R v Westminster CC ex p P and Others
Court of Appeal
Simon Brown and Otton LJJ and Sir Christopher Staughton 24 March 1998
Where, on analysis, the dispute between applicant and respondent is factual and where no clear and determinative issue of law arises of the sort which would resolve the real problem in the case, a comprehensive factual and policy review by the Secretary of State under Local Authority Social Services Act 1970 s7D was an alternative remedy which was more convenient, expeditious and effective than judicial review.
Facts
The respondent authority and four other London boroughs began to accommodate destitute asylum-seekers outside of London. P and the 16 other destitute asylum-seekers who brought this challenge had been sent to, or had had their accommodation discontinued because they refused to go to, Great Yarmouth. They strongly desired to remain in their own communities in Greater London, where they were able to find the solace and assistance they desperately needed. It was argued on behalf of the applicants that by simply giving asylum-seekers nine days’ notice of being collected and delivered to Great Yarmouth, the respondent authority failed to comply with the National Assistance Act 1948 (Choice of Accommodation) Directions 1992 and associated guidance at LAC(92)27. It was contended that the respondent authority was required to inform applicants of their right to be accommodated in their ‘preferred accommodation’ and to give them a proper opportunity to express a choice, it being implicit in this that they had to have a reasonable opportunity of consulting with others in their community and Shelter, so as to be able to seek accommodation for themselves in Greater London. It was further contended that the respondent authority was under a duty to use its best endeavours to find accommodation for asylum-seekers in the Greater London area, if necessary seeking assistance for the purpose from Shelter. The respondent authority contended that there was no other accommodation available to them to house the applicants in Greater London or available to the applicants to find for themselves. Detailed affidavit evidence was put in on behalf of Shelter, which concluded that ‘it is inconceivable that no accommodation exists in London to accommodate asylum-seekers’. The respondent authority’s asylum-seekers project manager swore an affidavit stating however that ‘this [ie, the accommodation in Great Yarmouth] was the only accommodation available for the asylum-seekers moved there’.
Held (refusing the renewed application for leave):
1The real dispute between the parties was on analysis factual: whether in truth there was accommodation in Greater London which the applicants should have been given the opportunity of choosing or at least attempting to find. Further, (a) the Secretary of State funds the housing of asylum-seekers; (b) the proper construction and application of the Secretary of State’s Directions lay at the heart of the dispute; (c) the Secretary of State had caused the House of Lords to adjourn hearing the government’s appeal in R v Westminster CC and Others ex p M, P, A and X (see (1997) 1 CCLR 69 and 85 for the Queen’s Bench Division and Court of Appeal judgments respectively) specifically because the government was conducting a review of the treatment of asylum-seekers. No clear and determinative issue of law arose which would finally resolve the real problem in the case and justify judicial review in preference to a comprehensive factual and policy review by the Secretary of State for Health. 2[Per Sir Christopher Staughton] Orders preserving the anonymity of judicial review applicants should not be made as of course. Applicants should strictly satisfy the court that if anonymity were not granted the administration of justice would be rendered impracticable, either because the case could not be tried or because the parties entitled to justice would be reasonably deterred from seeking it at the hands of the court: Scott v Scott [1913] AC 417.
Cases referred to in judgment:
Associated Provincial Picture Houses v Wednesbury Corp [1948] 1 KB 223; [1947] 2 All ER 680; 45 LGR 635, CA.
R v Devon CC ex p Baker and Johns; R v Durham CC ex p Curtis and Broxon [1995] 1 All ER 73; (1994) 6 Admin LR 113; 91 LGR 479; [1993] COD 387; (1993) Times, 21 January; (1993) Independent, 22 February, CA.
Scott v Scott [1913] AC 417, HL.
Legislation/guidance referred to in judgment:
Contempt of Court Act 1981 s11 – Local Authority Social Services Act 1970 ss7, 7A and 7D – National Assistance Act 1948 s21 – National Assistance Act 1948 (Choice of Accommodation) Directions 1992 paras 2 and 3 and associated guidance, LAC(92)27, paras 3, 7 and 17.
This case also reported at:
(1998) Times, 31 March.
Representation
David Pannick QC and Stephen Knafler (instructed by Clore & Co) appeared on behalf of the applicant.
Roger Henderson QC and Clive Jones (instructed by City Solicitor) appeared on behalf of the respondent.
Judgment
LORD JUSTICE SIMON BROWN: The applicants are 17 destitute asylum seekers, mostly ethnic Albanians from Kosovo. All are ineligible for State Benefits through having failed to claim asylum at the time they entered, but all are entitled to be provided by the Westminster City Council with accommodation pursuant to s21 of the National Assistance Act 1948 – see the Court of Appeal’s decision in R v Westminster CC and Others ex p M, P, A and X (1997) 1 CCLR 85.
Following decisions taken by the respondent Council in about January 1998, all 17 applicants were accommodated in a hotel in Great Yarmouth and it is those decisions and the way they were implemented that the applicants now seek to challenge by way of judicial review. Their essential grievance in all this is, not surprisingly, that they feel isolated on the East Coast and are anxious to return to Greater London where they can find in their own communities the information, solace and support they so desperately need.
On 9 March 1998 leave to move was refused by Carnwath J on two grounds: first, prematurity, on the basis that the respondents are earnestly trying to assist the applicants and have. indeed, already brought five of them back to London; second, because of the Secretary of State’s default powers under s7D of the Local Authority Social Services Act 1970 which the judge thought a more appropriate means of redress than judicial review in the circumstances of the present case.
I too, for reasons to which I shall come, have finally concluded that judicial review is not the appropriate way forward here and propose to refuse leave on that ground. It is, however, desirable that I should first indicate the precise form of legal challenge sought to be advanced and something more of the facts of the case.
Central to the applicants’ arguments are ss7A(1) and 7(1) of the 1970 Act and certain Directions and Guidance promulgated by the Secretary of State with regard to the provision of accommodation by local authorities under s21 of the 1948 Act. Let me at once set these out.
Section 7A(1):
… every local authority shall exercise their social services functions in accordance with such directions as may be given to them under this section by the Secretary of State.
Section 7(1):
Local authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State.
The National Assistance Act 1948 (Choice of Accommodation) Directions 1992 provides by paragraph 2 that where the local authority have, as here, decided that someone should be provided with accommodation under s21:
… the local authority shall, subject to paragraph 3 of these Directions, make arrangements for accommodation pursuant to section 21 for that person at the place of his choice … (in these directions called ‘preferred accommodation’) if he has indicated that he wishes to be accommodated in preferred accommodation.
Paragraph 3 of the directions provides:
… the local authority shall only be required to make or continue to make arrangements for a person to be accommodated in his preferred accommodation if –
(a) the preferred accommodation appears to the authority to be suitable in relation to his needs as assessed by them;
(b) the cost of making arrangements for him at his preferred accommodation would not require the authority to pay more than they would usually expect to pay having regard to his assessed needs;
(c) the preferred accommodation is available;
(d) the persons in charge of the preferred accommodation provided subject to the authority’s usual terms and conditions, having regard to the nature of the accommodation, for providing accommodation for such a person under Part III of the National Assistance Act 1948.
The Guidance provided by the Secretary of State is intended to illuminate those Directions and their application. The principal paragraphs relied upon by Mr Pannick QC for the applicants are these:
3. This direction is intended to formalise the best practice which most authorities would in any case have adopted. It sets out the minimum that individuals should be able to expect.… Even where not required to act in a certain way by this direction, authorities should exercise their discretion in a way that maximises choice as far as possible within available resources.
7. As with all aspects of service provision there should be a general presumption in favour of people being able to exercise choice over the service they receive. The limitations on authorities’ legal obligation to provide preferred accommodation set out in the direction are not intended to deny people reasonable freedom of choice, but simply to ensure that authorities are able to fulfil their obligations for the quality of service provided and for value for money.… Where for any reason an authority decides not to arrange a place for someone in their preferred accommodation it must have a clear and reasonable justification for that decision which relates to the criteria of the direction.
17. For individuals to be able to exercise genuine choice they need information about the options open to them. They should be given fair and balanced information with which to make the best choice of accommodation. Authorities should explain to individuals their rights under this direction. Individuals should be told explicitly that they may allow the authority to make a placement decision on their behalf, that they may choose from a preferred list (if the authority operates such a system) or if they wish that they are free to choose any accommodation which is likely to meet their needs subject to the constraints set out in this direction …
Based on those provisions and on the undoubted fact that the respondents offered the applicants no possibility of accommodation other than the hotel in Great Yarmouth, Mr Pannick submits that the respondents failed in their duty under the Directions and Guidance in essentially two respects. First he contends that the respondents were required by the Directions to inform the applicants of their right to be accommodated in their ‘preferred accommodation’ (within the limits identified in paragraph 3 of the Directions) and to give them a proper opportunity to express a choice. It was, he then submits, implicit in this that they had to be given a reasonable time to consult with others, notably their own community and Shelter, so that they themselves could seek alternative accommodation in Greater London. Secondly, he contends that the respondents are under a duty to use their own best endeavours to find accommodation for asylum seekers in the Greater London area, if necessary themselves invoking the assistance of Shelter for the purpose. This duty, he argues, is necessarily implicit in the principle of choice enshrined in the Directions.
Mr Henderson QC for the respondent Council, although leaving open the susceptibility to judicial review of alleged failures to comply with the Directions and Guidance, asserts that the Council here did in fact comply. Their essential case on the facts is that there is no other accommodation available to them to house these applicants in Greater London and that the law imposes upon them no duty of the kind contended for by Mr Pannick to take positive steps to obtain other accommodation for the purpose. So far as the legal position is concerned, he submits that the Directions and Guidance both expressly recognise the possibility that ‘preferred accommodation’ will not be available – see paragraph 3(c) of the Directions and the last three words of paragraph 3 of the Guidance – and he submits that if the Council in fact have no choice of accommodation to make available to an applicant then there can be no practical value in informing him of the concept of preferred accommodation.
With regard to the detailed facts of the case I propose to say very little. The respondents are currently having to provide accommodation for some 3,000 asylum seekers. That duty, of course, comes on top of the Council’s statutory duties to accommodate homeless persons and families and those with special needs. The accommodation at Great Yarmouth is for about 40 asylum seekers and, at the cost of £110 per week on an all found basis, is by no means inexpensive. To some 30 asylum seekers the respondents sent the form of letter dated 15 January 1998 which the applicants particularly criticise, a letter specifying that nine days later their existing temporary accommodation would be cancelled and they would be collected and delivered to the Great Yarmouth hotel. Ms Haddington, the respondents’ highly experienced Asylum Seekers’ Project Manager, in her very detailed affidavit of 5 March 1998, says that when the move to Great Yarmouth was made ‘this was the only accommodation available for the asylum seekers moved there’. Ms Kincaid, however, a policy officer employed by Shelter, contends that ‘it is inconceivable that no accommodation exists in London to accommodate asylum seekers’. As to that, however, the respondents reply that even were further accommodation shown to be available, it would also have to satisfy the other requirements of paragraph 3 of the Directions.
I turn to the two grounds on which this application failed below. With regard to prematurity Carnwath J observed:
The authority are dealing with a very difficult jurisdiction, providing accommodation for people who are obviously in very harrowing circumstances, but where there is a desperate shortage of suitable accommodation.… The authority have agreed to look at the complaints in relation to all these individual cases and are doing so.
That task he thought was made the more difficult by the threat of litigation hanging over the Council. In the result he said that he would have refused leave on the ground of prematurity alone.
For my part I would not have refused leave on that ground. We are given to understand that the problems caused by moving asylum seekers to the Coast are not confined to these applicants, nor indeed to this local authority. We are told that the respondents are within a group of five London Boroughs which on a continuing basis are resorting to these lengths, and that numbers of asylum seekers are to be found also at Portsmouth, Southsea and Lancing. Although we have no clear evidence of their feelings in the matter, I for my part would readily suppose that they too are greatly upset at being moved out of London. It needs little imagination to recognise how much asylum seekers must depend upon the support of their own communities, and that isolation can only exacerbate the feelings of persecution and despair that many already suffer. As Helen Bamber, the Director of the Medical Foundation for the Care of Victims of Torture, said in an affidavit sworn in R v Newham LBC ex p Medical Foundation for the Care of Victims of Torture (1997) 1 CCLR 227:
Asylum seekers regularly come to the United Kingdom without any belongings, having left their families and communities behind. Many carry the additional burden of having been tortured before fleeing. The cumulative effect of all these factors is that they are traumatised and disorientated when they arrive in the country. Many do not speak English and have very few or no contacts. They head immediately for their communities which provide essential support, advice and practical assistance where possible.
Clearly there is a problem here. But it does not follow that the respondents are to blame. I do not doubt Ms Haddington’s evidence that her team consists of dedicated and caring professional workers who go to some lengths to assess asylum seekers individually before deeming them suitable to be removed to accommodation out of London. Equally I would acquit the respondents of acting in a cavalier or insensitive manner in their dealings with these applicants. Indeed, as Mr Pannick emphasises, that is not the criticism made: rather it is that the respondents have acted unlawfully.
If I thought that the determination of this challenge was capable of resolving once and for all the difficulties arising for all asylum seekers and London Boroughs in this difficult area of social services administration, then, even though that might prove in the event unnecessary for these particular applicants, I would unhesitatingly grant leave. That, however, seems to me very far from the case.
I come finally to the Secretary of State’s default powers under s7D of the 1970 Act:
(1) If the Secretary of State is satisfied that any local authority have failed, without reasonable excuse, to comply with any of their duties which are social services functions …, he may make an order declaring that authority to be in default with respect to the duty in question.
(2) An order under subsection (1) may contain such directions for the purpose of ensuring that the duty is complied with within such period as may be specified in the order as appear to the Secretary of State to be necessary.
The same default provision was considered by the Court of Appeal in R v Devon County Council ex parte Baker [1995] 1 All ER 73 when the substantive question arising was whether the local authority was required to enter into a process of consultation with residents before closing down an old people’s home. Dillon LJ at page 87 said:
The closure of such a home is part of the social services functions of the Durham County Council. But it is not clear to me whether the duty to consult is itself a social services function for the purposes of s.7D of the 1970 Act. In view of this, and as the issue is entirely one in law in a developing field which is peculiarly appropriate for decision by the courts rather than by the Secretary of State, I would hold that the applicants in the Durham case were not precluded from making their application for judicial review by the availability of another remedy; the case is one which it is proper for this court to entertain …
At page 92 I said:
… even assuming, contrary to the appellant’s contention, that the Secretary of State could direct the County Council not to close Ridgeway House without first consulting the residents, I would still regard the decision as more appropriately one for the courts than for the Secretary of State.
Which of two available remedies, or perhaps more accurately, avenues of redress, is to be preferred will depend ultimately upon which is the more convenient, expeditious and effective. Where Ministers have default powers, application to them will generally be the better remedy, particularly where, as so often, the central complaint is in reality about the substantive merits of the decision. The Minister brings his Department’s expertise to bear upon the problem. He has the means to conduct an appropriate factual enquiry. Unlike the court, moreover, he can direct a solution rather than merely leave the authority to redetermine the question. Where, on the other hand, as here, what is required is the authoritative resolution of a legal issue, … then, in common with Dillon LJ, I would regard judicial review as the more convenient remedy.
Mr Pannick submits that there are indeed here two legal issues which require authoritative resolution: (1) whether or not asylum seekers have a right to be informed of their entitlement under the Directions to be housed in preferred accommodation where such is available and where the other conditions are met; (2) whether local authorities are under a duty to take active steps to find accommodation for asylum seekers in London.
Mr Henderson submits on the contrary that the real dispute between these parties is on the facts, the question being whether or not there was in truth here alternative accommodation available which the applicants should have been given the opportunity of choosing (or at least attempting to find). That question, moreover, falls to be decided in the context of the Secretary of State’s own Directions and Guidance, paragraph 3 of the Guidance expressly contemplating that choice should be maximised only ‘as far as possible within available resources’.
For my part I have reached the clear conclusion that the more ‘convenient, expeditious and effective’ course here is indeed that of applying to the Secretary of State to exercise his default powers under s7D. This is par excellence an area of administration in which the Secretary of State rather than the courts should be closely involved. In the first place it is the Secretary of State who funds the housing of asylum seekers under s21 of the 1948 Act. Secondly, it is the proper construction and application of his own Directions and Guidance which lie at the heart of this dispute. Thirdly, it was at the Secretary of State’s insistence that the appeal from the Court of Appeal’s decision in R v Westminster CC ex parte M, which was to be heard by the House of Lords last month, was adjourned, specifically because the Government are currently conducting a review of the treatment of asylum seekers and did not wish to risk a final judgment depriving asylum seekers of all protection until a decision had been made as to what (if any) alternative arrangements should be made.
Furthermore I accept Mr Henderson’s submission that the real dispute here is on the facts. Whether or not other accommodation in Greater London is available for all asylum seekers – as Ms Kincaid of Shelter contends, but as Ms Haddington disputes – is really a question of fact: it cannot be determined by deciding whether or not the local authority are under a duty to ‘use their best endeavours to find’ or ‘take active steps to find’ additional accommodation in London, whatever precisely these duties may involve. True, Mr Henderson denies that any such duty exists so that theoretically an issue of law may be said to arise. But, quite apart from the difficulty of deciding just what would be involved in such a duty, one notes that in fact according to Ms Haddington, the respondents are already doing what is said to be required of them:
The Council adopts a flexible approach and is continuing to try and increase the stock of accommodation available to it for the use of asylum seekers.
I have to say, indeed, that at times during the hearing I sensed that the real challenge here is on analysis one of Wednesbury unreasonableness: that given the extreme objections to removing asylum seekers to the Coast the respondents should have taken more extreme measures to house them in London instead. Mr Pannick, of course, disavowed any such contention, but I remain unpersuaded.
In short, therefore, I conclude that no clear and determinative issue of law arises here of the sort which would finally resolve the real problem in this case and justify judicial review in preference to a comprehensive factual and policy review by the Secretary of State. The difficulties of dealing with the needs of asylum seekers need no emphasis. Resources are of critical importance. Balances have to be struck. The courts should be wary of interfering in this sensitive area of administration. I would refuse leave.
LORD JUSTICE OTTON: I agree.
SIR CHRISTOPHER STAUGHTON: I agree that this renewed application for leave to apply for judicial review should be dismissed. On the substance of the matter I say no more. Let the Secretary of State decide if he is required to do so.
There is, however, one matter of procedure which I would mention. At the start of the hearing yesterday we were asked by counsel for the applicants to order that their names should not be published, and counsel for Westminster had no objection. Nevertheless, we enquired whether we had power to make such an order. We were told that it was frequently done in asylum cases, and we were referred to section 11 of the Contempt of Court Act 1981. That provides:
In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld.
The section therefore does not create the power to allow a name or other matter to be withheld from the public in proceedings before the court; it recognises that it exists, or may exist, and it creates the ancillary power, in the event of the former power being exercised, to prohibit publication.
Whether the power to allow a name or other matter to be withheld from the public in court should be exercised is dealt with in the notes to the Supreme Court Practice Vol 2 at paragraph 5932. There it is said that:
The general principle of law is that all evidence communicated to a court should be communicated publicly … The general rule should not be departed from save where the nature [or] circumstances of the proceedings are such that its application would frustrate or render impracticable the administration of justice. Such circumstances are rare.
The allied topic of when a court may sit in camera is dealt with comprehensively in the case of Scott v Scott [1913] AC 417, where the speeches extend over 57 pages. There is frequent and emphatic repetition of the principle that justice in this country is done in public, and exceptions are to be closely confined. I have three short passages which I will quote. The first is Lord Shaw of Dunfermline at page 484:
Granted that the principle of openness of justice may yield to compulsory secrecy in cases involving patrimonial interest and property, such as those affecting trade secrets, or confidential documents, may not the fear of giving evidence in public, on questions of status like the present deter witnesses of delicate feeling from giving testimony, and rather induce the abandonment of their just right by sensitive suitors? And may not that be a sound reason for administering justice in such cases with closed doors? For otherwise justice, it is argued, would thus be in some cases defeated. My Lords, this ground is very dangerous ground.
For present purposes the answer is to be found in the speech of Lord Loreburn at page 446:
It would be impossible to enumerate or anticipate all possible contingencies, but in all cases where the public has been excluded with admitted propriety the underlying principle, as it seems to me, is that the administration of justice would be rendered impracticable by their presence, whether because the case could not be effectively tried, or the parties entitled to justice would be reasonably deterred from seeking it at the hands of the Court.
That, as it seems to me, is the case here. It is shown that the parties entitled to justice would be reasonably deterred from seeking it at the hands of the court if their names were revealed to the public.
Finally, Lord Haldane LC said this at page 438:
He who maintains that by no other means than by such a hearing can justice be done may apply for an unusual procedure. But he must make out his case strictly, and bring it up to the standard which the underlying principle requires. He may be able to shew that the evidence can be effectively brought before the Court in no other fashion. He may even be able to establish that subsequent publication must be prohibited for a time or altogether. But this further conclusion he will find more difficult in a matrimonial case than in the case of the secret process, where the objection to the publication is not confined to the mere difficulty of giving testimony in open Court. In either case he must satisfy the Court that by nothing short of the exclusion of the public can justice be done. The mere consideration that the evidence is of an unsavoury character is not enough, any more than it would be in a criminal Court, and still less is it enough that the parties agree in being reluctant to have their case tried with open doors.
That last point is reflected in another decision which I am afraid I cannot recall the name of, where it was said that when both sides agree that information should be suppressed from the public, that is the occasion when the court must be most vigilant to see that it is a proper case for doing so.
Would these applicants be deterred from seeking better housing than they presently have in Great Yarmouth if their names were liable to be disclosed to the public? There is some evidence to that effect, and in those circumstances the order was made. But it is, in my judgment, important that such orders should never be made as of course, rather that the burden referred to by Lord Haldane should be discharged. I am indebted to one of the former judicial assistants of this court, Miss Emily Campbell, for the reference to the case of Scott v Scott.
ORDER:Application refused. Legal aid taxation. There be a restriction upon the reporting of the names of the applicants.