Khan & Anor, R (on the application of) v Oxfordshire County Coucnil

A local authority cannot use the general well-being power in Local Government Act 2000 section 2 to provide residential accommodation, directly or through payments, where National Assistance Act 1948 section 21(1A) prohibits that provision.

The prohibition extends only to accommodation, broadly defined as including connected board, services, amenities and requisites. It does not prevent assistance with essential needs lacking the required connection to accommodation.

Domestic violence may make a destitute person’s need for care and attention more acute. Whether it does so is a question for the local authority on the evidence. Human rights legislation does not justify reading down a statutory prohibition merely because its ordinary application might breach Convention rights in a rare case.

Mrs Khan, a Pakistani national admitted without recourse to public funds, fled serious domestic violence and sought accommodation and financial support from Oxfordshire County Council. The Council decided that her need for care and attention arose solely from destitution and refused assistance under section 21 of the National Assistance Act 1948. It also considered section 21(1A) a restriction preventing reliance on section 2 of the Local Government Act 2000.

Moses J quashed the section 21 decision and ordered reconsideration, but held that the Council lacked power to provide the requested assistance under section 2. The Council appealed against the first conclusion, while Mrs Khan cross-appealed on the scope of the section 2 power. The issues had become academic for her after she received indefinite leave to remain, but the cross-appeal proceeded because of their general importance.

1. The Council’s appeal was allowed. Domestic violence can cause destitution while also creating a separate vulnerability that makes a person’s need for care and attention more acute. The Council had not treated those possibilities as mutually exclusive. It considered whether Mrs Khan’s experiences had made her more vulnerable and concluded from the assessments that she had no relevant disability, mental health condition, severe deterioration or difficulty with personal care. Those were clear, although brief, reasons. Moses J had therefore misunderstood the Council’s approach.

2. A provision defining the scope of a statutory power must be distinguished from one prohibiting, restricting or limiting its exercise. The distinction depends upon careful construction of the particular legislation. Section 21(1A) of the National Assistance Act 1948 was a prohibition for the purposes of section 3(1) of the Local Government Act 2000.

3. The broad well-being power in section 2 of the 2000 Act could not be used to circumvent that prohibition. Parliament did not intend section 2 to override existing legislative schemes. Accordingly, section 2(4)(f) did not permit a local authority to provide residential accommodation to a person excluded from such accommodation by section 21(1A).

4. The prohibition also prevented indirect provision through payments for accommodation. Section 57 of the Health and Social Care Act 2001 had enlarged the section 21 power by permitting payments through which a person could secure the relevant service. Section 21(1A) applied to that extended power, so section 2 could not be used to make equivalent accommodation payments.

5. Section 3 of the Human Rights Act 1998 did not require section 21(1A) to receive a narrower interpretation merely because its ordinary meaning might produce a Convention violation in a rare case. Interpretation under section 3 is required where the legislation would otherwise breach Convention rights. In an exceptional case, the word “solely” could be interpreted to prevent an actual article 3 breach.

6. The cross-appeal failed except to a limited extent. Section 21(1A) did not bar financial assistance, staff, goods or services falling outside “accommodation” as defined by section 21(5). Accommodation included board and requisites connected with the premises, but not every essential living need. Assistance with items such as clothing and toiletries could therefore fall within section 2. A declaration, rather than a quashing order, was appropriate.

1. Court of Appeal (Civil Division): In [2004] EWCA Civ 309, allowed the Council’s appeal. It dismissed the cross-appeal except to the limited extent that section 2 permitted assistance falling outside accommodation under section 21, for which a declaration was granted.
2. Queen’s Bench Division: Moses J quashed the Council’s decision under section 21(1)(a) of the National Assistance Act 1948 and ordered reconsideration. He held that section 21(1A) prevented assistance under section 2 of the Local Government Act 2000. No citation is stated in the judgment.