Judge hands down ruling on interplay between obligations of local authority under Care Act, and obligations of Home Secretary under immigration law

A Deputy High Court judge has held that the London Borough of Croydon and not the Home Office should have provided suitable accommodation for an asylum seeker with severe health needs.

He also criticised Croydon for making an unclear submission and for appearing to use the case as part of a campaign to alter the financing of asylum seeker accommodation.

Alan Bates, sitting as a Deputy Judge of the High Court, said in TMX, R (On the Application Of) v London Borough of Croydon & Anor [2024] EWHC 129 (Admin) that claimant TMX remained in unsuitable accommodation for a prolonged period and this contributed to “significant culpability on the council's part”.

The judge said the first question before him concerned the interplay between the obligations of a local authority under the Care Act 2014 and the obligations of the home Secretary under s.95 of the Immigration and Asylum Act 1999.

The former requires councils to provide care and support to adults with social care needs and does not exclude asylum seekers even where care needs can only be met effectively with accommodation in which he or she can receive the care needed.

But the Deputy High Court judge said the Immigration and Asylum Act 1999 gave the Home Secretary a duty to provide accommodation and other basic support to asylum seekers and their dependants, who would otherwise be destitute.

He said: “The question raised by the claimant's first ground of claim is essentially this - where an asylum seeker's physical or mental condition is such that they have accommodation-related care needs, who is responsible for providing accommodation for that person?

“Is the local authority responsible under the Care Act, or does responsibility lie with the Secretary of State under s.95 IAA 1999?”

Croydon had provided TMX with some care and support, but denied he had accommodation-related needs because it believed that where the care required can be provided other than in a nursing or care home, the Home Secretary was responsible.

TMX and the Home Secretary argued the latter’s duty to provide accommodation for asylum seekers arises only if they are destitute. They said Croydon was required to assess whether TMX has accommodation-related care needs ignoring the Secretary of State's s.95 duty to provide accommodation on a “residual" basis, and so responsibility lay with Croydon.

Judge Bates said the second question that arose was whether Croydon had - by leaving TMX in an unsuitable room in an asylum hostel - breached his rights under the Human Rights Act 1998 in articles 3 and 8.

The court was told that TMX is aged 50 and his asylum claim remains outstanding. He suffers from progressive multiple sclerosis, functional neurological disorder and paraesthesia, which causes severe and varied pain.

He lives in one en suite room in the hostel of some 5.0 meters x 3.5 metres shared with his wife, 14-year-old daughter and 10-year-old son.

Judge Bates said: “A particular cause of distress to him is the extent to which, because of the limitations of the accommodation, his physical challenges impact on the experiences of the children.

“As the family all live in one room, he has no privacy from the children, meaning that they are exposed to seeing their father having his most intimate care needs being met either by their mother or by external carers.” It was also difficult for TMX to access a bathroom without help.

The judge said: “Those extreme limitations to his quality of life have not been caused by his physical health conditions per se.

“Rather, they have been caused by the manifestly unsuitable accommodation that has been the only accommodation available to him and his family.”

Judge Bates said there was some justification for complaints by TMX that Croydon’s case “has, for much of the course of these proceedings, been expressed in a way that was unclear and puzzling”.

He said Croydon’s summary grounds of defence ran to 71 paragraphs but “contained no clear explanation as to why, on the council's case, the legal question at the heart of Ground 1 had not effectively already been determined as a matter of binding House of Lords authority by way of NASS. [R (Westminster City Council) v National Asylum Support Service [2002] UKHL 38, [2002] 1 WLR 2956]

“Notably, the council chose not to explain its basis for asserting that NASS was ‘no longer good law’.”

Judge Bates concluded: “I am in no doubt that the position contended for by the claimant and by the Secretary of State is right and that the council does have a duty to provide the claimant with suitable accommodation.

“In my judgment, it was not lawfully open to the council to take account of any accommodation being provided to the claimant, or which might at some future time be offered to him, by the Secretary of State pursuant to s.95.

“In other words, the council should, when assessing whether the claimant's needs for care and support included accommodation-related need, have ignored any current or potential provision of accommodation for him under s.95.”

He said Croydon’s case was “not assisted” by descriptions of the high costs incurred by local authorities that fell disproportionately on those whose areas happened to include an asylum seekers' hostel.

Croydon’s position had “a distinct flavour of being part of a campaign of seeking to draw attention to a broader state of affairs which it believes is unfair to it”.

But Judge Bates said this was a matter for Parliament to resolve, not the courts.

Turning to TMX’s human rights grounds, the Deputy High Court judge found the level of TMX’s suffering or indignity, caused by being left in the unsuitable accommodation crossed the Article 3 severity threshold for constituting 'degrading treatment’ and that Croydon also breached his Article 8 rights.

Mark Smulian