by Allan Norman
Somebody Else's Problem, according to Douglas Adams, can easily be run off a single torch battery for over a hundred years. Hardly surprising, if the judgement of the House of Lords in M, R (On The Application of) v Slough Borough Council [2008] UKHL 52 (30 July 2008) is anything to go by. The Problem itself generates its own friction, heat and dissipated energy.
This is the judgement I said was on the way. It's not the judgement I predicted, or hoped for.
The law before M v Slough
A reminder again: asylum seekers who are sick, or vulnerable for other reasons are the responsibility of statutory social services authorities, while those who are not are the responsibility of the Home Office.
Or so we thought for the last decade, since it was established that destitution was itself a form of vulnerability that qualifies for support from a statutory social services authority.
Again, or so we thought. We were reaffirmed in such beliefs by memorable phrases in previous judgements:
"If there are to be immigrant beggars on our streets, then let them at least not be old, ill or disabled." (Lord Justice Simon Brown in O v London Borough Of Wandsworth [2000] EWCA Civ 201 (22 June 2000))
Care and attention "in this context is 'looking after': this can obviously include feeding the starving, as with the destitute asylum-seekers..." (Lady Justice Hale in Wahid v London Borough of Tower Hamlets [2002] EWCA Civ 287 (7th March, 2002))
"[They] also have had, and still have, a separate and additional need for the care and attention that is required by all who are condemned to a life on the streets, being care and attention in the shape of shelter and warmth."
It was the straightforward humanity of the latter approach that I applauded in a previous blog.
The law after M v Slough
Lord Justice Simon Brown has had a rethink. Or, as he puts it, "It would be wrong to reverse the Court of Appeal's decision here without recognising my own part in their mistaken approach... I am now persuaded, however, that it would not be right to regard all destitute asylum-seekers as in imminent need of care and attention."
Lady Justice Hale, also quoted above, has also had a rethink. She gave the leading judgement in the present case that persuaded Lord Brown.
So what is the law today? Simply put, to be starving and homeless is no longer to be in need of care and attention, there must be something more. That is a significant shift. It reverses the thrust of a decade of caselaw. And some of the leading lights in the last decade of caselaw were responsible for the reversal.
Predictions
I predict there will now be an unholy scramble, as social workers try to get sick asylum seekers off their books. Despite the theory that the argument is between two different bodies as to which is responsible, I predict that there will be no orderly transfer from one body to another. Despite their Lordships saying that their judgement would not have produced a different result in past cases, I predict cash-strapped authorities will try to interpret the judgement as having wider implications even than it actually does.
In short, there will be immigrant beggars on our streets who are old, ill or disabled. Social workers will see them as Somebody Else's Problem. And there will be more legal challenges.
Please prove me wrong!
Allan Norman is Principal Social Worker & Solicitor at Celtic Knot (www.celticknot.org.uk), an independent law firm and social work practice.
Initially I wrote quite a long comment explaining a case that i had been involved with on just this matter. I thought better for matters of confidentiality because it was an attempt at a test case by my local authority (in the end though, it was settled). Suffice to say, I have had some experience of this type of thing and although I'd love to prove you wrong, I think you are right.