Slough Borough Council v M, R. (on the application of)

Eligibility for local-authority accommodation under section 21(1)(a) of the National Assistance Act 1948 is not confined to accommodation-related social care. In the asylum-support context, need for care and attention may include basic necessities and may arise from illness as well as destitution.

Section 21(1A) excludes support only where the need arises solely from destitution or its physical effects. A claimant whose illness makes him more vulnerable may therefore qualify. Separately, an asylum-seeker’s statutory status may end when the Secretary of State’s decision is final for the purposes of Schedule 3 to the Nationality, Immigration and Asylum Act 2002. The appeal was dismissed, subject to any separate Convention-rights safeguard.

M, a Zimbabwean national with HIV and a possible AIDS diagnosis, claimed that removal would breach his rights under Article 3 ECHR. By section 18(3) of the Nationality, Immigration and Asylum Act 2002, he was treated as an asylum-seeker for present purposes.

Slough Borough Council assessed him as having no eligible social-care need and concluded that any need arising on loss of his existing accommodation would result solely from destitution. Collins J granted judicial review and quashed that assessment in [2004] EWHC 1109 (Admin). Slough appealed, raising the meaning of care and attention, the scope of section 21(1A), and the effect of later immigration decisions and appeals on M’s entitlement.

Appeal dismissed. Lord Justice Maurice Kay gave the leading judgment. Sir Peter Gibson and Lord Justice Ward agreed.

1. Meaning of care and attention. The Court held that the approach adopted in the authorities was binding and correct. R v Westminster City Council, ex parte M, P, A and X ((1997-98) 1 C.C.L. Rep. 85) had treated asylum-seekers as potential beneficiaries of section 21. R(O) v Wandsworth London Borough Council ([2000] 1 WLR 2539) and R (Mani) v Lambeth London Borough Council ([2003] EWCA Civ 836) supported a broad approach. The House of Lords decision in R (Westminster City Council) v National Asylum Support Service ([2002] UKHL 38) had not decided whether that test was correct. The phrase was therefore not confined to accommodation-related need.
2. Section 21(1A). The word solely requires consideration of whether destitution or its physical effects are the only cause of the need. Illness or another circumstance may make the need more acute. M’s medical condition therefore supplied an additional cause, so his case was not excluded merely because loss of accommodation would worsen his vulnerability.
3. Judicial review. Collins J had not substituted his own assessment for Slough’s. He had decided that application of the correct legal test would inevitably have led to a conclusion favourable to M.
4. Later immigration events. Under section 18 and paragraph 17 of Schedule 3 to the Nationality, Immigration and Asylum Act 2002, M ceased to be an asylum-seeker for these purposes on 12 November 2004, when the Secretary of State’s decision had been notified and no appeal could then be brought. The later appeal against removal directions did not recreate that status because it was not a claim made at a designated place or recorded by the Secretary of State. Paragraphs 6 and 7 of Schedule 3 were not mutually exclusive; the Court approved the reasoning in R (on the application of AW) v London Borough of Croydon and others ([2005] EWHC 2950 (Admin)).
5. Convention safeguard and final position. Paragraph 3 of Schedule 3 preserves the exercise of a power or duty necessary to avoid a breach of Convention rights. The Court was not finally deciding that issue, but recognised a possible local-authority obligation if Article 3 became engaged. The appeal was dismissed because Collins J’s decision was correct on the facts before him. The Court indicated that it would be minded to declare that entitlement under Collins J’s order terminated on 12 November 2004, without prejudice to any later Convention-based entitlement.

• Court of Appeal (Civil Division): Slough Borough Council’s appeal was dismissed. The Court held that the original judicial-review decision was correct, while indicating that entitlement under the order would terminate on 12 November 2004, subject to any Convention-rights safeguard.
• High Court of Justice, Queen’s Bench Division: Collins J, in [2004] EWHC 1109 (Admin), granted judicial review and quashed Slough’s assessment of 5 March 2004.