A, R (on the application of) v National Asylum Support Service & Anor

Prior to 1999, local authorities bore the cost of accommodating and supporting destitute asylum-seekers. That burden fell particularly heavily on those local authorities in whose areas asylum-seekers tended to congregate, especially the inner London boroughs. One of the aims of the Immigration and Asylum Act 1999 was to transfer this burden back to central government – at least as far as able-bodied asylum-seekers were concerned. But who was to be responsible for accommodating and supporting destitute asylum seekers and their dependants who were not able-bodied? In R (Westminster City Council) v. National Asylum Support Service[2002] 1 WLR 2956, the House of Lords considered what responsibilities were owed to them by local authorities under section 21 of the National Assistance Act 1948. The current case relates to the disabled children of a destitute asylum-seeker, and concerns the extent of what responsibilities are owed to them under other statutory provisions.

The Immigration and Asylum Act 1999 (“the 1999 Act”). The provision of support for destitute asylum-seekers is governed by Part VI of the 1999 Act. It contemplates that the support will be provided by the Secretary of State, or in accordance with arrangements made by him, and it identifies the scope of his powers. The governing provision is section 95(1), which provides:

The level of expenditure which the Secretary of State may incur when providing essential living needs is governed by section 97(5). He may limit that expenditure to a proportion of the applicable income support. The current regulations – the Asylum Support (Amendment) Regulations 2002 (SI 472/2002) (“the 2002 Regulations”) – provide that the level of support for a qualifying couple is £59.26 a week, and £33.50 a week for a person under the age of 16.

Since the Secretary of State may make arrangements for the provision of support, rather than providing the support himself, local authorities are empowered to provide support in accordance with arrangements made by the Secretary of State under section 95. Thus, sections 99(1) and 99(2) provide:

The powers which the Secretary of State has under section 95 to provide, or make arrangements for, support for destitute asylum-seekers and their dependants are supplemented by various duties imposed upon him to provide adequate accommodation and essential living needs for the dependant children of destitute asylum-seekers. The relevant obligations are set out in sections 122(3) and 122(4), but to understand them it is necessary to read sections 122(1) and 122(2) as well:

The Children Act 1989 (“the 1989 Act”). Section 17 of the 1989 Act imposes duties on local authorities to provide services for children in need and their families. A child is taken to be in need if he is disabled (section 17(10)(c)). The relevant provisions of section 17 are as follows:

However, section 122(5) of the 1999 Act provides:

A further limitation on the extent of a local authority’s obligation to provide accommodation for a dependant child of an asylum-seeker arises from section 118 of the 1999 Act. Section 118(1) provides:

The Local Government Act 2000 (“the 2000 Act”). Section 2(1) of the 2000 Act empowers local authorities “to do anything which they consider is likely to achieve…..the promotion or improvement of the economic, …..social…..and …..environmental well-being of their area”. That power may be exercised for the benefit of any residents in the area (section 2(2)(b)), and includes powers to incur expenditure, give financial assistance, enter into arrangements or agreements, exercise another’s functions, and provide goods, services or accommodation (section 2(4)). The only restriction on this power which is relevant for present purposes is that contained in section 3(1), which provides:

According to the Secretary of State’s guidance to local authorities on the implementation of section 2, the powers which it confers are to be regarded as a power of “first resort”. Section 2 is in very broad terms, and it is on the face of it wide enough to enable a local authority to provide disabled children and their families with adequate accommodation for their needs, or to arrange for the provision of such accommodation, or (as Elias J. found in R (J) v. LondonBorough of Enfield[2002] 2 FLR 1 in relation to the child of an overstayer who had been diagnosed with HIV) to provide financial assistance for the provision of such accommodation.

Adaptations of the homes of disabled children. Section 2(1) of the Chronically Sick and Disabled Persons Act 1970 (“the 1970 Act”), when read in conjunction with section 28A, requires local authorities to adapt the homes of disabled children ordinarily resident in their area or to provide them with additional facilities in order to meet their needs. It provides:

Ms Fenella Morris for the claimant took a preliminary procedural point. Rule 54.9(1) of the Civil Procedure Rules provides:

I decided to permit the Secretary of State to take part in the hearing. In my view, this was an appropriate case for the court to grant relief from the sanction. In reaching that conclusion, I considered each of the factors listed in rule 3.9(1), and I took into account the facts that (a) in the Acknowledgement of Service the Secretary of State had accepted that permission to proceed with the claim should be granted (thereby obviating the immediate need for the claimant to know the basis in summary form of the grounds for contesting the claim), and (b) the claimant’s advisers had known at the beginning of the hearing what the Secretary of State’s case was because two days earlier a skeleton argument prepared by Mr Parishil Patel for the Secretary of State had been served. I did not discern any prejudice to the claimant which could not have been met by orders for costs, or by further directions which might have to be made in the course of the hearing if the claimant’s advisers were disadvantaged by the delay in their knowing what the grounds for contesting the claim were. In particular, this was a difficult case which by definition had a strong public law element, and the interests of the proper administration of justice made it important that the submissions I received were as informed and comprehensive as possible.

The provision of accommodation to the claimant. The claimant comes from Turkey. She arrived in the UK on 30 May 2001 with her two sons and claimed asylum here. They initially stayed with relatives in Dalston. Their relatives were unable to continue to provide accommodation for them, and the claimant sought assistance from the Asylum Seekers’ Service Unit (“the Unit”) in the Department of Social Services of the London Borough of Hackney (“LBH”), in whose area the claimant and her children were then staying. The Unit arranged for them to be temporarily accommodated at 50 Clacton Road, Walthamstow. That accommodation was not part of LBH’s own housing stock and was not even within LBH’s area, but within the area of the London Borough of Waltham Forest (“LBWF”).

The boys’ disabilities. The claimant’s two sons are severely disabled as a result of a progressively degenerative neurological condition. Their life expectancy is short. They both require constant supervision. The older boy who is now 16 is partially-sighted and his speech is impaired. He has a severe motor disability, and is unable to walk even short distances or manage stairs unaided. He uses a wheelchair wherever wheelchair access is available. He is incontinent and requires assistance with all his personal care including bathing, dressing and feeding. He has a severe learning disability, and such serious behavioural problems that he has injured his mother and was excluded from school in Turkey. The younger boy is now 14. His sight and speech are impaired. He has limited mobility, he is unsteady on his feet and tires very easily. He needs help in climbing stairs. He also uses a wheelchair when wheelchair access is available. He requires assistance with his personal care, though not yet to the same degree as his brother. He has a moderate to severe learning disability, as well as behavioural problems of his own. Because the boys’ condition is a progressive one, they become more and more disabled as they grow older.

The suitability of their current accommodation. It has been accepted since the middle of 2002 that the accommodation at 50 Clacton Road is unsuitable for the claimant and her family (which by then included her husband who had arrived in the UK on 7 January 2002). The property is a two-bedroom house on two floors. The bedrooms are on the first floor. The stairs are narrow and steep with three winding stairs at the top. As a result, there is the risk of an accident when the claimant or her husband helps the two boys up the stairs. Since the toilet is downstairs, and since the older boy is incontinent, this journey has frequently to be made at night. When the boys have tried to go up the stairs on their own, they have fallen on a number of occasions. In addition, they cannot use their wheelchairs in the house except in the sitting-room.

The sort of accommodation which would be suitable for the boys’ needs was described in a report dated 27 May 2002 from LBWF’s Childrens’ Occupational Therapy Team as follows:

The criticisms of LBH. LBH was, no doubt, acting from the best of motives in providing temporary accommodation for the claimant and her sons, even though it had not carried out any assessment as to its suitability for a family with two disabled children. But its decision to provide (a) temporary accommodation at all and (b) temporary accommodation in Walthamstow has been attacked on two fronts. First, it has been criticised by the National Asylum Support Service (“NASS”), which is the executive agency through which the Secretary of State provides support for asylum-seekers under Part VI of the 1999 Act. NASS had not been involved at all in the provision of the accommodation. Because the claimant and her sons were eligible for support from NASS under section 95 of the 1999 Act, LBH was ostensibly prohibited, by section 122(5)(b) of the 1999 Act, from providing accommodation at all to the claimant and her sons under section 17 of the 1989 Act (which NASS presumed was the statutory provision under which LBH had been acting). Indeed, the fact that temporary accommodation had been provided to the claimant and her sons despite the apparent prohibition on LBH from providing such accommodation led the claimant’s solicitors to believe that LBH had provided the accommodation as a result of arrangements made by the Secretary of State for the provision of temporary accommodation to the claimant under section 98 of the 1999 Act. Secondly, LBWF criticised LBH for providing temporary accommodation in Walthamstow. LBH was said to have been indulging in the practice of “dumping”, i.e. placing a family with complex needs in the area of another authority and subsequently arguing that the family had ceased to be its responsibility.

The claimant’s dealings with NASS. On 14 June 2001, the Unit helped the claimant to complete an application form for support from NASS pending the outcome of her application for asylum. The support which was sought was the provision of accommodation and financial support for her essential living needs. The fact that LBH may not have been entitled to provide the support which it was providing was not picked up by the NASS caseworker when the application was initially assessed. As I read the witness statement of Mr Michael Barber, the NASS officer who now has responsibility for the claimant’s case, the effect of that was that the claimant’s application for support from NASS was not then considered.

Initially, the claimant’s solicitors asked NASS to accommodate her in Dalston so that she could be near her relatives. But the claimant understandably shifted her position after a while. She had begun to put down roots in Walthamstow, and accordingly on 22 November 2001 her solicitors asked NASS (still in the belief that NASS had arranged for the provision by LBH of the accommodation in Walthamstow) for the claimant to be permitted to continue to occupy her current accommodation (although by no means ideal in view of the boys’ disabilities) until her claim for asylum had been determined. By then, NASS had accepted that it was responsible for providing the claimant with accommodation which was adequate for the needs of her family, but NASS concluded that the circumstances were not such as to justify a departure from its policy of providing accommodation in areas where there is a ready supply of accommodation, which in practice meant providing accommodation outside South-East England. The claimant’s solicitors were notified of that decision on 7 February 2002, and of NASS’s confirmation of that decision on 7 March 2002.

On 14 March 2002, the claimant’s solicitors made lengthy and powerful representations to NASS. They complained that in deciding to disperse the claimant and her family out of London, NASS must have failed to take into account all the family’s circumstances. NASS reconsidered its decision in the light of those representations, and on 4 April 2002 it notified the claimant’s solicitors that it had decided not to disperse the claimant and her family out of London. NASS also agreed to subsidise the claimant’s occupation of her current accommodation. According to Mr Barber, NASS did so only because the claimant had been content to continue to live there while her asylum claim was being processed. However, NASS was concerned about the suitability of the accommodation, which was why its letter of 4 April 2002 continued:

This letter prompted the claimant to shift her position once again. Having previously asked to be permitted to occupy her current accommodation (even though it was by no means ideal in view of the boys’ disabilities), her solicitors understandably took up the suggestion that she be accommodated elsewhere. In a letter to NASS of 11 April 2002, they requested that the new accommodation should be in the same locality because by then the boys had started to attend a local school in Walthamstow for children with special educational needs. They also requested that if the new accommodation was to be on two floors, there had to be a toilet on each floor so that the older boy could have access to it at all times without having to negotiate the stairs.

The claimant’s solicitors heard nothing further from NASS. Accordingly, on 14 June 2002 they wrote to NASS requesting that the new accommodation be provided to the claimant and her family within 21 days. If it was not, proceedings for judicial review would be commenced. NASS’s response of 23 June 2002 was to reiterate that it was “currently trying to establish if [it] has any suitable accommodation for this family, given the special needs of the children”. Indeed, the NASS caseworker noted that the medical evidence had caused NASS to conclude that the accommodation which should be allocated to the claimant should be “as close as possible to the current address, as the children are receiving special education services”.

However, it soon became apparent that none of NASS’s very small stock of available accommodation in London was suitable for the needs of the claimant and her family, and the steps which NASS then took were set out in its letter to the claimant’s solicitors of 31 July 2002:

It is said that apart from requesting LBWF “to assist in funding accommodation on [its behalf]”, NASS took no other steps to find suitable accommodation for the claimant. For example, it did not require a registered social landlord to help, as it could have done under section 100(1) of the 1999 Act, and it did not attempt to find a suitable property to lease or buy. To that, NASS claims that there was no point in requesting a registered social landlord for help, because the properties on lists of available properties maintained by registered social landlords would have been on lists of available properties maintained by local authorities. Having said that, one cannot exclude the possibility of some properties coming to the attention of registered social landlords of which local authorities were unaware. NASS also claims that at no time had a suitable property in the area which could be leased been identified (apart from the one in Redbridge), and that it would have been wholly inappropriate for it to have bought a suitable property for a family for whom such obligation as NASS had to accommodate was only temporary, i.e. until the claimant’s claim for asylum had been determined.

The claimant’s dealings with LBWF. The claimant’s solicitors contended that LBWF, not LBH, was (a) the local authority which was to provide her and her family with community care services and (b) the local education authority which was obliged to meet the special educational needs of the claimant’s sons. LBWF disagreed, and eventually LBH issued proceedings for judicial review against LBWF. Those proceedings were compromised in May 2002 when LBWF reluctantly accepted responsibility for community care services for the family, the boys’ special educational needs having already been met by their placement at a school close to their home.

The claimant’s solicitors were also pressing LBWF for an assessment by an occupational therapist of how the claimant’s current accommodation could be adapted, and what additional facilities had to be provided, to secure the boys’ greater safety, comfort and convenience, as required by the 1970 Act. On 25 April 2002, LBWF wrote to the claimant’s solicitors and informed them of its acceptance of responsibility for carrying out such an assessment and its willingness to provide such services as that assessment identified to be necessary. That was the assessment to which the report of 27 May 2002 related, and it identified a number of adaptations which could be made and equipment which could be provided to meet the boys’ needs. However, none of these proposals were implemented. That was because NASS had advised LBWF that the family would be moved if more suitable accommodation could be found.

On 5 August 2002, LBWF wrote to the claimant’s solicitors confirming that NASS had requested LBWF to assist NASS in finding suitable accommodation within its area for the claimant and her family. The letter read:

LBWF regarded section 118 of the 1999 Act as preventing it from looking for suitable accommodation within its own housing stock, but over the next few months it identified a number of properties outside its own housing stock as potentially suitable for the claimant and her family. Only one was eventually regarded by LBWF as suitable, though it needed to be adapted to make it suitable. In its Acknowledgement of Service of 3 January 2003, LBWF stated that the property would meet the needs of the claimant and her family “in the short to medium term”. The property was in the London Borough of Redbridge, but it was eventually rejected by the claimant on the basis that the boys had settled well in their school at Walthamstow, and that if the family moved to Redbridge, they would either have to attend a different school or be faced with long journeys to and from school each day. Moreover, a move to Redbridge would disrupt the informal network of support which the claimant enjoyed from friends and local voluntary and respite agencies. Deprived of that support, the claimant’s own fragile mental health might be affected. In addition, it is questionable whether, even with the adaptations which had been proposed, the property in Redbridge would be suitable in the light of the boys’ complex needs.

At one point, it was being said that the claimant had decided by November 2002 that she wished to remain in her current accommodation after all, at least for the time being. In fact, the position was that the claimant regarded the property in Redbridge as no better than her current accommodation, and she said that in those circumstances she would prefer to remain in her current accommodation until the hearing of her appeal against the Secretary of State’s refusal to grant her asylum. The appeal was due to be heard on 9 January 2003. To bring matters up to date, the appeal was dismissed on 14 March 2003, but on 15 May 2003 the Immigration Appeal Tribunal granted her leave to appeal to the Immigration Appeal Tribunal.

Finally, in the run-up to the hearing of this claim, LBWF checked its list of applicants waiting for accommodation whose needs were regarded as having a similarly high priority as those of the claimant and her family. There were 26 households waiting for accommodation with two bedrooms, and 12 waiting for accommodation with three bedrooms. Many of them had been waiting a long time. And if the recent availability of suitable accommodation with wheelchair access was an indicator of the future availability of such accommodation, it was to be noted that only 3 suitable units had become available in the last 12 months. It has to be said, though, that this was the waiting list for those entitled to accommodation under the housing legislation. It did not purport to deal with how LBWF have accommodated those entitled to be accommodated under section 17 of the 1989 Act or section 2 of the 2000 Act, or indeed under section 21 of the National Assistance Act 1948 (“the 1948 Act”) (which requires local authorities to provide residential accommodation for people in particular need of care and attention which is not otherwise available to them).

Section 122 of the 1999 Act imposed a duty on the Secretary of State to provide adequate accommodation for the dependant children of destitute asylum-seekers. Section 122(3) is the governing provision, and it is convenient to repeat it here:

NASS is subsidising the claimant’s occupation of her current accommodation. In that sense, the current occupation is being provided by NASS. Since the Secretary of State’s duties under section 122(3), and therefore under section 95, are only triggered if “adequate accommodation is not being provided” for the claimant’s children, the critical question is whether their current accommodation is “adequate” within the meaning of section 122(3).

Guidance as to what constitutes “adequate accommodation” in section 122(3) can be gleaned from what Collins J. held constituted “essential living needs” in section 122(4) in R (Ouji) v. Secretary of State for the Home Department[2002] EWHC 1839 Admin. That case also concerned the disabled child of a destitute asylum-seeker. It was common ground that the Secretary of State was obliged under section 122(4) to meet her “essential living needs”. It was argued on her behalf that her essential living needs included her additional needs arising out of her disability over and above those of the child who was not disabled. It was said that the words “essential living needs” had to reflect the condition and circumstances of the particular child whose needs were being considered.

Collins J. held at [44] that the words “essential living needs” refer to

But in determining whether Parliament had intended such an exercise to be carried out, what Collins J. regarded as particularly significant was the demarcation line between Part VI of the 1999 Act and other statutory provisions. That demarcation line had been drawn by the Court of Appeal in R (Westminster City Council) v. National Asylum Support Service (2001) 4 CCLR 143. It had held that Part VI of the 1999 Act had intended that support for asylum-seekers and their dependants who were destitute should be provided by the Secretary of State. It had not intended that support for asylum-seekers and their dependants who were disabled as well as being destitute should be provided by the Secretary of State. Such additional support as they needed as a result of their disabilities would be provided by local authorities under other statutory provisions, for example under section 21 of the 1948 Act. (That demarcation line was subsequently approved by the House of Lords when Westminster eventually got there: [2002] 1 WLR 2956). Accordingly, Collins J. held that the essential living needs of a disabled child of a destitute asylum-seeker were the “ordinary” needs of the child had the child not been disabled. Any additional needs which a disabled child has were to be “left to the local authority in question to deal with”, though I should add that that presupposes that there is no other statutory bar on the local authority meeting those additional needs.

This reasoning (with which I agree) applies with equal force to what constitutes “adequate accommodation” in section 122(3). Thus, subject to a particular argument deployed by Ms Morris which I must address, the accommodation which is provided for the disabled child of a destitute asylum-seeker is adequate if it would have been adequate for the child if the child had not been disabled. This approach is reflected in what Ms Morris told me was the way in which NASS and local authorities approach the funding of “special” accommodation which had been provided for disabled children of destitute asylum-seekers. NASS funds the provision of the accommodation to the extent to which it would have done if the child had not been disabled, and the local authority meets any additional costs incurred as a result of the “special character” of the accommodation arising from the child’s specific needs as a result of the child’s disabilities. Since it was not suggested that the current accommodation would not be adequate if the claimant’s sons were not disabled, it follows that the claimant’s current accommodation was adequate within the meaning of section 122(3), and the Secretary of State’s duty to provide other accommodation had not been triggered.

The demarcation line drawn in Westminster and the effect of Collins J.’s judgment in Ouji formed the backbone of Mr Patel’s submissions. The thrust of his argument was that in the light of those considerations this was not an appropriate case on the facts for the grant of any relief against NASS in view of

The point taken by Ms Morris relates to the boys’ right under Art. 8 of the European Convention on Human Rights to respect for their “family life”. In R (Bernard) v. London Borough of Enfield[2002] EWHC 2282 Admin, a local authority had failed to discharge its duty to provide suitably adapted accommodation under section 21 of the 1948 Act to a severely disabled woman. It was argued on her behalf that the local authority’s conduct had amounted to a breach of her right to respect for family life. The parties accepted as a correct statement of what constituted family life the following passage in Clayton & Tomlinson’s Law of Human Rights, para. 13.90:

I cannot go along with this argument for at least two reasons. First, in the light of the demarcation line drawn in Westminster, the extent to which the boys’ right to respect for their family life has been infringed, if at all, by the provision of inadequate accommodation is the responsibility of the body required by the legislation to provide support for the disabled. Thus, if any body’s duties need to be interpreted in order to give effect to the need to take positive measures in appropriate cases to enable disabled persons to enjoy a proper family life, it is the duties of the local authority, not the duties of the Secretary of State. Secondly, although the current accommodation is unsuitable in the light of the boys’ specific needs, it is very far from being so destructive of family life as to prevent them from enjoying a proper family life. The principal features which render it unsuitable for the boys’ needs are

The correspondence shows that any accommodation to be provided to the claimant would be provided by NASS (with LBWF simply assisting NASS to fund it), rather than NASS making arrangements for such accommodation to be provided by LBWF (with NASS reimbursing LBWF for the cost of doing so): see para. 28 above. Thus, there was no duty on LBWF to provide any accommodation to the claimant under section 99(2) of the 1999 Act, because no arrangement had been made with the Secretary of State for the provision of accommodation by LBWF. The obligation on LBWF was that imposed by section 100(2) of the 1999 Act, which was to give the Secretary of State such assistance as was reasonable to enable the Secretary of State to exercise his power under section 95 to provide accommodation to the claimant. Given that the only assistance sought was assistance in finding accommodation which was suitable for the claimant, the claimant’s case is that LBWF failed to discharge its duty to give that assistance by failing to search its own housing stock for such accommodation as could be adapted to meet the claimant’s needs. Such accommodation could not have been provided by the Secretary of State, since the allocation of that accommodation would not have been within his gift, but if such accommodation had been found, the Secretary of State could have exercised his power under section 95 to arrange for the provision of that accommodation by LBWF under section 99.

This argument breaks down at first base. The Secretary of State’s power to provide accommodation under section 95 is a power to provide accommodation which is “adequate for the needs of the supported person and his dependants” (section 96(1)(a)). These words should be construed in the same way as the phrase “adequate accommodation” in section 122(3), since section 122(3) is intended to ensure that the power in section 95 is converted into a duty in the case of the children of destitute asylum-seekers. It follows that LBWF’s obligation under section 100(2) was to assist the Secretary of State in finding accommodation which would have met the needs of the claimant’s children had they not been disabled. Since such accommodation had already been provided for the claimant’s children, there was nothing further that LBWF was obliged to do.

Moreover, even if LBWF had been obliged to assist the Secretary of State in finding accommodation which was suitable for the specific needs of the claimant’s children, LBWF had, albeit belatedly, looked at its own housing stock for this purpose. That had revealed a demand for such accommodation from families on its own housing list which greatly exceeded the supply. LBWF could not rely on its lack of resources to justify a failure to comply with its obligations under Part VI of the 1999 Act: see what the Court of Appeal said in R v. Kensington and Chelsea Royal London Borough Council ex p.Kujtim[1999] 4 All ER 161 at [21-22] about a lack of resources not justifying a failure to comply with obligations under section 21 of the 1948 Act. But its obligation was to give such assistance to the Secretary of State in finding accommodation as was reasonable in the circumstances. I proceed on the assumption, favourable to the claimant but without deciding, that what was reasonable is to be judged by the court rather than by LBWF. In my view, it would have been reasonable for LBWF not to inform the Secretary of State about a property in its own housing stock when it became available if to do so would be to make it unavailable to families on its own waiting list whose needs for such accommodation were comparable to those of the claimant and her family.

If LBWF is not in breach of its duty under section 100(2) of the 1999 Act, is it in breach of its duties under section 17 of the 1989 Act? That depends on whether section 122(5) of the 1999 Act had the effect of disapplying such obligations as LBWF would otherwise have had to the claimant’s sons under section 17. The argument on the true effect of section 122(5) assumed that the Secretary of State was not “complying with” section 122(3). But since I have found that the Secretary of State was complying with section 122(3) – because the claimant’s current accommodation was adequate for her sons within the meaning of section 122(3) as I have construed it – there is no basis for saying that LBWF’s obligations under section 17 towards the claimant’s sons were not disapplied by section 122(5).

I turn to LBWF’s powers under section 2 of the 2000 Act. In the light of Elias J.’s judgment in J, Mr Bryan McGuire for LBWF did not argue that section 2 was not wide enough to enable LBWF to provide disabled children and their families with accommodation which was suitable for their needs, or to arrange or provide financial assistance for the provision of such accommodation. He argued, however, that LBWF was prevented from exercising that power because section 122(5) of the 1999 Act amounted to a “prohibition, restriction or limitation” on its power to do so. I agree. Section 122(5) prevented LBWF from providing assistance to the claimant’s sons under section 17 of the 1989 Act. Since section 17 of the 1989 Act would otherwise have been the only enactment which imposed duties on LBWF to provide them with suitable accommodation, or to arrange or provide financial assistance for the provision of such accommodation, the prohibition on LBWF’s use of section 17 amounted to a prohibition on its use of those powers under section 2 of the 2000 Act which the claimant wished LBWF to exercise in relation to her and her sons. It was reasoning of this kind that must have informed Moses J.’s conclusion in R (Khan) v. Oxfordshire County Council[2002] EWHC 2211 Admin that section 21(1A) of the 1948 Act amounted to a prohibition on the local authority’s power to provide accommodation which it would otherwise have been obliged to provide under section 21(1)(a) of the 1948 Act. And the fact that section 122(5) might well have the effect which I have concluded it has was strongly hinted at in W at [75].

The upshot of all this is that although LBWF would have had a duty under section 17 of the 1989 Act to provide accommodation which was suitable for the specific needs of the claimant’s children had the claimant not been a destitute asylum-seeker, the fact that the Secretary of State was discharging his limited duties to them under Part VI of the 1999 Act meant that LBWF was not permitted to provide that accommodation under section 17. That is the consequence of the way in which section 122(5) has been drafted. It does not take into account the fact that the circumstances in which a local authority must provide accommodation under section 17 are wider than the Secretary of State’s duty to do so under section 122(3), and yet if the Secretary of State is complying with his duty to provide accommodation under section 122(3), the local authority cannot provide more suitable accommodation under section 17. If the claimant’s current accommodation had prevented her sons from enjoying a proper family life, and if their right to respect for family life under Art. 8 had been infringed, it may have been necessary to consider how section 122(5) should be construed so as to enable suitable accommodation to be provided under section 17 to ensure that they enjoyed a proper family life. But that issue is not engaged in the present case in view of my conclusion that their current accommodation still permits them to enjoy a proper family life.

When LBH first provided the claimant and her family with their current accommodation, it also provided her with financial support for her essential living needs. I assume that in due course NASS took over that responsibility, because the claimant complains that if she and her family were entitled to the full range of state benefits, she would receive “over three times the current level of support from NASS”. I have also assumed that the level of financial support which the claimant receives from NASS is the maximum allowed under the 2002 Regulations, namely £59.26 a week for her and her husband, and £67.00 a week for the two boys.

That is supplemented by the payment of £115.00 a year which LBWF proposed in March 2003 should be paid to cover the costs which it assessed as having arisen from the boys’ disabilities, to cover extra towels, bed-linen, underwear, socks and other clothing. That amount is said to be inadequate in three respects. The boys have many hospital appointments, and often they can only go there by taxi. Their incontinence increases the amount of laundry, and the wear and tear on their clothes and bed-linen. And because they have to spend so much time at home, they need toys to stimulate them.

If LBWF’s only route to the provision of this financial support by way of cash was by section 17(6) of the 1989 Act, the claim would have been subject to the same vice as the claim for alternative accommodation. Since it is not suggested that the Secretary of State is not complying with section 122(4) in relation to the claimant’s essential living needs, LBWF would be prohibited by section 122(5) from paying even £115.00 a year to the claimant, let alone a greater sum. But section 17A of the 1989 Act empowers local authorities to make direct payments to a disabled child’s parent in place of services which would otherwise have been provided under section 17. Since the payment of cash under section 17(6) is treated by section 17(6) as the provision of a service, and since section 122(5) does not prevent a local authority from exercising its powers under section 17A even if the Secretary of State is complying with section 122, there was no bar on the exercise by LBWF of its power under section 17A.

Since the power under section 17A was the power which LBWF must be regarded as having decided to exercise by agreeing to pay the claimant £115.00 a year, the sum which LBWF then had to pay her was such a sum as it thought fit in place of the services which they would otherwise have provided under section 17. No submissions were advanced orally to me on this aspect of the case, but it looks as if LBWF has not yet addressed the three areas in respect of which the current amount is said to be inadequate. It should do so.

For all these reasons, and save for an order requiring LBWF to decide whether to make increased payments to the claimant under section 17A of the 1989 Act to cover the claimant’s additional expenditure referred to in para. 48 above, this claim for judicial review must be dismissed. I have reached that conclusion with little enthusiasm, but I believe that I have done no more than to apply to section 122(3) of the 1999 Act the reasoning which Collins J. applied to section 122(4) in Ouji. It was that reasoning which led to the dismissal of the claim against NASS, and once it was found that NASS was complying with its obligations, section 122(5) relieved LBWF of its liability as well.

As I said at the end of the hearing, I want to spare the parties the expense of attending court when this judgment is handed down. I therefore leave it to the parties to see whether the costs of the claim can be agreed. In case they cannot be agreed, I give the parties liberty to apply for the issue of costs to be decided by me. The same applies to the claimant if she wishes to apply for permission to appeal. Any such applications for costs or permission to appeal should be filed within 14 days of the handing down of this judgment, and I will consider such applications without a hearing on the basis of any written representations which the parties wish to make.