Westminster City Council v National Asylum Support Service

Section 21(1A) of the National Assistance Act 1948 removes a local authority’s responsibility only where a person’s need for care and attention arises solely from destitution or its physical effects. Where illness or disability independently causes that need, the person remains within section 21(1)(a), provided the required care is unavailable otherwise than through residential accommodation.

The asylum-support power under section 95 of the Immigration and Asylum Act 1999 is residual. Regulation 6(4) requires other available support, including statutory local-authority support, to be taken into account. The legislation therefore allocates responsibility between the local authority and the national asylum-support system rather than creating overlapping duties.

Mrs Y-Ahmed was a destitute asylum seeker suffering from spinal cancer. She required wheelchair-accessible accommodation near her hospital, with space for her daughter and a carer. Westminster City Council assessed her community-care needs and provided accommodation, but contended that the National Asylum Support Service should meet the cost under section 95 of the Immigration and Asylum Act 1999.

Stanley Burnton J dismissed the council’s application for judicial review. The Court of Appeal unanimously upheld that order in (2001) 4 CCLR 143. The central questions before the House were whether Mrs Y-Ahmed came within section 21(1)(a) of the National Assistance Act 1948, whether section 21(1A) excluded her, and whether an available local-authority duty prevented support under section 95.

1. Appeal dismissed unanimously. Lord Hoffmann delivered the leading speech. Lord Millett and Lord Rodger agreed with it in full. Lord Steyn agreed with Lord Hoffmann’s conclusions at paragraph 49 and with the dismissal of the appeal. Lord Slynn independently reached the same result.

2. Per Lord Hoffmann, section 21(1)(a) of the National Assistance Act 1948 requires three conditions: the person must need care and attention; the need must arise through age, illness, disability or other circumstances; and the necessary care must be unavailable otherwise than through accommodation under that section. Mrs Y-Ahmed satisfied those conditions because illness created her need for care and she had no other accommodation in which it could be provided.

3. Per Lord Hoffmann, the word solely in section 21(1A) draws the statutory boundary. It excludes an able-bodied destitute person whose need for care and attention arises only from destitution or its physical effects. It does not exclude an infirm destitute person whose illness or disability independently creates a need for care and attention. The subsection focuses on the cause of the need for care and attention, not on whether a person with sufficient means could obtain private accommodation.

4. Per Lord Hoffmann, section 95 of the Immigration and Asylum Act 1999 did not create an overlapping entitlement. Section 95(12), Schedule 8 and regulation 6(4) of the Asylum Support Regulations 2000 required the Secretary of State to consider other support available to the applicant. Since accommodation and care were available through the local authority’s section 21 duty, Mrs Y-Ahmed could not be treated as destitute for section 95 purposes. Lord Slynn reached the same conclusion from the word solely and regulation 6(4).

5. Per Lord Hoffmann, the House did not determine whether the broader threshold stated in R v Wandworth London Borough Council, Ex p O [2000] 1 WLR 2539 was correct. That issue affected persons subject to immigration control who were not represented. The present decision was confined to the conceded facts that illness substantially caused the need for care and attention.

6. Lord Steyn added non-dispositive observations on Explanatory Notes. Such notes may always be considered for their logical value where they illuminate a statute’s objective context or mischief; an antecedent ambiguity is unnecessary. Exceptionally, a clear executive assurance to Parliament may be admitted against the executive. Government wishes stated in the notes cannot, however, be attributed to Parliament.

1. House of Lords: In Westminster City Council v National Asylum Support Service [2002] UKHL 38, the House unanimously dismissed the council’s appeal.
2. Court of Appeal: The court unanimously upheld Stanley Burnton J’s order dismissing the judicial-review application: (2001) 4 CCLR 143.
3. High Court: Stanley Burnton J dismissed Westminster City Council’s application to quash the National Asylum Support Service’s refusal to provide accommodation.