of Mr Cowen’s case concerned the term “accommodation”. We understand the point to be along the following lines. S.21(1) and (1A) refer to “residential accommodation”. But s.4 refers to “facilities for the accommodation of a person...” It is said that the use of the word “facilities” and the absence of the word “residential” in s.4 show that the word “accommodation” is intended to have a wider meaning in that section than in s.21; and therefore the legislative intention must have been to provide by s.4 a regime which would meet the needs of all categories of failed asylum-seekers, and not just the able-bodied.

This submission does no justice to the overall statutory picture. “Accommodation” has a special definition in s.21: see s.21(5). By s.21(2) it must be suited to the needs of 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” (s.21(1)(a)). By contrast, s.4 is concerned with the bare provision of accommodation. There is no indication in the language of the section, or in the 2005 Regulations, that the s.4 function involves a power or duty to cater for those who are in need, not of accommodation, but of care and attention; or that the accommodation provided should be suited to their needs.

Here it is worth noting a contrast, emphasised by Miss Laing, between s.4 provision and the provision of accommodation by the Secretary of State under s.95(1) of the 1999 Act: s.95 support may consist in “accommodation appearing to the Secretary of State to be adequate for the needs of the supported person...” (s. 96(1)(a)). Hence Miss Laing’s submission, to which we have already referred in passing, that s.4 support would appear to be intended to be more austere than support under s.95. In AW (Kenya) [2006] EWHC Admin 3147 Sir Michael Harrison noted both the contrast between s.4 and s.21 (see paragraph 31 of his judgment) and that between s.4 and ss.95 – 96 (see paragraph 33).

Mr Cowen also submitted that the terms of s.99 of the 1999 Act (which we have set out) “[demonstrate] that there would be no difficulty in the [Secretary of State], in exercising his powers under s.4 of the 1999 Act to arrange for the provision of facilities for a failed asylum seeker with care needs, to arrange for those facilities to be provided by a local authority” (addendum to skeleton, 2 March 2007). As a factual proposition that may be true; but it casts no light on the construction of the statutory provisions relevant to this appeal.

Mr Cowen had some other points. Thus he referred to Regulation 3(2)(b) of the 2005 Regulations, which provides for one of the conditions that are to be met for the purposes of fixing criteria for s.4 support, namely an inability to leave the United Kingdom for medical reasons. Mr Cowen submits (further skeleton, 23 February 2007, paragraphs 10.2 and 10.3):

“It is reasonable to conclude that at least some of those failed asylum seekers who are unfit to travel by reason of a physical impediment to travel or some other medical reason will have a need for care and attention which would entitle them to section 21 support were they asylum seekers. It is accepted not necessarily all; some may not pass the section 21 threshold but may still be unfit to travel, but that does not alter these submissions.

Thus Regulation 3(2)(b) is inclusive in that it does not seek to distinguish those failed asylum seekers who have a need for care and attention which would entitle them to section 21 support from any others who may come within Regulation 3(2)(b) and this shows that section 4 support is both suitable support and, in relation to the legislative scheme the appropriate form of support, for destitute plus failed asylum seekers who need support in order to avoid a breach of their Convention rights.”

As we have already said, this argument was also advanced by Miss Richards. Miss Laing offered two responses to it. She submitted (skeleton argument paragraph 55):

“(a)

A person may be temporarily ‘unable to leave the United Kingdom by reason of a physical impediment to travel or other medical reason’ eg, a woman in the late stages of pregnancy, without being a person who has any care needs at all; but more fundamentally,

(b)

Regulation 3(1) of the 2005 regulations provides that for section 4 to apply a person must be destitute, and satisfy a condition in regulation 3(2) (one of which is that set out in regulation 3(2(b)). A person who has care needs, and is therefore owed duties under section 21 of the 1948 Act, would not be destitute, and section 4 does not therefore apply to him, even if regulation 3(2)(b) of the 2005 regulations did apply to him.”

These submissions are correct. There is no inconsistency between Regulation 3(2)(b) and the location of responsibility for destitute plus failed asylum seekers with the local authorities.

There is nothing in any other point taken by Mr Cowen.

For all the reasons we have given we would dismiss the appeals. There is in the end nothing to show that the legislature intended to distribute responsibility for the support of failed asylum-seekers between central and local government in a radically different manner from the arrangements which their Lordships’ decision in Westminster shows were made in relation to asylum-seekers.

In the course of this judgment we have used the term “paper chase”, and have done so advisedly. This important area of the law governs the use of scarce public resources in a difficult and sensitive field. We have already referred (paragraph 17) to the pressing and uneven burden borne by some local authorities. One part of the overall scheme has had to be litigated in the House of Lords. Now this part, closely related, has had to be litigated in this court. No doubt there are great pressures on the legislators. But the distribution of responsibility which is at the core of this case could surely have been provided much more clearly and simply.