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

An infirm, destitute asylum seeker with dependent children may fall within two complementary support regimes. A local authority remains responsible under section 21(1)(a) of the National Assistance Act 1948 for the adult’s accommodation, care and attention. The Secretary of State must arrange support for the children as part of the adult’s household under section 122 of the Immigration and Asylum Act 1999.

For asylum support, a family is destitute if any essential accommodation or living need remains unmet. Support from a public authority is “available” only where there is a legal entitlement or enforceable expectation. Discretionary powers under section 21 or the Children Act 1989 do not give the family a means of obtaining accommodation. Resources available from other sources may nevertheless reduce the support which the asylum scheme must provide.

The claimant was an HIV-positive Ugandan asylum seeker with two young dependent children. After leaving the matrimonial home because of domestic violence, she and the children were supported by the London Borough of Haringey. Haringey accepted that it owed the claimant herself a duty under section 21(1)(a) of the National Assistance Act 1948, but maintained that responsibility for her children rested with the National Asylum Support Service.

Ouseley J held in [2003] EWHC 2798 (Admin) that the National Asylum Support Service was responsible for the whole family. The claimant and the Secretary of State appealed. The central question was whether accommodation and subsistence were legally available to the family from the local authority, so that the family was outside the asylum-support scheme, and how responsibility should be allocated if the family remained destitute.

1. The appeals were dismissed. The judge correctly held that the claimant and her children, taken together, were destitute within section 95 of the Immigration and Asylum Act 1999. He erred, however, in placing total responsibility for the family on the Secretary of State.

2. When present destitution is being determined under regulation 6(4) of the Asylum Support Regulations 2000, the question is whether other support is actually available. In the case of support from a public authority, this connotes a legal entitlement or enforceable expectation. The existence of a power or discretion, or a reasonable expectation that it might be exercised, is insufficient.

3. Section 21 of the National Assistance Act 1948 imposed a duty in respect of the mother, but no direct duty in respect of her children. Accommodating the children with her could not naturally be treated as one of the mother’s needs under that section. Even if section 21 conferred a power to accommodate them in some circumstances, it gave the family no entitlement or enforceable expectation of family accommodation.

4. Neither section 17 nor section 20 of the Children Act 1989 supplied the family with a means of obtaining accommodation. Section 17 imposed general duties rather than individually enforceable duties. Section 20 imposed a separate duty to a child in specified circumstances, but did not give the family as a unit a right to accommodation. Section 23 likewise did not require the authority to provide accommodation for a parent so that a child could live with that parent.

5. Any deficiency in accommodation or other essential living needs brings an asylum seeker within section 95. Clothing falls outside the extended meaning of accommodation in section 21(5). Once the family enters the asylum-support scheme, other resources may be considered when fixing the amount or kind of support.

6. Haringey remained responsible for the mother’s accommodation, care and attention under section 21. Under section 122 of the 1999 Act, the Secretary of State was responsible for arranging the children’s necessary support as part of her household. In practice, the family could be accommodated by Haringey with a financial contribution from the National Asylum Support Service for the children’s share. Rix LJ and the Lord Chief Justice agreed with Carnwath LJ.

1. Court of Appeal (Civil Division): In [2004] EWCA Civ 535, dismissed the claimant’s and Secretary of State’s appeals, while differing from the judge on the allocation of responsibility between Haringey and the National Asylum Support Service.
2. Administrative Court: Ouseley J held in [2003] EWHC 2798 (Admin) that responsibility for the whole family fell on the National Asylum Support Service under the Immigration and Asylum Act 1999.