Judge rules on interaction between obligations of council and Home Secretary regarding accommodation of asylum seekers with eligible care needs

The High Court has quashed a decision by the London Borough of Newham that a man with care needs and his carer mother were ineligible for accommodation because they could seek housing provided for asylum applicants under the Immigration and Asylum Act 1999.

Dan Kolinsky KC, sitting as a deputy judge of the High Court, said in his judgment that claimant SB and his mother SBO succeeded on all three grounds argued.

He said the judicial review concerned the interaction between a local authority's obligations under the Care Act 2014 and the obligations of the Home Secretary under s.95 of the 1999 Act on accommodation of asylum seekers with eligible care needs.

Both claimants are Bangladeshi nationals whose asylum claims are being processed. SB has been diagnosed with learning disabilities, depression and an adjustment disorder and SBO is his full-time carer.

Newham assessed SB’s needs for care and support and made a carer's assessment for SBO.

The claimants said the assessment identified accommodation-related care and support needs that Newham should provide, but the council in May 2023 terminated the provision of accommodation as it disputed that SB had accommodation-related needs for care and support and said any such needs should be met by the Home Office.

The judge was told there were three grounds of challenge. The first was that Newham erred in relying on the availability of asylum support under s.95 of the 1999 Act.

Secondly, the claimants argued Newham failed to apply the correct test in deciding whether to accommodate them, having relied on its belief that SB did not require specialist accommodation or residential care.

The third ground was that Newham misdirected itself in relying on s.23 of the 2014 Act because asylum seekers were excluded from eligibility for homelessness assistance under the Housing Act 1996.

The judge said Newham did not serve evidence but relied on the proposition that it had decided SB did not have accommodation-related needs.

Newham argued the claimants could not establish any entitlement to accommodation or financial support and said their argument was circular because the alleged errors presupposed the council was obliged to provide accommodation.

“I observe this analysis rather missed (or mischaracterised) the main focus of the claim which was that the defendant had not properly directed itself in considering whether the first claimant had accommodation-related eligible needs for care and support under s.18 of CA 2014,” Mr Kolinsky said.

He said the essence of Newham’s case was that SB lacked accommodation-related needs for care and support, but “the evidence base for the decision [does] not reveal a positive decision to that effect on their face”.

The judge said: “The assessment identifies areas of eligible needs where [SB] needs support at home which is not currently provided by [SBO] as his informal carer and where professional intervention is needed.”

He went on to say: “I disagree that it is implicit that the authority decided that eligible needs were not accommodation related. I cannot identify any such decision in the assessment (expressly or by implication).

“Rather, it seems to me that the need for assistance in the home was not carried through into the recommendation and therefore the question which arises…was not considered.”

The deputy High Court judge concluded correspondence indicated Newham “missed the opportunity to grapple with whether [SB’s] eligible needs were accommodation related on a legally correct basis”.

He added: “I therefore reject (each permutation of) the primary basis on which the defendant has responded to the claim which is to contend that a decision has been made that the [SB’s] eligible needs for care and support are not accommodation related.”

Turning to the first ground, the judge found the provision of asylum support and accommodation under s95 IAA 1999 had “the ultimate aim to prevent destitution” and Newham was wrong to say SB could have relied on this.

SB and SBO argued as the second ground that the question before Newham was not whether SB required specialist accommodation, or residential care, or accommodation from the local authority, but whether his care and support needs were “of a sort which is normally provided in the home (whether ordinary or specialised) and would be effectively useless if he had no home”.

“I do not consider that the defendant addressed the right legal question in considering whether there were accommodation-related needs for care and support,” the judge said.

“The test as formulated…focuses on whether the care and support is provided in the home or whether it would be rendered ineffective if the claimant had no home. The defendant did not grapple with this question.”

He added it was clear from the established caselaw that the accommodation need did not have to be met in specialist institution or be of a specialised nature.

Judge Kolinsky concluded that in addition to this second ground the third also succeeded because neither clamant had recourse to the provisions of the Housing Act 1996 and “this mistaken legal analysis was a material part of the defendant's decision’.

He concluded: “I am presently inclined to the view that I should simply quash the defendant's decision.”

Mark Smulian