QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(Sitting as a High Court Judge)
| THE QUEEN
on the application of U and U
(by their Litigation Friend and Mother, BU)
|- and -
|MILTON KEYNES COUNCIL
Mr D. Carter (instructed by Director of Legal Services, MKC) for the Defendant
Hearing date: 4 October 2017
Crown Copyright ©
Upper Tribunal Judge Markus QC :
"[BU] said she had initially come to England in 2007 and was unclear that her aunt sponsored her visa in 2011…. It was explained to [BU] that the Local Authority required an accurate picture of her circumstances before decisions can be made to continue funding her family.
I asked [BU] for details of her aunt Esther … in London however [BU] said she did not have her aunt's details. [BU] was again asked how she supported herself since 2014 and said she braided hair whilst in Peterborough. [BU] kept answering "no comment" to further questions about her hair dressing work. She did not respond to questions to how much she made from each job and whether she worked out of a hair salon or independently.
[BU] said that she did not know what to say and at one point stated that she did not want to answer too many questions to complicate matters.
It was the view of both social workers that [BU] was not being forthcoming with information as she kept saying "no comment" to questions."
i) She was sponsored to come to the UK in 2011 by Esther who was listed as her aunt on the visa application. In the first assessment BU claimed to have no biological family in the UK but when presented with the information regarding her visa application she admitted that Esther was her father's sister. She said that she was not in contact with Esther and they were not on speaking terms.
ii) BU had not disclosed that she was divorced from her husband nor that she had applied to marry a Romanian national.
iii) BU had not been able to provide any further information to explain the 6-7 month period when she could not remember where she had been living with her children.
iv) She was not forthcoming when interviewed by social workers.
"a) the family has been supported by friends since at least 2014 and probably earlier as [BU] was granted a visa to visit the UK on 11.11.11. Her paternal aunt lives in London and sponsored her visa. [BU] declined to provide contact details for her aunt.
b) [BU] remains in contact with Mr [O] who previously provided her with accommodation. She had to leave this property as it had been sold but Mr [O] remains living in Milton Keynes. He has also assisted with the payment of [BU's] application fee to the Home Office for leave to remain.
c) [BU] has family in Nigeria including the children's father who remains in regular contact. He has provided financial support in the past. It is unclear why this ceased as it appears he remains in work.
d) [BU] has had significant sums of money in her bank account in the past including apparent payment of "rent" to Mr [O]. It is not clear what the source of this money was.
e) [BU] was planning to marry a Romanian national which she failed to disclose.
f) [BU] has provided inconsistent or incomplete information regarding her circumstances."
"This is [BU]'s final opportunity to frankly and comprehensively explain the matters which are likely to be found against her. Any further information must be supported by documentary evidence. If [BU] does not provide any additional information or the information provided does not provide a frank and comprehensive account on which the Local Authority can by satisfied that the children are in need: the Local Authority will confirm its decision that it is not able to be satisfied that [BU] is not able to meet the needs of her children from her own resources, including her financial resources and the support networks available to her in the UK and the children's father. The Local Authority will in that event cease support of the family by the 19.5.17. If there is any difficulty in complying with the timescale please let me know as soon as possible before that date."
"BU has not been honest with the Local Authority in a number of respects and it is no longer possible to determine what her current circumstances are with any degree of reliability.
The Children Act 1989
"(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)—
(a) to safeguard and promote the welfare of children within their area who are in need; and
(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,
by providing a range and level of services appropriate to those children's needs."
"13. If a child, especially a young child, is here with a parent, and the family unit cannot be sent anywhere else, it will often constitute a breach of the child's rights to respect for her private and family life not to accommodate her with her family. If the local authority must assume that the family cannot be removed from the jurisdiction consistently with its human rights (as to which see paragraph 39 below), then the effect of section 17 Children Act 1989 and duties not to breach Convention rights by reference to section 6 Human Rights Act 1998, read together with paragraphs 2 and 3 of schedule 3 of the Nationality Immigration and Asylum Act 2002, is consequently often to render the section 17 power to accommodate – in effect – a duty imposed on the local authority to act as provider of last resort in cases where a child and his or her family would otherwise be homeless or destitute.
14. That means that the threshold duty of enquiring whether the child of the family is a child 'in need' acquires a particular significance. The determination that the child is in need triggers powers which will come close to duties to make basic provision in cases where no other state support is available, and where therefore, in the absence of any private support, the consequence is destitution.
15. The duty of a local authority pursuant to paragraph 1 of schedule 2 to the Children Act 1989 is to take 'reasonable steps to identify' whether a child is in need. What those steps are is a matter for the local authority, subject to complying with public law requirements. Statutory guidance as to child in need assessments is set out in "Working Together to Safeguard Children", dated March 2015, and departure from that guidance as to assessment without reasonable explanation would be a public law failing. However, that is not the suggestion in this case.
16. The duty to make reasonable enquiry is a duty to make those enquires which are either suggested by the applicant or which no reasonable authority could fail to undertake in the circumstances.
17. Whether or not a child is 'in need' for these purposes is a question for the judgement and discretion of the local authority, and appropriate respect should be given to the judgements of social workers, who have a difficult job. In the current climate, they are making difficult decisions in financially straitened circumstances, against a background of ever greater competing demands on their ever diminishing financial resources. So where reports set out social workers' conclusions on questions of judgement of this kind, they should be construed in a practical way, with the aim of seeking to discover their true meaning (see per Lord Dyson in McDonald v Royal Borough of Kensington & Chelsea  UKSC 33 at ). The way they articulate those judgements should be judged as those of social care experts, and not of lawyers. Nonetheless, the decisions social workers make in such cases are of huge importance to the lives of the vulnerable children with whose interests they are concerned. So it behoves courts to satisfy themselves that there has been sufficiently diligent enquiry before those conclusions are reached, and that if they are based on rejection of the credibility of an applicant, some basis other than 'feel' has been articulated for why that is so.
18. The converse is also true. An applicant parent who is seeking to persuade a local authority that they and their child are destitute or homeless, so as to trigger the local authority's duties of consideration under section 17 Children Act 1989 is seeking a publicly funded benefit, to which they would not otherwise be entitled, which diverts those scarce funds from other Claimants. Even the process of assessment is a call on scarce public funds. It therefore behoves such an applicant to give as much information as possible to assist the decision-maker in forming a conclusion on whether or not they are destitute.
19. If the evidence is that a family has been in this country, without recourse to public funds and without destitution for a number of years, reliant on either work or the goodwill and kindness of friends and family, then the local authority is entitled and indeed rationally ought to enquire why and to what extent those other sources of support have suddenly dried up. In order to make those enquiries, the local authority needs information. If the applicant for assistance does not provide adequate contact details for family and friends who have provided assistance in the past, or cannot provide a satisfactory explanation as to why the sources of support which existed in the past have ceased to exist, the local authority may reasonably conclude that it is not satisfied that the family is homeless or destitute, so that no power to provide arises.
20. Fairness of course demands that any concerns as to this are put to the applicant so that she has a chance to make observations before any adverse inferences are drawn from gaps in the evidence, but otherwise, the local authority is entitled to draw inferences of 'non-destitution' from the combination of (a) evidence that sources of support have existed in the past and (b) lack of satisfactory or convincing explanation as to why they will cease to exist in future.
21. In other words, if sufficient enquiries have been made by the local authority and if as a result of those enquiries an applicant fails to provide information to explain a situation which prima facie appears to require some explanation, then the failure by an applicant to give sufficient information may be a proper consideration for the local authority in drawing the conclusion that the applicant is not destitute: see per Mr Justice Leggatt in R(MN) v London Borough of Hackney  EWHC 1205 (Admin) at . But that does not absolve the local authority of its duty of proper enquiry."
The Immigration Act 2014
20 Residential tenancy agreement
(1) This section applies for the purposes of this Chapter.
(2) "Residential tenancy agreement" means a tenancy which—
(a) grants a right of occupation of premises for residential use,
(b) provides for payment of rent (whether or not a market rent), and
(c) is not an excluded agreement.
(3) In subsection (2), "tenancy" includes—
(a) any lease, licence, sub-lease or sub-tenancy, and
(b) an agreement for any of those things,
and in this Chapter references to "landlord" and "tenant", and references to premises being "leased", are to be read accordingly.
(4) For the purposes of subsection (2)(a), an agreement grants a right of occupation of premises "for residential use" if, under the agreement, one or more adults have the right to occupy the premises as their only or main residence (whether or not the premises may also be used for other purposes).
(5) In subsection (2)(b) "rent" includes any sum paid in the nature of rent.
21 Persons disqualified by immigration status or with limited right to rent
(1) For the purposes of this Chapter, a person ("P") is disqualified as a result of their immigration status from occupying premises under a residential tenancy agreement if—
(a) P is not a relevant national, and
(b) P does not have a right to rent in relation to the premises.
(2) P does not have a "right to rent" in relation to premises if—
(a) P requires leave to enter or remain in the United Kingdom but does not have it, or
(b) P's leave to enter or remain in the United Kingdom is subject to a condition preventing P from occupying the premises.
(5) In this section "relevant national" means—
(a) a British citizen,
(b) a national of an EEA State other than the United Kingdom, or
(c) a national of Switzerland.
The March assessment
i) He submits that the assessment was wrong to find that BU had failed to disclose her plans to marry a Romanian national. He points to the fact that during the first assessment BU had said that she had had one short relationship in the UK but was currently single. However, the authority was correct that she did not disclose the planned marriage and disclosure of a short relationship is not the same. Moreover, as the social worker noted in the March assessment (page 3), BU denied the marriage plan and only admitted it when challenged.
ii) Mr Fraczyk says that in the first assessment BU had informed the Defendant that she had a "non-biological" aunt in London and so the March assessment incorrectly stated that she had not disclosed that she had an aunt in London. This submission fails to appreciate the significance of BU initially saying, incorrectly, that Esther was a "non-biological" aunt. In any event, for a number of reasons given in the March assessment and elaborated in the letter of 10 May, the Defendant found that BU's account of her relationship with her aunt was dishonest or unsatisfactory in a number of respects. Those conclusions were supported by the evidence and reasonably open to the Defendant.
iii) Mr Fraczyk submits that in the March assessment the Defendant had mistakenly understood that Mr O had owned the house in Heelands whereas BU had explained in the first assessment that Mr O had rented the house and the owner had sold it. However that was not the central point of the assessment regarding possible support from Mr O. As set out in the conclusion, the Defendant accepted that the house had been sold (the assessment did not say that it was sold by Mr O) but for the reasons explained the view was that Mr O was in a position to support BU.
Information provided in April and May 2017
i) The Defendant pointed out a number of inconsistencies in what BU had said about living arrangements with Clara and Mr O. These included that in January BU had said that the family had been living with Mr O in Heelands until that property was sold in around January, that BU's post was sent to an address at Stuart Close and that that address was given to the schools, but that she had never lived there. On 15 May the Defendant pointed out that the application for leave to remain (completed in November 2016, at the time when BU had claimed to be living in Heelands) gave Stuart Close as BU's address. Indeed, the application stated that she paid rent there, and Heelands was given as her correspondence address. The concerns raised were not addressed by the Claimants' solicitor.
ii) During the assessment the Defendant had found that there were unexplained transactions in BU's bank account including payment of "rent" to Mr O. On 10 May the Claimants' solicitor said that the payments into BU's account were from the Nigerian community as payments towards her immigration application. She said that the payments were deposited into her account as "rent" and so, when she transferred it to Mr O, she used the same label. In response the Defendant noted that the solicitors had not accounted for all the substantial payments in or out labelled as "rent" or other payments. The Defendant set out in some detail its concerns about this aspect of the case, but the Claimants' solicitor did not address them.
Information provided in July and August 2017
Immigration Act 2014
"mere 'temporary residence' is not enough. One is looking for something which can fairly be called 'homemaking'."