In the case of R (TMX) v London Borough of Croydon & Anor [2024] EWHC 129, the High Court found that Croydon Council acted unlawfully by failing to provide accommodation to a person seeking asylum with care and support needs. The council was also found to have breached the claimant’s human rights by failing to provide suitable accommodation for seven months whilst he lived with his family in an asylum hostel.
The case settles the question of whether the Home Office or councils will be responsible for providing accommodation to a person seeking asylum who is assessed under the Care Act 2014 as having ‘accommodation-related’ care and support needs. Councils, specifically adult social care, will need to be clear about the implications of this case when assessing need and providing care and support to people who are seeking asylum. This includes arranging and funding accommodation where this is needed, and maintaining oversight of care and support that is delivered to people with no recourse to public funds. Providing accommodation and financial support can have a significant impact on social care budgets whilst central government funding for delivering this support continues to be lacking.
Case background
The claimant has an outstanding asylum claim and, since June 2022, has been accommodated by the Home Office under section 95 of the Immigration and Asylum Act 1999 with his wife and two children (14 year-old girl and 10-year-old boy) in one bedroom with an ensuite bathroom.
The claimant has progressive multiple sclerosis, functional neurological disorder and paraesthesia, which caused him severe and varied pain. For many months the claimant was confined to his bed and unable to leave the building. He was unable to use the ensuite bathroom for toileting and washing, having to undertake the former in the family bedroom with his wife’s assistance. The claimant was fully reliant on his wife, his main carer, to assist him with all his basic daily activities.
The judge found that the ‘extreme limitations to his quality of life…have been caused by the manifestly unsuitable accommodation’.
In December 2022, the council assessed the claimant as having eligible care and support needs and provided one hour of daily personal care (increased to two hours in February 2023). The council had identified that the claimant’s accommodation was unsuitable and did not enable his care needs to be met. However, it did not offer alternative accommodation as its position was that the responsibility for providing suitable accommodation lay with the Home Office (i.e. section 95 asylum support). The council’s review of the care plan in May 2023 noted the claimant’s continuing need for suitable accommodation.
The Home Office offered the family alternative accommodation in Clacton-on-Sea, which was withdrawn, and subsequently a one-bedroom unit with a disabled-access bathroom in another part of London to the claimant only. The second offer was declined by the claimant, due to being reliant on his wife’s care. The judge found that it would not be reasonable or appropriate to expect the claimant to live separately from his wife and children, due to his reliance on his wife as his carer.
In July 2023, the claimant’s solicitor issued a judicial review challenge against the lawfulness of the needs assessment, and failure to meet the claimant’s needs for care and accommodation, the failure to recognise the claimant’s need for financial support, and/or breach of his human rights.
The court’s decision: responsibility for providing accommodation
The council found that the claimant did not have accommodation-related care needs because he was being provided with section 95 asylum accommodation.
The council also relied on Home Office guidance, Asylum seekers with care needs, which was published in 2018 for Home Office caseworkers. The guidance states that the Home Office will be responsible for securing suitable accommodation when a person seeking asylum is assessed as having eligible care and support needs but does not require residential or specialist supported accommodation.
The council acted unlawfully by determining that the claimant did not have accommodation-related care and support needs because it was the responsibility of the Home Office to provide accommodation.
The judge concluded that the council could not take account of current or potential future accommodation being provided to the claimant by the Home Office for the following reasons:
- Section 95 support is residual and cannot be provided by the Home Office when a person has a right to adequate accommodation under other legislation, such as the Care Act.
- The Home Office guidance has no legal impact on the allocation of responsibilities to provide accommodation, which has been determined in law.
- R (Westminster City Council) v National Asylum Support Service [2002] UKHL 38, case law that pre-dates the Care Act which placed the responsibility of providing accommodation under section 21 of the National Assistance Act 1948 to an asylum seeker in need of care and attention with the council rather than the Home Office, continues to apply.
The judge also found that the council should have considered the question of financial needs when assessing and reviewing the claimant’s needs under the Care Act.
The court’s decision: human rights breach
The judge found that the bar for a breach of Article 3 (the right to be free from torture and inhuman or degrading treatment) of the European Convention on Human Rights (ECHR) was high. However, the level of suffering or indignity experienced by the claimant as a result of being left in the unsuitable accommodation, constituted 'degrading treatment’ and, therefore, was a breach of Article 3.
The judge also found that the council breached the claimant’s rights under Article 8 (the right to respect for private and family life) of the ECHR.
Implications for councils
(1) Accommodating asylum seekers with care and support needs
The case highlights the importance of correctly identifying ‘accommodation-related’ needs when a person with no recourse to public funds, who is homeless or destitute, has care and support needs.
When a person is assessed as having accommodation-related care and support needs, councils cannot consider the availability of Home Office asylum support when determining how to meet the person’s needs. In such cases, it will fall to the council (specifically adult social care) to provide accommodation and financial support at a level that suitably meets the adult’s needs, even in instances (unlike in the Croydon case) when their asylum accommodation may arguably meet their needs.
When a council determines that it has a duty under the Care Act to provide accommodation and financial support, support must be provided without delay when the person is homeless or is living in accommodation that is detrimental to their health and/or well-being. Such support can also be provided whilst a needs assessment is being undertaken. It will be necessary to undertake immediate action if a council has already identified that an asylum seeker who qualifies for, or is receiving, care and support is currently living in unsuitable Home Office accommodation.
Councils can refer to our practice guidance, which has been updated to include this case law, for more information about assessing and supporting adults with no recourse to public funds, including identifying ‘accommodation-related’ care and support needs and other relevant case law.
(2) The position for adult social care in the devolved administrations
R (TMX) v London Borough of Croydon was primarily concerned with the interplay between the Care Act 2014 and the asylum support provisions of the Immigration and Asylum Act 1999. Whilst the Care Act only applies in England, asylum support legislation applies to the whole of the UK.
Councils in Wales and Scotland, and Health and Social Care Trusts in Northern Ireland, will need to seek advice from their legal teams to determine if there are similar implications regarding the interaction between the Immigration and Asylum Act 1999 and their social care duties under the Social Services and Well-being (Wales) Act 2014, Social Work (Scotland) Act 1968, or Health and Personal Social Services (Northern Ireland) Order 1972, respectively.
(3) Addressing cost pressures for local government
At the end of March 2023, 27% (234) of adults with care needs who were receiving support from their council under the Care Act were seeking asylum/appeal rights exhausted asylum seekers. The annual cost of providing accommodation and financial support to people in the asylum system who have care and support needs was £5.9 million (collectively for 53 councils).
Although councils already incur costs by providing accommodation and financial support to people who are seeking asylum, it is likely that these will increase following the case of R (TMX) v London Borough of Croydon.
The asylum backlog and ongoing Home Office delays in processing asylum claims will not only have a negative impact on people such as the claimant and his family but will have significant cost and resource implications for councils, who are already spending £77 million per year supporting people with no recourse to public funds.
Although the practical and financial challenges for local government highlighted by Croydon Council in the proceedings were not relevant to the court’s decision, the judge acknowledged that change can only be achieved through Parliament rather than the courts.
Our 2022-23 data on no recourse to public funds households supported by councils indicated that adult social care teams are under-recording the accommodation and financial support they are providing to adults with care and support needs, with only 53 out of 82 councils adding this information to NRPF Connect. This data provides central government with evidence that the policy and funding solutions that we have recommended must be implemented urgently in order to reduce homelessness and destitution when people are excluded from benefits, and to reduce financial pressures on councils when people with no recourse to public funds, including asylum seekers, are provided with accommodation and financial support. It is therefore essential that councils fully record the support they are providing to adults with care and support needs. Any adult social care teams that need access to NRPF Connect or training on using the system can contact us.