Case No: C4/2010/1435
Neutral Citation Number: [2011] EWCA Civ 671
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT 
(MR M SUPPERSTONE)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 14thApril 2011

Before:

PRESIDENT OF THE QUEEN’S BENCH DIVISION
(SIR ANTHONY MAY)
LORD JUSTICE SULLIVAN
and
LORD JUSTICE GROSS
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	The Queen on the Application of
MK & ANR	
Appellants	
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	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Respondent	
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(DAR Transcript of 
WordWave International Limited
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Mr M Westgate QC and Mr R Khubber (instructed by Ben Hoare Bell) appeared on behalf of the Appellant.

Mr David Blundell and Mr Ben Lask (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
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Judgment

Lord Justice Sullivan:

1.	This is an appeal against the order dated 20 April 2010 of Mr Michael Supperstone QC, as he then was, sitting as a deputy High Court judge, dismissing the first and second appellant’s claim for judicial review of the respondent’s decision contained in a decision letter dated 16 November 2009 to provide the first appellant with support in the form of accommodation with vouchers for the purchase of food and essential toiletries under section 4 of the Immigration and Asylum Act 1999 (“the 1999 Act”).  The first appellant declined the offer, because it would have required him to live separately from his partner, the second appellant, and their baby daughter, K.  The substance of the appellant’s complaint is that the first appellant should have been provided with support under section 4 in such a manner as would have enabled him to continue to live with the second appellant and their daughter.  From the appellant’s point of view, this appeal is academic.  Indeed it had become academic shortly before the hearing of the judicial review claim on 14 and 15 April 2010, because the first appellant had been told on 13 April 2010 that he would be granted three years’ discretionary leave to remain in the United Kingdom, so that when that leave was granted he would become ineligible for section 4 support.

2.	The parties agreed, however, that the hearing of the judicial review claim should proceed, because of what was said to be the importance of the issues raised in the claim for others who sought support under section 4.  Since the appeal is academic from the appellant’s point of view, I for my part would confine our consideration of the grounds of appeal to those issues which are, potentially at least, of wider application.  Insofar as the challenge to the decision dated 16 November 2009 is based on the particular circumstances of these appellants, or the particular features of the decision-making process in their case, it would not be appropriate in my view for this court to consider those matters, save to the extent that it is necessary to do so in order to address any issue of wider importance.

3.	The factual background is set out in some detail in the judgment below: [2010] EWHC 1002 (Admin).  For present purposes, the following summary will suffice.  The first appellant is a national of Iran.  He arrived in the United Kingdom and claimed asylum in August 2007.  His claim was refused.  He appealed.  His appeal was dismissed, and his appeal rights became exhausted on 18 April 2008.  He claims to have met the second appellant, who is a British citizen, in August 2008.  They started living together, and in February 2009 they moved to an address in Gateshead.  In November 2008 further submissions, which were said to amount to a fresh claim for asylum and/or humanitarian protection, were submitted to the respondent.

4.	The first appellant applied for support under section 4 of the 1999 Act on 2 October 2009.  His claim was initially refused.  He appealed to the First-Tier Tribunal (Asylum Support).  In his Notice of Appeal dated 20 October 2010, having referred to his partner, the second appellant, and the fact that she was at that time expecting their child, he said: 

“I am prepared because of our poverty to live in a room separate from her with vouchers, but obviously I would prefer to live with her and have vouchers only.”

In a letter written in support of his appeal, the North of England Refugee Service said: 

“The above has been refused section 4 support.  Although he is living with his partner, who is nine months pregnant and cannot afford to support him, he would prefer vouchers only and to live in his current accommodation with her, but section 4 seems reluctant to issue vouchers only.  He is prepared to live separately but in the same area.”

5.	On 3 November 2009, the first appellant’s appeal was allowed by the First Tier Tribunal, by which time K had been born on 23 October 2009.  The respondent, in a decision letter dated 16 November 2009, made it clear that the section 4 accommodation was being offered to the first appellant on a “no choice” basis, and that one of the conditions for continued support under section 4 was that:

“You must reside at the accommodation provided to you, and must not be absent without the permission of the Secretary of State from the accommodation for more than seven consecutive days and nights, or for more of a total of 14 days and nights in a six-month period.”

6.	In a letter before claim dated 23 November 2010, it was said by solicitors acting on behalf of the first appellant that he was unable to accept the offer of support because it would require him to live separately from the second appellant and their daughter.  Judicial review proceedings were commenced on 2 December 2009.  On 13 January 2010, the further representations made in November 2008 were rejected by the respondent, so the first appellant ceased to be eligible for section 4 support.  The following day, the appellants moved to their current address in Gateshead.  On 12 March 2010, further representations were made by the first appellant’s new immigration solicitors, which were said to amount to yet a further fresh claim.  Once again, the first appellant became eligible for section 4 support.  That remained the position until he was granted discretionary leave in April 2010.

7.	Against that background, I turn to what are said to be the issues in this appeal.  In his skeleton argument on behalf of the appellants, Mr Westgate QC submitted that the appeal raised three issues:

“(a) What is the meaning of the term ‘provide or arrange for the provision of facilities for the accommodation of a person under section 4 of the Immigration and Asylum Act 1999?’

(b) Did the Defendant fetter her discretion and/or act rationally and/or without due regard to s.55 of the Borders, Citizenship and Immigration Act 2009, by only considering the provision of accommodation pursuant to the UKBA ‘target contract’ and not supporting the Claimants’ desire to live as a family in one’s property?

(c) Was the Defendant’s decision to provide separate accommodation for the 1st claimant so that he had to live apart from his wife and child if he took it up incompatible with the Claimants’ Convention rights (and those of their child) under Articles 8 and/or 14 of ECHR?”

The answer to the first of those issues is, at least potentially, of some wider significance.  If the respondent’s answer to the second issue had been that she had no discretion to “provide or arrange for the provision of facilities for the accommodation” of a person under section 4 otherwise than pursuant to UKBA’s target contract, that would also have raised an issue of wider importance.  However, that is not the respondent’s answer to the second issue.  As the judge said in paragraph 36 of his judgment, following the institution of judicial review proceedings UKBA did consider whether it would be appropriate for the respondent to enter into contractual arrangements with the second appellant’s existing landlord, having regard to the appellant’s particular circumstances.  UKBA concluded that it would not be appropriate.  

8.	The challenge to this aspect of the decision-making process therefore turns very much on the particular circumstances of this case.  Whether or not the explanations given in the witness statements of Miss Bass and Mr Cairns on behalf of the respondent show that they gave, to use the words in the appellant’s skeleton argument, “no proper consideration to the option of funding the existing accommodation”, is no longer of any interest to these appellants, and it does not raise any wider issue.  I should note that it is said on behalf of the appellants that the respondent did not give proper consideration to her duty under section 55 of the 1999 Act to the need to safeguard and promote the welfare of K, bearing in mind the recent judgment of the Supreme Court in ZH (Tanzania) v SSHD [2011] UKSC 4, [2011] 2 WLR 148.  But whether or not that was so on the evidence in this case, there is no need for this court to decide what is now an academic issue so far as the precise terms of Miss Bass’s witness statement are concerned, simply in order to make the point that, when exercising her power under section 4, the respondent must comply with her statutory obligations under section 55 insofar as those obligations have been interpreted by the Supreme Court in ZH.

9.	As far as the third issue is concerned, it seems to me that the answer to the question whether there has been an unjustified interference with the right to respect for family life under Article 8, because one member of a family has been provided with separate accommodation, will be fact-sensitive in each particular case.  All relevant factors will have to be considered, and those factors may include, for example, how suitable is the existing accommodation?  How far away is the separate accommodation?  What is the degree of interference with family life in practical terms?  Is it, for example, possible for the family to be together during the day?  Are they separated overnight, or is it possible for them to be together for some nights?  How long is the arrangement intended to last? What are the justifications for providing separate accommodation, in terms of for example ensuring that it is both of a satisfactory standard and not unduly expensive for the taxpayer etc?  Certain aspects of the judge’s factual conclusions in this case, for example whether, if the first appellant had accepted the offer of section 4 accommodation, that accommodation would have been provided within reasonable walking distance of the accommodation he shared with the second appellant and K; whether the separation would be for a temporary period of two months only; whether there was sufficient evidence of the second appellant’s medical problems; are challenged by the appellants.  The respondent does not accept their criticisms of the judgment in this respect.  Attempting to resolve those factual disputes, which are no longer of any practical concern to these appellants, would not serve any wider public purpose.  For my part, therefore, I do not think it necessary or appropriate to resolve issues (b) and (c), and I will deal only with issue (a).  

Issue (a): the Statutory Framework

10.	Section 4 provides, so far as material, at (2):
“(2) The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a person if—

(a)	he was (but is no longer) an asylum-seeker, and

(b)	his claim for asylum was rejected.

...

(4) The following expressions have the same meaning in this section as in Part VI of this Act (as defined in section 94)—

(a)	asylum-seeker,

(b)	claim for asylum, and

(c)	dependant.

(5) The Secretary of State may make regulations specifying criteria to be used in determining—
(a)     whether or not to provide accommodation, or arrange for the provision of accommodation, for a person under this section;
(b)     whether or not to continue to provide accommodation, or arrange for the provision of accommodation, for a person under this section.

(6) The regulations may, in particular—
(a)     provide for the continuation of the provision of accommodation for a person to be conditional upon his performance of or participation in community activities in accordance with arrangements made by the Secretary of State;
(b)     provide for the continuation of the provision of accommodation to be subject to other conditions;
(c)     provide for the provision of accommodation (or the continuation of the provision of accommodation) to be a matter for the Secretary of State's discretion to a specified extent or in a specified class of case.
...
10. The Secretary of State may make regulations permitting a person who is provided with accommodation under this section to be supplied also with services or facilities of a specified kind.
(11)     Regulations under subsection (10)—
(a)     may, in particular, permit a person to be supplied with a voucher which may be exchanged for goods or services,
(b)     may not permit a person to be supplied with money,
(c)     may restrict the extent or value of services or facilities to be provided, and
(d)     may confer a discretion.”
”
11.	The power to “provide or arrange for the provision of facilities for the accommodation” of a person in the position of the first appellant is to be contrasted with the respondent’s power under sections 95 and 96 of the 1999 Act to provide support for asylum seekers (essentially those whose asylum claims have not been finally determined).  Section 96 says this: 
“(1) Support may be provided under section 95—

(a)	  by providing accommodation appearing to the Secretary of State to be adequate for the needs of the supported person and his dependants (if any);
...
(c) by providing what appear to the Secretary of State to be essential living needs of the supported person and his dependants (if any).”

Discussion

12.	In the letter before claim dated 23 November 2009, the first issue was said to be: 

“Whether the Secretary of State has the power to make payments (by way of vouchers) to a recipient of section 4 support who is living in a mixed household, i.e. with a person entitled to work and receive social security and housing benefits, and access public housing.”

It should be noted that vouchers are now, to a large extent at least, replaced by a pre-payment card system, but the change is not relevant for present purposes.

13.	The judge summarised the appellants’ submissions on this issue in paragraph 14 of the judgment as follows: 

“(1) The defendant has misinterpreted the scope of his powers to provide assistance under section 4. First, he submits that, even if the defendant is correct that he cannot provide support for essential living needs unless he also arranges accommodation, he does not need to enter into the kind of highly structured and formal arrangements that he has put in place. Nothing stops him from entering into an arrangement with the second claimant such that the family can continue to reside together without the need to provide further separation accommodation. Second, and in any event, where an applicant already has access to accommodation but requires assistance with subsistence needs in order to make use of it, then the defendant may provide the necessary subsistance assistance even if he does not also provide or arrange for the provision of separate accommodation.”

In paragraphs 25 and 35 of the judgment, the judge concluded that there was no power under section 4 to provide voucher support on a “stand-alone” basis: that is to say, without the provision of accommodation.  He also concluded in paragraph 35 that section 4 did not give the respondent power to enter into any of the “informal arrangements proposed on the claimant’s behalf”.  It seems that the proposed informal arrangement, as put to the judge, was that the respondent would simply obtain the second appellant’s consent for the first appellant living with her (she having the benefit of the tenancy of the accommodation in which they both lived).  It was submitted that if the respondent did that, then she would have “arranged” for the provision of accommodation for the first appellant for the purposes of section 4, and so would be able to provide him with vouchers. In paragraph 30 of the appellant’s skeleton argument, Mr Westgate submitted that: 

“The Deputy Judge failed to recognise that s.4 permits the provision of facilities necessary to make use of accommodation provided by somebody else.  The Claimants case was not that support would be provided on a standalone basis unrelated to any accommodation; rather, there was no statutory restriction on who could provide that accommodation.”

14.	The judge’s conclusion that section 4 does not give the respondent power to provide voucher support on a stand-alone basis, that is to say without having provided or arranged for the provision of facilities for the accommodation of the person to whom the vouchers are to be provided, is plainly correct: compare sections 4(2) and (10) with section 96(1) paragraphs (a) and (b) above.  Since that was what in reality the first appellant was seeking from the respondent, it is very difficult to see how his claim could possibly succeed if indeed it was not the claimant’s case that support could be provided on a stand-alone basis unrelated to any accommodation.  It is clear that the power to provide or arrange for the provision of, not merely accommodation, but facilities for the accommodation of those eligible for support under section 4, enables the respondent to provide such persons with, in addition to the bare four walls, floor and a roof, facilities including food and essential toiletries which enable that accommodation to be lived in by the recipient of the support.  It enables the respondent, for example, to provide or arrange for the provision of facilities for accommodation in a hostel or a hotel.

15.	In AW (Kenya) [2006] EWHC 3147 (Admin) accommodation was being provided to the claimant, but she contended that the respondent should also provide her with warm clothing under section 4.  Rejecting the submission that the respondent had power to do so, Sir Michael Harrison, sitting as a Judge of the High Court, said this in paragraph 28 of his judgment: 

“Section 4 is dealing with accommodation.  Not only is that the heading of the section, but the provision of accommodation permeates through the various sub-sections of section 4.  The words "facilities for the accommodation of a person" obviously go wider than the accommodation itself, but the facilities must be linked to the accommodation.  Clothing cannot possibly be linked to the accommodation.”

In paragraphs 32 and 33 he said: 

“32 The definition of "accommodation" in the Khan case plainly embraced food.  The defendant in this case has taken the view that food and essential toiletries are included within the term "facilities for the accommodation of a person" in section 4(2) on the basis that what is envisaged is what would be provided in a hotel offering full board, because a power to house failed asylum seekers would be inadequate unless the defendant could also feed them.  The claimant seeks to take advantage of that approach by saying that, if accommodation is inadequate without food, it is also inadequate without clothing.  That submission is based upon a generous interpretation of section 4(2) by the defendant.  If that interpretation is correct, it can only be on the basis of the claimed link with the accommodation, but I certainly would not accept that any such concession by the defendant could provide any valid basis for a link between clothing and the accommodation, such as to bring it within section 4(2).
33. The claimant's argument that section 4 embraces the provision of all essential living needs is derived from the fact that Regulation 2 of the 2005 Regulations, made pursuant to section 4(5), adopts the definition of "destitute" contained in section 95(3), which includes a person who cannot meet his essential living needs.  However, in much the same way as Dyson LJ concluded in paragraph 58 of his judgment in the Khan case that the trigger for the exercise of the section 21 function under the 1948 Act, namely that a person is in need of care and attention, does not tell you what the authority can provide for that person, so in this case the fact that a failed asylum seeker is destitute is the trigger or, as Ms Laing put it, the gateway to section 4, does not tell you what can be provided under section 4 to that person.  Unlike section 96, section 4 is not a power to alleviate destitution; it is a power to provide facilities for the accommodation of a failed asylum seeker.  The claimant, as a destitute asylum seeker, is eligible under section 4 to be provided with facilities for her accommodation, but that expression does not include all her essential living needs, and in particular does not include clothing for her or her son.”

16.	As I understood Mr Westgate’s submission, he advanced two possible bases on which the respondent would have been entitled to provide vouchers to the first appellant.  First, he submitted that section 4(2) enabled the respondent simply to provide or arrange for the provision of facilities such as food, toiletries, et cetera, even though she was not providing or arranging for the provision of accommodation to the recipient of those facilities.  That submission, in my judgment, is fairly described as hopeless.  If Parliament had wished to empower the respondent to provide either facilities without accommodation or facilities with accommodation, it would have said so, as it did, in effect, in section 96(1) paragraphs (a) and (b) in respect of asylum seekers.  But section 4 must be read as a whole, and there are repeated references in subsections (5) and (6) for example to the provision of accommodation.  Moreover, the terms of subsection (10) could not be more plain.  Regulations made be made “permitting a person who is provided with accommodation under this section to be supplied also with services or facilities of a specified kind”.

17.	In his submissions, Mr Blundell pointed out that there is in subsection 4(4) a cross-reference to some of the definitions that are relevant for the purposes of section 96.  If Parliament had wished to confer a power under section 4 the same as the power that it conferred in section 96(1), then it would have done so.  As Sir Michael Harrison said in AK (Kenya), section 4 is dealing with the provision of accommodation.  If accommodation is provided, then facilities may also be provided to enable the use of that accommodation, but those facilities must be linked to the provision of accommodation.  This submission is in reality no more than the repetition of the submission, which Mr Westgate says the judge mistakenly attributed to the appellants and then rejected, that is to say, the submission that there is a power to provide vouchers, aka facilities, only, without the provision of any accommodation.

18.	The second submission is that the respondent unnecessarily imposed a requirement that the only type of arrangement she would enter into for the purposes of section 4 was one under which she continued to have some responsibility for the property.  It is submitted that that was effectively an improper fetter on the breadth of her discretion under section 4.  This submission is based on the judge’s conclusion in paragraph 29 of his judgment: 

“In my view, having given the defendant responsibility for the provision of accommodation, Parliament must have intended the defendant to exercise that responsibility by taking positive steps to organise the accommodation and he must retain a degree of responsibility for the accommodation itself. In practice, this is likely to involve the defendant entering into contractual relations with the accommodation provider.”

As I understand it, Mr Westgate does not dispute the proposition that making arrangements for the provision of something will involve taking some positive steps.  He takes issue, however, with the proposition that the respondent, having made the arrangements, must retain a degree of responsibility for the accommodation itself.

19.	Since what the respondent has power to do under section 4 is either to provide or to arrange for the provision of accommodation, Mr Blundell in my judgment is correct where he submits that that would inevitably require the respondent to take some positive steps and that those steps will necessarily involve her in taking some continued responsibility for the accommodation.  He points to subsections (5) and (6), which refer to the respondent continuing to provide accommodation, and make provision for certain conditions upon which accommodation will continue to be provided.  

20.	In any event, this criticism of the judge’s judgment is something of an Aunt Sally, because the respondent’s position before the judge was not that she had no power to make some sort of contractual agreement with the second respondent’s landlord, but that as a matter of policy she had decided that it was not appropriate to do so.  Thus, in Miss Bass’s witness statement in paragraph 44, she says: 

“The claimants contend that ‘the decision failed to appreciate that service provision under section 4 could have been made by way of funding the existing accommodation where the Claimant resided with his partner, followed by provision of vouchers.’

Her response to this proposition was: 

“46.  Section 4(2) confers on the SSHD a discretion as to the form and manner in which he provides, or arranges for the provision of, facilities for the accommodation of a person.  Accordingly UKBA recognises that it would be open to it to provide s.4 support in the manner proposed by the Claimants.

47. As a matter of policy, UKBA considers that section 4 support should generally be provided within the existing framework of Target Contracts ...”

She then refers the reader to the evidence of another witness, Mr Cairns, who explains the reasons why this is so.

21.	In Mr Cairns’ witness statement, having referred to the claimant’s ground that “the decision failed to appreciate that the service provision under section 4 could have been made by way of funding the existing accommodation where the claimant resided with his partner, followed by provision of vouchers”, he said in paragraph 42: 

“As I explained, as a matter of policy UKBA considers that s.4 support should generally be provided within the existing framework of the Target Contracts.  These contracts serve a number of important functions, both in the interests of s.4 recipients themselves, and in the wider interests for the United Kingdom taxpayer.

43. That said, I recognise that it would also be open to UKBA to provide s.4 support in the manner proposed by the Claimants.  If we considered that this was justified by the particular circumstances of an individual case, we would be prepared to do so.  This would, however, give rise to a number of practical difficulties and disadvantages which I shall now explain.”

22.	Thus the issue is not, in truth, the extent of the respondent’s power under section 4 to arrange for the provision of facilities for the accommodation of those provided with support under section 4.  It is rather the manner in which the respondent, as a matter of both policy and practicality, chooses to exercise that discretion.  The reality of this case is that what was being suggested was, in effect, that the respondent should simply have allowed the first appellant to continue living in the existing accommodation with the second appellant, and to provide him with vouchers.  In my judgment, that course was plainly not within the respondent’s powers under section 4.  Had that occurred, she would not have been either providing or arranging for the provision of anything at all, other than vouchers alone.

23.	The expression “facilities for the accommodation of a person” must have the same meaning under both limbs of section 4(2), that is to say the provision by the Secretary of State herself, and those cases in which she arranges for the provision by a third party.  If in the first of those categories, that is to say where the Secretary of State is providing facilities for the accommodation of a person herself, she is unable to simply provide vouchers, without providing any accommodation, it is very difficult to see how a power to arrange for the provision of the same thing, that is to say facilities for the accommodation of a person, could possibly enable her to provide vouchers only under the second limb.  Again, one comes back to the realities of the matter.  What was being proposed in reality was that all that should be provided by the Secretary of State was vouchers, and that was plainly not within the respondent’s powers under section 4.

24.	For these reasons, I would conclude that the judge’s judgment in respect of issue (a) was correct, and for my part I would dismiss this appeal.

Lord Justice Gross:

25.	I agree, and would add only a few words of my own.  The expenditure by the Executive of public money requires Parliamentary authorisation.  That authorisation is here contained in and confined by section 4 of the Immigration and Asylum Act 1999.  It is nothing in point that that authorisation might have been conferred in different terms.  Contrast, for instance, section 4(2) of that Act with section 96(1)(a) and (b).  Parliament chose to enact section 4 in terms very different from section 96.  

26.	I accordingly agree with my Lord, Lord Justice Sullivan, that section 4 of the Act is premised on the provision or arranging for the provision of accommodation.  Section 4 does not permit the provision of stand-alone facilities if accommodation is neither provided nor arranged.  In my judgment, that conclusion is clear from the wording of section 4(2), from the wording of section 4(10) and (11), and from the contrast between sections 4 and section 96; it is a very short point.

27.	It is indeed unnecessary to go further as to the limits of the section than the succinct observations of Sir Michael Harrison in the case of AW (Kenya) v SSHD, to which Sullivan LJ has already referred.  See especially at paragraphs 28, 32 and 33.  As Sir Michael Harrison observed at paragraph 33: 

“Unlike section 96, section 4 is not a power to alleviate destitution ...”

28.	For completeness as to the question of policy, to which Sullivan LJ has referred, I am for my part satisfied that the superficially cheaper option -- of the Secretary of State entering into arrangements for accommodation with the second appellant’s landlord -- may well have been burdened by other costs, and with other difficulties as set out in the respondent’s relevant witness statements.

29.	I accordingly agree with Sullivan LJ as to dismissing the appeal on issue (a).  I entirely agree that we should not entertain issues (b) and (c), which are academic.  Article 8 gives rise to more than enough litigation, ordinarily taxpayer-funded, without debating it where it is academic.  In any event, at least in the present context, nothing useful could be said on the suggested engagement or application of Article 8 which is other than fact-sensitive, and therefore not of general application.

Sir Anthony May: 

30.	I agree that this appeal should be dismissed for the reasons given by Sullivan LJ, whose account of the facts and circumstances of the appeal I gratefully adopt.  As to the construction of section 4 of the Immigration and Asylum Act 1999, the short question which this court has been persuaded to consider is whether section 4(2) of the Act is to be construed as enabling the Secretary of State to provide vouchers for subsistence payments in circumstances where the Secretary of State is not providing or arranging for the provision of accommodation.  The subsection provides:

“The Secretary of State may provide or arrange for the provision of facilities for the accommodation of a person if (a) he was but is no longer an asylum-seeker and (b) his claim for asylum was rejected.”

There is an equivalent form of expression, that is facilities for the accommodation of a person, in subsection (1).  The short question is whether “facilities for the accommodation of a person” is wide enough to embrace subsistence payments when no accommodation is provided.  I do not think that it can.  Although the expression, taken alone, might just at a stretch extend to payments or vouchers alone, the natural reading is that the facilities either are or are connected with the provision of accommodation by the Secretary of State.  To my mind, that is undoubtedly not only the natural meaning but also the true meaning, when you also look at other subsections of section 4.  Subsections 4(5) and 4(6) refer in no less than five places simply to the providing or provision of accommodation without the inclusion of the added word “facilities” in the context of powers to make regulations.  These are quite plainly references to the same powers as are provided for in subsection (2).  Yet, further, subsection (10) provides: 

“The Secretary of State may make regulations permitting a person who is provided with accommodation under this section to be supplied also with services or facilities of a specified kind.”

Subsection (11) provides for the content of such regulations.  The reference in subsection (10) to a person who is provided with accommodation under this section has to be a reference back to subsection (2), confirming, in my view, that subsection (2) does indeed embrace the provision of accommodation and that the section does as a whole require the provision of accommodation or the arranging of such provision before additional services or facilities come for consideration.  If further support for this were needed, the contrast between section 4 and sections 95 and 96 provides it and section 4(4) has a persuasive reference to the definitions in section 94 in the way that Sullivan LJ has explained.  The decision in AW (Kenya) accords with the construction which I, in agreement with Sullivan LJ, consider to be correct.

31.	As to the other two issues which those representing the claimants say arise, they are academic and fact-specific.  An academic decision on those issues would be of no benefit of the appellants, nor to the decision of future cases.  There is much danger in the court deciding matters which are academic, and I agree that we should not do so for these issues.  I do not agree with Mr Westgate that provision of accommodation which puts one member of a family in different accommodation from others is bound to require justification under Article 8; it may do, but it may not.  It will all depend on the facts.  That possibility would not, in my view, justify any different construction of section 4 of the 1999 Act from that which I have indicated.

32.	The appeal will accordingly be dismissed.

Order:  Appeal dismissed.