Pajaziti & Anor, R (on the application of) v Secretary of State for the Home Department

This case raises an issue as to whether the Claimants, being destitute asylum seekers, qualify for accommodation under section 21(1) of the National Assistance Act 1948 (“the 1948 Act”) because they have fulfilled “the destitute plus” test, a test developed by case law and approved by the House of Lords in R (Westminster City Council) v National Asylum Support Service (2002) 1 WLR 2956. The Defendant concluded that the test had not been fulfilled because, on the evidence, the Claimants did not have a need for care and attention made materially more acute by some circumstance other than a need for accommodation and funds (see R v LB Wandsworth ex parte O. [2000] 1 WLR 2539).

The Secretary of State’s position, being an Interested Party in these proceedings, is that:

It follows that the Court must determine whether the Defendant has erred in law in its assessments of the Claimants’ needs. The First Claimant applied to the National Asylum Support Service (NASS) (the Home Office agency with responsibility for administering asylum support on behalf of the Secretary of State) on 4^th April 2006 and the claim for support was accepted, but the Claimants section 21 of the 1948 Act. The Secretary of State accepts responsibility for the Claimants’ support, but any such support will be conditional on the Claimants accepting the Secretary of State’s offer of accommodation in a dispersal area.

The First Claimant arrived from Brussels on 3^rd November 1997. He applied for asylum on 12^th January 1998. His claim was refused on 28^th January 1998 on the basis that he had already claimed asylum in a safe third country, Germany.

The First Claimant and his family were supported by the Defendant under what was known as the Interim Support Scheme whereby local authorities supported eligible asylum seekers.

The First Claimant applied for support from NASS on 2^nd July 2004. That application was refused by a refusal letter dated 15^th September 2004 as he was then a person to whom the Interim Support Scheme applied.

He applied for indefinite leave to remain (“ILR”) under the Family ILR Exercise on 11^th November 2004. This application was refused on 21^st March 2006. By a letter dated 7^th September 2006 the First Claimant asked for a reconsideration under the Family ILR Exercise. No decision has yet been made on the application. By a letter dated 30^th April 2006 the First Claimant made representations purporting to be a further fresh human rights claim under Article 8 which was said to supplement a claim under Article 6 made by a letter dated 3^rd May 2005. Neither claim has been determined.

The Secretary of State has made two attempts to remove the First Claimant and his family - on 2^nd November 2004 and 9^th March 2005 - but the removal was not effected.

In 2005 the Interim Scheme Project (“ISP”) was set up by the Secretary of State to replace the Interim Support Scheme. The aim of the ISP was to transfer the responsibility for supporting eligible asylum seekers from local authorities to NASS.

The First Claimant applied again to NASS for support on 4^th April 2006 because of the introduction of the ISP. He submitted medical evidence about the conditions of his wife and their son. This was submitted to a medical adviser whose advice was that they could readily be treated outside London and the family could therefore be dispersed.

NASS accepted the application for support and made arrangements to disperse the First Claimant and his family as follows:

On 18^th April 2007 NASS wrote to the First Claimant to say that his application for accommodation to be provided by NASS in London on medical grounds had been considered and refused on the grounds that the NASS medical adviser had advised that proximity to London was not necessary on medical grounds and that all necessary medical treatment would be available in the dispersal area.

As a result of the First Claimant’s failure to accept the conditions on which support was provided (i.e. that he travel to a dispersal area), no support has been provided to him by NASS. There has been no challenge to the decision to disperse the First Claimant and his family or to the fact that no support has in fact been provided by NASS.

In the meantime the First Claimant applied to the Defendant for assistance under section 21 of the 1948 Act and the Defendant carried out various assessments of the First Claimant and his wife and decided that neither was eligible for support under section 21. It is these decisions which are under challenge.

The Defendant summarised the position in a letter of 15^th November 2006 as follows:

“The assessment of your client Hylkije Pajaziti showed her as not requiring any care services at all and managing all her own needs. She identified any difficulties she does have by way of minor reactive ailments, such as headaches, as being attributable to the possibility of dispersal….. Similarly, Mr Rassim Pajaziti has some minor medical needs which could be well managed in any part of the United Kingdom. Other than these, he did not display any difficulties save reactive minor ailments about his immigration status”.

Most recently the Claimants served lengthy medical reports on the Defendant dated 10^th April 2007. The content of these reports will require attention in so far as constitutes the factual basis for the Claimants’ submission that there is an entitlement to support under section 21 of the 1948 Act. Before setting out these essential facts it will be convenient to summarise the relevant law.

Section 21(1) of the 1948 Act gives a local authority a power to such extent as the Secretary of State approves and a duty to such extent as he may direct to:

“…. make arrangements for providing -

(a)

Residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them…"

The Secretary of State has directed social services authorities to make arrangements under section 21(1)(a) in relation to persons ordinarily resident in their area and others in urgent need. Section 21(2) provides that:

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

Once a local authority has assessed a person as having a need for care and attention, that crystallises a duty to that person to provide accommodation under section 21.

In order to see how the issue in this case arises, it is necessary to understand a little about the legal position before the enactment of the 1999 Act. Much of this emerges from the speech of Lord Hoffman in the Westminster case. The Asylum and Immigration Act 1996 (“the 1996 Act”) deprived asylum seekers who did not claim asylum at the port of entry, and those whose applications had failed and were appealing, of income support and of housing under the homelessness legislation. This led to applications to social services authorities for assistance under section 21 of the 1948 Act from asylum seekers and illegal immigrants. Those who claimed asylum at their port of entry, on the other hand, were entitled to income support and housing assistance from local authorities until those entitlements were removed by the 1999 Act.

In R v Hammersmith and Fulham London Borough Council ex parte M., P., A. and X. (1997) 1 CCLR 69 four asylum seekers challenged decisions of a local authority to refuse to provide them with accommodation and support under section 21. They were healthy and not in need of care and attention. However, they were destitute, without accommodation or subsistence, and would soon become in need of care and attention if nothing were done. The Court decided that, in that situation, the local authority was under an obligation to provide them with accommodation under section 21.

The decision in M., P., A. and X. prompted a change in the law. By section 116 of the 1999 Act, a new subsection (subsection (1A)) was inserted in section 21 of the 1948 Act as follows:

"(1A) A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely-

(a)

because he is destitute; or

(b)

because of the physical effects, or anticipated physical effects, of his being destitute.”

Further, section 95(1) of the 1999 Act provided that destitute asylum seekers would be provided with support under a new scheme (NASS).

The amendment was pointedly directed to the holding in M., P. and X. to the effect that asylum seekers, excluded from benefits by the 1996 Act, could qualify under section 21 “because of the problems under which they are labouring” as asylum seekers. The asylum seekers in M., P. and X. were healthy. Nevertheless, the Court held that local authorities did not need to wait until the health of the asylum seeker “had been damaged”.

The position of “infirm” asylum seekers fell for consideration in R v Wandsworth London Borough Council ex parte O and Another (2000) 1 WLR 2539. At first instance the issue was whether public policy excluded benefits being granted where an asylum seeker was “unlawfully” within the U.K. Both the claimants were treated as being “infirm”. On appeal, subsection (1A) of section 21 fell to be considered as well as the illegality issue. The Court held that if an applicant’s need for care and attention is “to any material extent made more acute by some circumstance other than mere lack of accommodation and funds”, the applicant can qualify for assistance, but it is for the local authority to make the assessment. By that the Court meant to make an assessment pursuant to section 21(1)(a).

In the Westminster case concerns were expressed about the impact which the reasoning in ex parte O had had upon the development of the law through the cases (see, in particular, R (on the application of Mani) v Lambeth LBC (2002) EWHC Admin 735) but the issues in the Westminster case were “narrow” (Lord Hoffmann, para 49) and the case had been conducted throughout on the basis that the applicant’s need for care and attention had not arisen solely because she was destitute. The case is of particular assistance for the light shed on the “destitute plus” test and also the approval given to the analysis by Hale LJ (as she then was) in R (on the application of Wahid) v TowerHamlets LBC (2002) EWCA Civ 287 that the power or duty to provide accommodation under section 21(1)(a) is dependent upon three conditions being satisfied:

“first, the person must be in need of care and attention; secondly, the need must arise by reason of age, illness, disability or "other circumstances" and, thirdly, the care and attention which is needed must not be available otherwise than by the provision of accommodation under section 21.”

I have already referred to section 95(1) of the 1999 Act. It must be noted, in addition, that Part VI of the 1999 Act makes it clear that the duty of the Secretary of State is “residual and cannot be exercised if the asylum seeker is entitled to accommodation under some other provision” (Lord Hoffmann, para 38). It follows that the availability of accommodation under section 95(1) of the Act cannot lead a local authority to conclude that the need for care and attention is “otherwise” available. That this is the case flows also from the need of the local authority to assess whether there is a need for care and attention arising by reason of any of the stated circumstances and not simply to consider whether there is a need for accommodation. According to the facts, the need for care and attention could be present notwithstanding the availability of accommodation and support. That said, the local authority assessment involves consideration as to whether the care and attention in question has arisen solely because of destitution or the physical effects, or anticipated physical effects of being destitute. An issue raised by this case, which has not been considered before, is whether the local authority can, having identified a need for medical treatment which is available otherwise under the National Health Service, on that ground, refuse support.

Mr Khubber submits that the Defendant’s approach is wrong in law. He maintains that if the “destitution plus” test is met the “plus” factor cannot be removed by reliance on either subsection (1)(a) or subsection 21(8) which states:

“(8)

Nothing in this section shall authorise or require a local authority to make any provision authorised or required to be made (whether by that or by any other authority) by or under any enactment not contained in this Part of this Act or authorised or required to be provided under the National Health Service Act 1977.”

He submits that section 21(8) is concerned with services that may be provided subsequent to consideration of eligibility. Eligibility is determined by the characteristic of the claimant, namely the individual aspects of the applicant. He did not address any specific argument to the effect of the words in subsection (1)(a); “not otherwise available to them”. As a matter of statutory interpretation he submitted that the qualifying subsection for asylum seekers was (1A). If the “destitution plus” test is met, an asylum seeker qualifies and is entitled to accommodation.

As to the Defendant’s assessment of the evidence, Mr Khubber submitted that it was inadequate because it failed to take adequate account of the reports of Dr Turner and Dr Turner’s conclusion that the existing psychiatric disorder of the Claimants is likely to be exacerbated by the lack of accommodation in London.

Prior to the submission of Dr Turner’s report dated 10^th April 2007, the Defendant’s assessment was that neither of the Claimants had community care needs. They each had minor medical needs and showed minor ailments about their immigration status. In my judgment, the conclusion that the “destitution plus” test had not been fulfilled is unimpeachable. Mr Khubber did not argue the contrary. The Defendant noted that the main concern appeared to be a desire to remain in London because of the “children’s schools and other social connections”. Since the Claimants had applied to and been offered accommodation by NASS, and only applied under section 21 when notified of the need for dispersal by NASS, there was a basis entitling the Defendant to reach that conclusion.

Dr Turner concluded that Hylkije Pajaziti (the Second Claimant) was suffering from a major depressive episode. In his opinion, the psychiatric problems were associated with the first period of detention and some further deterioration with the second detention. Additional factors had also contributed: “increasing concern about her immigration status, threats of re-housing out of London, financial concerns and concerns about the welfare of her children and husband”. In answer to a question whether all treatment needs would be met by Social Services and the NHS, he stated:

“She should be able to receive psychiatric treatment and counselling through the National Health Service. Of course given the opinion that I have already expressed, the most powerful intervention, if it were available, would be to offer her permanent settlement in London”.

As to the First Claimant, Dr Turner’s report was in substantially the same terms, namely the consequences flowing from detention and concerns for his family had given rise to a major depressive episode. Treatment would be available through the NHS: “But the most powerful intervention (if it were available) would be to offer settlement in London”. Since the word “permanent” is not included in this report, I shall ignore its presence in his report on the Second Claimant.

The Defendant accurately recited the history up to 20^th April 2007. Its view was that it was the fact that the Claimants were facing dispersal which had generated Dr Turner’s reports. The decision letter referred to the relevant cases and stated:

Mr McGuire’s argument proceeded as follows:-

In my judgment, it is plain that section 21(1A) confers no power or duty and does not determine eligibility. It excludes a class of person who might otherwise qualify under section 21(1)(a) (the claimants in M., P., A. and X.). That was its legislative purpose. But it operates to exclude only when the circumstance giving rise to the need for care and attention affect someone within section 115 of the 1999 Act and where the circumstance has solely arisen because of destitution or the physical effects or anticipated physical effects of destitution.

I have reservations about the rigidity of Mr McGuire’s suggested approach as reflected in paragraph 31 above. He is right to submit that unless an unmet need is identified, eligibility under section 21(1)(a) will not arise but, where the local authority is concerned to assess a person within section 115 of the 1999 Act, commonly an asylum seeker, it seems sensible to consider the subsections together in order to identify the character of the need and then to consider whether it is a met or unmet need. Collins J. put the question, in my judgment, it can be regarded as the initial question, in R (on the application of M) v Slough Borough Council (2004) EWHC 1109 (Admin) at para 39 as follows:

“What will create such an obligation [an obligation under section 21] is a need for care and attention which has not arisen solely because of destitution”.

He should not be taken as having excluded the need for consideration under section 21(1)(a).

Mr McGuire has not taken up the argument, put by Mr Underwood QC in the Slough case (see para 29), which was rejected by Collins J. because of the impact of the case of Mani. He has not attempted to suggest that one disregards accommodation or lack of accommodation. On the contrary, he has accepted that, on the existing cases (but reserving his position for a higher court), “the destitution plus test” must start with a destitute asylum seeker, who could qualify for support under section 21(1)(a), but for subsection (1A). He submits, however, that, given destitution and ignoring accommodation which may become available from NASS since NASS will only accept responsibility if the asylum seeker is not within section 21, one must be able to identify a need for care and attention which has not arisen solely because of destitution. For example, a need for medical treatment.

At that point and on that example, the “destitution plus test” is not met simply because of the existence of a need for medical treatment, because the need for care and attention must be to a “material extent made more acute by some circumstance other than the mere lack of accommodation and funds” (Simon Brown LJ in ex parte O 2548I). Further, the question whether the services to meet the need are “otherwise available” must be asked.

I reject Mr Khubber’s submission that an asylum seeker who has a need for medical treatment must be treated as having fulfilled the conditions set down in section 21(1)(a).

In my judgment, the outcome of the assessment which a local authority is obliged to make when considering the case of an asylum seeker suffering from a medical condition and in need of medical attention will depend upon, at least, some of the following considerations:

In my judgment, properly analysed, this was the approach taken by the Defendant. Prior to Dr Turner’s reports, it refused support because it concluded that the need for medical attention existed solely by reason of destitution. Further, that the need for medical attention was in connection with minor ailments, for which treatment was readily available. It follows that the conclusion was that the need, such as it was, had not made the position materially more acute.

Dr Turner’s reports did not suggest that the condition of the Claimants would not be met by the availability of effective and adequate treatment. The Defendant, therefore, concluded that the need would be met by services “otherwise available”, namely under the NHS. This conclusion was open to the Defendant on the material it had to consider and the suggestion that inadequate regard was paid to Dr Turner’s comment on the “most powerful intervention” is plainly wrong.

The Defendant concluded that although the opinion of Dr Turner was that the primary healthcare services, if provided in London, would be “the most powerful intervention”, that did not show that the need for care and attention was materially more acute because of the consequences of it being provided outside London.

For the reasons I have set out above, I am satisfied that no error of law has been made out and that it has not been demonstrated, on the evidence provided to the Defendant, that it reached an assessment which was not available to it on the evidence. If follows that these claims for judicial review are dismissed.