Duty to provide accommodation – s21 NAA 1948 – destitute – asylum seekers
This was an appeal by a local authority from a High Court ruling (see below) that it had a duty to provide residential accommodation for M, a destitute asylum seeker who suffered from a disability affecting his mobility. M also had a history of mental health problems. M had been accommodated by the National Asylum Support Service (NASS), but subsequently sought accommodation from the local authority. The High Court held that responsibility for housing and supporting M lay with local authority under s21 National Assistance Act 1948, and not with NASS under s95 Immigration and Asylum Act 1999.
On appeal, the local authority argued that s21(1)(a) NAA 1948 applied solely to those whose need for care and attention was accommodation-related and therefore was not relevant to M; that a destitute asylum seeker was entitled to support from NASS under s95 of the 1999 Act during the time between becoming destitute and being entitled to accommodation under s21 NAA 1948; and that NASS’s past provision of accommodation for M, and its readiness to continue doing so, relieved the local authority of its responsibility.
The Court of Appeal rejected all three arguments. It held that the local authority’s argument that the scope of s21(1)(a) NAA 1948 was limited to those whose need for care and attention was accommodation-related was contrary to the existing line of authority, ending with the decision in Westminster City Council v National Asylum Support Service. Section 21(1A) NAA 1948 did not alter the meaning of s21(1)(a). The relevant test for the availability of relief under s21 NAA 1948 was that set out in ex parte O. That test applied equally to asylum seekers and non-asylum seekers.
Mani v Lambeth LBC (judgment 18 April 2002)
In three conjoined cases, the claimants, who were all destitute asylum seekers suffering with a disability requiring care and attention, contended that they were owed a duty by the local authority under s21 NAA 1948, even though the nature of the disability did not, of itself, call for the provision of residential accommodation.
The local authorities argued that, as the resource at issue was residential accommodation, the need for care and attention consequential upon the disability had to be such as could appropriately be met only by the residential accommodation. Counsel for the claimants conceded that the relevant ‘need for care and attention’ had to be assessed in light of the fact that its proposed service would take the form of residential accommodation, and it should therefore be a need calling for such provision.
The judge, however, was not persuaded. The crucial words were ‘which is not otherwise available’. In the vast majority of cases the necessary care and attention would be otherwise available, either through family or friends, or from public authorities. The judge pointed to the conjunction of s29 NAA with s2(1) CSDPA 1970 as requiring local authorities to provide a raft of support for the needy in their homes. Looking at s21(1)(aa), it was clear that when such care and attention was not available, then, whatever the nature of the need for care and attention, that person was entitled to come within s 21.
Further, in the ex parte O, Bhikha and Westminster v NASS cases, the Court of Appeal had specifically rejected the argument that an applicant was only entitled to s21 assistance if s/he would still need that assistance, even without being destitute. The construction of s21 in the case of asylum-seekers could be no different from its construction in the case of others subject to immigration control. It followed that a local authority did have a duty under s21 to provide residential accommodation for a destitute asylum seeker who suffered a disability, which, of itself, gave rise to a need for care and attention that fell short of calling for the provision of residential accommodation.
That duty subsisted even where NASS had offered to provide accommodation. The effect of regulations 23(1) and (3) of the Asylum Support Regulations 2000 was that, in the words of reg 6(3), as adapted, the local authority must, in considering destitution for the purposes of s21(1A) NAA 1948, ignore any NASS support with which the asylum-seeker might be provided as well as any support that was in fact provided. If the actual provision of NASS support, or a refusal to accept such support, were to eliminate an authority’s liability under s 21, that part of the regulations would be redundant. Accordingly, a local authority was not relieved of any liability under s 21 of the 1948 Act to provide accommodation for a destitute asylum-seeker in the circumstances identified above by the fact that NASS had offered accommodation to the asylum-seeker.