Westminster City Council, R (on the application of) v National Asylum Support Service

The support schemes under the National Assistance Act 1948 and Part VI of the Immigration and Asylum Act 1999 must be read together. NASS is responsible for asylum-seekers whose need for care and attention arises solely from destitution or its physical effects. Local authorities remain responsible under section 21(1)(a) of the 1948 Act where the need arises from independent illness, disability, age or other circumstances. In determining destitution, NASS must take account of other support available under the 1948 Act, while local authorities must disregard asylum support. The legislation therefore allocates responsibility by reference to the nature of the need, rather than transferring every asylum-support obligation to NASS.

Westminster City Council challenged NASS’s refusal to support an Iraqi Kurdish asylum-seeker with serious spinal myeloma and substantial mobility and personal-care needs. The Administrative Court, presided over by Stanley Burnton J, rejected the challenge, although the judge identified incongruities in the statutory scheme.

On appeal, the central issue was whether the claimant’s accommodation and essential living needs were supportable by NASS under section 95 of the Immigration and Asylum Act 1999, so that care and attention was otherwise available and the local authority’s duty under section 21(1)(a) of the National Assistance Act 1948 ceased.

1. Appeal dismissed. The statutory schemes had to be read together. The 1999 Act transferred to NASS responsibility for the category of asylum-seekers whose need for care and attention arose solely from destitution or its actual or anticipated physical effects, corresponding to the category identified in R v Hammersmith & Fulham LBC ex parte M.
2. Under regulation 6 of the Asylum Support Regulations 2000, NASS must ignore asylum support but take account of any other support available to the asylum-seeker. Support under section 21(1)(a) of the 1948 Act was therefore relevant to whether the person was destitute for section 95 purposes.
3. Conversely, a local authority determining its obligations under section 21(1)(a) must disregard asylum support. The claimant was destitute, but her need for care and attention arose from serious illness and disability, not solely from destitution or its physical effects. Section 21(1A) consequently did not remove the local authority’s duty to provide residential accommodation.
4. The limited nature of NASS support, generally comprising accommodation and vouchers or equivalent provision for essential living needs, did not extend to the community-care services required by the claimant. The financial allocation between central and local government was ultimately a matter for Parliament and the executive.
5. The court recognised tension between this conclusion and the approach in R v Wandsworth LBC ex p O, which had construed “solely” narrowly for non-asylum-seeking immigrants. That decision did not determine the present appeal, which concerned an asylum-seeker within a statutory scheme where section 95 support and section 21(1)(a) assistance operated on a mutually exclusive basis.
6. The appeal was dismissed with costs on detailed assessment. Permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): Appeal from the Administrative Court decision of Stanley Burnton J. Appeal dismissed with costs; permission to appeal to the House of Lords refused.