(1) R (VC and others) (2) R (K) v (1) Newcastle City Council (2)Secretary of State for the Home Department A local authority cannot decline or withdraw assistance under s.17 Children Act 1989 to a failed asylum seeker with a dependent child solely on the basis that support may be available under s.4 Immigration and Asylum Act 1999.

Administrative Court 18-19 April 2011

Source: Transcript [2011] EWHC 2673

In February 2010 Newcastle CC reviewed the cases of asylum seeking families who were receiving support from them under s.17 Children Act 1989. The Council wrote to VC and K, amongst others, saying that they should apply for s.4 support and that if they failed to do so the Council would terminate their s.17 support.

VC sought judicial review of this decision by way of a test case. The key question for the court was whether the Council or the Secretary of State must take responsibility for providing support and accommodation to children in need within failed asylum seeking families.

During the hearing it emerged that the key question did not in fact arise in VC’s case. VC had made a fresh claim for asylum under article 3 ECHR after the birth of her child. Therefore, even though the fresh claim was refused, VC retained the status of asylum seeker until the child is 18 (s. 94(5) Immigration and Asylum Act 1999). VC and her children were therefore entitled to asylum support under s.95 of the 1999 Act. S.122 of the 1999 Act specifically prohibits a local authority from providing assistance under s.17 to a person entitled to asylum support under s.95. Rather than aborting the hearing, the court granted permission to K and her children J & B, to commence judicial review proceedings. K arrived in the United Kingdom in December 2004 and claimed asylum at Heathrow airport. K was in receipt of asylum support until, in 2005, her asylum claim was refused and her appeal against the refusal was dismissed. Asylum support was terminated. J was born in January 2008. The Council provided support and accommodation under s.17 in 2008, and increased it in 2010 following the birth of B. In June 2010 the Council wrote to K saying that she should apply for s.4 support and that if she failed to do so they would terminate her s.17 support. K applied for s.4 support, her application was refused and her appeal against the refusal was dismissed. s. 17 provides that there is a general duty on a local authority to safeguard and promote the welfare of children within their area who are in need, by providing services appropriate to those children’s needs. S. 17 (3) confirms that these services may be provided to the child’s family, and s. 17 (6) that services may include accommodation and cash. In assessing whether a child is a ‘child in need’, the question is whether the child will be in need unless the local authority provides services. So for the purposes of the 1989 Act, a child may not be in need if his relevant needs are being met by some third party. In G v Barnet London Borough Council [2003] UKHL 57 the court confirmed that s.17 imposes a duty to assess the needs of individual children but there is not, as such, a duty to provide the assessed services.

Sections 11 (1) (a) and 11 (2) of the Children Act 2004 provide that in all functions, including the provision of services, the local authority must have regard to the need to safeguard and promote the welfare of children. K argued that the Council was under a duty to provide assessed services for children in need , relying on paragraph 4.1 of the Framework for the Assessment of Children in Need and their Families which calls for ‘a realistic plan of action’, and s.11 of the 2004 Act, at least where delivery of the assessed services is feasible having regard to the Council’s resources.

S.4 of the 1999 Act empowers the Secretary of State to support ‘destitute’ failed asylum seekers. A person is ‘destitute’ if he does not have adequate accommodation or any means of obtaining it or if he cannot meet his other essential living needs. K argued that it was unlawful for the Council to decide to terminate s.17 support because the decision was not consistent with the Council’s obligation to safeguard and promote the children’s welfare as children in need and the decision was implemented on a ‘blanket’ basis without any attempt to assess the needs of individual children.

K argued that there are important practical differences between s.17 and s.4 support. In particular, the prohibition of cash support, so that support is provided in the form of the Azure card, the absence of any requirement that the accommodation be ‘adequate’ and the dispersal of families receiving s.4 support. S.4 support was support of ‘last resort’ or ‘emergency state assistance’. The Council argued that where there are two powers the task is to determine which power is dominant and which is residual. The Council argued that the s.17 power is residual, that the Secretary of State should and does have the dominant power to provide for asylum seeking families in the absence of special needs requiring a social services response, and that therefore the local authority acted lawfully in requiring K to apply for section 4 support. The council said that it was entirely reasonable for them to carry out a general review of support for families who had no recourse to public funds and to reassess all the children involved in their own right. They said that the children’s individual circumstances had been fully taken into account.

Application allowed The court rejected K’s argument that there is a duty to provide assessed services to children in need. The court noted that any refusal to provide assessed services is, of course, amenable to challenge by way of judicial review in accordance with public law principles which include that discretionary statutory powers must be exercised to promote the policy and objects of the statute. The court reiterated that any decision not to provide assessed services, particularly if there is no available argument based on lack of resources would be subject to ‘strict, and it may be sceptical scrutiny’. However, the House of Lords decision in G v Barnet was clear authority that there is not, as such, a duty to provide services.

The court found that section 4 is a residuary power and that a local authority would not be able to justify the non provision of assessed services and support to a child in need under s. 17 on the ground that section 4 support is available unless it can show both that the Secretary of State is actually able and willing (or if not willing can be compelled) to provide section 4 support and that section 4 support will suffice to meet the child’s assessed needs. The court found that a local authority is very unlikely in the general run of cases to be able to justify non intervention by reliance on s.4.

The Council had failed to carry out the kind of detailed child by child assessment that would be required to justify their decision and had wholly failed to demonstrate that any support which might be available under s.4 would be adequate to meet the assessed needs of any of the children.