M, R (on the application of) v Slough Borough Council

MR JUSTICE COLLINS: The claimant in this case, whom I shall refer to as M, is a 37 year-old Zimbabwean. He has claimed to be entitled to remain in this country because he has the misfortune to suffer from either AIDS or he is HIV positive; it is not entirely clear from the medical evidence before me whether his condition has crossed the border between HIV positive and full blown AIDS. It perhaps matters not because it is his case that were he to be returned to Zimbabwe, the unavailability of suitable treatment would mean that he would be likely to die in an unpleasant fashion within a relatively short period of time, whereas here he is able to receive treatment which gives him a reasonable quality of life and is likely to extend his expectation of life.

He claims that it would be a breach of article 3 of the European Convention on Human Rights to return him. That means that until that issue is decided by the Home Office he is, within the meaning of the relevant legislation, to be treated as an asylum seeker. There is a subsidiary complaint made by the defendant Council that it has taken altogether far too long a time for the Secretary of State to reach a decision upon his claim. It is said that those representing the claimant in his asylum application -- not, I should say, those representing him in this particular claim -- have been dilatory in pursuing the matter with the Home Office. That is criticism which is peripheral to the issues which I have to determine and in any event I am far from persuaded that there is an inherent probability lying behind those criticisms, having regard to my knowledge of the speed at which the Home Office in some instances deals with cases of this nature, or perhaps I should say the lack of speed.

In any event, the result is that he is an asylum seeker who suffers from a chronic illness. He requires continual medication and, in order for that medication to be effective, it has to be kept in refrigerated conditions. There is also medical evidence which is not contradicted, indeed it could not be contradicted, that if he does not have accommodation and the warmth and security that goes with it, that is to say if he were required to fend for himself on the streets, his medical condition would be likely to deteriorate. He would be more vulnerable than the able-bodied and in such a situation, even the able-bodied would be likely, in due course, to deteriorate if provided with no accommodation.

The reason why the claim is made against the defendant Borough Council is that, at present, the claimant is being accommodated by them. He had been able for a period of time to live with a cousin, but it is his evidence, and again there is no contradiction of this, that that situation is no longer possible and that he has effectively lost touch to a large extent with that cousin. There is no-one else who is available to provide him with accommodation. He is receiving assistance from charitable sources to enable him to buy food, or to have food, and from time to time he has been provided with small amounts of money. He is an intelligent man. He would be able to work were he to be permitted to do so and it may well be that despite his illness he would be able to find a job, but as an asylum seeker whose claim has not yet been determined, he is not permitted to work. Thus, he is not permitted to have any other source of income from the state and he is not entitled to any benefits other than those which are available to asylum seekers.

Those benefits are dealt with in section 95 of the Immigration and Asylum Act 1999. That provides, so far as material, in subsection 1 that:

The period prescribed is 14 days. Subsection 3 of section 95 goes on to define destitution. Subsection 3 has been replaced by the provisions of section 44 of the Nationality Immigration Asylum Act 2002, but I am told that that has not yet been brought into effect. In reality, the amendments, although the language is slightly different, make no substantial change, certainly no change which could have any effect for the purposes of this case to the test in section 95(3) as originally enacted. That test is as follows:

So there are two possible ways in which a person can become destitute; either no accommodation, or accommodation but no means of meeting his other essential living needs.

The 1999 Act came into existence as a result of a decision of the Court of Appeal in R v Hammersmith and Fulham London Borough Council, ex parte M 30 HLR, 10. That was an appeal from a decision of mine in which I had decided that section 21(1)(a) of the National Assistance Act 1948 enabled, or indeed required, local authorities to provide support for asylum seekers who were deprived of any other means of support and who were thus destitute. Parliament had decided that all provision for such asylum seekers should be removed, so the question was whether section 21 of the 1948 Act was available and could properly be used to provide for their support if otherwise they would be destitute.

The Court of Appeal decided that section 21 could be so used. It provides as follows:

An issue which has been raised before me by Mr Underwood on behalf of the defendant counsel is: what was the true extent and ratio of the decision in ex parte M. He has submitted that it has, effectively, been misunderstood not only by the Court of Appeal in subsequent cases but also, it would seem, by the House of Lords and that, in truth, its ambit was somewhat narrower than had been believed. In particular, what it required was that there should be an assessment as to whether an individual was in need of care and attention within the meaning of section 21(1)(a) and that was an assessment which it was for the local authority to determine. He draws particular attention to the passage in the judgment of Lord Woolf at page 20 of the report, in which he said this:

May I say in parenthesis that he did not. The passage then continues:

The direction to which reference is there made is that which was given in 1993 in the appendix to a Department of Health circular, number LAC(93)10 and in that the Secretary of State approved the making by local authorities of arrangements under section 21(1)(a) of the Act in relation to persons with no settled residence and directed them to make arrangements in accordance with the wording of subsection 1.

Paragraph 2.5 provided that.

It is said by Mr Underwood that all that Lord Woolf had said in the passage I have just cited was in the context of lack of accommodation and lack of money leading to injury to health and it was not a case merely of destitution being able to be equated to a need for care and attention.

The relevance of all that is in the context of the decision which was made by Slough in this case. The decision that I am now considering was made on 5th March 2004 after the commencement of these judicial review proceedings, but there has been an amendment, to which Mr Underwood did not object, which effectively makes much the same complaint against the decision of 5th March as was made in relation to the previous decision.

The assessment which led to the decision, the assessment of need, goes through what was required by the claimant, pointing out that although he is suffering from HIV/AIDS and requires access to appropriate medical care, he otherwise is perfectly capable of looking after himself and does look after himself in all respects. He is living in accommodation which, although not settled, has been continuous.

The decision was that he was not in need of care and attention within the meaning of section 21; therefore, the authority had no responsibility. What the assessment does not deal with and does not focus on at all and is thus, Mr Knafler submits, flawed is the effect of the absence of accommodation, because the whole point is that Slough are contending they are not obliged to accommodate the claimant. Indeed, it is essentially their case that because they have properly decided that he is not in need of care and attention, the responsibility will lie on the Home Office through NASS. I should add that that approach is, it is submitted, consistent with the judgment of Keith J in R on the application of B and H v the London Borough of Hackney [2003] EWHC 1654 (ADMIN), a case which involved two HIV positive claimants and so had a similarity on the facts to this case.

Before going to the relevant authorities I should say that, as a result of M, amendments were made to section 21 of the 1948 Act and those are to be found in subsections 1A and 1B. 1A reads as follows:

What that boils down to is that destitution will have the same meaning as in section 95 of the 1999 Act. That means that it is, as I repeat, either that he has no accommodation, or no means of obtaining accommodation, or if he does have accommodation he is not able to provide for himself the necessities of life.

In this case he is destitute, or so he claims, because he has no accommodation other than accommodation which can be provided by the local authority. If he loses that, he will be unable to find anywhere to live; he will be on the street and his condition will undoubtedly begin to deteriorate. More importantly, he will thereby be destitute within the meaning of section 21(1A) of the 1948 Act.

The effect of that, and the question as to who should have the responsibility for dealing with asylum seekers such as the claimant, has been considered by the courts in a number of cases. The one which clearly has to be most carefully considered is the decision of the House of Lords in R (Westminster City Council) v National Asylum Support Service [2002] 1WLR 2956. That involved a Kurdish woman who was suffering from spinal myeloma and who was an asylum seeker. The battle was between the Home Office and the Council as to who was responsible for supporting her. Lord Hoffmann gave the main reasoned speech. He referred, in paragraph 26, to the construction of 21(1)(a) saying this:

Then he goes on in paragraph 29:

If one takes that at face value it would appear that the infirm are limited to those whose infirmity required the provision of care and attention. It is focusing upon that that Mr Underwood has made his submissions: that the care assessment in this case was lawful because it did focus on whether there was a need for care and attention as a result of the illness, and the decision was that there was not.

Indeed Mr Underwood submits that Lord Hoffmann emphasises this in paragraph 32. He says there:

He then considered the argument raised on behalf of Westminster that the asylum seeker in the case did not come within section 21(1)(a) in the first place, because her need for care and attention did not entail a need to be provided with accommodation. That argument was rejected, Lord Hoffmann saying in paragraph 43:

However, Lord Hoffmann had to take into account the decision of the Court of Appeal in ex parte O [2001] 1 WLR 2539 and a decision at the time at first instance of Wilson J in R on the application Mani v Lambeth LBC and the Secretary of State for the Home Department which had been reported in The Times on 8th May 2002.

The argument raised was that the consequences of the decision in O were absurd because, taking the case of Mani which followed it:

He concluded that in the circumstances, the need for care and attention by the asylum seeker did not arise solely because she was destitute but also, and largely, because she was ill. He concluded:

So, submits Mr Underwood, and with some support, the Westminster City Council case in the House of Lords does not go as far as Mr Knafler's submissions would require. It does not go beyond a decision that an illness which itself requires a need for care and attention is sufficient to come within 21(1)(a) whereas an illness which does not, of itself, require that care and attention does not. The submission really is that one has, in those circumstances, to disregard the accommodation, or lack of accommodation, issue because if there comes a time when there is no accommodation, then because the care and attention does not arise from the illness it will arise solely from the lack of accommodation -- that is to say from the destitution -- and therefore the responsibility will be that of NASS.

That is an argument which has put matters somewhat differently from the way it was put in the Westminster case and has been very skilfully deployed by Mr Underwood. The difficulty he faces lies in the decision of the Court of Appeal in Mani and to that I must now turn. It is to be found in 2003, 6 CCLR 376.

The claimant in that case was a destitute asylum seeker who suffered from a congenital abnormality in his right leg, which meant that his right leg was about one half the length of his left leg. He coped with this by the use of crutches and sometimes by fitting a prosthetic extension to his right leg, but the result was that his mobility was impaired. He had pain in walking over distances greater than approximately 100 to 150 metres and problems sometimes with washing or taking a bath. In addition, he had had some mental health difficulties and was vulnerable to psychotic illness, which was likely to result in a reduced capacity to cope in times of stress. He had been provided at all material times with accommodation, whether by NASS or by Lambeth. The question was whether Lambeth was bound to accommodate him within section 21.

The main judgment was given by Simon Brown LJ. At paragraph 7 he refers to the Westminster case and notes the Government White Paper in which this was said:

That is to say NASS. He then refers to the decision in ex parte O, which is of some importance. In fact there were two cases considered at the same time. Of those claimants, one had severe psychiatric problems and the other recurring cancer of the duodenum requiring continuous medical treatment, and both were destitute. The crucial question was whether subsection 1(A) made them eligible for accommodation under that section. What the court there decided was that it did not.

It was apparent by the time that Mani came to be decided that the impact of O was rather wider than the court had believed and Simon Brown LJ cites at length from the decision in O, from his decision in the Westminster case, because he had been in the Court of Appeal in that case, and from the speech of Lord Hoffmann in the Westminster case. The argument that Wilson J had rejected was Lambeth's core argument and Simon Brown LJ cites Wilson J's judgment in that respect. I quote from paragraph 18 of Simon Brown LJ's judgment in Mani:

He returns to the point of the distinction between the able-bodied and the infirm destitute and he says that Lord Hoffmann's speech and O are consistent only with that being the appropriate test. The question is whether the applicant in question was able-bodied or infirm and the distinction is not between those who have an accommodation related need and those with some lesser disability. In paragraph 21 he continues thus:

Mr Underwood has submitted that Mr Knafler is wrong in his contention that destitution can equal the need for care and attention, or rather that destitution by itself can lead to a need for care and attention. But that is precisely what, as I understand it, the Court of Appeal in Mani has decided can occur. Indeed, that is also consistent with the approach of the House of Lords through Lord Mustill in the Westminster case. Not only that, it seems clear that that is what Parliament believed to be the position because of the way in which section (1A) has been drafted. I remind myself it provides that a person, that is to say an asylum seeker in the context of this case:

That, surely, presupposes that destitution per se can create a need for care and attention and it will do so, if one follows M, if as a result of destitution -- in this case the lack of accommodation -- a person will be in such a position that he is on the street, homeless, and so his health is risked. It is not necessary to wait until that risk materialises and the illness results before action should properly be taken.

The existence of 1(A)(b) underlines that because that recognises that destitution may lead to physical effects and that those physical effects, if they have resulted solely from the destitution, equally will not create any obligation under section 21 on a local authority.

What will create such an obligation is a need for care and attention which has not arisen solely because of destitution. I appreciate, of course, that the assessment made by the council in this case has been that when he is accommodated he does not need any specific care or attention from them. That is true but, as it seems to me, someone suffering from this condition, namely AIDS, is clearly -- and the medical evidence confirms this -- more vulnerable than the able-bodied. So if he loses his accommodation and becomes destitute, his need for care and attention is indeed going to be the greater because of his condition and it cannot, therefore, be said that the need arose solely because of the destitution or because of the physical effects of the destitution. No doubt the physical effects on him of destitution would be more severe, but they would be more severe not because of the destitution but because of the destitution plus the illness.

Quite apart from that, it seems to me that one has to look at what is the meaning of care and attention and consider whether the authority's view that there was no need for care and attention resulting from the AIDS condition is one which, in the circumstances, can be upheld.

In R (Wahid) v TowerHamlets London Borough Council [2003] HLR 13, Hale LJ, at paragraph 32, said this:

For the avoidance of doubt, the reference in that citation to the Westminster case is to M, not to the Westminster case in the House of Lords.

Care and attention means, or can mean according to Hale LJ, "looking after". It is not necessary, as all the authorities under section 21 show, for the need for care and attention to be for care and attention provided by the local authority. It is a general need for care and attention and, as it seems to me, a person who is chronically ill and who, therefore, needs continual medical care and continual provision of medicines is, by that very fact, properly to be said to be in need of care and attention. Whether that need for care and attention will in a particular case mean that he is required to have accommodation is a wholly different question and it may well be that in cases not involving asylum seekers, where there are other means whereby these matters can be provided for, section 21 will not come into play at all.

In a case such as the present, it seems to me, someone who is chronically ill is properly to be regarded as being in need of care and attention, not solely because he is destitute. Therefore, in this case, the appropriate responsibility lies with Slough rather than with the Home Office through NASS.

I appreciate that this is an issue which has given rise to considerable problems for local authorities. Parliament had to decide where the balance should be struck and, as was said in the White Paper, it decided to strike it between able-bodied and infirm asylum seekers. That is the construction that the courts have placed upon the provisions. That is, as it seems to me, the approach which I am required to adopt by the authorities to which I have referred. Mr Underwood's gallant and well-argued attempt to persuade me that I can, as it were, branch out in a different direction is one I am afraid I cannot accept. In my judgment Mr Knafler's argument is indeed correct.

I should only, and finally, for the sake of completeness deal with the decision of Keith J in R on the application of B and H v The London Borough of Hackney [2003] EWHC 1654 (ADMIN), to which I have previously referred. In that case, arguments such as have been presented before me were not expressly raised, although I am told by Mr Knafler who appeared in the case that he did submit written argument following the decision of the Court of Appeal in Mani, but it is clear that Keith J did not expressly regard those arguments as arguments which would change his approach. In paragraph 25 of his judgment, Keith J said this:

Mr Knafler's point is that the assertion that they would be accommodated by NASS and not by the council begs the whole question, because the whole issue is: which has the responsibility, if the need for care and attention arises other than solely from destitution? The authorities to which I have been referred, and which I have considered, lead inexorably to the conclusion that it cannot properly be said that the need arises solely from destitution. One has, as I say, to look at it in two possible ways. First, when destitute, the need for care and attention is a combination of that destitution and the illness and thus is not solely from the destitution. Alternatively, in any event, contrary to the Council's view, the fact that medication and regular medical attention is needed is in itself sufficient to show that there is a need for care and attention. It seems to me on both of those grounds that it can properly be said that the "solely from destitution test", which would mean that NASS were responsible, is not fulfilled.

In those circumstances, I am satisfied that the assessment by Slough cannot stand and that they do indeed have the obligation under section 21(1)(a) as long as the claimant remains a destitute asylum seeker.

MR UNDERWOOD: Can I just come back on that, my Lord, because it goes to relief. All that is asked for is a quashing order in respect of the March assessment.

MR JUSTICE COLLINS: Yes.

MR UNDERWOOD: And an order for reassessment.

MR JUSTICE COLLINS: You are right. There must be a reassessment in the light of the principles that I have set out in this judgment.

MR UNDERWOOD: Not least, of course, because as your Lordship pointed out, what we have not gone into is the question of whether there are any other means of meeting the need.

MR JUSTICE COLLINS: Yes. It is obvious that if you can properly decide that he is not destitute at all, because there is somewhere else for him to live, then clearly that is a matter which can properly be taken into account.

MR UNDERWOOD: Yes the way I put it, of course, is that it is possible that the needs may be met elsewhere.

MR JUSTICE COLLINS: Certainly you are entitled to investigate that, but in the meantime you must accommodate him and I am sure you will do so.

MR KNAFLER: My Lord, we simply ask for the assessment to be quashed.

MR JUSTICE COLLINS: You are quite right. Cancel the last few observations I made and that is obviously right.

MR KNAFLER: Of course, we hope that there will be an end to litigation but the authority is fully entitled to look at the issue.

MR JUSTICE COLLINS: I am sorry in a way that I did that ex tempore because obviously it went on a bit longer than I might have been able to do otherwise, but I thought it right to try to dispose of it if I could.

MR KNAFLER: I am sure Mr M will be deeply relieved to know today one way or the other and will be extremely grateful. My Lord, whilst reiterating our gratitude to Slough for looking after Mr M appropriately, whilst required to do so by the court order, it is my duty to both those instructing me and --

MR JUSTICE COLLINS: If you are coming up to an application for costs, unless Mr Underwood had any good reason to resist it, I think they must follow the event.

MR UNDERWOOD: I think my junior might have good reasons to resist it.

MR JUSTICE COLLINS: Sorry, your junior, yes.

MR RUTLEDGE: In my respectful submission, a "no order" would be appropriate and fair or at the worst, from Slough's point of view, an order that the appellant pay a proportion of the claimant's costs. If I could just make the points, very briefly.

MR JUSTICE COLLINS: Yes, of course.

MR RUTLEDGE: My Lord is familiar with the provisions of CPR 44(3) which is at page 594 of the 2003 Volume One. It is the general rules about costs.

MR JUSTICE COLLINS: Give me a moment. It is page 1066 in the present volume.

MR RUTLEDGE: I am much obliged, my Lord. The court has a discretion as to where the costs are payable by one party to another.

MR JUSTICE COLLINS: Yes. There is nothing new in that, we have always had a discretion.

MR RUTLEDGE: My Lord, of course. The general rule is that the winner receives his costs, but the court may make an order deciding what order if any to make in a costs report. It must have regard to the circumstances, including the conduct of the parties. At sub-rule 5, the conduct includes conduct before, as well as during, the proceedings and sub-rule 6 deals with orders for a payment of the proportion of the winner's costs.

MR JUSTICE COLLINS: What conduct or other circumstances do you say justifies a reduction or no order?

MR RUTLEDGE: Three points, my Lord, very briefly. I cannot pretend that these were necessary causes of the costs, but they are matters which the court can properly take into account, and ought to, in my respectful submission.

The first is the article 3 application. This was critical to Slough for this reason: my Lord knows that by reason of paragraph 1 to schedule 3 to the 2002 Act, a local authority has no power, even, to provide services under section 21 to a person who is within the four classes of ineligible persons. The question here was whether Mr M had a live application to the Home Office.

MR JUSTICE COLLINS: Well, he does.

MR RUTLEDGE: My Lord, that was a matter which was raised by Slough back in August. It was raised again in correspondence towards the end of last year. It was in the acknowledgment of service, it was in the detailed grounds. It seems that no steps were taken by the two firms of solicitors representing us there to chase up the Home Office until 17th March. As I say, that is a matter that was critical. That is the first point.

The second point is linked because, notwithstanding that, Slough took a very responsible stance. It accepted the court's interim order, it made no attempt to set it aside. It provided accommodation and it carried out the 5th March assessment which might have been ultra vires if the application had not been outstanding, but it took the responsible stance of conducting that.

MR JUSTICE COLLINS: Yes, of course. There is no suggestion to the contrary.

MR RUTLEDGE: No, but in my respectful submission, where there is -- particularly between two publicly funded parties, where the local authority has had the burden of accommodation for all these months, in fairness between the parties it is actually not appropriate to make an order for costs. The third --

MR JUSTICE COLLINS: Perhaps it is more appropriate to say the Home Office should pay some of the costs.

MR RUTLEDGE: I would like to say that. Nonetheless, in my respectful submission, in very broad terms the court can take that stance and ought to take it.

MR JUSTICE COLLINS: I am not so sure. I appreciate that you say the claimant ought to have pursued the matter more vigorously --

MR RUTLEDGE: It is fundamental to his case.

MR JUSTICE COLLINS: What was fundamental to his case was that he was an asylum seeker and he was and at all material times has remained so. Apparently his solicitors thought that you were aware of that, but I did not appreciate that you had not known it from the Home Office.

MR RUTLEDGE: With respect, my Lord, all we had was a June 2003 letter from the Home Office acknowledging the application and saying it will be screened within four weeks or you will get a date. Reasonably, those instructing me chased that matter when the four weeks had expired and no date had been given.

MR JUSTICE COLLINS: Reasonably? If you have had any dealings with the Home Office, you would know perfectly well that the Home Office is liable to delay things for enormously long periods. I have had seven years in some cases.

MR RUTLEDGE: My Lord, that may be so, but the point, with respect, is that the claimant brought this judicial review, the claimant has to lay the foundation for it.

MR JUSTICE COLLINS: But he had asserted that he remained an asylum seeker and that assertion is true. I appreciate you say he should have taken steps to show it, but the Home Office letter had a number on it, did it not?

MR RUTLEDGE: Well the number was not given, my Lord, until the 17th March phone call from the immigration solicitors. The main complaint is that this was an important matter, it was put forward as a preliminary objection in the acknowledgment of service that I drafted and the detailed grounds that the claimant should lay the foundation for his claim. I do not want to visit the sins of the Home Office on the claimant, but the fact is that that was a real issue that was simply not grappled with. We did not get the confirmation until early this month and that is a matter, in my respectful submission, which should be settled in costs.

Thirdly, and I do put this firmly at the bottom of the list because I do not want to overplay it, there is the concern about the objection, or refusal, to contact Dr Dawson.

MR JUSTICE COLLINS: That clearly was wrong.

MR RUTLEDGE: In my respectful submission, it was wrong. It was unhelpful, but helpfully Slough does not sit on its rights and say: we are going to object to this. They did the responsible and professional thing of undertaking a further consideration, which would ultimately assist the court. I suppose another local authority might have said: we are going to object to that, but Slough did not take that point. So in my respectful submission, there is proper course here, bearing in mind these are public funds on both sides and Slough has incurred an enormous burden in this case, there is a proper justification here in the broad discretion conferred on the court by CPR 44 for saying this is not an appropriate case for Slough to have to pay all the costs. Given also, if I may very respectfully say so, that Slough was encouraged to argue the case in the light of Keith J's decision in B and H and also it is beyond the law. Otherwise we have lost, I accept that entirely. But there are matters --

MR JUSTICE COLLINS: That is not an argument for resisting costs.

MR RUTLEDGE: It simply goes to the reasonableness of our being here. I accept we have had the argument and have lost it, but there are features of the case which suggest it is not a fair and appropriate case for an order.

MR JUSTICE COLLINS: This was not a position where you were fighting a hopeless case and knew you were fighting a hopeless case. I would not for a moment suggest that.

MR RUTLEDGE: My Lord, those are the submissions on costs.

MR KNAFLER: There are answers on the facts.

MR JUSTICE COLLINS: Yes. I mean I think on the last point about the doctor, I appreciate you say there may be answers on the facts, but even if one can properly regard it as reprehensible, it cannot have affected costs in any way and did not. It might have done, in which case no doubt the issue would have been gone into, but it has not, so I do not think I can properly take that into account.

MR KNAFLER: As I understand it, the local authority wanted to speak to Dr Dawson not about Professor Gazzard's generic report applied specifically to Mr M; they simply wanted an update and that was it. I fully accept that they were entitled to agreements. That principle must be absolutely clear. But there is an answer to Mr Rutledge's facts and there is, in particular, an answer on the facts of his Home Office point, if your Lordship wants to hear from me on that.

MR JUSTICE COLLINS: I know too much about the Home Office, perhaps.

MR KNAFLER: I ought to say, in fairness not just to those instructing me but to Bates, Wells & Braithwaite, the very well-known immigration solicitors, that on the Home Office point I advance that everything was done impeccably.

MR JUSTICE COLLINS: I am sure that is right. There is always lurking in the background, I suppose, the thought that it was in his interests to delay things but there is no suggestion that he has done anything positively to delay.

MR KNAFLER: The Home Office letter of 11th June says: it would be helpful if you did not make enquiries about the progress of your application. Bates, Wells & Braithwaite --

MR JUSTICE COLLINS: You are quite right, I had forgotten that. They do not like it because it means they have to try and find the file and that delays it because they take the file from where it should be and it takes months to get it back.

MR KNAFLER: Exactly.

MR JUSTICE COLLINS: Mr Knafler I will not trouble you further. I have some sympathy with Slough, but it does not seem to me that these are matters which properly go towards reducing costs. I think that this is a case where the costs should follow the event in the normal way. What someone may raise in future, I suspect, is that if the court takes over its own responsibility and the funding comes via the DCA, the DCA is responsible for legal aid as well. So the more that goes for legal aid, the less comes to the court. Think about that.

MR KNAFLER: Formally, I must ask my Lord for a detailed assessment.

MR JUSTICE COLLINS: Yes, of course. There is no problem about that.

MR UNDERWOOD: My Lord, a quick application for permission to appeal. It is an important point whether Slough decides to join the lists, as it were, in the Court of Appeal.

MR JUSTICE COLLINS: Yes. It is a different way of arguing the point; perhaps it is a different argument. I think it is a bad argument for the reasons I have given, but I take your point that it is an important point. Mr Knafler what do you have to say?

MR KNAFLER: What I have to say about it is that there must be an end to this continual gnawing of the bone between NASS and local authorities. It has been up to the House of Lords, there have been a number of first instance decisions. The Court of Appeal has really laid down the line. It may be that if Mr Underwood had been there he might have argued it more persuasively.

MR JUSTICE COLLINS: He is very persuasive.

MR KNAFLER: He is very persuasive, but so was Mr Gowdy. What he cannot say is that the decision was per incuriam; of course not, it is just a question of arguments.

MR JUSTICE COLLINS: So he did not take account of all the full arguments and the true construction of M.

MR KNAFLER: Of course and what Mr Gavin and Mr Gifford are saying is: although everyone was very experienced in the House of Lords with the case of Westminster and NASS, it was not the way we would have presented it, we have this different argument. But it just goes on and on because the counsel are extremely clever and find new ways to argue points. But it was a policy decision --

MR JUSTICE COLLINS: Do not worry. I think that if you want to take this further you will have to persuade the Court of Appeal. Thank you both.