A, R (on the application of) v National Asylum Support Service & Anor

For disabled children of destitute asylum-seekers, accommodation is “adequate” under section 122(3) of the Immigration and Asylum Act 1999 if it would have been adequate for a child without the disability. Disability-related accommodation needs fall principally within local-authority functions, subject to statutory restrictions. Where the Secretary of State is complying with section 122, section 122(5) prevents a local authority from providing accommodation or essential living needs under section 17 of the Children Act 1989. The same restriction limits use of the broad power in section 2 of the Local Government Act 2000. It does not prevent direct payments under section 17A of the 1989 Act.

The claimant, an asylum-seeker, lived with her husband and two severely disabled sons in temporary accommodation arranged by Hackney. The accommodation was unsuitable for the boys’ particular disabilities, although it would have been adequate for children without those disabilities.

The claimant sought judicial review against the National Asylum Support Service and Waltham Forest. She argued that the Secretary of State had to provide more suitable accommodation under Part VI of the Immigration and Asylum Act 1999, and that the local authority had corresponding duties under the Children Act 1989, the Local Government Act 2000 and section 100 of the 1999 Act. She also relied on article 8 of the Convention and sought increased financial assistance.

1. Procedural issue. The Secretary of State was permitted to participate in the judicial review despite failures concerning acknowledgement of service and detailed grounds. Relief from the sanction was appropriate under rule 3.9(1), having regard to the absence of prejudice, the claimant’s knowledge of the case and the public-law importance of informed submissions.
2. NASS accommodation duty. Sections 122(3) and 95 of the Immigration and Asylum Act 1999 required adequate accommodation for a dependant child where adequate accommodation was not being provided. Following R (Ouji) v Secretary of State for the Home Department [2002] EWHC 1839 Admin, “adequate accommodation” was construed by reference to the needs of a child without disability. The additional needs arising from disability fell within local-authority provision. Since the existing accommodation was adequate on that basis, the statutory duty to provide different accommodation was not triggered.
3. Article 8. The reasoning concerning the division of responsibility in R (Westminster City Council) v National Asylum Support Service (2001) 4 CCLR 143, subsequently approved by the House of Lords at [2002] 1 WLR 2956, applied. Any positive obligation arising from the children’s family-life rights concerned the body responsible for disability-related support. The accommodation, though unsuitable in practical respects, did not prevent the family from enjoying family life together.
4. Waltham Forest. The local authority’s duty under section 100(2) was to give reasonable assistance in enabling the Secretary of State to provide accommodation. It was not required to offer housing-stock accommodation where doing so would displace households with comparable or greater housing needs. Section 122(5) also disapplied any section 17 accommodation duty while the Secretary of State was complying with section 122.
5. Local-government powers and payments. Section 122(5) was a prohibition limiting the section 2 power under the Local Government Act 2000. It did not, however, prevent direct payments under section 17A of the Children Act 1989. Waltham Forest was therefore required to decide whether the existing annual payment should be increased to address the additional expenditure identified.
6. The claim was dismissed, save for that requirement to reconsider increased payments. Costs and any application for permission to appeal were left to written applications.