Pajaziti & Anor, R (on the application of) v Secretary of State for the Home Department

Eligibility for accommodation under section 21(1)(a) of the National Assistance Act 1948 requires an unmet need for care and attention, arising by reason of a recognised circumstance, which is not otherwise available. For asylum seekers, the need must also satisfy the “destitute plus” test: it must be materially more acute because of a circumstance other than mere lack of accommodation and funds. Medical treatment available through the NHS may constitute care and attention that is otherwise available. The local authority must assess whether the condition and resulting need remain materially acute despite that treatment. Section 21(1A) is an exclusionary provision. It does not confer power, impose a duty, or itself determine eligibility.

The claimants were destitute asylum seekers supported in principle by NASS, but they declined repeated offers of accommodation outside London. NASS therefore provided no support. The defendant local authority assessed both claimants under section 21 of the National Assistance Act 1948 and concluded that neither had a qualifying need for care and attention.

Following further psychiatric reports, the claimants argued that their medical conditions were exacerbated by the prospect of dispersal and that they satisfied the “destitute plus” test. The central issues were the proper relationship between section 21(1)(a) and section 21(1A), and whether NHS treatment meant that the claimants’ care needs were otherwise available.

1. Claims dismissed. The defendant had committed no error of law and had reached an assessment open to it on the evidence.
2. Section 21(1A) of the National Assistance Act 1948 does not confer a power or duty and does not determine eligibility. It excludes a person who might otherwise qualify under section 21(1)(a), where the person is subject to section 115 of the Immigration and Asylum Act 1999 and the need for care and attention arose solely because of destitution or its physical effects.
3. The statutory conditions identified in R (on the application of Wahid) v Tower Hamlets LBC (2002) EWCA Civ 287 remain material: there must be a need for care and attention; the need must arise by reason of age, illness, disability or other circumstances; and the care and attention must not otherwise be available. In asylum-seeker cases, it is sensible to consider sections 21(1)(a) and 21(1A) together when identifying the character of the need and whether it is met.
4. A need for medical treatment alone does not satisfy the “destitute plus” test. The authority must consider whether the need exists solely because of destitution; whether the required care and attention is otherwise available; and whether, despite available treatment, the medical condition makes the need for care and attention materially more acute because of a circumstance other than mere lack of accommodation and funds. This approach reflected R v Wandsworth London Borough Council ex parte O and Another (2000) 1 WLR 2539.
5. The claimants’ psychiatric treatment was available through the NHS. The reports did not establish that effective and adequate treatment would be unavailable outside London, or that dispersal made the need for care and attention materially more acute. The defendant was entitled to regard the need as otherwise available and to reject the claims.