High Court makes mandatory order for suitable accommodation to be provided for severely disabled child

A mother and her severely disabled child have been successful in obtaining a mandatory order for the Home Office to provide them with suitable accommodation as part of their asylum support. The case is R (AYW & Anor) v Secretary of State for the Home Department [2024] EWHC 3291 (Admin).

Background

AYW is a Mexican national who claimed asylum on 17 June 2021. ACR is her five year old son who is severely disabled with conditions including epileptic encephalopathy. He has several seizures a day and is fed through a tube and sleeps in a specialist bed. ACR is non verbal and cannot walk or crawl. He is under the care of a number of NHS specialist teams in the London Borough of Southwark. Emails from his treating doctors were strongly supportive of the family remaining in the borough.

The family were granted asylum support under section 95 of the Immigration and Asylum Act 1999 on 20 July 2021. The family have been provided with accommodation in the form of a room at a Best Western hotel in Peckham since June 2021, provided via Clearsprings. The claimants’ asylum and human rights claims were refused on 13 December 2023 and an appeal is ongoing.

The judicial review

On 29 October 2024 a judicial review was lodged challenging the failure to provide suitable accommodation. In the acknowledgement of service dated 11 November 2024 the Home Secretary accepted that the claimants’ accommodation did not meet their needs but said that there was no such accommodation available, “despite previous and ongoing concerted efforts” to secure this within Southwark. The claimants were asked whether they would consider relocating outside of Southwark. The court was asked to dismiss the application for judicial review on the grounds that it was “pre-emptive and academic”.

Permission was granted on 15 November 2024. In the detailed grounds of defence dated 26 November 2024 the Home Secretary admitted to being in breach of section 95 and 96 of the Immigration and Asylum Act 1999 as the claimants’ accommodation was not adequate to meet ACR’s needs.

The hearing took place on 3 December 2024. AYW is her son’s sole carer and she has no one else to care for him. In light of this the High Court facilitated the attendance of the claimants at the hearing in a wheelchair accessible court at a time that best suited them. 

Evidence given by a Home Office official did not give details of any attempts to find suitable accommodation before 17 September 2024, the date the pre action letter was received. The Home Secretary had been on notice of the issue for nine months by then.

Clearsprings had provided the Home Office with a spreadsheet on 30 September 2024 showing that the position since 17 September 2024 was that there was only one wheelchair accessible property in the London Borough of Southwark. That property was occupied by a family who it was not appropriate to move at that time.

The witness statement from the Home Office official stated that “The scarcity of accommodation which meets the needs of the claimant and her child prevents any stable timeframe for a dispersal to be given”. In response, the claimants’ solicitor put in a witness statement detailing available and suitable properties on the private rental market in November 2024. The court said that there were some caveats to that evidence, including that it was unknown whether the landlords would rent to a family in the asylum system. However, the court noted that this was “the only specific evidence of the position at the material time of the hearing and it is not consistent with the Defendant’s position of impossibility”.

Given the concession of a breach made by the Home Secretary, the court’s focus was on the appropriate remedy and in particular whether it was appropriate to make a mandatory order. The claimants sought an order requiring the Home Secretary to provide suitable accommodation (in Southwark, with a wet room, on the ground floor and wheelchair accessible) no later than four weeks from the date of the final hearing. It was argued on behalf of the Home Secretary that compliance with such an order would be impossible.

The court considered the relevant principles as set out in R (Imam) v Croydon London Borough Council [2023] UKSC 45 and concluded that a mandatory order was appropriate for several reasons [at 54]. Those included the lack of evidence about the inability to source appropriate accommodation in the time since the defendant had first been put on notice of the issue, and:

iv) Fourth this claim is not an isolated incident or an outlier. Examples of authorities where the Administrative Court have made observations that are critical of the approach taken by the Defendant indicative of systemic problems and which are relevant to this claim include R (NS) v The Secretary of State for the Home Department [2023] EWHC 2675 (Admin) and R (oao DXK) v The Secretary of State for the Home Department Defendant Migrant Helpline Limited (t/a ‘Migrant Help’) (A Charity) and Clearsprings Ready Homes Limited [2024] EWHC 579 (Admin). If there are systemic shortcomings in the Defendant complying with sections 95 and 96 of the IAA then that is a reason to make a mandatory order providing it is not impossible to comply with its terms. It is certainly not a reason not to make a mandatory order.

v) Fifth I am satisfied that the Defendant’s failure to comply with her statutory duty has had, and is having, an effect on both the First Claimant and the Second Claimant.

vi) Sixth simply making a declaration and no more would not, in my judgement, meet the justice/injustice of this case. The chronology in this case and an analysis of what has taken place and more importantly what has not taken place is proof positive of the need for a mandatory order. Refusing to make an order or adjourning these proceedings for three months would not be the correct approach.

The court declined to make the order in the exact terms requested by the claimant but instead said that accommodation could be provided in other South East London boroughs, although the priority should be Southwark and Lambeth. The court declined to include a requirement that the accommodation be on the ground floor but said that if it is not then the Home Secretary must have “a high degree of confidence that no difficulties will eventuate”. A long stop date for compliance was given until 24 February 2025.

Conclusion

This is a good outcome for the claimants who should obviously not have had to live in those unsuitable conditions for as long as they did, with seemingly nothing being done by the Home Office to address the situation before the judicial review was brought. The comments made by the court in relation to these issues seemingly being systemic will hopefully be of use to others in similar positions.

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