O, R (on the application of) v London Borough of Haringey & Anor

Where an asylum-seeking family includes dependant children, responsibility for accommodation and essential living needs lies with the Secretary of State under the Immigration and Asylum Act 1999 where the local authority has no statutory duty to accommodate the children. Section 21 of the National Assistance Act 1948 applies to adults aged 18 or over and does not itself confer power to accommodate their minor children. The Children Act powers may provide the necessary route in cases without the immigration-control provisions, but section 122 of the 1999 Act disapplies them where the Secretary of State is required to provide asylum support. The legislation is not to be construed as creating overlapping or shared responsibility between NASS and the local authority. Accommodation must be assessed for the family as a household.

The claimant, an HIV-positive Ugandan national, was receiving accommodation and subsistence from Haringey under section 21 of the National Assistance Act 1948 after leaving her husband because of domestic violence. Her application for leave to remain, based on an alleged Article 3 ECHR risk on return, remained undecided, making her an asylum-seeker for the purposes of the Immigration and Asylum Act 1999. The dispute concerned responsibility for accommodating her two dependant children and, consequently, the family unit.

Haringey argued that responsibility was shared with NASS, or that NASS was responsible for the children. The claimant and the Secretary of State argued that Haringey’s section 21 position extended to the whole family. The central issue was which public body bore the statutory responsibility for the family’s accommodation and support.

1. The application was dismissed. Haringey was entitled to deny that section 21 of the National Assistance Act 1948 imposed a duty or conferred a power to accommodate the claimant’s minor children.
2. The statutory scheme did not create shared or overlapping responsibility between NASS and the local authority. Such an arrangement would require separate applications, different criteria and no statutory mechanism for resolving conflicts. The approach was inconsistent with the reasoning in R (Westminster CC) v NASS [2002] UKHL 38, [2002] 1 WLR 2956, and was made untenable by R (A) v NASS and Waltham Forest London Borough Council [2003] EWCA Civ 1473.
3. Section 21(1)(a) applied only to persons aged 18 or over. It therefore created no duty to the children. Section 21(8) separately prevented the provision of accommodation under section 21 where the relevant provision was authorised or required under another enactment. In the ordinary case, the adult could be accommodated under section 21 and the children through the Children Act 1989.
4. The immigration-control provisions altered that result. Sections 95 and 122 of the 1999 Act treated the claimant and her dependants as a household. Section 122(3) required the Secretary of State to offer adequate accommodation for the child as part of that household, while section 122(5) disapplied the local authority’s child-welfare assistance where the statutory conditions were met. The obligation to accommodate the children consequently brought with it responsibility for the parent and the family as a whole.
5. The House of Lords decision in R (G, W and A) v Barnet and Lambeth London Borough Councils [2003] UKHL 57 established that section 17 of the Children Act imposed general duties owed to children as a class, not an individual mandatory duty to provide family accommodation. Article 8 did not require a strained construction of section 21 because section 122 supplied the route for keeping the family together.

NASS was therefore solely responsible for the family. The claimant was granted permission to appeal. Costs were ordered in favour of Haringey, subject to the usual Legal Services Commission terms, and the existing accommodation arrangement was to continue pending appeal.

This was a first-instance judicial review in the Administrative Court. Permission to appeal was granted, but no appellate decision is stated in the judgment.