R v Wandsworth London Borough Council, Ex p O (Bhikha, Ex parte, O, Ex parte, R v Leicester City Council, Ex parte Bhikha)

Section 21(1A) of the National Assistance Act 1948 excludes assistance only where destitution is the sole cause of the need for care and attention. A person subject to immigration control may still qualify where age, illness, disability or another circumstance materially contributes to that need.

There is no general public-policy rule denying section 21 assistance because an applicant is unlawfully present in the United Kingdom. Local authorities must assess social-care need, rather than make moral or immigration judgments. Immigration status is relevant only to statutory restrictions and to whether care and attention is otherwise available.

The conjoined proceedings concerned destitute immigrants seeking residential accommodation and associated support under section 21 of the National Assistance Act 1948.

O, an overstayer with serious psychiatric and physical illness, challenged Wandsworth's refusal to assess or assist her. Owen J dismissed her claim, following R v Brent LBC ex parte D. She appealed. Bhikha, an overstayer with serious medical needs who had sought exceptional leave to remain, was refused assistance by Leicester. A Deputy High Court Judge refused permission for judicial review, but the Court of Appeal granted permission and retained the claim.

The common issues were the construction of section 21(1A), inserted by section 116 of the Immigration & Asylum Act 1999, and whether unlawful immigration status created a public-policy bar to otherwise available section 21 assistance.

1. The appeal was allowed and judicial review was granted. Simon Brown LJ gave the leading judgment. Lady Justice Hale agreed and gave additional reasons. Lord Justice Kay agreed with both judgments.

2. Section 21(1A) of the National Assistance Act 1948 had to be read according to its strong word, “solely”. An applicant subject to immigration control was excluded only if destitution, or its actual or anticipated physical effects, was the sole cause of the need for care and attention. The applicant remained potentially eligible if illness, disability, age or another circumstance materially added to that need. The other restrictions in Part VI of the Immigration & Asylum Act 1999 did not justify a more severe construction.

3. The Court rejected the approach in R v Brent LBC ex parte D [1998] 1 CCLR 241. Section 21 assistance is directed to need, not moral blame. There was no implied public-policy principle disentitling illegal entrants or overstayers from this welfare provision merely because their immigration position involved wrongdoing. The statutory scheme left the assessment of care needs to local authorities and immigration control, including removal and decisions on exceptional leave, to the Home Office.

4. The ordinary-residence point did not alter that result. Although section 24(1) referred to ordinary residence, section 24(3) required only that an applicant be in the authority's area and in urgent need of residential accommodation. The homelessness authorities concerning unlawful entrants were distinguishable because section 21 provided last-resort care and attention rather than a general homelessness duty.

5. The authorities should therefore have assessed the applicants' needs without applying an immigration-status bar, and then applied section 21(1A) as construed. O's substantive need for section 21 support had ended when she received exceptional leave to remain. Bhikha's needs were to be assessed. Permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): Allowed O's appeal and granted Bhikha's application for judicial review in [2000] EWCA Civ 201.
• High Court: Owen J dismissed O's substantive judicial-review challenge on 22 June 1999, but granted permission to appeal.
• High Court / Court of Appeal: A Deputy High Court Judge refused Bhikha permission to move for judicial review. The Court of Appeal later granted permission and retained the challenge for determination.