Law Report: Asylum seekers entitled to support from local councils

LAW REPORT 26 February 1997: Regina v Westminster City Council and others, ex parte A and others; Court of Appeal (Lord Woolf, Master of the Rolls, Lord Justice Waite, Lord Justice Henry) 17 February 1997

Regina v Westminster City Council and others, ex parte A and others; Court of Appeal (Lord Woolf, Master of the Rolls, Lord Justice Waite, Lord Justice Henry) 17 February 1997

Asylum seekers who were excluded by recent legislation from rights to public housing or social security benefits were nonetheless entitled to apply to local authorities for relief under section 21(1) of the National Assistance Act 1948 if as a result of their plight they were "in need of care and attention" which was not otherwise available to them.

The Court of Appeal dismissed appeals by Westminster City Council, Lambeth London Borough Council, Hammersmith and Fulham London Borough Council and the Secretary of State for Health, and affirmed the decision of Mr Justice Collins on 8 October 1996, granting the four applicants, referred to only as A, P, M and X, judicial review of decisions by the councils refusing them assistance under section 21(1) of the 1948 Act (as amended by the Local Government Act 1972, the Housing (Homeless Persons) Act 1977, the Children Act 1989 and the National Health Service and Community Care Act 1990).

Section 21 provided:

(1) Subject to and in accordance with the provisions of this Part of the Act a local authority may with the approval of the Secretary of State, and to such extent as he may direct, make arrangements for providing: (a) residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not available to them . . .

The applicants were asylum seekers from Iraq, Romania, Algeria and China. None of them claimed asylum at the point of entry. Under the Asylum and Immigration Act 1996 they were not entitled to either public housing assistance under Part III of the Housing Act 1985 or to social security benefits such as income support and housing benefit. Nor were they allowed to take employment. It was accepted that they might receive treatment from the National Health Service. The question was whether they were also entitled to relief under section 21(1)(a).

Michael Beloff QC with Clive Jones (C Wilson, Westminster) and with Nigel Giffin (C.T. Mahoney, Hammersmith, and J. Curran, Lambeth) for the councils; Nigel Pleming QC and Steven Kovats (Treasury Solicitor) for the Health Secretary as interested party; David Pannick QC and Stephen Knaffler (Clore & Co) for the applicants.

Lord Woolf MR said the 1996 Act did not refer to section 21 of the 1948 Act and thus left intact the applicants' rights, if any, under that section. The 1948 Act replaced 350 years of the Poor Law and was a prime example of an Act which was "always speaking". Accordingly, it should be construed by continuously updating its wording to allow for changes since the Act was written.

The councils argued that the purpose of section 21(1)(a) was not to provide money or accommodation for those who needed it per se, but for those who required care and attention. Asylum seekers' needs were for food and accommodation, not for care and attention and consequently, the councils argued, they could not avail themselves of section 21(1).

That was too broadly stated. The fact that asylum seekers had a need for food and accommodation which, but for the 1996 Act, would be met under other statutory provisions did not mean they could not qualify as having a problem which resulted in their needing care and attention.

One of their problems was that they had to sleep rough and go without food. That could bring about illness and disability which could result in their needing care and attention "which is not otherwise available to them".

The destitute condition to which asylum seekers could be reduced as a result of the 1996 Act coupled with the period of time which it took for their applications to be decided, meant inevitably that they could fall within a class that local authorities could properly regard as being persons whose needs they had a responsibility to meet under section 21(1)(a).

However, section 21(1) was not a safety net on which anyone who was short of money or accommodation could rely. It was for the local authority to decide whether each applicant qualified.

Paul Magrath, Barrister