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Local Authority Focus – Families with No Recourse to Public Funding and Part III of the Children Act

Sally Gore, barrister of Fourteen, considers a pressing concern of local authorities and immigrant families: the duties owed under Part III of the Children Act 1989 to individuals who have no recourse to public funding.


Sally Gore, barrister, Fourteen











Sally Gore, Barrister, Fourteen

The questions as to whether local authorities should assist individuals who have no recourse to public funds, because of their immigration status, are both complex and dynamic. Consequently this is an area that generates considerable amounts of case-law.  In this article, I consider the recent developments in the law in relation to the duties owed to this class of individuals under Part III of the Children Act 1989.

Local authorities are now extremely familiar with the case of Clue v Birmingham City Council [2010] EWCA Civ 460, [2011] 1 WLR 99. In that case the Court of Appeal held that a local authority cannot refuse to support an individual with no recourse to public funds if they have an outstanding application for leave to remain based on human rights grounds unless that application is 'obviously hopeless or abusive'.   

This was a significant and wide-ranging decision but the more recent case of R (KA) v Essex County Council [2013] EWHC 43 (Admin) made even worse news for local authorities.  The case concerned a family from Nigeria who had made a number of unsuccessful applications for leave to remain in the UK based on Article 8, ECHR.  The local authority had been providing support and accommodation under the Children Act 1989 but following a Human Rights Assessment, it indicated an intention to withdraw that support.  There were no removal directions in place, although the family had asked for these to be made as they would then have had a right to appeal against them on human rights grounds.  This presented a scenario that the Court of Appeal in Clue did not have to consider, namely the position of individuals who have no existing right of appeal because no removal directions have been made and who are therefore in the UK in a state of 'legal limbo'.

Robin Purchas QC, sitting as a Deputy High Court Judge, extended the principle in Clue to the circumstances of this case on the basis that if the local authority withdrew support, the family's human rights would not be adequately protected as they would have no choice but to return to Nigeria. 

The difficulty presented by this case is that families can often wait for several years for removal directions to be set.  Whereas previously they might not have received local authority support, there can be no doubt now as to what is expected of local authorities when faced with a family in this position.

In R (MK) v London Borough of Barking and Dagenham [2013] EWHC 3486 (Admin), a mother and her two children were being provided with support and accommodation under s.17, Children Act 1989 pending the outcome of their application for leave to remain on human rights grounds (in accordance with the rule in Clue).  The claimant was the mother's adult niece who was an overstayer and had been living with the family whilst she was appealing against removal directions.  The local authority refused to include her in the support it provided to the family, a decision which she argued would make her homeless and destitute and would therefore breach her human rights (particularly Articles 3 and 8 ECHR).  The decision of the local authority was upheld by the High Court. It said that the purpose of s.17 is to safeguard and promote the welfare of children.  Since the presence of the niece in the household was not essential to the welfare of the children, it would be an improper exercise of the local authority's power under s.17 for it to include her in the support provided to the family. 

It was argued on behalf of the niece that the local authority was empowered to provide support under s 1 of the Localism Act 2011 of which sub-s (1) states: "A local authority has power to do anything that individuals generally may do." However the court held that the local authority was also prevented from using this 'general power of competence' to provide that support because the niece was seeking statutory services and the expenditure of public resources which did not fall within 'thing[s] an individual may do'.  Schedule 3 to the Nationality, Immigration and Asylum Act 2002 explicitly prohibits the use of section 17, Children Act 1989 and section 1, Localism Act 2011 to circumvent the rules excluding certain classes of individuals (including those in the UK in breach of immigration rules who are not asylum-seekers) from welfare benefits.  In the circumstances, the claimant would have to seek support from the Home Office under section 4 of the Immigration and Asylum Act 1999 (as to which see below).

R (ES) v London Borough of Barking and Dagenham [2013] EWHC 691 (Admin) concerned the interface between section 4 of the Immigration and Asylum Act 1999 and section 17 of the Children Act.  Section 4 IAA gives the Home Office the power to provide accommodation to former asylum-seekers whose claims have been rejected and their dependants.  Local authorities also have the power to provide accommodation to enable families of children in need to remain together under section 17(6), Children Act 1989.   

In this case, the family sought support under s.17 but the local authority's core assessment found that the child was not in need.  A short time later, the family became homeless and the local authority decided to wait to see whether the Secretary of State would provide accommodation under s.4 IAA 1999.   When the Secretary of State acceded to the request for accommodation, the local authority concluded that it did not need to re-assess the child's needs because the only change since the original assessment was that the family had become homeless.

The Deputy High Court Judge found that the local authority had acted unreasonably, firstly by adopting the 'wait and see' approach.  It was unlawful to decline to provide s.17 support in these circumstances unless the local authority knew that accommodation would be provided under the IAA 1999.  Secondly, it had acted unreasonably in declining to undertake a further assessment as it was possible that a fresh assessment would have concluded that a child with the limited accommodation being provided might be a child in need.  In this case, there was a suggestion that the accommodation provided by the Home Office was inadequate for the child.  By failing to re-assess, the local authority was failing to consider whether the child might need additional services.

This case is potentially very significant.  The child had been assessed recently and found not to meet the criteria for s.17 support.  However, the strong suggestion is that the fact that he became homeless shortly afterwards gave rise to a need to re-assess, even though he was not street homeless at the time. 

This case, like the others, turns on its own facts.  However, the Administrative Court once again showed that it would penalise local authorities that are found to have acted at all cynically in discharging their duties under Part III of the Children Act.

When considering whether to provide support to a family with no recourse to public funds, a local authority will assess whether in fact the family is 'destitute'.  Two recent cases have considered what this means in practice. 

In the first case, R (MN and KN) v London Borough of Hackney [2013] EWHC 1205 (Admin), the claimants' parents had entered the UK unlawfully and the family had lived for several years without seeking assistance from the local authority.  They had lived with various friends and relations who had provided financial support and the father had earned money selling pirated DVDs.  They had approached Hackney in 2011 claiming that they were about to become street homeless as they had been asked to leave the home of the friend with whom they were staying.  The local authority had carried out an assessment of need and an Human Rights Assessment and had concluded that the claimants were not children in need for the purposes of section 17 of the 1989 Act and that there would be no breach of articles 3 or 8 if support was refused.  The claimants commenced proceedings seeking judicial review of Hackney's decision to refuse accommodation and support and were granted interim relief.  At the substantive hearing, Leggatt J found that the parents had not been prepared, during the assessment process, to provide information about the friends and family who had provided accommodation and support since the family arrived in the UK.  In those circumstances, the social worker had been entitled not to accept that it was no longer possible for the family to live without support from Children's Services. 

A crucial element of the judge's reasoning in this case was the principle that the question of whether children are 'in need' is a matter for the evaluative judgment of the local authority and not a question of objective fact (see the comments of Lady Hale in R (A) v London Borough of Croydon; R (M) v London Borough of Lambeth [2009] UKSC 8 at para 26 for an explanation of the types of question that Parliament intended to fall within the scope of evaluative judgments to be made by a local authority).

The Court of Appeal subsequently gave the claimants permission to appeal but the case settled before reaching a substantive hearing.

This was followed in the later, and strikingly similar, case of R (N & N)  v London Borough of Newham [2013] EWHC 2475 (Admin),  in which the local authority were found to have acted reasonably in concluding that two children were not 'in need' when their parents had refused, during the course of the assessment, to provide information about the possibility of support from friends and family.  

9/4/14