B & Anor, R (on the application of) v Hackney

Destitute asylum-seekers usually receive welfare support from the National Asylum Support Service (“NASS”). But destitute asylum-seekers who are particularly vulnerable can be provided with residential accommodation under section 21 of the National Assistance Act 1948 (“the 1948 Act”). Such accommodation may be much better than the accommodation provided by NASS. Moreover, if the asylum-seeker is entitled to residential accommodation under the 1948 Act, he will not be required to take up accommodation in a part of the country with which he has little connection. For that reason, destitute asylum-seekers who claim that they are in particular need of care and attention try to bring themselves within the 1948 Act. In this claim for judicial review, a couple who the law treats as asylum-seekers challenge a local authority’s decision that they no longer need the care and attention to bring themselves within the 1948 Act.

The first claimant, Mr B, is 31 years old. He comes from Jamaica. He arrived in the UK in May 1999, and was granted leave to enter as a visitor. In June 1999 he applied for an extension of his stay as a student. In March 2000 he was diagnosed with HIV/AIDS. Accordingly, in April 2000 he withdrew his earlier application for an extension of his stay as a student and applied for exceptional leave to remain in the UK. The basis of the application was that his removal to Jamaica would be incompatible with Art. 3 of the European Convention on Human Rights, because the unavailability of adequate medical treatment in Jamaica would result in his painful death.

The second claimant, Ms H, is 34 years old. She also comes from Jamaica, and she and Mr B had been living together as a couple for 3 years or so before they separately came to the UK. She arrived in the UK in September 1999, and was granted leave to enter as a visitor and to remain in the UK for 6 months. She did not apply for an extension of her stay. In May 2000 she was diagnosed as being HIV+, and in June 2000 she applied for exceptional leave to remain in the UK on the same ground as Mr B.

On 27 January 2003, the Secretary of State for the Home Department refused the applications of Mr B and Ms H for exceptional leave to remain in the UK. He took the view that adequate medical treatment was available for them in Jamaica. On 10 March 2003 they lodged a notice of appeal against that decision. Their appeal has not yet been heard.

On their arrival in the UK, Mr B and Ms H lived with Mr B’s parents in Hackney, and were financially supported by them. Shortly after he had been diagnosed with HIV/AIDS, Mr B sought support from the Defendant, the London Borough of Hackney (“the Council”). A few months later Ms H did as well. Assessments of their needs were carried out, and pursuant to section 21 of the 1948 Act they were provided with accommodation, as well as subsistence and a travel pass – Mr B in April 2000 and Ms H in August 2000. They had by then ceased to be a couple, though they were content to live under the same roof, and they were therefore provided with a two-bedroom flat. Their needs were re-assessed in March 2002 (Ms H) and June 2002 (Mr B), and the Council decided to continue providing them with accommodation and other support. They each had a daughter, and the two girls had in the meantime come to the UK together in June 2001. Initially the girls lived with relatives, but in August 2002 the two girls moved into the accommodation provided to their parents, because by then Mr B and Ms H had resumed life as a couple, and the second bedroom was therefore available for the girls.

Towards the end of 2002, the Council decided to reassess all persons subject to immigration control to whom it was providing accommodation under section 21 of the 1948 Act. The assessments of Mr B and Ms H were carried out by Ms Leslie Pickering, a social worker who had worked for the Council for 12 years and had diplomas in social work and nursing. She carried out the assessments on 10 February 2003, which was when she discovered for the first time that the girls were living in the flat (though the fact that the girls were living there had been known to another team within the Council’s Social Services Department). Ms Pickering decided that Mr B and Ms H were no longer eligible for the provision of accommodation under section 21 of the Act and other support. They were required to leave their accommodation, Ms H by 12 March and Mr B by 19 March. Those are the decisions challenged on this claim for judicial review, though Mr B, Ms H and the two girls are continuing to reside in the accommodation pending the determination of the claim.

In view of the nature of the challenge to the decisions of 10 February 2003, it will be necessary to return in some detail to the route by which those decisions were reached, but first it is necessary to explain the statutory framework, and the way in which the relevant statutory provisions have been construed. The effect of these provisions and their construction is not in issue. The critical question is whether the Council applied them properly. A detailed consideration of the provisions is therefore unnecessary.

Part VI of the Immigration and Asylum Act 1999 (“the 1999 Act”) provides for support for asylum-seekers. For the purposes of that Part, section 94(1) defines an asylum-seeker as

However, following the enactment of the Asylum and Immigration Act 1996, asylum-seekers who had not claimed asylum at the port or airport of entry had not had access to state benefits or been provided with housing. That meant that between 1996 and the enactment of the provisions in the 1999 Act empowering the Secretary of State to provide accommodation and essential living needs to destitute asylum-seekers and their dependants, destitute asylum-seekers who had not claimed asylum on their arrival in the UK and who did not have any children in their households had looked to section 21 of the 1948 Act as the principal means by which they could be accommodated and maintained. Section 21(1) of the 1948 Act provides (so far as is material):

This power was not, of course, originally designed for asylum-seekers. It was the provision by which a local authority provided residential accommodation for any persons in its area in particular need of care and attention. But before considering what its effect on destitute asylum-seekers was, it is important to note that a local authority’s power to provide such accommodation was converted into a duty to do so by the Approvals and Directions made by the Secretary of State in Circular No. LAC(93)10. Tracking the language of section 21(1)(a), he directed in para. 2(1)

The words “in need of care and attention” in section 21(1)(a) were considered by Collins J. in R v. London Borough of Hammersmith ex p. M (1996) 1 CCLR 69. At p. 83E-F, he said:

The effect of section 21(1)(a) on destitute asylum seekers was considered in that case by both Collins J. and on appeal by the Court of Appeal. By the time the case got to the Court of Appeal, it was reported as R v. Westminster City Council ex p. M, P, A and X (1997) 1 CCLR 85. The applicants were single, male asylum-seekers in reasonable physical and mental health, but who were without any financial resources of their own, without anywhere to live, without the right to obtain employment, and without friends or relatives in the UK able to look after them. They had not claimed asylum at the port or airport of entry, in some cases because they had arrived in the UK clandestinely otherwise than through a recognised immigration control point. They were therefore ineligible for state benefits and housing. Facing months, perhaps years, of utter destitution while their claims for asylum were processed, they sought residential accommodation under section 21(1)(a). The local authorities argued that section 21(1)(a) only applied to those whose need for care and attention arose as a result of physical or mental impairment, and that the applicants’ needs were for shelter and money which arose from their destitution. The Court of Appeal rejected this argument. At p. 93D-E, Lord Woolf MR (as he then was) said:

It was, no doubt, with this decision in mind, and to ensure that destitute asylum-seekers were primarily accommodated and maintained by the Secretary of State through NASS under sections 95(1) and 96(1) of the 1999 Act, that a new section 21(1A) was added to the 1948 Act by section 116 of the 1999 Act. A person to whom section 21(1A) applies

Section 21(1A) was considered by the Court of Appeal in R v. WandsworthLondon Borough Council ex p. O [2000] 1 WLR 2539. At p. 2548D-H, Simon Brown L.J. said:

The spectre of destitute asylum-seekers living on the streets of our cities has been removed as a result of the support now given to them by the Secretary of State through NASS under sections 95(1) and 96(1) of the 1999 Act. Simon Brown L.J. himself accepted that when Westminster was being heard in the Court of Appeal: see (2001) 4 CCLR 143 at [43]. But the availability of NASS support to an asylum-seeker is not a fact which can be taken into account by a local authority when considering whether an asylum-seeker is destitute within the meaning of section 21(1A). That is the combined effect of regs. 6 and 23 of the Asylum Support Regulations 2000 (SI 704/2000). Reg. 23 provides that in determining whether a person is destitute for the purpose of section 21(1A), reg. 6(3) applies as if references to the Secretary of State were references to the local authority. Reg. 6(3) requires the Secretary of State, in considering whether an applicant for asylum support or any dependents of his are destitute, to ignore any asylum support which the applicant may be provided with. Thus, the effect of reg. 23 is that in determining whether a person is destitute for the purpose of section 21(1A) the local authority must ignore the eligibility for asylum support of the applicant for residential accommodation under section 21(1)(a). That was what the Court of Appeal also decided in the Westminster case, and the House of Lords agreed.

There is one final set of statutory provisions to consider. They relate to how the local authority should carry out an assessment of a person’s need for residential accommodation under section 21(1)(a) of the 1948 Act. Section 47(1) of the National Health Service and Community Care Act 1990 (“the 1990 Act”) provides:

In view of the state of health of Mr B and Ms H, and the desirability of the Council obtaining up-to-date information about their physical needs, two other provisions are relevant. Section 47(3) of the 1990 Act provides:

Mr Stephen Knafler for Mr B and Ms H drew my attention to R v. IslingtonLondon Borough Council ex p. Rixon (1998) 1 CCLR 119 in which Sedley J. (as he then was) considered the meaning and effect of an obligation to “act under the general guidance of the Secretary of State” in section 7(1) of the Local Authority Social Services Act 1970 (“the 1970 Act”). He noted at p. 123G that “guidance is less than direction, and the word ‘general’ emphasises the non-prescriptive nature of what is envisaged”, an important distinction in view of the language of section 47(4). But he went on at p. 123H-J:

I have already referred to the Council’s decision towards the end of 2002 to reassess all persons subject to immigration control to whom it was providing accommodation under section 21 of the 1948 Act. A document was prepared explaining how such assessments were to be carried out. It was drafted with the decision of the Court of Appeal in O very much in mind, and it was intended to reflect the test laid down by the Court of Appeal. The assessment would be in two stages. In stage 1 the needs of persons subject to immigration control for community care would be assessed. This was the standard assessment carried out under section 47(1) of the 1990 Act, and was the assessment carried out whenever the provision of community care services was being considered, whether the potential recipient was subject to immigration control or not. Stage 1 was described as follows:

Stage 2 was added to cater for the special position of persons who are subject to immigration control. It applied only if the immigrant was not assessed as having an identified social care need which required the provision of community care services (including presumably the provision of residential accommodation under section 21). The language of stage 2 shows that it was here as well that such a person’s eligibility for accommodation under section 21 of the 1948 Act would be considered. Stage 2 was described as follows:

However, two criticisms can be made of the Council’s policy document. First, the first sentence in stage 2 limits the circumstances which might give rise to the need for care and attention to age, illness or disability. It does not give effect to the words “or any other circumstances” in section 21(1)(a). That might be relevant in other cases, but not in the present case because it is Mr B’s and Ms H’s illness which is said to give rise to their need for care and attention. Secondly, the document does not make it clear that the provision of residential accommodation under section 21 is one of the services included in the phrase “community care services”, and that even at stage 1 of the process it is necessary to consider the applicant’s need for care and attention in the context of assessing his or her need for community care services. However, so long as the assessment required by section 21 is made at some stage, it does not really matter at which stage it is made. As it is, para. 10 of Ms Pickering’s first witness statement shows that she purported to carry out the assessment required by section 21 in the cases of Mr B and Ms H.

The Council’s assessment of the needs of Mr B and Ms H is challenged on three grounds: the failure to obtain up-to-date medical information on their illness, the failure to give reasons for the assessment and the failure to review the assessment. It is necessary to consider each of these in turn.

Up-to-date medical information. The need, where appropriate, to obtain up-to-date medical information in order to assess an applicant’s need for care and attention is obvious. It is referred to in the second sentence of stage 2. As it is, there was medical information on Mr B and Ms H on the Council’s files, but it could not be said to be right up-to-date. The medical information which Ms Pickering had on Mr B was that contained in a letter dated 24 March 2000 to Mr B’s legal advisers, the Terrence Higgins Trust, from a doctor at the hospital at which Mr B was being treated. The relevant part read:

Ms H was being treated at the same hospital as Mr B. The medical information which Ms Pickering had on her was from another doctor at the same hospital, who had on 26 July 2000 completed the form which the Council uses to obtain medical information on persons who seek the Council’s services. He described her condition as “HIV infection – symptomatic disease”. He did not regard her disability as permanent, but he did think that it was substantial, i.e. there was a “significant impairment or loss of function”. He characterised the degree of severity as “severe or appreciable”. The box which he ticked as most accurately describing her mobility stated that she was “unable to walk more than 200m without experiencing pain/severe breathlessness/extreme fatigue/or danger to health”. Her symptoms, which occurred intermittently, were “myalgia, orthalgia, fatigue, drenching sweats”. A few weeks earlier, he had added in a letter to the Council dated 3 July 2000 that Ms H had “not had an opportunistic infection or malignancy diagnosed to date”.

I should add that some weeks after the decisions which are challenged in these proceedings the claimants’ solicitors obtained a further medical report on Mr B, and since the commencement of these proceedings the claimants’ solicitors obtained (a) a further medical report on Ms H, and (b) reports from acknowledged experts on the impact of homelessness on persons with AIDS/HIV and the social care needs of such persons. The impact of homelessness on persons with AIDS/HIV is of only marginal relevance because, if the claimants are not accommodated by the Council under section 21, they will be accommodated by NASS. The other reports show that in addition to medical help, shelter, warmth and food, the type of accommodation which Mr B and Ms H need is accommodation which has hygienic food preparation facilities, the facility for boiling water, facilities for the storage and refrigeration of medication away from food preparation areas and personal hygiene facilities. They also need ordinary basic living items (toiletries, clothing and the like), and help with transport. However, I do not think that I can assume that this is information which Ms Pickering would have received if further medical reports had been sought by her. Those needs had not been made known to the Council in 2000 by the claimants’ solicitors when it had first decided to provide Mr B and Ms H with support under section 21, and this information was only obtained by the claimants’ solicitors after the claim for judicial review had been either threatened or commenced. The only assumption which I can make as to what information would have been provided to Ms Pickering if she had sought up-to-date medical information was an update on the reports which she already had.

Ms Pickering was aware of the need to obtain further medical information if that was appropriate. That is apparent from what she says (in para. 11 of her first witness statement) is her usual practice:

One of the two criticisms which are made of the Council in this context is that it never obtained medical evidence which addressed the question of whether Mr B and Ms H were in need of care or attention. I do not think that that criticism is fair. I do not want to appear unduly legalistic, but all that could be properly have been expected from the doctors treating Mr B and Ms H was an explanation of the condition from which they were suffering, the symptoms which they were experiencing, the medication or other treatment which they were receiving (both for the condition itself as well as for the alleviation of their symptoms), their physical needs and a prognosis for the future. What Mr B and Ms H really needed in terms of care and attention in order to meet those needs would be for social workers to assess.

Thus, the critical question is whether, on the material before Ms Pickering when she made her assessment, it was reasonably open to her to conclude that she did not need the medical information which she had on Mr B and Ms H updated. The second criticism which is made of the Council is that it was not reasonably open to her to reach that conclusion.

The medical information on file about the symptoms of Mr B and Ms H and their physical needs was relatively sparse and out of date. But Ms Pickering’s assessment of their needs was not limited to an examination of the files on them. She visited their home on 10 February 2003 and talked to them. She saw the conditions in which they were living, she heard from them how they were coping, and no doubt she heard from them how their diseases were impacting on them, and what they could or could not do. Her report on both of them shows that they were able to participate in the assessment process, and had no difficulty articulating their needs. In these circumstances, Ms Pickering was, in my judgment, entitled to take the view that she had a sufficient appreciation of their physical needs and the impact of their current symptoms on their daily lives to make an informed assessment of their need for care and attention without obtaining an updated medical report on each of them.

Reasons. The Council’s policy document stated:

However, Ms Pickering gave her reasons in two documents which she subsequently completed (and which were both dated 10 February 2003). The first document was headed “Statement of Need”, and in it Ms Pickering set out her view about Mr B’s needs under various headings including his physical health needs, his mental health needs, his daily living needs, his social network needs and his care support needs. The second document was the second page of a two page document headed “Overview Assessment”, and was intended for internal use only. In that document, Ms Pickering recorded her views on Mr B under various headings including ability to self-medicate, mobility, personal hygiene, meal preparation, continence/toiletry, household tasks, shopping/pension collection, psychological well-being, risk factors and equipment/adaptations. Having completed all these entries, she recorded in the box marked “Conclusion”:

The ultimate conclusion reached by Ms Pickering was a value judgment based on her overall view of Mr B’s needs. The process of reasoning by which she came to her ultimate conclusion was not really susceptible to any greater analysis. All she could do was to consider his care needs, to form a judgment about his ability to cope with the various demands of life, and then to answer the statutory question posed by section 21 of the 1948 Act. In short, I do not think that she could be expected to have expanded on what she had said in the two documents to which I have referred. It follows that, although Mr B should have been given those reasons at the time, he has been provided with those reasons now. It would not therefore be appropriate to grant him any relief on this ground alone.

Ms H is in a different position. It is not suggested that Ms Pickering told Ms H of her decision before she left her home on 10 February 2003, but Ms H was informed of the decision by a letter from the Council dated 13 February 2003, in which a copy of the document headed “Statement of Need” was enclosed. For the reasons I have already given, Ms Pickering’s views as expressed in that document on Ms H’s needs enabled Ms H to know why her needs were not regarded as sufficient to justify the continuation of support under section 21.

Review. The Council’s policy document stated:

Mr Jonathan Cowen for the Council argued that the letters of 7 March 2003 were not requests for a review within the framework of the Council’s policy document. They were simply standard requests for a reconsideration by a local authority of a decision which was to be challenged by judicial review in a letter before action sent to the local authority’s legal department. The latter is undoubtedly true, but I do not see why the letters were not also requests for a review within the framework of the Council’s policy document. It is true that the letters asked the Council to “reconsider” its decision, rather than asking for a manager who was senior to Ms Pickering to review her decision. But

It was originally said by the Council that, even though there had not been a request for a review within the framework of the Council’s policy document, such a review had in fact taken place. But when Mr Cowan was pressed for details of that review, it emerged that the review to which the Council was referring was a review of the proposed claim for judicial review, i.e. whether a challenge to Ms Pickering’s decisions of 10 February 2003 would be sustained. That was not a review of the kind contemplated by the Council’s policy document. The kind of review which was contemplated was a review by a manager in the Directorate of Social Services who was senior to Ms Pickering. Since such a review has not been carried out, it has to be, as otherwise the claimants’ legitimate expectation that the Council would comply with its own policy document (whether they knew of the terms of that policy or not) would be thwarted.

I have already referred, in para. 31, to (a) Ms Pickering’s conclusion about Mr B as expressed in the document headed “Overview Assessment” and (b) those passages in her second witness statement in which she summarised her views about Mr B. She used identical language about Ms H in the conclusion in the document headed “Overview Assessment” on her, and she used similar language in paras. 4 and 5 of her third witness statement when summarising her views about Ms H. It is said that the language which Ms Pickering used shows that she did not apply the correct statutory test: she simply considered whether Mr B and Ms H had needs other than needs for accommodation and food. She regarded the fact that they did not as mandating the withdrawal of support under section 21. That is undoubtedly the impression which one gets from what she said in (a) the last sentence of each of the conclusions in the document headed “Overview Assessment”, (b) para. 10 of her second witness statement and (c) para. 5 of her third witness statement. But she made the link between their medical condition and the absence of any need other than a need for accommodation and food in para. 9 of her second witness statement, and in the first sentence of each of her conclusions in the document headed “Overview Assessment”, she made the critical point about their medical condition not making them more vulnerable than other persons, i.e. those persons whose needs arose as a result of destitution alone.

In these circumstances, I have not been persuaded that Ms Pickering failed to apply the correct test. Nor have I been persuaded that the conclusion which she reached on the material before her was one which she could not reasonably have reached. It follows that there are no grounds for quashing the decisions made by Ms Pickering on 10 February 2003. However, a manager in the Council’s Directorate of Social Services who is senior to Ms Pickering must review her decisions, and it is important that he does not regard this judgment as amounting to an approval of her decisions on their merits. This judgment is nothing of the kind. It constitutes the Court’s findings on whether the decisions were procedurally or legally flawed, and whether they were so irrational, even on the material then before Ms Pickering, that they should not be allowed to stand. But the review which I direct the Council to undertake is one in which the manager conducting it is required to come to his own view on whether support under section 21 of the 1948 Act should continue to be provided in the light of the medical information now before him. That review will involve him taking the following steps:

It follows that the order which I make on this claim for judicial review is that the withdrawal of support for Mr B and Ms H under section 21 of the 1948 Act must be reviewed by a senior officer of the Council’s Directorate of Social Services in accordance with the terms of this judgment. In order to spare the parties the expense of attending court when this judgment is handed down, I 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 any application for permission to appeal. Any such application for costs or permission to appeal should be filed within 7 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.