AXG (R on the application of) v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Introduction

This is a claim for judicial review. The claimant is an asylum seeker from Nigeria, and a single mother to a girl who is now six years old. Her application for asylum has not yet been determined. On 25 October 2019, the claimant and her daughter were granted asylum support pursuant to section 95 of the Immigration and Asylum Act 1999 (“the IAA 1999”). They were accommodated in full board initial accommodation from (about) 1 November 2019 until 28 June 2021 when they were provided with dispersal accommodation.

The claim challenges a decision made by the Secretary of State on 19 October 2020, and announced on 27 October 2020 (“the October 2020 decision”), in accordance with which:

First, the defendant paid the claimant and her young daughter a cash allowance of only £8 per person per week, in respect of the period from 27 October 2020 until 28 June 2021, whilst they were in hotel accommodation provided under s.95 of the IAA 1999, omitting to pay the (assessed) cost of £3.56 per week (or any sum) in relation to communications; and

Secondly, the defendant decided to pay the claimant and her daughter backdated payments of cash allowance:

Limited in time to the period from 27 March 2020 to 26 October 2020, save to the extent that payments in respect of travel were further limited to the period from 1 July 2020, omitting to make cash payments:

from 1 November 2019 to 26 March 2020 in respect of communications, travel, clothing/footwear, non-prescription medication and (to a limited extent) laundry;

from 27 March 2020 to 30 June 2020 in respect of travel;

Omitting the assessed (or any) sum in respect of the cost of communication; and

Omitting the assessed (or any) sum in respect of the cost of non-prescription medication.

Since I granted permission on 17 June 2021, in the light of the judgment of Farbey J in JM v Secretary of State for the Home Department [2021] EWHC 2514 (Admin), the issues between the parties have significantly narrowed.

In JM, Farbey J found that the Secretary of State had not properly recognised or carried out her duty to provide asylum seekers in full board accommodation with the means of communication (in cash or kind) as an essential living need during the pandemic ([147] to [148]). In circumstances in which the claimant did not want the court to conduct an individualised assessment of his situation, the court declined to grant any relief relating to the claimant specifically ([155]), but considered it appropriate to make the following declaration:

In JM, the claimant also challenged the Secretary of State’s decision relating to travel, in particular the imposition of a longstop date of 1 July 2020 for back-dated payments for travel in light of the COVID-related restrictions that were in place nationally during the relevant period. Farbey J rejected this aspect of the challenge, finding that the Secretary of State’s conclusion in respect of travel during this period was one she was entitled to reach, and there had been a sufficient discharge of her duties: [113] to [123].

In this claim, both parties accept the applicability of Farbey J’s conclusions in JM. The challenge referred to in paragraph 2 above (in respect of the communications allowance) is well-founded, but it is common ground that it is unnecessary for this court to grant relief. The court in JM left it to the Secretary of State to decide what needs to be done to address the unlawfulness found, and the claimant and her daughter will be encompassed in any such decision. The claimant does not pursue the challenge referred to in paragraph 2 above (in respect of the imposition of a long-stop date of 1 July 2020 for backdated payments for travel).

Accordingly, the challenge is confined to two matters that were not in issue in JM, namely, (a) the decision not to include any sum in respect of non-prescription medication in the back-dated payments the Secretary of State determined should be made in respect of the period from 27 March to 26 October 2020 and (b) the decision to impose a longstop date of 27 March 2020 for back-dated payments.

The legal framework

This case concerns asylum seekers who are owed the s.95 duty. It is not concerned with support provided under s.98 of the IAA 1999 pending the Secretary of State’s determination whether the applicant is entitled to support under s.95. There is no dispute between the parties that the legal framework is accurately set out in JM at [11] to [23], so it is unnecessary to do more than set out the key aspects of the legal framework in this judgment.

Under s.95(1) of the IAA 1999, the Secretary of State may provide or arrange for the provision of support to asylum seekers who appear to the Secretary of State to be destitute or likely to become destitute within a prescribed period. In accordance with s.96(1) of the IAA 1999, asylum support provided under s.95 has two key elements: accommodation and “essential living needs”. The present claim, like JM, concerns the concept of essential living needs only, not accommodation.

Although s.95 is expressed as a power to provide support, it is established and common ground that it is converted to a duty by Council Directive 2003/9/EC which laid down the minimum standards for the reception of asylum seekers: see JM at [15] to [16]. It was common ground, at the hearing, that the Reception Directive (as recast since Refugee Council) represented the position under English law at all times that are material to this claim.

There is a hard-edged minimum standard to the essential living needs to be provided under ss.95 and 96(1)(b), which the court is required to ensure is not breached: see R (Refugee Action) v Secretary of State for the Home Department [2014] EWHC 1033 (Admin) in which Popplewell J held (at [85] and [88]) that, applying the Marleasing principle, s.96(1)(b) had to be read as subject to a “minimum content” derived from the Reception Directive.

Popplewell J observed at [85]:

Any provision for living needs beyond such minimum content is an evaluative judgement for the Secretary of State. Therefore there is a role for Wednesbury review, but it only comes into play after it is established that the minimum standards protected by the Reception Directive have been complied with: Refugee Council and R (JK (Burundi)) v Secretary of State for the Home Department [2017] 1 WLR 4567.

Regulation 10 of the Asylum Support Regulations 2000 (2000/704) prescribes the kind and level of support that is required to meet an asylum seeker’s essential living needs for the purposes of s.95 of the IAA 1999. The version in force until 21 February 2021 reads, so far as material:

The Secretary of State is free to use contractors to perform her duty to meet the essential living needs of destitute asylum seekers under ss.95 and 96(1)(b), but the duty remains hers: R (DMA) v Secretary of State for the Home Department [2021] 1 WLR 2374 at [99]-[100].

If an individual, because of their particular circumstances, requires more support than it is assessed asylum seekers in general need, they can apply for support to be provided under s.96(2), which provides:

The 2018 and 2020 Reviews

In fixing the sum of weekly cash payments for essential living needs, the Home Office’s approach is “to identify all needs that are considered “essential” for average, able-bodied asylum seekers and their dependants and which are not covered through other arrangements” and then to assess the cost of meeting each of these essential needs. The Home Office undertakes periodic reviews to assess the cost in cash of the various elements.

A review was carried out in 2017. Its findings and conclusions were published in January 2018 as the “Report on Review of Cash Allowance Paid to Asylum Seekers: 2017” (“the 2018 Review”). A further review was carried out in 2019-2020. It was concluded in October 2020 and its findings and conclusions were published as the “Report on the Allowances Paid to Asylum Seekers and Failed Asylum Seekers: 2020” (“the 2020 Review”). On 8 June 2020, ahead of the publication of the 2020 Review, but in light of its findings, the Home Office increased the weekly amount payable to those owed the s.95 duty to £39.60, ahead of the amendment of the figure prescribed in regulation 10(2) from £37.75 to £39.63.

The amount for each element is worked out using a combination of the Home Office’s own market research and data collected by the Office for National Statistics about expenditure on each element by the lowest 10% income group among the UK population.

In the 2018 and 2020 Reviews, the Secretary of State set out her view of what essential living needs are for the purposes of ss. 95 and 96(1)(b) and quantified the sums needed to provide for the identified essential living needs (if they are to be met in cash rather than in kind). The needs and the assessed sums are:

These Reviews are the only evidence-based analysis carried out by the Secretary of State for the purposes of (i) determining what essential living needs have to be met under s. 95 IAA 1999; and (ii) determining the “minimum” sum required to meet each identified essential living need.

Annex A to both the 2018 and 2020 Reviews shows that the quantified cost of “healthcare” is assessed by reference to the need for “essential generic non-prescription medication” for headaches (paracetamol and ibuprofen tablets), indigestion and colds (cough linctus, hot drink sachets, nasal inhalers and decongestant/cold and flu capsules). Annex E to both the 2018 and 2020 Reviews addresses the cost of non-prescription medication for children. Items identified as “essential generic non-prescription medication” for “Baby/Kids” are Calpol and petroleum jelly. The Reviews note, in both Annexes A and E, that:

The quantified sum for non-prescription medication is assessed taking into account that:

In relation to clothing and footwear the 2018 Review noted:

The 2020 Review notes:

The 2018 Review emphasises that:

The facts: general

Mr Simon Bentley, the official with lead responsibility within the Home Office for policy relating to support arrangements for asylum seekers, has explained how support was provided before the COVID-19 pandemic in the following terms:

As Farbey J observed in JM at [35]:

At the end of March 2020, the Secretary of State took the decision to pause all cessations of asylum support after a claim had been resolved (whether positively or negatively), in light of public health guidance on Covid-19. This has been referred to in this claim as “the pause”. I gratefully adopt Farbey J’s summary of the evidence (which is the same evidence as that before me) describing the onset of the pandemic and the implementation of the pause:

On 4 August 2020, Mr Bentley provided a submission to the Home Secretary and the Minister recommending:

The proposed figure of £12.11 was said to be calculated by removing the value for food (£26.89, adjusted for CPI) and the value for household cleaning (£0.43) from the weekly sum of £39.60 (although I note that the resulting figure is marginally higher). This proposal was made in circumstances where many asylum seekers were remaining in full board accommodation for long periods and it was recognised that in such accommodation provision was made for food and householding cleaning and some other essential items, but “not for the full range of other needs accepted as essential according to the 2014 methodology”.

This recommendation was, however, rejected, as Farbey J explained in JM:

On 13 October 2020, Mr Bentley provided a further submission to the Secretary of State and the Minister. It was noted that the timing was urgent because the Home Office was facing a number of judicial reviews on the issue of provision of cash support to those eligible for support under s.95 who continue to be accommodated in mostly full board initial accommodation centres. The submission recommended that the Secretary of State and Minister:

“agree to implement a change in policy so that individuals in accommodation where some services are provided in kind who have been assessed as eligible for support under section 95 of the 1999 Act receive a small weekly cash payment; and

agree that the payment to these individuals is £8 per week”.

Mr Bentley’s recommendation was that the Secretary of State and Minister “consider a modified version of the option” recommended in August and rejected in September. The first reason given was:

The figure of £8.00 was calculated by identifying three areas where there were gaps and adding together the quantified costs to produce a figure of £8.06 which was then rounded down to £8.00. It was suggested that the accommodation provider would continue to meet the needs of those in their accommodation in respect of food, toiletries and communication. In the light of JM, and the court’s finding (see paragraph 4 above), the Secretary of State does not defend the claimant’s challenge to her decision in October 2020 in respect of communication.

The submission addressed the proposal to make payments of £8 per person per week going forwards in the following terms:

Clothes – There is no current provision to meet this need in the facilities. £3.01 is factored into the £39.60 rate as the assessed cost of meeting clothing needs. It is not practical to provide for this need in kind, so we suggest that it is provided for in cash at the same level.

Non-prescription medicines – There is no consistent current provision. In practice, some of the individuals are obtaining provision by booking an appointment with a GP, which has prompted complaints from health professionals because of the waste of resources. Although it might be possible to ask providers to issue the items, it is easier to provide the small level of cash (£0.35) we assess is needed to buy the items.

Travel – Travel is only considered necessary as part of maintaining interpersonal relationships and some participation in social cultural and religious activities (e.g. to visit churches and mosques). £4.70 is allowed for this purpose within the £39.60 rate – based on the cost of a local return bus journey in most of the main dispersal areas. This amount is therefore the appropriate amount to use to bring parity with the group in dispersal accommodation.

The submission then went on to address the need to make back payments in the following terms, recommending option (b):

In the light of JM, the Secretary of State acknowledges that it was also wrong not to include a sum in respect of communication in calculating the back-payments. On the other hand, the decision in respect of travel back-payments was justified.

The decision which is the subject of challenge, the October decision, was made on 19 October 2020 when the Private Secretary to the Home Secretary informed Mr Bentley and other relevant officials by email that:

Mr Bentley has given evidence in this claim as follows:

In relation to the scheme for backdated payments, Mr Bentley states:

Those engaged by the Home Office to provide asylum accommodation and support are contractually bound to adhere to the Statement of Requirements in Schedule 2 to the Asylum Accommodation and Support contract. The Home Office’s preference is for “Initial Accommodation to be provided on a ‘full board’ basis” (§2.3.5). Where it is provided on that basis, the provider is required to provide the services as defined in §4.1.14 which identifies what food provision under the full board service should include and states:

Mr Bentley has given evidence in this claim that “the average person would typically remain in “initial accommodation” for 4-6 weeks whilst their application [for] support under section 95 was considered and arrangements made to secure longer term “dispersal accommodation”. However, he states:

The National Audit Office comment, in a report published on 25 June 2020 entitled “Asylum accommodation and support” at paragraph 3.15:

The facts: claimant-specific

The claimant has made a claim for asylum which has not yet been determined. After a period living with her brother and his family, the claimant and her daughter were asked to leave. She applied for asylum support. The application was initially rejected, but later granted on 25 October 2019.

The claimant and her daughter spent nearly 20 months in full board accommodation under s.95 of the IAA 1999 at the following locations:

Bell Hotel in Epping for around 5 days from about 1 November 2019;

Tanes Hotel in Cardiff between about 6 November 2019 and 6 March 2020;

Flexistay Reading West Aparthotel in Reading from 6 March 2020 for about two weeks;

Bell Hotel in Epping from about 20 to 30 March 2020;

Stonebridge Hotel in Croydon between 30 March 2020 and 28 July 2020; and

The Mercure Hotel in Bristol from 28 July 2020 to until 28 June 2021.

There are some discrepancies in the evidence as to the precise dates. For example, the Secretary of State suggests the claimant first moved into initial accommodation on 8 November 2019. The differences are minor and not material to my resolution of this claim.

In accordance with the Secretary of State’s longstanding approach, the claimant and her daughter received no cash payments when they moved into full board accommodation at the beginning of November 2019.

The claimant and her daughter were due to be moved to dispersal accommodation on 19 November 2019, however, unfortunately, the wrong address was input into the system and so the driver went to the wrong address to collect them. The transfer did not take place and, in the event, they remained in initial full board accommodation for a further 19 months. As a consequence of this planned transfer, the claimant and her daughter were, mistakenly, paid a cash allowance of £37.75 each per week from 19 November 2019 for nine weeks, until the payments were stopped on 11 January 2020. The payments were made to the claimant on an Aspen card, with which she was provided.

The Home Office sought to transfer the claimant and her daughter to dispersal accommodation in Luton in February 2021, after they had been in initial accommodation for more than 14 months, but ultimately made an offer of accommodation which enabled them to remain in Bristol so that the claimant’s daughter could complete the academic year in her school, before moving to a new school closer to her new home.

The claimant and her daughter received no cash payments from 11 January until 30 November 2020. On 30 November, the claimant and her daughter were given £40 each, representing payments of £8 per person per week for the five weeks from 27 October 2020. Thereafter, in accordance with the October decision, they continued to receive the payment of £8 per person per week (paid in a lump sum every five weeks) throughout their remaining seven months in full board accommodation.

The claimant and her daughter moved into self-catered dispersal accommodation on 29 June 2021. On their transfer into self-catered accommodation, they began receiving the weekly sum of £39.63 per person (which increased to £41.48 on 12 July 2021).

In her evidence, the claimant has described the difficulties that she and her daughter faced, receiving no cash payments at all for the first 13 months that they were accommodated by the Secretary of State under s.95 (save for the mistaken payments that were made for nine weeks, to which I have referred).

It is unnecessary to consider the evidence of the claimant and of Mr Chesters, on behalf of the defendant, in response, regarding the food and drinks available in the accommodation. Although the claimant raises various complaints regarding the food, and the difficulty of having no cash and so being unable to supplement the food provided with healthier meals or snacks for her daughter, these matters are not relied on as founding any ground of challenge. The claimant accepts that food and drink were provided in kind in the full board accommodation and so it was lawful for the Secretary of State not to make cash payments of the sum quantified in the Reviews in respect of food and drink.

The claimant’s concern about the period of time she and her daughter spent in full board accommodation, and the impact on her daughter’s education and more generally, of the frequent moves, is readily understandable. But, again, no ground of review is founded on those matters.

The essential needs which are the subject of this claim are (i) clothing/footwear, (ii) non-prescription medication, (iii) communication, (iv) travel and (v) laundry. In summary, the claimant gives evidence in relation to these matters as follows:

Clothing/footwear: the claimant describes being reliant on friends and local charities during the winter in Cardiff to provide essential warm winter clothing. Her daughter grew out of the clothes and shoes rapidly and so needed new clothes and shoes when they reached Bristol. In Croydon, an Islamic relief organisation gave the claimant some trousers and tops, but they did not have any clothes for her daughter. While they were in the Mercure Hotel, a charity brought clothes to the hotel, but the charity did not have most of the items they needed or clothing of the right sizes for them. When they were in Bristol, the claimant’s daughter’s shoes became too small for her and began to pinch and hurt her feet. The claimant was unable to find shoes for her from a charity, but friends they had made in Cardiff helped by giving her a pair of shoes.

Healthcare/non-prescription medication: the claimant’s evidence is that she was not able to take any supplementary iron tablets, as recommended for her as she suffers from anaemia, or to buy any vitamins for her daughter (as she would have liked to do because of her concerns that her daughter’s diet was less healthy and varied than the claimant wished). Nor was she able to buy Calpol, or other over-the-counter medication, such as for headaches (from which the claimant suffered) and indigestion (from which her daughter suffered). Items such as Vaseline and children’s toothbrushes and toothpaste were not provided by the hotels. The claimant was only able to obtain these from friends in Cardiff who continued to help after they were moved from Wales. Nor were items such as nail scissors provided.

Communication: The claimant describes having no money to put credit on her telephone, and so being unable to speak to her family in Nigeria. Sometimes she was able to communicate with them via WhatsApp, but the combination of her family’s limited internet access and the poor or inconsistent Wi-Fi connection in some of the hotels they stayed in made this difficult. After they had left Cardiff, when Covid-19 restrictions were at their height, the claimant wished to join weekly Zoom church services and choir sessions with the church they had joined in Cardiff, for the emotional support the community provided (particularly during the pandemic) and because it was important to her in view of her faith. She was only able to access these events, while they were in Croydon, because a friend from Cardiff bought mobile data to enable her to do so.

Travel: The church and choir that the claimant joined in Cardiff would arrange cultural trips and events. The claimant and her daughter had to rely on the help of these organisations to cover the cost of travel, to enable them to attend on some occasions. They would have attended more often if they had had money for travel. The location of the hotel in Reading was such that the claimant could only get around by using public transport, but as she had no money she did not travel anywhere, including to church or to enrol her daughter in school.

Laundry: the claimant’s evidence is that they were unable to access any laundry facility during their two stays (lasting about 6 days and 10 days) at the Bell Hotel, and no washing detergent was provided. Consequently, she had to wash clothes in their bathroom using hand soap. Other hotels provided laundry facilities. The claimant and her daughter had a skin reaction to the detergent used at the Mercure Hotel (where they stayed for 11 months), but were told no other detergent could be provided. The claimant also found it difficult to use the laundry service because they had so few clothes that they were not able to wait the three days that it took for items to be returned to them. Consequently, while in the Mercure Hotel, the claimant washed their clothes by hand in their bathroom, using laundry detergent purchased with vouchers provided by Bristol Refugee Rights and fabric conditioner given to her by friends in Cardiff.

The claimant made an application under s.96(2) on 24 September 2020 for additional financial support to meet the costs of toys, books, educational material and clothes for her daughter and food supplements for herself, but this was refused on 10 November 2020. This decision is not challenged.

Mr Chesters manages the London Interim Accommodation contingency estate. His evidence is that the Bell Hotel provided access to three washing machines and a tumble dryer on-site. A service wash was also provided. In relation to the Mercure Hotel, he states that if the claimant had made the staff members at reception aware that the detergent provided irritated her and her daughter’s skin, different detergents (e.g. biological or non-biological) would have been provided. He states that the accommodation providers were not responsible for supplying clothes to service users, but the claimant was entitled to contact charities to obtain suitable clothing.

Analysis and decision

The first element of the claim raises a narrow issue. In JM, Farbey J determined that the Secretary of State had not properly carried out her duty to provide asylum seekers in full board hotel accommodation during the COVID-19 pandemic with the means of communication, in cash or kind, to cover their essential living needs. As Farbey J observed in JM at [59], the correct legal question was not whether asylum seekers in full board accommodation would very shortly be moved out of such accommodation but whether the Secretary of State was under a duty to provide their essential living needs under s.95 at that time. The answer was that she was required to provide for their essential living needs as the s.95 duty endured in the pandemic.

In the October 2020 decision, the Secretary of State proceeded on the basis that back-dated payments only needed to be made in respect of two of the seven identified needs, namely (i) clothing and footwear and (ii) travel (and in relation to a shorter period for travel). JM addressed the omission of back-dated payments in respect of communications, an essential living need that was not fully met by full board accommodation providers. The question whether the omission of back-dated payments in respect of non-prescription medication was not raised in JM and so has not been determined.

I accept the claimant’s submission that it was unlawful not to include the quantified sum in respect of healthcare given that the Secretary of State has identified it as an essential living need and it was not being met by full board accommodation providers (or otherwise).

There was no evidence that could rationally form the basis for a conclusion that this essential living need was being met in full board initial accommodation during the period from 27 March to 26 October 2020. It was not a need that providers were contractually required to meet (see paragraph 42 above). The ministerial submission recognised that there was no consistent provision to meet this essential living need. In determining the weekly sum to pay in respect of the period from 27 October 2020, going forward, the ministerial submission identified this as one of the areas where there was a gap in provision (see paragraph 36 above).

The only “evidence” relied on as “tend[ing] to show the need was being met in some way” was in the form of some complaints from health professionals about the waste of resources caused by some individuals booking GP appointments in order to obtain non-prescription medication. Mr Bentley describes this, somewhat opaquely, as a “series of complaints”. At most, this indicated that some individuals with asylum support, but no cash allowance, had sought to obtain non-prescription medication via GPs. It is a wholly inadequate basis on which to found a conclusion that the essential living need of healthcare was being met for those in full board initial accommodation.

The fact that asylum seekers receive free prescriptions and the existence of the NHS Minor Ailments Scheme provides no answer to this challenge. Those were factors that were taken into account in the Reviews (see paragraphs 22 and 23 above) and, nevertheless, it was determined that there remained an essential healthcare need that was not already met and so had to be quantified.

In accordance with regulation 10(5), where accommodation is provided in a form which also meets other essential living needs, the amount specified in regulation 10(2) should be reduced to reflect those essential living needs that are being met. However, it should not be reduced further than this. For example, if the only essential living need that is met by the accommodation provider were food and drink, the amount specified in regulation 10(2) should only be reduced by the sum quantified in the relevant review in respect of that need.

The sum involved is very small: the figure of £0.95 per person per week was reduced to £0.35 on 8 June 2020 (see paragraphs 18 and 20 above). So the total loss for the claimant and her daughter is £33 (calculated on the basis of 10 weeks at £0.95 and 20 weeks at £0.35 for two people). However, as Farbey J observed in JM at [21], a small deduction in cash or kind will be significant in circumstances in which a person’s entire needs have to be met from asylum support – all the more so where, as here, the deduction results in no cash payment being made at all. Any deduction from the amount assessed by the Secretary of State as needed to meet the essential living needs of those entitled to s.95 support has the effect, where that need is not met in kind, that the asylum seeker receives a lower level of asylum support than is intended and required by s.95 and the Regulations.

There was no evidence that could rationally form the basis for a conclusion that the “healthcare” need was an essential living need that was being met by the full board accommodation providers, or otherwise. It follows that there was no lawful basis for making a deduction in respect of this need when quantifying the back-payments required to comply with s.95 and the Regulations in respect of the period from 27 March to 26 October 2020. Accordingly, the claimant succeeds on this aspect of her claim.

Much of Ms Luh’s argument, on behalf of the claimant, focused on the contention that in making no cash payment to the claimant and her daughter from 1 November 2019 until 26 March 2020 (save for the two month period when payments were mistakenly made) the Secretary of State failed to meet their essential living needs in respect of (i) clothing and footwear, (ii) travel, (iii) communication, (iv) non-prescription medication and (v) household cleaning items (for some periods, in relation to laundry).

It is plainly right that the full board accommodation providers did not meet the need for clothing and footwear. Nor did they meet the travel need; and the lack of such a need for a short period in 2020 when Covid-19 restrictions were at their height obviously did not apply to the pre-pandemic period. Although JM did not address the pre-pandemic period, as a matter of logic and on the evidence, the finding that it was not shown that the communication need was fully met for all those owed the s.95 duty by full board accommodation providers (see JM, [144]) applies equally to the period prior to 27 March 2020, as the provision appears to have been the same. I have addressed non-prescription medication above in relation to the period from 27 March 2020. My conclusion that the “healthcare” need quantified in the 2018 and 2020 Reviews was not met applies equally to the period before that date.

I do not accept, however, that the accommodation providers did not meet the “householding cleaning items” need. For the most part, the claimant acknowledges that they did. In relation to the Bell Hotel where she had two relatively brief stays, I accept Mr Chesters’ evidence that provision for laundering clothes was made available (see paragraph 58 above). In relation to the Mercure Hotel, it is common ground that a laundry service was provided. The claimant’s evidence that it was difficult to make use of the service because she and her daughter had too few clothes to be able to wait three days for them to be returned illustrates the importance of meeting the clothing need for any person who is eligible for s.95 support, irrespective of whether they are in initial or dispersal accommodation, but it does not show that the accommodation provider was failing to meet the laundry need. Nor does the claimant’s evidence that the particular detergent provided irritated their skin show that the accommodation provider was not meeting this need. The Secretary of State was entitled to determine whether the need was being met by reference to the generic information as to the provision made by the accommodation provider. I accept Mr Chesters’ evidence that alternative detergent would have been provided on request and, in any event, as the need for a different detergent was specific to the claimant an application for exceptional support under s.96(2) of the IAA 199 could have been made.

I do not accept the Secretary of State’s contention that the anticipated short-stay nature of initial accommodation provides a basis for failing to meet any of the essential needs of a person who has been assessed as entitled to s.95 support until they are transferred into dispersal accommodation. The s.95 duty applies from the moment a determination is made that it is owed. Each of those living needs has been determined to be essential. The needs are the same irrespective of the nature of the accommodation in which an asylum-seeker is housed – the only difference is the extent to which they are provided in kind. Regulation 10 does not permit the Secretary of State to deduct from the prescribed sum specified in regulation 10(2) any amount due in respect of an essential living need that is not being met by the accommodation provider.

Neither the 2018 Review nor the 2020 Review provides any evidential support for the suggestion that an asylum seeker has lesser essential living needs while in initial accommodation than following dispersal. The need for clothes and footwear applies irrespective of where a person lives and it is recognised that the amounts provided are such that those in receipt of s.95 support will need to save up and budget to buy clothes and footwear. The same is true of the needs to travel and to communicate. Equally, the need for non-prescription medication is no less likely to arise while a person is in initial accommodation than it is after they have been dispersed.

However, I agree with Ms Masood, counsel for the Secretary of State, that it is important to focus on the decision that is the subject of challenge in this claim. The claimant has not brought a claim alleging failure to comply with the s.95 duty during the pre-pandemic period from 1 November 2019. Any such claim would have been highly likely to have been found to have been brought out of time, given that the claim was filed on 29 January 2021.

In the claim form, the date of the challenged decisions was given as 29 November 2020 and ongoing, on the basis that that was the date on which the claimant first received the cash allowance of £8 per person per week in respect of the period from 27 October 2020. As I indicated at the outset, the decision challenged is, in fact, the October 2020 decision.

Although the decision to set up a scheme for making back payments was clearly made in the light of the pressure of pending judicial review claims, nonetheless, it was a scheme that the Secretary of State voluntarily chose to set up. In my judgement, the decision not to extend this scheme to the period before 27 March 2020 was a rational one.

It was rational to conclude that a scheme that provided for back payments from the date of the decision to suspend cessations of asylum support would meet the aims of being administratively workable and avoiding unnecessary further litigation. I accept Ms Luh’s point that making payments to asylum seekers in initial accommodation has not been shown to be administratively difficult. The payments can be put onto an Aspen card in the same way as for those in dispersal accommodation. The only difference is the amount uploaded. But it seems to me that the administrative workability of the back payments scheme is concerned more with identifying those who are entitled to back payments and in respect of what periods. The scheme adopted, in respect of a six month period, is no doubt easier to administer than a scheme covering a longer period.

Although there were people prior to the pandemic, such as the claimant and her daughter, who had been in initial accommodation for lengthy periods, it was undoubtedly the case that the 27 March 2020 decision resulted in the lack of flow through the system and the inability to move people into dispersal accommodation. The claimant did not contend that there was any other more logical longstop date that ought to have been imposed. The logic of her argument was that there should not have been a longstop: the scheme ought to have covered the making of back payments to anyone who had wrongly not received their full entitlement under s.95 of the IAA 1999. Or at least, if it was considered necessary to have a longstop, it should have been prior to 1 November 2019 (with the consequence that her entitlement to back-payments would not have been limited by it). In my judgement, given the aims of the scheme, the problem created by the pause, and the time limit for filing a judicial review claim provided by CPR r.54.5(1), the decision to set up a scheme covering the limited period of time from 27 March 2020 was lawful and rational. It was not incumbent on the Secretary of State to go further and voluntarily introduce a scheme for back payments in respect of the period prior to the pause.

Although I accept that cash payments ought to have been made to the claimant and her daughter during the pre-pandemic period in respect of the four essential living needs that I have identified (clothing/footwear, communication, travel and non-prescription medication), the failure to do so is not the decision challenged in this claim and it is not a failure that the scheme for back payments that the Secretary of State chose to set up in October 2020 lawfully had to remedy. Happily, as a result of the mistaken payments, the claimant did not in fact suffer financially (overall) during the pre-pandemic period, although I appreciate that the way in which the payments were made, the cessation of payments without warning, and the long periods when no payments were made, would have made it very difficult to budget.

For the reasons that I have given, I reject the contention that the October 2020 decision was unlawful in limiting back payments to the period from 27 March 2020.

Relief

In relation to the underpayment in respect of the communication need for the period from 27 March 2020 to 26 October 2020, and also for the period from 27 October 2020 to 28 June 2021, which follows from JM, it is accepted by the claimant that it is appropriate to leave it to the Secretary of State to address the unlawfulness found and declared. I have found for the claimant on one aspect of the claim, namely the failure to include any sum in respect of the need for non-prescription medication during the period from 27 March 2020 to 26 October 2020. In my judgement, in relation to this small sum, in respect of the same period as falls to be addressed in respect of the communication need, it is also appropriate to make a declaration and leave it to the Secretary of State to address the unlawfulness that I have found. As this is the conclusion that I have reached as a matter of discretion, I have not found it necessary to address the argument as to whether, in principle, the claimant is entitled to relief in the form of a monetary remedy.

Conclusion

The October 2020 decision was unlawful insofar as it failed to incorporate any sum in respect of the essential living need identified as “healthcare” in the 2018 and 2020 Reviews, but the imposition of a longstop on back payments of 27 March 2020 was lawful.