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R (On the application of Alula) [2008] EWHC 2097 (Admin)

Application for judicial review over refusal to include post 21 training in a Pathway Plan for a relevant child. Application refused.

The claimant was a young Eritrean woman, who had just turned 21, with a small child. She was seeking asylum and although her first application was refused, a new application had been made and that could take some time to be decided. As a result she was receiving the bare minimum of benefits but she was keen to pursue some education and training as a nurse though difficulties would be caused by her needing to look after her child. Her original Pathway Plan had not included any help or support in this regard and so she sought in this claim to extend that Plan.

In this judgment, Collins J rejected the claimant's submission that the Plan had been made unlawfully because of the involvement of the personal adviser in making the plan as their involvement had not been material. He then identified the key issue which was whether a Pathway Plan had to include a provision for training after the claimant had reached 21. He concluded that s23(C) of the Children Act meant that a plan did not have to include such a provision and, although he sympathised with the claimant, the application was refused.

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CO/3614/2008
Neutral Citation Number: [2008] EWHC 2097 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL

Wednesday, 25th June 2008
 
B e f o r e:

MR JUSTICE COLLINS

Between:
THE QUEEN ON THE APPLICATION OF ARSIEMA SEMERE ALULA
(Claimant)

v

WESTMINSTER CITY COUNCIL
(Defendant)

 
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Mr S Cragg (instructed by Messrs Fisher Meredith) appeared on behalf of the Claimant
Mr H Harris Griffiths (instructed by Messrs Creighton and Partners) appeared on behalf of the Defendant
 
J U D G M E N T
(As Approved by the Court) 
 
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1. MR JUSTICE COLLINS:  This is an application seeking judicial review of a decision of the Council not to pursue a Pathway Plan in respect of the claimant. 

2. She came here seeking asylum from Eritrea.  Her application was refused but she has made what she asserts to be a fresh claim.  She has a small child to look after.  She unfortunately, as it seems, with hindsight, entered into a relationship with a man who has left her with the child.  She had hoped to continue education in order in due course to qualify as a nurse but her position here is uncertain. 

3. The Home Office has not yet reached a decision on her fresh claim, nor is it likely to do so within a reasonable time because she is stuck in the queue of what are called the legacy cases and the evidence that was before me in respect of those cases was that it could take up to five years for an individual claim to be considered.  In the meantime, she is not entitled to any support from a local authority because she is here unlawfully and when this case was launched there was concentration, for understandable reasons, on the lack of any support that she was receiving because this meant that she was not able to live: she had no money and no assets.  She is now receiving the bare minimum, I suppose, in accordance with section 4 of the 1999 Act from what used to be called NASS (I think it may have changed its name now, but that matters not). 

4. She was 21 in January of this year.  She was a relevant child within the terms of the Children Act 1989 and there is a decision that, albeit she may not be entitled to any support, nonetheless she is entitled to the assistance of the local authority in respects that do not involve the payment to her of any money or provision of any tangible support.

5. The relevant section is section 23C of the 1989 Act.  This provides that the local authority has duties by subsection (2) to take reasonable steps to keep in touch with the former relevant child and by subsection (3), to continue the appointment of a personal adviser and keep the Pathway Plan under regular review and by subsection (4) to provide assistance to the extent that welfare and educational or training needs require it.  Of course, subsection (4) cannot be complied with in respect of someone such as the claimant who is here unlawfully. 

6. However, normally the obligations continue until the age of 21.  Subsection (6) provides: 

"Subject to subsection (7), the duties set out in subsections (2), (3) and (4) subsist until the former relevant child reaches the age of twenty one."

which, as I have said, she did in January of this year.  But subsection (7) provides the possibility of continuation and this reads:

"If the former relevant child's pathway plan sets out a programme of education or training which extends beyond his twenty first birthday—

(a) the duty set out in subsection (4)(b) continues to subsist for so long as the former relevant child continues to pursue that programme..."

That does not help because she is not entitled to any assistance under subsection (4). It continues:

"... and 
(b) the duties set out in subsections (2) and (3) continue to subsist concurrently with that duty."

Subsection (8) provides that there shall be disregarded any interruption in pursuance of a programme of education or training if the local authority are satisfied that he will resume it as soon as it is reasonably practicable.

7. The position here is that, because of the existence of the child, there were difficulties in pursuing particular courses because, as one might anticipate, the claimant would only be able to undertake a course if there were arrangements for looking after her child and, having regard to her status, that would mean that there would need to be fresh facilities of some sort available.  But the real point is that the Pathway Plan that existed until she was 21 did not contain any programme of education or training.  It follows that, unless there can be an argument that the failure to include that provision was unlawful, the claimant is not entitled to any further obligatory support, from the local authority, and when I use the word support I include the obligations within subsections (2) and (3) of section 23C. 

8. Mr Cragg has argued that it was clear that the claimant at all material times was anxious to continue her education.  She wants to be a nurse as soon as it is practicable, for she recognised that her position is precarious.  Furthermore, her solicitor has indicated that in his view there is a reasonable prospect that she has a valid fresh claim and that it will be recognised as such by the Secretary of State, whether or not the Secretary of State accepts that she is entitled to asylum or humanitarian protection in this country.  That is a matter obviously for the future.  There is also a contention that the care plan was unlawfully made because there was an involvement in making it by the individual who was effectively the personal adviser for the claimant.  That is contrary to the law as laid down by this court.  There is a dispute of fact about that and, although the adviser was undoubtedly present at the meetings which led to the final decision as to the contents of the Pathway Plan, there is precious little evidence, as far as I can see, that she was wrongly involved so as to mean that that plan was unlawful. 

9. But even if it was, and even if she was, the key point is whether it is arguable that the absence in it of a programme of education and training beyond the age of 21 could be changed and the answer to that is, in my judgment, no.  There is no basis upon which it could conceivably be argued successfully that this is a case where there ought to have been such a programme contained.  It is not insignificant to note that the claim as formulated does not challenge that aspect of the plan, certainly not directly, although there is, of course, a challenge to the plan as a whole.  As I said in the course of argument, I have considerable sympathy with the position in which this claimant finds herself.  Nevertheless, I have to apply the law as I see it and in my judgment there is no arguable basis for a claim that Westminster has fallen short of the duty that it owes. 

10. I should only add this: the claimant is clearly a vulnerable young lady and she would no doubt benefit enormously from being able to have advice when she needs it. I express the hope that, if she does find herself in a position that she needs advice, she will be able to seek it and receive it, so far as it is reasonable for the authority to take any steps, having regard to the fact that she was under their care, as it were, until she reached the age of 21. I appreciate there is no obligation on the authority to take any particular steps but I have, I hope, a reasonable expectation that the authority will look with sympathy upon any specific application or approach that she makes to the authority. Having said that, permission must be refused.

11. MR CRAGG:  My Lord, I am grateful. It is only for me to ask for a detailed assessment of the claimant's public funded costs.

12. MR JUSTICE COLLINS:  Yes.

13. MR CRAGG:  Thank you very much.