Destitute – asylum seeker – duty to accommodate – human rights – disabled children
A claimed asylum in the UK for herself and her two teenage sons, who were severely disabled as a result of a progressively degenerative neurological condition. The life expectancy of both children was short. They required constant supervision and assistance with their personal care. Hackney LBC, in whose area A and her children were then staying, arranged for them to be temporarily accommodated in a two-storey house within the area of Waltham Forest LBC. The National Asylum Support Service subsequently accepted responsibility for supplying A and her family with adequate accommodation, and agreed to subsidise their occupation of the accommodation provided by Waltham Forest LBC until more suitable accommodation became available. Though A initially indicated that she was content to occupy the property whilst her asylum claim was being processed, she later wrote to NASS requesting that new accommodation be provided within 21 days, within Walthamstow as her children were receiving special educational services in the area. NASS in turn asked Waltham Forest LBC to assist in finding suitable accommodation. None could be found and A issued judicial review proceedings against NASS and the Council, claiming that they had failed to discharge their statutory duties.
The High Court judge held that NASS’ power under s95 Immigration and Asylum Act 1999 (IAA) to provide adequate accommodation to destitute asylum seekers and their dependants was converted by s122(3) into a duty to do so for a dependant child where adequate accommodation was not being provided for that child. The critical question, therefore, was whether A’s accommodation was “adequate” within the meaning of s122(3). Following the case of Ouji v Secretary of State for the Home Department, the judge reasoned that basic support and basic essential needs by reference to non-disabled asylum seekers would be provided for by the Secretary of State under the IAA, but that any additional support needed as a result of disabilities would be provided by local authorities under s21 National Assistance Act 1948. S21, however, only applied to adults in need of care and attention. The judge thus held that adequacy under the 1999 Act fell to be tested by reference to able-bodied children and not disabled children. Any additional needs that a disabled child had were to be left to the local authority in question to deal with providing there was no other statutory bar on those additional needs being met. Since it was not suggested that A’s accommodation would not be adequate if her children were not disabled, it followed that the accommodation was adequate within the meaning of s122(3) and NASS’ duty to provide other accommodation had therefore not been triggered. He further held that article 8 of the European Convention was not engaged.
On appeal, none of the parties involved supported the High Court judge’s reasoning. They accepted that his decision and the decision in the Ouji case could not stand in so far as they as they suggested that the IAA 1999 took no account of the disability of a dependant child in assessing either the adequacy of accommodation or essential living needs. The appeal raised the question as to what was adequate accommodation for such a family and who owed the duty to provide it, as between the local authority and NASS.
The Court of Appeal held that there was provision other than s95 IAA 1999 under which a disabled child of an asylum seeker could be provided with accommodation. It was therefore wrong to hold that adequacy had to be tested by reference to able-bodied children of asylum seekers. It was to misread the effect of Westminster City Council v National Asylum Support Service to suggest that there was a division of responsibility as between NASS and a local authority.
The Court further held that the word “adequate” in s95 IAA 1999 should not be interpreted in such a way as to imply that a lower standard of accommodation might be appropriate for a disabled child than accommodation that was suited to a disabled adult within the meaning of s21(2) NAA 1948. The word “adequate” had to be tested by reference to the needs of the persons to whom the duty was owed, but the context was important. The context for asylum seekers was the provision of accommodation that prevented them from being destitute and provided for their essential living needs. In considering adequacy, the individual circumstances of each person, including dependants, had to be considered. Whether any person to whom the duty was owed, including the children, were disabled would be relevant to the adequacy of the accommodation and as to whether the family would be destitute. Other relevant factors in assessing adequacy were the period during which the accommodation was likely to be occupied and the distinction between temporary and permanent accommodation. A balancing exercise had to be carried out bearing in mind whether the accommodation was adequate for the needs of the disabled children in the circumstances that persisted at that moment in time.
The Court, however, found that no remedy lay against the local authority in this particular case. That was because s122(5) IAA 1999 prevented a local authority from providing assistance where NASS should have been complying with its obligations under s95 and s122.
NASS were not in breach of their duty even after the unsuitability of accommodation for A’s family became apparent. NASS’ obligation was to prevent destitution and adequacy had to be tested in that context. In addition, NASS had insisted on the local authority searching for further accommodation for A and NASS had not so far failed in that respect. No different result would have been achieved under s21 NAA 1948.
Finally, the Court held that this construction of the IAA 1999 did not give rise to a breach of art 8 European Convention, although the first instance judge had been wrong in suggesting that art 8 would not be engaged.