This case concerns a decision by Lambeth to refuse support to the claimant (N) under either section 21 National Assistance Act 1948 (1948 Act). N’s immigration status had come before the court in separate litigation in relation to her asylum claim. The House of Lords overruled a decision by the adjudicator that returning her to Uganda would be a breach of her Article 3 rights. N had fled Uganda after being captured, ill-treated and raped by members of a private army operating within the country. She was now suffering with an AIDS-related illness. Their Lordships (Baroness Hale giving the leading speech), held that the acts which N complained of were not acts committed or condoned by the State and therefore N would not be in danger of persecution if she returned to the country. N appealed the decision of the House to the ECHR. In the meantime Lambeth had rejected representations made by N and refused assistance under s21 of the 1948 Act. N made an application for judicial review of this decision. It claimed that Lambeth had misunderstood the legal regime governing this area of law. In making its decision to refuse support, it had taken into account irrelevant matters and in doing so reached an irrational conclusion. The question for the High Court in this case was therefore to decide whether and, to what extent, N was entitled to support under section 21 of the 1948 Act whilst the application to the ECHR was pending.
The legal regime governing the use of section 21 by local authorities was modified by the Immigration and Asylum Act 1999 and the Nationality, Immigration and Asylum Act 2002. Schedule 3 of the 2002 Act provides that a failed asylum-seeker is not eligible for s21 support unless the support is necessary to prevent a breach of that person’s Convention rights. There would be no breach of a Convention right if there was no legal or practical obstacle to a person returning to their country of origin. However, if a person is able to demonstrate that refusal of support may breach their Convention rights and/or a fresh and genuine asylum claim has been accepted by the Home Office this would allow a local authority to make available support under s21 of the 1948 Act. A local authority, in making a decision whether or not to provide support should consider the facts of each individual case. R(AW) v LB Croydon
Lambeth argued that N did not meet the eligibility threshold under the FACS guidance though it was possible that she might meet the threshold in the future if her situation changed. N’s illness was under control and was not deemed to be ’in need’ of community care services by Lambeth. The claimant argued that Lambeth had failed to focus on whether N’s need for care and attention was made more acute by her illness rather than a mere lack of accommodation and funds.
The court looked at the FACS practice and policy guidance issued under s7 Local Authority and Social Services Act 1990, in assessing eligibility for community services. It also looked at a number of similar cases which had reached the courts but found there was nothing in any of the authorities which suggested that it was appropriate for Lambeth to treat the FACS eligibility criteria and policy as answering the question posed by s21 (1)(a) of the 1948 Act in every case. It held that the local authority must address the question to the particular circumstances of the case notwithstanding its policy and practice guidance. The decision of Lambeth could not stand on this basis. It had misdirected itself in law and its decision was invalid.