R (Westminster City Council) v National Asylum Support Service

The House of Lords held that the amendment to section 21 of the National Assistance Act 1948 by section 116 of the Immigration and Asylum Act 1999 (introducing section 21(1A)) excludes from local authority duty only those whose need for care and attention has arisen solely because they are destitute. Persons whose need also arises from illness, disability or other infirmity remain within the ambit of section 21(1)(a). The court further held that section 95 of the Immigration and Asylum Act 1999 (and the Asylum Support Regulations 2000, regulation 6(4)) gives the Secretary of State power to provide asylum support but that that power is residual: where a person is entitled to residential accommodation under section 21(1) the Secretary of State must take that other support into account and the person is thereby not to be regarded as destitute for the purposes of section 95. Consequently an "infirm destitute" asylum seeker who falls within section 21 remains a local authority liability and cannot claim overlapping entitlement under section 95.

This appeal concerned which public authority should provide or pay for residential accommodation for an asylum seeker, Mrs Y-Ahmed, who had significant medical needs. Westminster City Council, which had assessed and arranged temporary accommodation for her, sought a judicial review order requiring the National Asylum Support Service (NASS) to pay for or provide the accommodation. The claim proceeded on the factual basis that Mrs Y-Ahmed was an asylum seeker who was medically infirm and destitute.

The case raised the construction and interaction of key statutory provisions: section 21(1) of the National Assistance Act 1948 (as amended by section 116 of the Immigration and Asylum Act 1999 introducing section 21(1A)), and sections 95 and 96 of the Immigration and Asylum Act 1999 together with Schedule 8 and the Asylum Support Regulations 2000 (in particular regulation 6(4)).

• Nature of the claim: Westminster sought judicial review to require NASS to provide accommodation for an infirm asylum seeker and to quash NASS's refusal to pay.
• Issues framed: (i) Whether Mrs Y-Ahmed prima facie fell within section 21(1)(a) of the 1948 Act as amended; (ii) whether she was excluded by section 21(1A) because her need arose solely from destitution; (iii) whether, alternatively, section 95 and the regulations required NASS to provide support irrespective of section 21.
• Court's reasoning: The Lords agreed with the reasoning of the lower courts that section 21(1A) was intended to exclude only the able bodied destitute whose need arises solely from destitution; those whose need also stems from illness or disability remain within section 21(1). The Asylum Support Regulations and the structure of Part VI of the 1999 Act show that the Secretary of State's power under section 95 is residual and must take into account other support available to an applicant (regulation 6(4)). Accordingly an infirm destitute person entitled to section 21 assistance cannot be regarded as destitute for the purposes of section 95 and cannot claim overlapping support from NASS.

The House of Lords therefore dismissed the appeal and affirmed that the local authority remained responsible for "infirm destitute" asylum seekers while NASS's accommodation provision is primarily directed to the able bodied destitute and is residual where other statutory provisions apply.

Appeal dismissed. The House of Lords held that section 21(1A) of the National Assistance Act 1948 (as inserted by section 116 of the Immigration and Asylum Act 1999) excludes only those whose need for care and attention has arisen solely because they are destitute; persons whose need also arises from illness or disability remain within section 21(1)(a). Further, section 95 of the 1999 Act and the Asylum Support Regulations (regulation 6(4)) make the Secretary of State's power to provide support residual, requiring regard to other support (including local authority section 21 provision), so that entitlement under section 21 precludes being regarded as destitute under section 95.

Proceedings began with an application for judicial review heard by Stanley Burnton J (dismissed). The Court of Appeal unanimously upheld that decision (reported in the Court of Appeal at (2001) 4 CCLR 143). Leave to appeal to the House of Lords was given on 11 June 2001; the House of Lords dismissed the appeal on 17 October 2002.