R (Pajaziti) v Lewisham LBC [2007] EWHC1874 (Admin)

This case concerns the refusal of a local authority (L) to accommodate asylum seekers who were suffering from a major depressive episode.

Mr and Mrs P were asylum seekers who applied for NASS support and made submissions that due to their poor health they should not be dispersed to accommodation outside London.  Their submissions were rejected by NASS on the basis that their health conditions could be treated adequately in any part of the UK.  The Ps accepted this decision.  They then sought assistance from Lewisham LBC (L).  They argued that they were entitled to accommodation under s21 National Assistance Act 1948 (NAA).  The medical evidence submitted by the Ps related to minor ailments and their request for s21 assistance was refused on the basis that neither their need for care and attention was made materially more acute by some circumstance other than destitution.  The Ps then submitted new medical reports which put their application in a different light.  The reports stated that the Ps were each suffering from a “major depressive episode” It suggested that this was not caused as a result of destitution but was a reaction to a recent period of detention in an immigration detention centre and their concerns about the future of their children.  L continued to refuse assistance on the basis that once treatment was provided by the NHS their needs would have been met.  Any need that the Ps had for care and attention was not made materially more acute by some factor other than mere lack of accommodation and funds.  The Ps made an application for judicial review of this decision

S21 NAA states that local authorities should provide residential accommodation to “…persons aged 18 or over (ordinarily resident in the local authority area or in urgent need) who by reason of age, illness or disability or any other circumstances are in need of care and attention which is not otherwise available.” In relation to asylum seekers case law has established that sooner or later asylum seekers who are destitute will fall into one of these categories because destitution causes deterioration in a person’s physical or mental health so that the person then develops a need of care an attention.  However s21 (1A) of the NAA (as amended) requires an additional hurdle for  asylum seekers to be eligible in that they must show that the need for care and attention has not arisen solely because of destitution.  In other words their need for care and attention must be made more acute by some factor other than destitution.

The High Court held that L had acted within the law when the Ps had first made their application based on minor medical ailments.  L had then continued to act lawfully in rejecting their second application based on additional medical evidence.  It was for L to decide whether the Ps had met the additional eligibility test in that their need for care and attention was made materially more acute by some factor other than destitution.  L successfully argued that their needs would be met by “(NHS) services otherwise available”.

Application dismissed

Comment

This was a case decided on its merits and local authorities should not seize upon this decision as justification for refusing to accommodate asylum seekers with a diagnosis of depression.  Although L was entitled, according to the High Court, to assume that the Ps depression would be successfully treated by the NHS, this does not necessarily mean that in a similar case such treatment would leave asylum seekers without any material need for care and attention.  It is possible that to envisage forms of severe depression that even if treated would not result in the disappearance of all associated needs for care and attention.

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