Wanjugu, R (On the Application Of) v Secretary of State for the Home Department

Under the asylum-support scheme, a general policy of dispersal may lawfully make accommodation location irrelevant to ordinary adequacy and may recognise a specific exception for victims of torture treated by a specialist organisation. The existence of other seriously ill asylum seekers who might also benefit from that exception does not make the policy irrational or unlawful.

Individual accommodation needs, including the availability of suitable specialist medical treatment, must nevertheless be considered. Where substantial evidence indicates that appropriate treatment is unavailable in the proposed location, a decision to maintain dispersal requires a careful and adequately explained assessment. The court may require reconsideration without directing the public authority to adopt a particular location.

The claimant, a Kenyan asylum seeker suffering from chronic complex post-traumatic stress disorder, challenged her dispersal from London to Swansea under the asylum-support scheme. She relied on evidence that she required specialist treatment which was unavailable in Swansea and sought continuity of treatment at the Traumatic Stress Clinic in London.

The Secretary of State initially relied on medical advice that suitable services existed throughout the United Kingdom. During the proceedings, NASS offered accommodation in Newcastle-upon-Tyne or Stockton-on-Tees. The issues were whether the policy unlawfully discriminated between patients treated by the Medical Foundation and other seriously ill asylum seekers, whether the original dispersal decision was irrational or based on a false factual premise, and whether maintaining the Swansea placement was adequately justified.

1. Outcome. The original decision to disperse the claimant to Swansea was justified on the material available in May 2003. The challenge to the Medical Foundation policy exception failed. However, the material later supplied about the absence of suitable specialist services in Swansea required NASS to reconsider the claimant’s position.

2. Under Part VI of the Immigration and Asylum Act 1999, the location of accommodation is irrelevant to whether a person is destitute, but section 97 requires relevant matters to be considered when accommodation is provided. Section 97(2) prevents regard being had to a supported person’s preference as to locality, but does not exclude consideration of individual accommodation needs. Regulation 13(2) of the Asylum Support Regulations 2000 confirms that such circumstances may be taken into account.

3. NASS was entitled, for humanitarian and administrative reasons, to adopt a general exception for asylum seekers accepted for treatment by the Medical Foundation. That exception was linked to the institution and the specialised treatment it provided. The fact that other asylum seekers might have comparable illnesses did not make the distinction irrational or require identical treatment.

4. The May dispersal decision was reasonable because NASS’s medical adviser had indicated that suitable services were available throughout the United Kingdom, and the applicable policy made dispersal likely where treatment was generally available. Once detailed evidence suggested that appropriate treatment was unavailable in Swansea, however, maintaining that placement required a careful statement of the medical and policy basis for the decision. The September letter did not adequately explain that basis.

5. The court would not prescribe London as the only lawful destination. Newcastle might be appropriate if the relevant medical evidence and the claimant’s individual circumstances were properly assessed. NASS was expected to reconsider the matter, particularly in light of the reports dated 12 and 13 November 2003, and to provide its decision within 14 days. No formal quashing or mandatory order was made, and there was no order as to costs.

First-instance judicial review in the Administrative Court. No earlier decision of a court is stated in the judgment.