Asylum seekers were in need of council care
LAW REPORT: 16 October 1996
An asylum seeker who had no means of support and would otherwise be left starving and homeless was someone who was "in need of" a local authority's "care and attention" within the meaning of section 21(1)(a) of the National Assistance Act 1948.
Mr Justice Collins granted judicial review applications by four asylum seekers against the refusal of the three local authorities for Hammersmith and Fulham, Lambeth, and Westminster, to provide them with accommodation.
Section 21 of the National Assistance Act 1948 (as amended by the Ministry of Social Security Act 1966, the Local Government Act 1972, the Housing (Homeless Persons) Act 1977 and the National Health Service and Community Care Act 1990) provided:
(1) . . . a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing: (a) residential accommodation for persons aged 18 or over who by reason of age, illness, disability
or any other circumstance are in
need of care and attention which is not otherwise available to them . . .
Each of the applicants was an asylum seeker who was by virtue of the Asylum and Immigration Act 1996 now ineligible for any social security benefits or housing. Each was destitute and must either starve without a roof over his head or return to the country from which he had fled.
The applicants sought help from the respondent authorities under section 21(1)(a). The authorities denied that the applicants were in need of care and attention. They were simply in need of money, it was said, and so did not come within the ambit of the subsection. The words "any other circumstances" were limited, by reference to the ejusdem generis rule, to circumstances relating to the physical condition of the individual seeking assistance.
David Pannick QC and Stephen Knafler (Clore & Co) for the applicants; Michael Beloff QC with Nigel Giffin (C.T. Mahoney, Hammersmith, and J. Curran, Lambeth) and with Clive Jones (C. Wilson, Westminster) for the authorities; Nigel Pleming QC and Steven Kovats (Treasury Solicitor) for the Secretary of State.
Mr Justice Collins said it was clear that the words "or any other circumstances" were intended to cover eventualities not foreseen and to ensure that there was a safety net to protect those who were in need of care and attention. The whole purpose of the 1948 Act was to ensure that no one would be left destitute because of an inability to fend for himself.
The subsequent amendments to the Act did not affect this construction of section 21(1)(a). Rather, they confirmed the intention that it should be available as a safety net for those unable to fend for themselves and who were therefore in need of care and attention.
His Lordship regarded R v Kensington and Chelsea RBC, ex p Kihara (Law Report, 3 July 1996), as persuasive authority that in construing section 21(1)(a) the ejusdem generis rule did not apply to restrict its scope in the way the respondents argued. In that case the Court of Appeal held that asylum seekers could be "vulnerable" within the meaning of section 59(1)(c) of the Housing Act 1985 and so have a priority need for housing, thus imposing a duty on a local authority to provide it. The court rejected the argument that the "other special reason" for vulnerability in section 59(1)(c) must be of the same genus as the immediately preceding "old age, mental illness or handicap or physical disability".
The same reasoning applied to section 21(1)(a). The words "any other circumstances" were free-standing categories which, though they had to be construed in their context, were not restricted by any notions of physical or mental weakness other than such as were inherent in the expression "in need of care and attention".
In ordinary English usage, someone who was unable to provide for himself the basic necessities of life could properly be said to be in need of care and attention. He needed at least shelter, warmth and food.
It seemed, therefore, that section 21(1)(a) did impose a duty on the respondents to provide for the applicants if satisfied any of them had no other means of support.
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