No powers to give cash to asylum seekers; LAW REPORT v 15 July 1997

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Regina v Secretary of State for Health, ex parte London Borough of Hammersmith & Fulham and ors; Queen's Bench Division Crown Office List (Mr Justice Laws) 9 July 1997

A local authority which provided accommodation under section 21(1)(a) of the National Assistance Act 1948 for asylum seekers who had no right to other state benefits because they had not claimed asylum at the port of entry on arrival had no power under that section to make cash payments to the asylum seekers for the purchase of necessary requisites.

The application by the London Borough of Hammersmith & Fulham and three individual asylum seekers for judicial review of the decision of the Secretary of State for Health that there was no provision for local authorities to give cash payments to asylum seekers was refused.

Nigel Pleming QC and Steven Kovats (Treasury Solicitor) for the Secretary of State; Patrick Elias QC and Nigel Giffin (Legal Services Divison) for Hammersmith & Fulham; Stephen Knafler (Hammersmith Law Centre) for K; Stephen Knafler (Hackney Law Centre) for A and M.

Mr Justice Laws said that the applications concerned the true construction of section 21(1) of the National Assistance Act 1948. In R v Westminster City Council and ors, ex p A and ors (Law Report, 26 February 1997) the Court of Appeal had held that certain asylum seekers, whose claims were made not at the port of entry upon arrival but later, could take advantage of the duty imposed upon local authorities by section 21(1)(a) of the 1948 Act to make arrangements for providing residential accommodation.

Under the Asylum and Immigration Act 1996 such persons had no right to cash state benefits such as income support or housing benefit, nor any rights under the homeless persons legislation. Having no such rights, and lacking any resources of their own in this country, those persons would be destitute but for recourse to section 21.

Facilities of the type provided by Hammersmith & Fulham for the kinds of persons traditionally thought of as needing help under the provisions of Part III of the 1948 Act, such as the elderly or those with mental health problems, were not at all suitable for the accommodation of asylum seekers. In consequence the authority had had recourse to the provision of bed and breakfast accommodation.

That provision, however, did not secure to the asylum seekers "board and other services, amenities and requisites" under section 21(5), in particular meals other than breakfast and other necessary incidents of everyday life such as toiletries. Hammersmith & Fulham said that to provide such things in kind would entail very great inconvenience, inefficiency and expense. Instead they had made cash payments, requiring the asylum seekers to use the money for the purchase of necessary requisites.

The decision of the Court of Appeal had generally imposed heavy financial burdens upon local authorities having to provide assistance to asylum seekers under section 21. In consequence Parliament had approved a special grant report providing for Asylum Seekers' Accommodation Special Grant to be paid to local authorities.

Under that measure, grant was geared to the laying out by authorities of "relevant expenditure", which meant "expenditure lawfully incurred by an authority in connection with providing accommodation under section 21 . . . for any asylum seeker. . . who would not have been provided with that accommodation but for the decision of the High Court". In Circular LAC(97)6 para 15 the Secretary of State stipulated that "expenditure will not be regarded as relevant expenditure if it relates to . . . (c) any provision of cash payments to individual asylum seekers for which there is no provision in section 21 of the National Assistance Act . . ."

The sole issue for determination was whether the construction of section 21 offered in para 15(c) of the Circular was correct; whether the making of cash payments, as was done by Hammersmith & Fulham, was outwith the contemplation of the section.

The statute did not authorise or contemplate any such action. The expression "make arrangements for providing" meant that the outcome of any such arrangements was that their beneficiaries should, in consequence of them, directly receive in kind the forms of provision contemplated by the statute, and nothing else. Payment of money for persons to buy their own necessities left them to make the arrangements to get what they needed.

The use of the term "arrangements" in sections 21(1)(4), 24(4) and 26(1) of the Act supported that conclusion. The premise of all of them was that the arrangements made by the authority should consist of practical measures whereby the authority fixed the means by which the provision was to be directly delivered. The making of cash payments, accompanied by whatever insistence that they be used only for the statutory purpose, contradicted that premise and lay outside the statutory purpose.

Kate O'Hanlon, Barrister