KINGS BENCH DIVISION
ADMINISTRATIVE COURT
Bull Street, Birmingham |
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B e f o r e :
(Sitting as a Judge of the High Court)
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THE KING (on the application of) LR (a child by mother and Litigation Friend LC) |
Claimant |
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- and – |
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COVENTRY CITY COUNCIL |
Defendant |
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(instructed by Central England Law Centre) for the Claimant
Mr Richard Alomo (instructed by Coventry City Council) for the Defendant
Hearing date: 21st November 2024
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Crown Copyright ©
HHJ TINDAL:
Introduction
Background
The background to and terms of the Defendant's NRPF Policy
"Whilst a minimum subsistence rate can be a useful tool for local authorities to set a baseline for basic living support, the approach is only viable when combined with a policy of providing additional support where it is needed. Examples of additional support include travel to a day centre or an appointment, payment of unavoidable fees when seeking to confirm identity or progress immigration matters, and paying costs related to a child's schooling where those costs aren't covered by their school."
In short, the recommended NRPF Network approach is to provide accommodation and support which meets NRPF families' subsistence needs', but with the flexibility of increasing that support to meet additional 'welfare needs' of the kind described, also including things like bus passes, school uniform etc. As a convenient shorthand, one might call this model a 'subsistence-baseline, welfare top-up' approach, to differentiate it from the Asylum Support 'subsistence-only' approach.
"10 The Section 17 budget is allocated based on the specific needs of the child and their family, not on their wants or preferences…[F]unding decisions are made with the primary goal of addressing the essential needs that are necessary to safeguard and promote the child's welfare.
13….Coventry Children Services assess the circumstances of each child and family to determine what support is required to ensure the child's safety, health, and well-being. This typically includes providing financial assistance for necessities such as food, clothing, and shelter, or funding services that help maintain a stable home environment.
14.The key principle is that the Section 17 budget is used to meet critical needs, particularly when failing to do so could lead to more severe outcomes, such as the need for the child to be taken into care. It is not intended to cover non-essential items or services that, while desirable, are not necessary for the child's welfare.
15.When drawing from the Section 17 budget, social worker managers do have the discretion to go beyond a minimum base rate of support, depending on the specific circumstances and needs of the child and family. While the primary focus is on meeting essential needs, there is flexibility to provide additional support if it is deemed necessary to safeguard and promote the child's welfare.
16.For example, if a family is facing unique challenges that require more than just basic support such as needing specialised services, emergency housing, or additional financial assistance to prevent a crisis. This discretionary support is assessed on a case-by-case basis, ensuring that the level of assistance provided is proportionate to the child's needs and the potential risks involved.
17.This discretion allows social workers…to respond to the specific situations they encounter, going beyond a one-size-fits-all approach and ensuring each child receives the level of support they need to thrive…
This is the context against which one must read Mr Heeley's comment that:
"9.…The support provided is intended to prevent destitution and ensure that children within NRPF families are not at risk."
"5.2 Assessing Need under Section 17 Children Act 1989….
Assessment Considerations
As part of the assessment, the local authority would need to establish what other support options are available to the family in the UK, or whether return to country of origin may resolve the family's inability to self-support in the UK when the parent is in an excluded group.
The courts have been clear that the purpose of section 17 is to provide a safety net of support for families who either cannot leave the UK or who are lawfully present in the UK but are prevented by their immigration status from being able to claim benefits usually provided to families with a low income. The local authority must gather information which is adequate for the purpose of performing its statutory duty under section 17 Children Act 1989 and must also have due regard to the child's best interests in the context of having regard to the need to safeguard and promote the welfare of children.
Any information and evidence already gathered by the local authority as part of its initial enquiries must be considered within the child in need assessment, in balance with other factors relating to the welfare of the child:
- How the family's financial and housing circumstances are affecting the child's health and development and what assistance the child needs and how the child would be affected if they do not receive such help;
- How urgently the family needs assistance;
- Details of medical conditions affecting the child or family members;
- Details of the child's current and previous schools;
- If the child's other parent is not in the family household, their details including nationality and immigration status, what contact the parent and child has with them and whether they are providing any support.
Depending on the family's particular circumstances, information and documents relating to the family's finances and housing will need to be requested. The child in need assessment must consider all relevant information, all findings and the reasoning behind them must be fully documented, with the parents being given an opportunity to respond…..
Considerations when Parents are in an Excluded Group
When a parent is in one of the groups of people that are excluded from receiving accommodation and financial support under section 17, a human rights assessment will also need to be undertaken in conjunction with the child in need assessment to determine whether support must be provided to prevent a breach of the family's human rights. If return to country of origin is being considered, the child in need assessment should also address the child's needs within the country of origin and how they may or may not be met, as this….would be relevant to the human rights assessment….
Providing Support
The local authority has a power to provide a wide range of services in order to meet assessed needs under section 17 Children Act 1989. The local authority is not under a duty to meet all formally assessed needs; section 17 is a target duty and may take into account its resources in determining which needs are to be met, but such a decision must be reached rationally and the local authority must act reasonably.
The Court in R (C, T, M & U) [aks. R(C)]…set out the following principles:
- An assessment must be carried out to determine the needs of a particular child, in line with statutory guidance and with proper consideration of the best interests of the child;
- Support for families with NRPF should not be fixed to set rates or other forms of statutory support without any scope for flexibility to ensure the needs of an individual child are met;
- Local authorities must undertake a rational and consistent approach to decision making, which may involve cross-checking with internal guidance or other statutory support schemes, so long as this does not constrain the local authority's obligation to have regard to the impact of any decision on a child's welfare.
The Asylum Support webpage (GOV.UK) sets out the basis for housing, financial support, access to NHS healthcare and schools which may be available for an asylum seeker and their family while waiting to find out if they will be given asylum.
Ongoing Duty to Reassess Need
Section 17 is an ongoing duty, and when a family's circumstances change the local authority must decide whether this means that the child's needs must be reassessed.
Excluded Groups
5.3 Assessments when the Exclusion under Sch.3 Nationality, Immigration and Asylum Act 2002 Applies: Human Rights Assessment
When a family with NRPF requests support, the local authority must establish whether the parent is in an excluded group, and therefore the family can only be provided with the support or assistance that is necessary to prevent a breach of their human rights– a 'human rights assessment'….
Section 54 and Schedule 3 Nationality, Immigration and Asylum Act 2002 (as amended) set out categories of person who are not eligible for support from local authorities, being families where a parent is: In breach of immigration laws, for example, is a visa overstayer, illegal entrant, or appeal rights exhausted (ARE) in-country asylum seeker; An ARE asylum seeker who has failed to comply with removal directions; A person with refugee status that has been granted by another EEA country. They can only receive 'support or assistance' under section 17 Children Act 1989 if such support is necessary to prevent a breach of their human rights.
Schedule 3 does not mean that assistance can automatically be refused to a family when the parent is in an excluded group, because support must be provided where this is necessary to avoid a breach of the family's human rights. The purpose of Schedule 3 is to restrict access to support for a family where the parent is in an excluded group because they either have no permission to remain in the UK, or can no longer self-support, and when returning to country of origin (where they may be able to access employment and receive services), would avoid a breach of human rights which may occur if they remain destitute in the UK. This means that, along with establishing whether there is a child in need, local authorities must identify whether there are any legal or practice barriers preventing the family's return to the parent's country of origin, as return cannot be considered unless these are cleared…by….a human rights assessment.
The Schedule 3 exclusions do not apply to all families with NRPF. A family will not be excluded from receiving assistance under section 17 where the parent has one of the following immigration status types: Leave to enter or remain in the UK with the NRPF condition; ….Asylum seeker…Such families are not excluded from section 17 support and would need to be provided with assistance if they are found to be eligible for this…."
(I should say that no point is taken about this apparent inaccuracy about asylum-seekers, although in fairness local authorities can support adult disabled asylum seekers with care needs: R(TMX) v Croydon LBC [2024] ACD 42 (HC), albeit not disabled children from asylum-seeking families, because they are excluded from s.17 ChA support by s.122 CA: R(A) v NASS [2004] 1 WLR 752 (CA)). This main body of the policy is essentially the same as the 2023 version, also in the bundle.
"2024/2025 NRPF Support Rates per Week
£49.18 per person
£9.50 Child under 1 year
£5.25 Child aged 1-3 years
£5.25 Pregnant mother
Gas £24.10
Electricity £24.10
Water £8.40
Maternity grant, one off payment £300 if not supported by DWP.
Bus passes/School Uniform can also be provided as required."
It is agreed that the £49.18 per week figure (and the additional rates for children aged up to 3 years, for a pregnant mother and the maternity payment, which are not relevant to the Claimant's family) are exactly the same as the 2024 Asylum Support rates. However, the figures for gas, electricity and water bills, not paid to the Claimant's family who have free accommodation, are not included in the Asylum Support scheme, but that typically also provides free accommodation too. In reality, it is only the bus passes and school uniform that in practical terms add to what is provided in money or in kind under Asylum Support. Nevertheless, the Defendant relies on this to reject the Claimant's allegation these rates are identical with Asylum Support rates, whilst the Claimant argues the additional sums make no difference, as the lawful flexibility in what I will call the 'Main NRPF Policy' is unlawfully fettered by this apparently exhaustive 'Support Rates Page' as I call it.
The Initial Assessment of and support to the Claimant's Family
"During the last half of last year there were several instances where I [went] out with my friends and they had to buy food for me because I either didn't have enough money or no money at all. I know they did this because they felt sorry for me and wanted to include me. However, this made me feel inferior to them and very uncomfortable. I know they don't look down on me but that is what I felt. I compare myself to them and I feel very different to them. This is not nice. I know they like me and want to spend time with me, but I always feel a little bit uncomfortable when I am with them."
"This makes me feel left out because I know they do this amongst themselves. I don't like to think about this. I don't think they will stop being my friends but I have a small worry that eventually they will. I feel ashamed and I feel like I am just there, not really contributing to the group…
I remember Valentine's Day this year very well. My friends and I had planned the day very carefully a long time in advance. We were going to be at a friend's house and we had all been given tasks to do, like getting food, buying and doing decorations and finding outfits. I really looked forward to this. However, I quickly realised that I wouldn't be able to do my part because I couldn't afford to buy the things I needed to buy. This made me so upset and I decided to drop out completely. I stayed at home instead of being with my friends. It was not a nice experience and I remember I felt very upset for a long time and I probably wasn't nice towards my mother."
This incident encapsulates the effect that her poverty has on the Claimant's own sense of self and identity within her friendships, as well as how that starts to fray the fabric of her relationships with her family. Mr Khubber argues the family's poverty is relevant to both the Claimant's 'private life' and their 'family life' under Art.8 ECHR. I consider whether it engages Art.8 in Ground 1B below.
The Challenged Assessment and subsequent claim
"We spoke about school and you said you were a little worried about tests and it can be stressful. I know school is important for you and reminded you all teachers speak very positively about you, you are hard-working, polite and a good student...We spoke about home life and you said generally you are happy at home. You told me you enjoy spending time with your family and get on with your mum. LG can be annoying sometimes but you love him. You also said that you would like to do more activities outside of school and that you cannot afford to do this. You mentioned about wanting to have private singing lessons. I appreciate and understand your wanting for this, and hopefully in time you will be able to do more, however at the moment your mum does not have a lot of spare money….
You told me that this was because she is awaiting to receive the correct status and I said this was correct. You told me you do have a nice time home and you enjoy reading, watching tv shows, seeing friends….I mentioned to you that if you would like more books to read then let your mum know and she will tell me as we have lots of donations of books. You also told me ….you are not worried about things at home. We spoke about your dad and you said you do not want to see or talk to him right now. I asked what was making you feel this way and you told me it was because of how he treated your mum. We spoke for a short while about this and I highlighted that this was fine and it is your decision…..I asked if there was anything you would like to talk about further and you said no."
"You told me home was good, you chill out, watch tv, go and see friends. You said that you would like to go out more, but you do not have money for this. I said that I was aware this was difficult and explained about your mum being on a tight budget whilst we are supporting her through her home office application. You appeared understanding of this and we spoke about hopefully in the near future, your situation as a family will change and your mum will be entitled to regular benefits etc. You said that you were not worried about anything at home, just that you would like to do more."
The social worker commented that:
"[LG] is not as aware as [the Claimant – LR] and [LA] in relation to the family's financial difficulties due to his age, however it is clear that this weighs upon [LR] and [LA]. Both have spoken to me about wishing they had more money to engage in more activities with their friends outside of school however are understanding that there are limitations to what they can do, which is through no fault of their mother. I have explained that the family are completely reliant on Children's Services for finances and that this has been assessed to ensure they are receiving the legal requirement."
The social worker again noted no concerns in the children's basic care, health, or education. Their school attendance was in excess of 90% and all the children were meeting their education milestones, with the Claimant described as a 'good' student in all her core subjects. The social worker commented that this was a 'testament' to their mother's parenting despite the financial constraints, adding:
"Whilst I appreciate that the children do not have access to materials, finances and experiences that some of their peers may have, I do not feel that their emotional health is significantly impacted by this. They talk lovingly and warm about each other and I witness positive interactions between all of the siblings. Schools speak very highly of all the children and have not raised any issues about their mental health."
"[LC] continues to provide the children with a good level of basic care, even during these more difficult times. It is clear that the family's lack of finances does impact on their quality of life however this is not to a level that is of a safeguarding concern. [LC] is committed to ensuring that all of the children's basic care needs are met and manages her finances well to achieve this.… [LC] would like to be able to do more with the children out of school however her finances make this very difficult.… [LC] has stated many times that she loves her children lots and wants the best for them. [LC] feels that generally, the children are happy at home. [LC] said the children are 'holding up' during these more difficult times….
[LC] was asked what she thought was working well and she said –
- The family have each other.
- They hang out together and sometimes go out if there is some spare money. This is about once a month.
- School is going very well for the children.
- They do movie nights at the house together.
[LC] was asked what she was worried about and said –
- The children want to go out more and want more 'stuff' like new tracksuits and want money.
- [LC] worries about [The Claimant LR's] English subject at school. She would like her to have extra tuition. [LC] said this also worries [LR]…
[LC] is now receiving the updates [sic] Asylum Support Rate which is £192.72 a week. [LC] also receives 5 adult bus tickets and 15 child tickets every week. [LC] said she manages well with the money and budgets everyday. The children have enough to eat. If [LC] has any spare money she will spend this on the children. [LC] said that the children are understanding of their financial position. At holidays, [LC] is given some extra money to take the children out. For example, over the Easter holiday, [LC] was provided with £30 extra so she could take the children to the cinema. [LC] would eventually like to work so will explore this once her application with the Home Office is complete."
"Since the [initial assessment] in August 2023, Children's Services have supported [LC] and children to obtain suitable temporary accommodation and provided financial support. This is ongoing whilst the[ir] immigration application sits with the Home Office. No clear timescales have been given for when we will receive an outcome for the application so until then, [LC] is completely dependent on Children's Service for accommodation and finances. In the months following the [initial assessment], [LC] and the children experienced instability with their hotel accommodation and lower weekly sustenance payments. The family are now living in a house…which is more suitable for the family and caters to all the children's basic care needs. Whilst not ideal as it is still temporary accommodation, [LC] has stated that the family are managing okay living there. [LC] is now all receiving the updated Asylum Support amount, which is £192 every week [sic]. [LC] has said that she successfully budgets this money to ensure that the children's basic care needs are met. [LC] also receives bus tickets every week to ensure she can get the children to their schools. I can appreciate that this tight budget does not always allow the children to engage in wider activities outside of the family home however it is not presenting as a safeguarding issue. The children all appear happy and healthy and have been seen at home and school. I have spoken with [LA] and [LR] about their position, and how this differs from their peers, and they appear understanding and hopeful that in time, this may change. It is really positive to see the school supporting [LC] and the children through a variety of ways. All school trips have been fully funded by the school for the children and therefore they have not had to miss out on fun and educational experiences. [LG] receives free school dinners and the schools have also accessed their boot funds to provide some essential items for the children. Both pastoral teams are aware of the children's current lived experience and therefore can observe and notify LC/services if they are worried about the children. Both schools have said how polite, friendly, hard-working and lovely LG, LA and LR are. LC should be very proud that despite the difficulties she has faced, and continues to face, all three children have great school feedback and are polite and friendly…..Throughout this updated assessment, there has been no safeguarding concerns raised or highlighted. The children are well cared for, [LC] manages her finances well and the children all attend school daily. The family are living to their current means, which does mean that the children do not get to routinely engage in lots of wider activities which appears to be the family's main worry. Children's Services provide the statutory support rates and whilst it would be lovely to be in a position where this could be increased so the family could have more day trips out, electronic devices etc, this is not possible. I have visited the family many times over the past year, as have other colleagues, and they are always welcoming, warm and friendly. [LC] and the children have a good relationship with Children's Services and communicate very well. As there are no ongoing safeguarding concerns, and an updated Children and Families Assessment has been completed, it is possible that the family will be transferred over to the NRPF team….[LC] will continue to receive the same level of financial and housing support."
"….This assessment reflects the current needs of the family and reaffirms that [LC] is doing incredibly well to ensure that the children's needs continue to be met despite the challenges they face in a temporary home. [LC] is in receipt of the updated Asylum support amount, which is £192 [sic] every week, alongside travel vouchers which enable the family to continue accessing the same schools and the community on a weekly basis. There is an absence of safeguarding concerns which has been the case since the referral where [LC] demonstrated her ability to protect and prioritise the safety and needs of the children despite concerns relating to her status. Until the outcome of the Home Office application, [LC] and the children will continue to be supported…Ongoing efforts will be made to find them accommodation that is more attuned to the needs of the family and regular updates will be sought in respect of the outstanding immigration status."
Legal Framework (and Ground 1A)
'The Statutory Categories'
(i) Category 1: Unrestricted support under s.17 Children Act 1989 ('CA') for eligible NRPF families (typically those lawfully in the UK);
(ii) Category 2: Asylum Support under ss.95-96 of the Immigration and Asylum Act 1999 ('IAA') for asylum-seeking families.
(iii) Category 3: s.17 CA support restricted by Sch.3 Nationality, Immigration and Asylum Act 2002 ('NIAA') to direct support to the child under s.17 under para.2 NIAA, and/or accommodation to the family under para.10 NIAA, and/or other support to the family to the extent necessary to avoid ECHR breach under para.3 Sch.3 NIAA;
(iv) Category 4: Support to families within Sch.3 NIAA limited to that under para.10 and Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 ('WWSR'); and
(v) Category 5: Support from the Home Office under s.4 IAA for refused or 'failed' asylum-seeking families (but not all such families, as I explain).
"(1) The Secretary of State may provide, or arrange for the provision of, support for—(a) asylum-seekers, or (b) dependants of asylum-seekers, who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed….
(3) For the purposes of this section, a person is destitute if— (a) he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or (b) he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs."
However, s.122 IAA converts that power to meet essential living needs to avoid 'destitution' under s.95(1) IAA into a duty to children under ss.122(3)-(4):
"(3) If it appears to the Secretary of State that adequate accommodation is not being provided for the child, he must exercise his powers under section 95 by offering, and if his offer is accepted by providing or arranging for the provision of, adequate accommodation for the child as part of the eligible person's household.
(4) If it appears to the Secretary of State that essential living needs of the child are not being met, he must exercise his powers under section 95 by offering, and if…accepted by….arranging for the provision of essential living needs for the child as part of the eligible person's household."
Made under s.95(1) IAA, the Asylum Support Regulations 2000 ('ASR') Reg.9 excludes from 'essential living needs': computers, toys, recreation and entertainment. Reg.10(2) provides that 'essential living needs' 'as a general rule' are met by a weekly cash payment per person, increased to £49.18 after the previous rate was found unlawful in R(CB) v SSHD [2023] 4 WLR 28. Since R(BCD), it was held in R(HA) v SSHD [2023] PTSR 1899 essential living needs should generally be met by the Home Office with cash. While there are uplifts for children under 3 and maternity grants, Asylum Support is 'capped' (here an apt word, but see below) at set rates for accommodation and for 'essential living needs'. Gross LJ in R(JK Burundi) v SSHD [2017] 1 WLR 4567 (CA) at [67] explained 'essential living needs' are limited to 'subsistence needs' to avoid destitution and meet minimum living standards rather than including 'welfare needs' to promote children's welfare.
s.17 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.
"(2) For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part 1 of Schedule 2.
(3) Any service provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child's welfare….
(4A) Before determining what (if any) services to provide for a particular child in need in the exercise of functions conferred on them by this section, a local authority shall, so far as is reasonably practicable and consistent with the child's welfare— (a) ascertain the child's wishes and feelings regarding the provision of those services; and (b) give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain….
(6) The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation and giving assistance in kind or in cash….
(8) Before giving any assistance or imposing any conditions, a local authority shall have regard to the means of the child concerned and of each of his parents….
(10) For the purposes of this Part a child shall be taken to be in need if— (a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part; (b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or (c) he is disabled, and 'family', in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.
(11) … in this Part— 'development' means physical, intellectual, emotional, social or behavioural development; and 'health' means physical or mental health."
"7. Every local authority shall take reasonable steps designed— (a) to reduce the need to bring— (i) proceedings for care or supervision orders with respect to children within their area; … (iii) any family or other proceedings with respect to such children which might lead to them being placed in the authority's care; …
"8. Every local authority shall make such provision as they consider appropriate for the following services to be available with respect to children in need within their area while they are living with their families— (a) advice, guidance and counselling; (b) occupational, social, cultural or recreational activities; (c) home help (which may include laundry facilities); (d) facilities for, or assistance with, travelling to and from home for the purpose of taking advantage of any other service provided under this Act or of any similar service; (e) assistance to enable the child concerned and his family to have a holiday…."
10. Every local authority shall take such steps as are reasonably practicable, where any child within their area who is in need and whom they are not looking after is living apart from his family— (a) to enable him to live with his family … if, in their opinion, it is necessary to do so in order to safeguard or promote his welfare."
'A family' can include adult siblings with accommodation, but an authority may not be obliged to meet their other needs: R(OA) v Bexley LBC [2020] PTSR 1654. Also relevant is s.11(2)(a) Children Act 2004 ('ChA 2004') requiring local authorities to 'make arrangements for ensuring that their functions are discharged having regard to the need to safeguard and promote the welfare of children'.
"It is settled law that the s.17 scheme does not create a specific or mandatory duty owed to an individual child. It is a target duty which creates a discretion in a local authority to make a decision to meet an individual child's assessed need. The decision may be influenced by factors other than the individual child's welfare and may include the resources of the local authority, other provision that has been made for the child and the needs of other children (see, for example R. (G) v LBC [2004] 2 AC 208 at [113] and [118]). Accordingly, although the adequacy of an assessment or the lawfulness of a decision may be the subject of a challenge to the exercise of a local authority's functions under s.17, it is not for the court to substitute its judgment for that of the local authority on the questions whether a child is in need and, if so, what that child's needs are, nor can the court dictate how the assessment is to be undertaken. Instead, the court should focus on the question whether the information gathered by a local authority is adequate for the purpose of performing the statutory duty, i.e. whether the local authority can demonstrate that due regard has been had to the dimensions of a child's best interests for the purposes of s. 17 CA 1989 in the context of the duty in s. 11 of the Children Act 2004 to have regard to the need to safeguard and promote the welfare of children."
"In carrying out [a] review, the local authority will no doubt bear in mind, not only their duties under s.17, but also their duty under s.11 of the Children Act 2004, to discharge all their functions having regard to the need to safeguard and promote the welfare of children, and their duty, under s.75 of the Education Act 2002, to exercise their education functions with a view to safeguarding and promoting the welfare of children. Safeguarding is not enough: their welfare has to be actively promoted."
In R(HC) at [37], Lord Carnwath agreed about the effect of s.17 CA:
"[T]he primary objective is to promote the welfare of the children concerned, including the upbringing of such children by their families."
As with any statutory discretion, decisions under s.17 ChA must be consistent with that statutory purpose: Padfield v Minister of Agriculture [1968] AC 997 (HL). So must policies guiding such decisions: R(PSC) v DHCLG [2020] 1 WLR 1774 (SC).
"[23] In so far as it was submitted that destitution as defined by s.95 IAA 1999, i.e. an inability to meet essential living needs or inadequate accommodation, or by s.4 IAA 1999, i.e. destitution in the context of accommodation, is relevant to s.17 CA 1989, the difference between the purposes of the two statutory schemes must be borne in mind. The latter scheme is to be applied to those persons who would otherwise be ineligible for recourse to public funds in order to avoid a breach of their Convention rights. Furthermore, the s.17 scheme, unlike the IAA schemes, is not the subject of regulations that make provision for the support which is to be made available to the defined group for a specific purpose.
[21] Given that the legislative purpose of s. 17 CA 1989 in the context of s.11 of CA 2004 is different from that in ss.4 and 95 IAA 1999, it would be difficult for a local authority to demonstrate that it had paid due regard to the former by adopting a practice or internal guidance that described as its starting point either the child benefit rate or either of the IAA support rates. The starting point for a decision has to be an analysis of all appropriate evidential factors and any cross-checking that there may be must not constrain the decision maker's obligation to have regard to the impact on the individual child's welfare and the proportionality of the same."
I will return in dealing with Ground 4 to [21] and what Sir Ernest Ryder meant by 'starting point', but the key point is that s.17 ChA is fundamentally different from Asylum Support. Therefore, as he added in R(C) at [22], 'it is likely to be irrational to limit s.17 support to that provided in a different statutory scheme', e.g. Asylum Support. However, I emphasise he said 'limit', to which I also return on Ground 4. However, I first turn to Ground 1A, where my interpretation in R(BCD) of para.3 Sch.3 NIAA is challenged along with my suggestion there that it creates a separate 'statutory category' of support than for families with unrestricted s.17 ChA support.
Ground 1A: The effect of para. 3 NIAA Sch.3 Nationality, Immigration and Asylum Act
"Paragraph 1(1) A person to whom this paragraph applies shall not be eligible for support or assistance under— … (g) section 17, 23C, 23CZB, 23CA, 24A or 24B of the Children Act 1989 (welfare and other powers which can be exercised in relation to adults).
(2) A power or duty under a provision referred to in sub-paragraph (1) may not be exercised or performed in respect of a person to whom this paragraph applies (whether or not the person has previously been in receipt of support or assistance under the provision).
Paragraph 2(1) Paragraph 1 does not prevent the provision of support or assistance—(a) to a British citizen, or (b) to a child…(c) under or by virtue of regulations made under paragraphs 8, 9 or 10 below, or (d) in a case in respect of which, and to the extent to which, regulations made by the Secretary of State disapply paragraph 1….
Paragraph 3: Paragraph 1 does not prevent the exercise of a power or the performance of a duty if, and to the extent that, its exercise or performance is necessary for the purpose of avoiding a breach of a person's Convention rights.
Paragraph 7: Paragraph 1 applies to a person if (a) he is in the United Kingdom in breach of the immigration laws within the meaning of section 50A of the British Nationality Act 1981 and he is not an asylum-seeker….
Paragraph 10(1) The Secretary of State may make regulations providing for arrangements to be made for the accommodation of a person if— (a) paragraph 1 applies to him by virtue of paragraph 7, and (b) he has not failed to cooperate with removal directions issued in respect of him.
(2) Arrangements for a person by virtue of this paragraph— (a) may be made only if the person has with him a dependent child, and (b) may include arrangements for a dependent child."
"[S]ection [54] introduces Schedule 3, which restricts the type of support and accommodation provided to those who are European Union (EU) or EEA citizens; those with refugee status in other EU/EEA states; failed asylum seekers and persons unlawfully present in the UK.
Paragraph 1 (1) (a) - (m) of Schedule 3 lists the various pieces of legislation …under which support and/or accommodation to individuals in these categories will be restricted. Sub-paragraph (2) provides that any powers or duties imposed by the legislation in Paragraph 1 may not be exercised in respect of any person to whom this applies, regardless of whether that person has received support or not in the past.
Paragraph 2 provides a safety net to children under 18. Children will remain eligible for support or assistance, as will adults provided for in regulations as eligible to receive it.
Paragraph 3 addresses our international obligations. Nothing prevents local authorities or the National Asylum Support Service (NASS) exercising powers or performing duties to the extent that it is necessary to avoid breaching any European Convention on Human Rights (ECHR) right…
Paragraph 7 provides that persons who are unlawfully present in the UK, and who are not asylum-seekers, are ineligible for support.
Paragraph 9 allows the Secretary of State to make arrangements, by regulation, for persons to be provided with accommodation until the time of their journey home. Only persons with dependent children will have accommodation arranged. Paragraph 10 makes the same arrangement for persons unlawfully in the UK. Again, only persons with dependent children will be provided with accommodation as long as they have not failed to co-operate with removal directions issued in respect of them.
In R(BCD) at [87]-[93], without considering those Explanatory Notes, I suggested paragraph 1 Sch.3 acted as a 'prohibition'. As I shall discuss, on reflection, a better description of paragraph 1 is 'restriction', which is also preferable to characterising para.3 as acting as a 'cap' on support as I did in R(BCD) at [91] and [107]. In the present case of a family without current leave to remain in the UK who are in breach of immigration laws, para.7 Sch.3 applies the restriction on support under s.17 ChA in para.1 Sch.3 NIAA, subject to the exceptions in para.2 and para.3.
"(1) The claimants and their parents are all in the United Kingdom in breach of immigration laws (and are not asylum seekers). Paragraph 1 of Schedule 3 therefore applies so as to make them all prima facie ineligible for support or assistance under s.17 …
(2) However, as the claimants are children, paragraph 1 does not prevent the provision of support or assistance to them (paragraph 2(1)(b) Schedule 3).
(3) Nevertheless, paragraph 1 … prevents powers under s.17 from being exercised so as to provide support or assistance to the claimants' parents.
(4) All this is subject to paragraph 3, which allows a power under section 17 to be exercised if and to the extent that its exercise is necessary for the purpose of avoiding a breach of the Convention rights of any member of the claimants' family."
"Paragraph 1 does not prevent the exercise of a power or the performance of a duty if, and to the extent that, its exercise or performance is necessary for the purpose of avoiding a breach of a person's Convention rights."
I considered the interpretation of this provision in R(BCD) at [105]-[111] and concluded that it effectively 'capped' provision at the extent required to avoid a breach of the ECHR. My core reasoning was at [107]-[109], which I repeat:
"107 I consider that paragraph 3 of Schedule 3 NIAA must mean that section 17 CA (and other paragraph 1-barred) support to "ineligible" people is "capped" at the extent of such support which is necessary to avoid an ECHR breach, rather than being "uncapped" once some support is necessary to avoid breach:
107.1 Firstly, the meaning of "to the extent that" in paragraph 3 of Schedule 3 is (to use the words of Lord Hodge DPSC at para 30 of R (PRCBC) v SSHD [2023] AC 255) clear, unambiguous and does not produce absurdity and so should be read to mean what it says in a way not displaced by external context. It limits the extent to which support must be provided under section 17 CA etc to that "necessary for the purpose of avoiding a breach of … a person's [ECHR] rights". It restrains not just whether support can be provided, but how much support can be.
107.2 Secondly, I approach parliamentary intention (as Lord Hodge put it at [31] R(PRCBC)), as an objective assessment of the meaning which a reasonable legislature would be seeing to convey in the words it chose. The words 'to the extent that' clearly indicate a parliamentary intention to limit the extent of support, not just the availability. Otherwise, it would weaken Parliament's prohibition of support listed in paragraph 1 of Schedule 3, by bringing it back in full measure if the unavailability of any support at all would breach the ECHR, rather than limiting support to that necessary to avoid such a breach.
107.3 Thirdly, as Lord Hodge suggested at [29] of R(PRCBC), looking at the wider context of the NIAA, it is not seriously arguable that 'to the extent that' in paragraph 3 of Schedule 3 under s.54 means something different than 'to the extent' in s.55(5)(a) as interpreted in R(Limbuela) v SSHD [2006] 1 AC 396…..In Schedule 3, paragraph 2(1) permits uncapped direct provision to children: R (M) [2005] 1 WLR 884, but financial support to their ineligible carer, has a deliberate "ECHR breach cap".
108 However, I am conscious that R(Limbuela) was only concerned with the article 3 ECHR rights of adults and not other ECHR rights, especially those of children, as Lord Bingham noted at para 4. Conversely in R (M) and R (Clue) v Birmingham CC [2010] PTSR 2051, the court was concerned with (British) children of ineligible carers and stressed article 8 ECHR family life was also relevant to "avoiding ECHR breach" in paragraph 3 of Schedule 3. In R (Clue) at para 63, Dyson LJ drew on comments in R (M) to state that:
"[I]n enacting Schedule 3, Parliament cannot reasonably have intended to confer a general power on local authorities to pre-empt the determination by the [Home Office] of applications for leave to remain. In my judgment, save in hopeless or abusive cases, the duty imposed on local authorities to act so as to avoid a breach of an applicant's Convention rights does not require or entitle them to … in effect, determine such an application themselves by making it impossible for the applicant to pursue it."
To avoid article 8 ECHR breach only requires support necessary to enable a family to maintain their article 8 family and private lives, i e support sufficient to enable the family to stay in the UK pending an article 8 immigration claim. For children with a developed "family and private life" in the UK, this 'raises the bar' for support from the 'basic necessities of life' threshold for Art.3 breach described by Lord Bingham in R(Limbuela) but is still limited to the extent necessary to avoid an ECHR breach.
109 R (C) v Southwark LBC [2016] HLR 36 was a paragraph 3 of Schedule 3 case involving an ineligible (overstaying) mother and her non-British children, yet the court still considered support should not be 'benchmarked' to the asylum support rate (actually the family received much more). This plainly shows those 'ineligible' families within paragraph 3 of Schedule 3 to the NIAA are in a different statutory category to asylum seekers (unless they are "failed" and fall within paragraphs 6 or 7A of Schedule 3). However, R (C) did not quote or construe paragraph 3 of Schedule 3, cite R(Limbuela) or consider the 'ECHR breach cap' issue, as it did not concern comparing support to those generally eligible under section 17 CA and 'ineligible' carers as a result of paragraph 3 of Schedule 3. I find they are also two different "statutory categories" for three reasons:
109.1 Firstly, I have already explained why paragraph 3 of Schedule 3 restricts section 17 CA support available to "ineligible carers" of children under Schedule 3 "to the extent necessary" to avoid an ECHR breach. This is the clear meaning of the language, which is unambiguous: R (PRCBC). Conversely, those not "ineligible" within Schedule 3 are only restricted by section 17 CA "need".
109.2 Secondly, that interpretation is consistent with the statutory context of paragraph 3 of Sch.3: it provides an exception to the bar in paragraph 1 of Sch.3, which itself only applies to the "ineligible categories" in Sch.3, including 'failed asylum seekers with families' served with a certificate relating to leaving the UK as well as 'those unlawfully in the UK'. Therefore the purpose of paragraph 3 is plainly to avoid ECHR breaches risked by the paragraph 1 bar—to relax the bar, to the extent necessary to avoid ECHR breach as discussed.
109.3 Thirdly, this must be the true construction of paragraph 3 of Sch.3, because if it did not restrict the extent of support under s.17 CA, Schedule 3 would be otiose. By contrast, the clear meaning from the wording, context and plain parliamentary intention of paragraph 3 (and Schedule 3) is that it was intended to restrict s.17 CA (and other) support for the "ineligible" groups listed in Sch.3: those with no good reason to stay in the UK."
"29 The courts in conducting statutory interpretation are 'seeking the meaning of the words which Parliament used': Black-Clawson International Ltd v Papierwerke AG [1975] AC 591, 613 per Lord Reid. More recently, Lord Nicholls of Birkenhead stated: 'Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context' (R v Secretary of State for the Environment exp Spath Holme Ltd [2001] 2 AC 349, 396.) Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context. They are the words which Parliament has chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained. There is an important constitutional reason for having regard primarily to the statutory context as Lord Nicholls explained in Spath Holme, p 397: 'Citizens, with the assistance of their advisers, are intended to be able to understand parliamentary enactments, so that they can regulate their conduct accordingly. They should be able to rely upon what they read in an Act of Parliament'.
30 External aids to interpretation therefore must play a secondary role. Explanatory Notes, prepared under the authority of Parliament, may cast light on the meaning of particular statutory provisions. Other sources, such as Law Commission reports, reports of Royal Commissions…and Government White Papers may disclose the background to a statute and assist the court to identify not only the mischief which it addresses but also the purpose of the legislation, thereby assisting a purposive interpretation of a particular statutory provision. The context disclosed by such materials is relevant to assist the court to ascertain the meaning of the statute, whether or not there is ambiguity and uncertainty, and indeed may reveal ambiguity or uncertainty…But none of these external aids displace the meanings conveyed by the words of a statute that, after consideration of that context, are clear and unambiguous and which do not produce absurdity."
(I note R(PRCBC) was applied when interpreting the phrase 'Convention rights' in para.3 Sch.3 NIAA in R(CVN) v Croydon LBC [2023] 1 WLR 3950 (HC)). I will therefore address firstly the meaning of the statutory language of para.3 and the 'statutory setting' or 'internal context' within the NIAA, secondly its 'statutory background' or 'external context' of other NRPF statutory schemes; then thirdly R(M), R(Clue) and the wording of the NRPF policy under challenge in this case.
"1(1) A person to whom this paragraph applies shall not be eligible for support or assistance under— … (g) section 17… Children Act 1989 (welfare and other powers which can be exercised in relation to adults).
2(1) Paragraph 1 does not prevent...provision of support…(b) to a child…
3. Paragraph 1 does not prevent the exercise of a power or the performance of a duty if, and to the extent that, its exercise or performance is necessary for the purpose of avoiding a breach of a person's Convention rights."
Mr Khubber submitted my interpretation of para.3 Sch.3 in R(BCD) went wrong in placing the wrong emphasis on the phrase 'to the extent that'. Instead, he places emphasis on the concept of 'eligibility'. The essence of his submission is that paras.1, 2 and 3 Sch.3 are concerned with eligibility for provision (e.g. under s.17 ChA) rather than level of provision. He submits the Claimant and her family are caught by para.1 as overstayers unlawfully in the UK under para.7 (albeit with an Art.8 ECHR application for leave to remain pending determination). The Claimant and her brothers are children, so are eligible for provision due to para.2(1)(b), but their mother LC is not. Her eligibility for s.17 ChA support (which as para.1 says is a power that can be exercised for adults) turns on para.3. So, Mr Khubber submits:
"It is clear that paras.1, 3 and 4-7 focus on persons who are ineligible for assistance because of their immigration context. It is that…the exclusion is focussed on in terms of the ECHR obligation and not 'service provision' – no 'cap' is suggested in the language of [Schedule 3]....directed rather as it is to 'ineligibility'."
In short, Mr Khubber submits that eligibility is 'binary': para.1 'switches off' eligibility for people in paras 4-7 Sch.3, but it is 'switched back on' for provision to a child under para.2(1)(b) and/or if any support at all to the adult or family generally within s.17 ChA is necessary to avoid an ECHR breach under para.3 Sch.3. He relies on R(W) v SSHD [2020] 1 WLR 4420 (DC) at [42]) as showing that 'necessary for the purpose of avoiding a breach' in para.3 means it is prospective and proactive: to avoid an ECHR breach, not to correct one after it has occurred. He also submits that 'to the extent that' is not concerned with the level of support to avoid a breach, but its duration: to enable support for a long as 'necessary' (e.g. pending an application for leave as in R(Clue)). Finally, he submits I was wrong in R(BCD) to equate para.3 Sch.3 with s.55(5)(a) NIAA which states:
"This section shall not prevent … the exercise of a power to the extent necessary for the purpose of avoiding breach of a person's [ECHR] rights."
In R(Limbuela) v SSHD [2006] 1 AC 396 (HL) at [5], Lord Bingham said:
"The Secretary of State's freedom of action is closely confined. He may only exercise his power to provide or arrange support where it is necessary to do so to avoid a breach and to the extent necessary for that purpose. He may not exercise his power where it is not necessary to do so to avoid a breach or to an extent greater than necessary for that purpose."
Mr Khubber accepts that Lord Bingham there made clear that s.55(5)(a) NIAA did govern the level of provision necessary to avoid ECHR breach. However, he submits that the context and purpose of s.55 NIAA (which applies to late claimants for asylum) on avoiding destitution is different from para.3 Sch.3 NIAA, which as made clear in R(C) is concerned with regulating s.17 ChA and so 'welfare'.
"The guidance, if it does indeed treat all three ineligible cases together, makes clear that the [10 days]….accommodation that is all that Islington can offer is intended.. to encourage or force Mrs M to leave the UK; even though, paradoxically…[it] has no power to make travel arrangements. It is therefore necessary to consider whether that will lead to a breach of Convention rights; because, if it will, paragraph 3 of Schedule 3 to the 2002 Act requires reversion to the original Children Act 1989 powers."
Mr Khubber also relies on the observations of Dyson LJ (as he was) in R(Clue):
"48….As is made clear by paragraph 3 of Schedule 3 to the 2002 Act, paragraph 1 does not prevent the performance of a duty if and to the extent that its performance is necessary for the purpose of avoiding a breach of a person's Convention rights notwithstanding that the person is in the UK in breach of the immigration laws and the case is a paragraph 7 case…..
54 When a local authority considers whether to provide assistance to a person pursuant to Schedule 3, it must first decide whether paragraphs 6 or 7 applies, i e, whether the person was, but no longer is, an asylum-seeker who has failed to co-operate with removal directions issued in respect of him (paragraph 6) or he is in the UK in breach of the immigration laws or is an asylum-seeker: paragraph 7. Secondly, if paragraphs 6 or 7 do apply, the local authority must decide whether and, if so, the extent to which it is necessary to exercise a power or perform a duty for the purpose of avoiding a breach of a person's Convention rights. Where there is available to a local authority a range of different types of assistance that would avoid a breach of Convention rights, the local authority should identify what types of assistance it may provide to avoid a breach of Convention rights and then choose between them."
Mr Khubber submits that there was no suggestion in R(Clue) at [54] that para.3 limits the extent of support to avoid a breach of the ECHR as I suggested in R(BCD). Indeed, Mr Khubber suggests his interpretation of any support necessary to avoid ECHR breach 'switching back on' full eligibility is reflected in the Defendant's policy (in material respects the same in the 2024 version as the 2023 version):
"[Applicants] can only receive 'support or assistance' under section 17 [CA] if such support is necessary to prevent a breach of their human rights… Schedule 3 does not mean that assistance can automatically be refused to a family when the parent is in an excluded group, because support must be provided where this is necessary to avoid a breach of the family's human rights. The purpose of Schedule 3 is to restrict access to support for a family where the parent is in an excluded group because they either have no permission to remain in the UK, or can no longer self-support, and when returning to country of origin (where they may be able to access employment and receive services), would avoid a breach of human rights which may occur if they remain destitute in the UK. This means that, along with establishing whether there is a child in need, local authorities must identify…any legal or practice barriers preventing the family's return to the parent's country of origin, as return cannot be considered unless these are cleared. This is done by undertaking a human rights assessment."
"What Islington would have to determine is what power or duty they could perform under s.17 to prevent the breach of convention rights; their freedom to go back to s.17 is only to the extent that the exercise of the power under s.17 'is necessary' for the purpose of avoiding a breach."
He added 'If that means all that could be supplied was accommodation', then it did not matter whether the interpretation of the guidance he favoured or Buxton LJ favoured was correct (because accommodation could be provided under para.3 anyway). But he also suggested the suggestion that para.3 enabled funding of air tickets would give the authority a power it did not have under Sch.3 only because it proposed to act in breach of the ECHR. In any event, Waller LJ and Maurice Kay LJ found accommodation under para.10 was not limited to 10 days and could continue until breach of removal directions when set (see [57]/[60]/[81]). Waller LJ's suggestion para.3 could mean that 'all that was supplied was accommodation' is inconsistent with the submission that para.3 'switches back on' full eligibility.
"A local authority is entitled to assist [parents] of a child in need [but] only to the extent necessary for the purpose of avoiding a breach of a person's [ECHR] rights… That may affect the extent of the support that it may be able to offer such an adult….. The amounts payable to such adults may not exceed what is necessary to avoid a breach of the [ECHR] rights of those involved. But such amounts should be additional to those the Council considers are appropriate to the needs of the children involved." (my italics)
a. Authorities should not refuse to assess for support families in a 'restricted group' in Sch.3 (R(DK), save as discussed there), as support could still be provided: (1) in the form of accommodation to the family under para.10 / Reg.3 WWSR; (2) direct to children under para.2(1)(b); or (3) to the family 'to the extent necessary to avoid ECHR breach' by para.3 (as discussed).
b. The fact a family are 'restricted' by Sch.3 does not mean children are not 'in need' under s.17(10) ChA with needs requiring authority provision: R(VC). In R(Zoumbas) v SSHD [2013] 1 WLR 3690 (SC) Lord Hodge said at [10(7)], a child must not be blamed for their parent's conduct. If anything, being 'NRPF' with precarious immigration status will increase a child's needs, given the parents' likely lack of means: (see s.17(8) and R(VC) at [30]).
c. So, authorities should therefore undertake a full s.17 ChA needs assessment as described in R(C), not least given the possibility of accommodation or direct child support irrespective of ECHR breach. Given s.17(4A), the assessment should ascertain and consider the child's wishes and feelings.
d. If children in a 'restricted' family in Sch.3 are assessed as 'in need', as discussed in R(C) the authority must have due regard to safeguarding and promoting the children's welfare, the statutory purpose. As Lady Hale emphasised in R(HC), 'safeguarding is not enough, their welfare has to be actively promoted'. Whilst there is no duty to meet assessed needs as such (R(G), R(C)), the authority must act consistently with that statutory purpose: Padfield. I suggest that it would tend to promote that purpose if the authority met needs so far as practicable in ways not engaging the 'ECHR restriction' in para.3 Sch.3, like accommodation under para.10 Sch.3 / Reg.3 WWSR and direct provision 'in kind' (s.17(6)) to the child under para.2(1)(b). That may include much of the provision listed in para.8 Sch.2 CA quoted above (such as counselling, occupational, social, cultural or recreational activities, home help (if a child has need for it, even if the parent not child is disabled), transport, or even provision of holidays or breaks).
e. However, in relation to assessed needs which can only be met through non-accommodation provision to the family engaging para.3 Sch.3 (e.g. cash to the parent for family living expenses), the authority should also assess, independently or within the needs assessment, what extent of additional support (as Mr Howell QC said in R(PO)) is necessary to avoid ECHR breach ('a human rights assessment'). I will expand upon this sub-paragraph having considered Arts.3 and 8 ECHR, to which I now turn in Ground 1B.
Ground 1B: Current financial assistance is in breach of Art.8 ECHR
"108 [Having discussed R(Clue), I said:] Therefore, to avoid article 8 ECHR breach only requires support necessary to enable a family to maintain their article 8 family and private lives, i.e. support sufficient to enable the family to stay in the UK pending an article 8 immigration claim. For children with a developed 'family and private life' in the UK, this 'raises the bar' for support from the 'basic necessities of life' threshold for article 3 ECHR breach described by Lord Bingham in R (Limbuela) but is still limited to the extent necessary to avoid an ECHR breach….
110 I was not addressed about what level of payments to 'ineligible' carers of 'children in need' under section 17 CA was 'necessary' to avoid ECHR breach under paragraph 3 of Schedule 3 to NIAA, which in my judgment must vary depending on the facts of the case. However, R (C) is clear that support remains under section 17 CA and depends on an individual needs assessment for the child …and rates even 'capped' by paragraph 3 still cannot be 'benchmarked' against other statutory schemes such as asylum support… But support under section 17 CA as 'capped' by paragraph 3 Schedule 3 obviously has a lower potential ceiling than general support under section 17 CA which is simply governed by the child's assessed needs, albeit operating in the way described in R(C) approved in R(HC)."
Support necessary to avoid breach of Art.3 ECHR
"7….Treatment is inhuman or degrading if, to a seriously detrimental extent, it denies the most basic needs of any human being. As in all Article 3 cases, the treatment, to be proscribed, must achieve a minimum standard of severity, and I would accept that in a context such as this, not involving the deliberate infliction of pain or suffering, the threshold is a high one. A general public duty to house the homeless or provide for the destitute cannot be spelled out of article 3. But I have no doubt that the threshold may be crossed if a late applicant with no means and no alternative sources of support, unable to support himself, is, by the deliberate action of the state, denied shelter, food or the most basic necessities of life…..
8 When does the [Home Office] duty under s.55(5)(a) arise ? The answer must in my opinion be: when it appears on a fair and objective assessment of all relevant facts and circumstances that an individual applicant faces an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food or the most basic necessities of life. Many factors may affect that judgment, including age, gender, mental and physical health and condition, any facilities or sources of support available to the applicant, the weather and time of year and the period for which [he] has already suffered or is likely to continue to suffer privation.
9 It is not in my opinion possible to formulate any simple test applicable in all cases. But if there were persuasive evidence..a late applicant was obliged to sleep in the street, save perhaps for a short and foreseeably finite period, or was seriously hungry, or unable to satisfy the most basic requirements of hygiene, the threshold would, in the ordinary way, be crossed."
Building on that, Lord Hope added in R(Limbuela) at [62]:
"The best guide to the test that is to be applied is to be found in the use of the word 'avoiding' in section 55(5)(a). It may be, of course, that the degree of severity which amounts to a breach of article 3 has already been reached by the time the condition of the asylum-seeker has been drawn to his attention. But it is not necessary for the condition to have reached that stage before…s.55(5)(a) is capable of being exercised. It is not just a question of 'wait and see'. The power has been given to enable the Secretary of State to avoid the breach. A state of destitution that qualifies the asylum-seeker for support under section 95 of the 1999 Act will not be enough. But as soon as the asylum-seeker makes it clear that there is an imminent prospect that a breach of the article will occur because the conditions which he or she is having to endure are on the verge of reaching the necessary degree of severity the Secretary of State has the power under section 55(5)(a), and the duty under section 6 of the Human Rights Act 1998, to act to avoid it."
"This makes two things clear. First, the fact that someone is 'destitute' as the term is defined for the purposes of s.95 [IAA] does not necessarily mean that he or she is enduring treatment contrary to Art.3 of the Convention: the threshold of severity which must be reached to make out a breach of Art.3 is higher than that required for a finding of destitution within the s.95(3) definition. Second, s.6 of the Human Rights Act 1998 ('HRA') imposes a duty to act not only when someone is enduring treatment contrary to Art.3, but also when there is an 'imminent prospect' of that occurring. In the latter case, the law imposes a duty to act prospectively to avoid the breach."
As a corollary, firstly as para. p.3 Sch.3 empowers (and s.6 HRA requires) a local authority to provide support where it knows an individual or family do or will imminently lack shelter, food, or the most basic necessities of life (R(Limbuela)) or endure 'degrading' living conditions causing 'serious suffering' (R(TMX)), it has a positive obligation to give support immediately to prevent those outcomes or if they have already arisen to correct them. Secondly, the Art.3 breach threshold is stricter than 'destitution' which full Asylum Support under s.95 IAA is calibrated to avoid. So, the equivalent of full Asylum Support - provided that it is up to date and checked against local living costs (see R(CB) v SSHD [2023] 4 WLR 28 and the NRPF Network guidance quoted above - is likely to avoid a prospective Art.3 breach. A wise authority will cross-check its s.17 provision to a family is at least that to avoid breach of Art.3. As the NRPF Network put it, a 'subsistence minimum'.
Support necessary to avoid breach of Art.8 ECHR
"8(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
8(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"There is no right under article 8 for anyone to be provided with a minimum standard of living by way of provision of social welfare: see R (SC) v Secretary of State for Work and Pensions [2022] AC 223 (SC), para 25, citing Petrovic v Austria (1998) 33 EHRR 14, para 26; see also Chapman v United Kingdom (2001) 33 EHRR 18, para 99 (article 8 does not impose an obligation on the state to provide a person with a home….). In the present case the state has met AM's most pressing needs by provision of support through NASS, so that he is neither destitute nor subject to violation of his rights under article 3 of the Convention: cf R(Limbuela)…"
"Neither Mr Sales nor Mr Swirsky, who appeared for the defendant in Anufrijeva [and if I may interrupt, the defendant in R(BCD)] challenged the decision of Sullivan J in Bernard's case, either in principle or on the facts. Our conclusion is that Sullivan J was correct to accept that article 8 is capable of imposing on a state a positive obligation to provide support. We find it hard to conceive, however, of a situation in which the predicament of an individual will be such that article 8 requires him to be provided with welfare support, where his predicament is not sufficiently severe to engage article 3. Article 8 may more readily be engaged where a family unit is involved. Where the welfare of children is at stake, article 8 may require the provision of welfare support in a manner which enables family life to continue. Thus, in R (J) v Enfield LBC [2002] EWHC 735, where the claimant was homeless and faced separation from her child, it was common ground that, if this occurred, article 8(1) would be infringed. Family life was seriously inhibited by the hideous conditions prevailing in the claimants' home in Bernard and we consider that it was open to Sullivan J to find that article 8 was infringed on the facts of that case."
"45 In so far as article 8 imposes positive obligations, these are not absolute. Before inaction can amount to a lack of respect for private and family life, there must be some ground for criticising the failure to act. There must be an element of culpability. At the very least there must be knowledge that the claimant's private and family life were at risk [B]reach of…. positive obligations of domestic law [to provide support] may suffice to provide the element of culpability necessary to establish a breach..provided that the impact on private or family life is sufficiently serious and was foreseeable.
46….Where the complaint is….culpable delay…in administrative processes..the approach of..Strasbourg has been not to find an infringement of article 8 unless substantial prejudice has been caused to the applicant….
47 We consider that there is sound sense in this approach at Strasbourg, particularly in cases where what is in issue is the grant of some form of welfare support. The Strasbourg Court has rightly emphasised the need to have regard to resources when considering the obligations imposed on a state by Art.8. The demands on resources would be significantly increased if states were to be faced with claims for breaches of Art.8 simply on the ground of administrative delays. Maladministration of the type that we are considering will only infringe article 8 where the consequence is serious.
48 Newman J [at first instance] suggested in Anufrijeva it is likely that acts of a public authority will have to have so far departed from the performance of its duty as to amount to a denial or contradiction of that duty before article 8 will be infringed. We think that this puts the position somewhat too high, for in considering whether the threshold of Art.8 has been reached it is necessary to have regard both to the extent of the culpability of the failure to act and to the severity of the consequence. Clearly, where one is considering whether there has been a lack of respect for Art.8 rights, the more glaring the deficiency in the behaviour of the public authority, the easier it will be to establish the necessary want of respect. Isolated acts of even significant carelessness are unlikely to suffice."
a. In R(M) at [46], Buxton LJ (the majority agreeing here) held Art.8 was engaged where the authority limited support to 10 days' accommodation and flights to the mother's origin country which if she did not take would risk care proceedings. Threat of removal of children solely due to family poverty plainly engages Art.8, as held in R(J) cited in R(Anufrievja). (Indeed, Strasbourg found a breach of Art.8 when children were removed simply for poverty in Melo v Portugal (2016) 72850/14). In this jurisdiction, that may well be culpable interference not in accordance with the law as paras.7 and 10 Sch.2 ChA require authorities to take reasonable steps (including s.17 support) to keep children with their families if consistent with their welfare. Therefore, if the assessment raises a risk of removal of the children due to poverty, it should also consider whether it is necessary to provide support.
b. In R(Clue), there was no threat of removal of children, but as discussed, it was held an authority was not entitled under para.3 Sch.3 NIAA to refuse to support a family if that would cause them to forfeit an arguable Art.8 application for leave. So, the Defendant's policy rightly describes such an application as a 'legal barrier' to the family returning, justifying support. Provided that is not obviously hopeless or abusive, the authority should provide support sufficient to enable the family to live in the UK pending the resolution of their Art.8 application (and can provide accommodation anyway until removal directions expire: R(M)). However, as noted, R(Clue) is silent on the level of support necessary. In some cases, accommodation and other support sufficient to avoid destitution may be enough to avoid breach of Arts.3 and 8, but in others Art.8 may require more support.
"…I question whether art.8 imposes a positive obligation on the state in the factual circumstances complained of. I accept that if a local authority fails to provide services in accordance with an assessment of need, then it is arguable that an immediate and direct link is capable of being established between the measures requested and the appellant's private life. Even then, 'regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the state enjoys a certain margin of appreciation' (per Lord Brown in R(McDonald)…at [15]). Given this Court in Anufrijeva…held a factual situation that did not cross the necessary threshold of severity to engage art.3 would not give rise to a positive obligation to provide welfare support under art.8, unless welfare support was necessary to allow family life to continue, the decisions of this … authority were well within the margin of appreciation the state enjoys."
On the other hand, in R(DA) v DWP [2019] 1 WLR 3316 (SC), Lord Wilson found reducing benefits 'well below the poverty line strikes at family life' at [35]-[37]:
"[T]he values underlying the right….to respect for their family life include those of a home life underpinned by a degree of stability, practical as well as emotional, and thus by financial resources adequate to meet basic needs, in particular for accommodation, warmth, food and clothing… One of the mothers has to cease buying meat for the children; or…has to go without food herself in order to feed the children or has to turn off the heating. Whatever their individual effect, provisions for a reduction of benefits to well below the poverty line will strike at family life."
That said, in R(DA), Lord Wilson was discussing the 'ambit' of Art.8 for Art.14 ECHR, which he said at [36], was different from 'interference' under Art.8(1). On the other hand, Lord Wilson plainly thought the sort of privations he discussed would undermine Art.8 family life. As Mr Howell QC put it in R(PO) at [47], it would hardly respect children's Art.8 right to family life to provide for them but leave their parents to starve. So, whether or not the sort of predicament Lord Wilson was discussing breaches Art.3, I accept it 'engages' Art.8 (but breach also requires 'culpable interference' under Art.8(1) and 'lack of justification' under Art.8(2)).
"In relation to assessed needs which can only be met through non-accommodation provision to the family engaging para.3 Sch.3 (e.g. cash to the parent for family living expenses), the authority should also assess (which may be part of the needs assessment) what extent of support (if any) is necessary to avoid ECHR breach ('a human rights assessment'). Whilst there is no requirement to do so, it may be helpful to consider:
(i) Whether there is a pending and arguable application for leave to remain on human rights grounds and whether refusal of support would force the family to leave the UK and forfeit that application: R(Clue). If so, support should enable them to stay; and in any event, accommodation can be provided until removal directions: R(M).
(ii) Support enabling the family to stay in the UK should at least avoid breach of Art.3 ECHR. Support avoiding destitution does: R(W). So, depending on whether the family has alternative sources of support, it may be helpful to 'cross-check' provision to see whether it is at least that for Asylum Support: as a 'subsistence baseline'.
(iii) However, additional support above that may be necessary to meet children's assessed needs (a 'welfare top-up'). So far as practicable, that should be done by accommodation or direct provision. But if it requires non-accommodation provision to the family, the authority should consider whether it is necessary to avoid breach of Art.8 family life. That will be more likely if such support is necessary to address unmet assessed heightened need (like disability: R(Bernard)). Or it may also be necessary for family life to continue, e.g. to avoid compulsory removal of children due to poverty or its consequences: R(M), or if family life is significantly undermined by the poverty in a way comparable to R(DA). However, there will only be a breach of Art.8 by refusal of support if it was both 'culpable' and 'unjustified'. It would be such if refusal breaches domestic law, but that is not the only form of breach: R(McDonald).
Is further support necessary to avoid breach of Art.8 ECHR in this case ?
"It was very difficult to survive on £135 per week..Most weeks we did not have enough money to buy enough food for all of us. My children always come first and I made sacrifices to make sure that they had enough food. I think I managed that. However, it meant that I didn't eat very much. Eating breakfast was a luxury for me and something that barely happened. I usually ate cereal around lunchtime before the children came from school and then whatever we had in the house after they came back. I rarely ate proper hot dinners because I had to prioritise my children. Not eating enough meant that I could not always take iron tablets prescribed by my GP."
This is similar to the position in R(DA) and it got worse still in January-February – the depths of winter – on £117 per week. Therefore, had the period when the family was receiving financial support of only £117 or even £135 per week formed part of this challenge, there is every chance that I would have found breach of Art.3 in creating imminent prospect of failing to cover the family's basic necessities of life – and indeed breach of Art.8 family life for similar reasons – especially as it was far below the level to avoid destitution in Asylum Support. It still has not been explained in the evidence from the Defendant how this happened, but the effects on the Claimant's family were severe as described in their statements. However, as Mr Khubber rightly accepted, the Claimant's challenge relates to the position since the family have consistently received £196.72 per week since roughly June 2024.
"The increase in financial support has made a big difference. I am able to buy more food and more variety. I am able to buy protein more often like meat and chicken. I am also able to buy some small treats for my children every now and then which is very nice and make sure they get enough vegetables and fruit. 1 try my very best to save a little bit every week to be able to do something nice at the end of the month, such as a small meal outside. This is very rarely possible because of the limited amount of money we receive. It is also very dependent on other expenses…I am now also able to eat breakfast and I eat two meals per day. I still have to eat in moderation to make sure the children get enough because they are always my priority."
Ground 4: Defendant's NRPF Policy is itself unlawful
Policy Challenges
"It is a familiar feature of public law that..public authorities often have wide discretionary powers to exercise. Usually these are conferred by statute….. Where public authorities have wide discretionary powers, they may find it helpful to promulgate policy documents to give guidance about how they may use those powers in practice. Policies may promote a number of objectives. In particular, where a number of officials all have to exercise the same discretionary powers in a stream of individual cases which come before them, a policy may provide them with guidance so that they apply the powers in similar ways and the risk of arbitrary or capricious differences of outcomes is reduced. If placed in the public domain, policies can help individuals to understand how discretionary powers are likely to be exercised in their situations and can provide standards against which public authorities can be held to account. In all these ways, policies can be an important tool in promoting good administration."
"[I]f established that there has in fact been a breach of the duty of fairness in an individual's case, he is of course entitled to redress for the wrong done to him. It does not matter whether the unfairness was produced by application of a policy or occurred for other reasons. But where the question is whether a policy is unlawful, that issue must be addressed looking at whether the policy can be operated in a lawful way or whether it imposes requirements which mean that it can be seen at the outset that a material and identifiable number of cases will be dealt with in an unlawful way."
This distinction also has the important practical dimension that whilst a successful challenge to a decision typically only directly impacts the claimant's position, a successful challenge to a policy directly impacts all those affected by that policy.
"In the case of policies in relation to the exercise of statutory discretionary powers, it is unlawful for a public authority to fetter the discretion conferred on it by statute by applying a policy rigidly and without being willing to consider whether it should not be followed in the particular case."
That is the basis of the 'inflexible decision' challenge I consider with Ground 3.
"The general rule is that anyone who has to exercise a statutory discretion must not 'shut his ears to an application'… I do not think there is any great difference between a policy and a rule. There may be cases where an authority ought to listen to a substantial argument reasonably presented urging a change of policy. What the authority must not do is to refuse to listen at all. But a large authority may have had to deal already with a multitude of similar applications and then they will almost certainly have evolved a policy so precise that it could well be called a rule. There can be no objection to that, provided the authority is always willing to listen to anyone with something new to say."
More recently, in R(Sandiford) v Foreign Office [2014] 1 WLR 2697 (SC), Lord Sumption explained the justification of the 'no fettering' principle with a policy (which he held did not apply to common law powers like the Prerogative) at [81]:
"The basis of the rule against the fettering of discretions, as…Lord Reid pointed out, is that a discretion conferred on a decision-maker is to be exercised. Within the limits of that discretion, which will normally be derived from terms in which it was conferred, members of the class of potential beneficiaries have a right to be considered, even if they have no right to any particular outcome. The effect of the decision-maker adopting a self-imposed rule that he will exercise his discretion in only some of the ways permitted by the terms in which it was conferred, is to deny that right to those who are thereby excluded. It also leads to the arbitrary exclusion of information relevant to the discretion conferred, and thereby to inconsistent, capricious and potentially irrational decisions."
That is the basis of the 'Support Rates Page Inflexibility' challenge.
"We recognise that we have subjected [the Immigration Rule] and the Instruction to a detailed logical and linguistic analysis. This is not because we expect the authors of instruments intended to be applied by non-lawyers to apply the same linguistic precision, or the same conventions, as statutory draftsmen. It is because any exercise whose aim is to discern the 'ordinary and natural' meaning of a text must start with a careful reading of the language used. That is true of a contract written by and for non-lawyers and it is no less true of the instruments we are considering here. We have, however, also tried to stand back, read the document as a whole and consider…what message caseworkers would draw from it."
I will adopt the same approach to interpretating the policy(-ies) in this case.
"Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act [which] must be determined by construing the Act as a whole . . . if the Minister . . . so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court."
Whilst Padfield itself was a challenge to such a decision, a policy on the exercise of a statutory discretion which runs counter to its purpose is similarly unlawful: R(PSC) v DHCLG [2020] 1 WLR 1774 (SC). I shall apply those principles to the 'unlawful purpose' challenge to Mr Heeley's stated general approach to the policy.
"38 [D]oes the policy in question authorise or approve unlawful conduct by those to whom it is directed ?...[I]t is not a matter of rationality, but rather that the court will intervene when a public authority has, by issuing a policy, positively authorised or approved unlawful conduct by others. In that sort of case, it can be said that the public authority has acted unlawfully by undermining the rule of law in a direct and unjustified way….
41. The test…is straightforward to apply. It calls for a comparison of what the relevant law requires and what a policy statement says regarding what a person should do. If the policy directs them to act in a way which contradicts the law it is unlawful. The courts are well placed to make a comparison of normative statements in the law and in the policy, as objectively construed. The test does not depend on a statistical analysis of the extent to which relevant actors might or might not fail to comply…
46 In broad terms, there are three types of case where a policy may be found to be unlawful by reason of what it says or omits to say about the law when giving guidance for others: (i) where the policy includes a positive statement of law which is wrong and which will induce a person who follows the policy to breach their legal duty in some way (ie the type of case under consideration in Gillick); (ii) where the authority which promulgates the policy does so pursuant to a duty to provide accurate advice about the law but fails to do so, either because of a misstatement of law or because of an omission to explain the legal position; and (iii) where the authority, even though not under a duty to issue a policy, decides to promulgate one and in doing so purports in the policy to provide a full account of the legal position but fails to achieve that, either because of a specific misstatement of the law or because of an omission which has the effect that, read as a whole, the policy presents a misleading picture of the true legal position...[W]here a Secretary of State issues guidance to his or her own staff explaining the legal framework in which they perform their functions, the context is likely to be such as to bring it within category (iii). The audience for the policy would be expected to take direction about the performance of their functions on behalf of their department from the….head of the department, rather than seeking independent advice of their own. So, read objectively, and depending on the content and form of the policy, it may more readily be interpreted as a comprehensive statement of the relevant legal position and its lawfulness will be assessed on that basis…..
47 In a category (iii) case, it will not usually be incumbent on the person promulgating the policy to go into full detail about how exactly a discretion should be exercised in every case. That would tend to make a policy unwieldy and difficult to follow, thereby undermining its utility as a reasonably clear working tool or set of signposts for caseworkers or officials. Much will depend on the particular context in which it is to be used. A policy may be sufficiently congruent with the law if it identifies broad categories of case which potentially call for more detailed consideration, without particularising precisely how that should be done…"
Mr Khubber and Ms Sekhon say it is a R(A) 'type-(iii)' challenge because even if the NRPF main policy and Support Rates page are read together, they still misstate the law (hence I call it the 'R(A) misstatement' challenge).
R(C) and related cases on 'starting-points' and 'cross-checks' for s.17 ChA support
"(1) It shall be the general duty of every local authority…(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…
(3) Any service provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child's welfare.
(6) The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation and giving assistance in kind or in cash….
"Sch.2 ChA 8. Every local authority shall make such provision as they consider appropriate for the following services to be available with respect to children in need within their area while they are living with their families— (a) advice, guidance and counselling; (b) occupational, social, cultural or recreational activities; (c) home help (which may include laundry facilities); (d) facilities for, or assistance with, travelling to and from home for the purpose of taking advantage of any other service provided under this Act or of any similar service; (e) assistance to enable the child concerned and his family to have a holiday."
"43 Section 17 services have the great merit of flexibility. They can be adjusted to the needs of the particular child or family….But they have several disadvantages when compared with the benefits and services from which [NRPF] children and their carers are excluded. First, they depend upon the local authority considering that the child is 'in need' as defined... subject only to judicial review on the usual principles. Second, they are discretionary and not as of right to those who qualify. Indeed, it has been held…..the s.17 duty is a 'target duty' rather than a duty owed to any individual child. Third, there are no standard rates for assistance in cash, as there are with state benefits generally, with the consequent risk of inconsistency between authorities. Fourth, providing assistance in cash does not automatically bring with it entitlement to other assistance, such as free school meals, to which receipt of certain benefits is a passport. Fifth, the only way in which a family can seek to challenge the local authority's decision is through judicial review[:] far more limited in scope and accessibility than an appeal to the…First-tier Tribunal….
46 In carrying out [a] review, the local authority will no doubt bear in mind, not only their duties under s.17, but also their duty under s.11 of the Children Act 2004, to discharge all their functions having regard to the need to safeguard and promote the welfare of children, and their duty, under s.75 of the Education Act 2002, to exercise their education functions with a view to safeguarding and promoting the welfare of children. Safeguarding is not enough: their welfare has to be actively promoted."
"A local authority that provides support for children in need…is acting under its powers as a children's services authority…not as a local social services authority performing functions relating to homelessness and its prevention, and not as a local housing authority. The limited nature of the local authority's power is important. The local authority appropriately remind this court of the statement [of Dobbs J] in R. (Blackburn Smith) v Lambeth LBC [2007] EWHC 767 (Admin) at [36] "... [T]he defendant's powers [under s.17] were never intended to enable it to act as an alternative welfare agency in circumstances where Parliament had determined that the claimant should be excluded from mainstream benefits".
Nevertheless, Lord Carnwath himself added in R(HC) at [37]:
"…[T]he primary objective is to promote the welfare of the children concerned, including the upbringing of such children by their families."
"A local authority making payments in respect of the subsistence needs of child, who is in need simply because his family is destitute, and those of his family must inevitably have some conception of how much is normally 'appropriate to those children's needs' in order 'to safeguard and promote their welfare'. As Popplewell J stated in R (Refugee Action) v SSHD [2014] EWHC 1033 at [38], 'normal needs of children...will not be exceptional'. It would be administratively absurd (if not impossible), and productive of unnecessary expense, if the amount required had to be assessed in each individual case without any guidance as to what is normally appropriate. Moreover, in practice, such an approach devoid of any general guidance would inevitably lead to unjustifiable and unfair differences in the amounts paid to different families in a similar position depending on the views of the individual or individuals making, or approving, such assessments. It is a common feature of welfare legislation that it provides for certain specified amounts to be payable to meet an individual's basic needs, as is the case, for example, with income support and payments to meet the essential living needs of those having asylum support. In my judgment, therefore, there was nothing unlawful as such in the Council prescribing various standard rates of payment to meet the subsistence needs of the families to whom the NRPF Policy applied provided the policy allowed for exceptions from it in exceptional circumstances: In re Findlay [1985] AC 318 at p336… Nonetheless 'the starting point in the policy against which any exceptional circumstances have to be rated must be properly evaluated' as Auld LJ put it in R v North West Lancashire Health Authority [2000] 1 WLR 977, 992g.
But Mr Howell QC found that 'starting-point' was unlawful as it had adopted the rate of child benefit that was not even a subsistence benefit, contained no element for an adult and was far lower even than Asylum Support.
"48 In my judgment, that is, prima facie, a rational approach for the council to take. It is for the local authority, not the courts, to determine what is the appropriate amount in cash that should be paid to alleviate destitution and meet the subsistence needs of a destitute family which includes children in need for whom the authority determines to provide assistance. The local authority has the expertise, and the awareness of the claims on its resources, to make the necessary judgments. The function of the court is to review the lawfulness of the local authority's decision not to substitute its view for that of the local authority as to the appropriate level of assistance to be provided. The decision of the local authority may only be challenged if the authority breached one of the well-established principles of public law….
49 First, there is nothing inherently unlawful in one public body having regard to the level of subsistence payments fixed by another public body as being necessary to avoid or alleviate destitution.
50 Secondly, such an approach does not involve a failure to exercise the power conferred by section 17 of the 1989 Act to promote or safeguard the welfare of children. The council has not confused the statutory purpose underlying the 1989 Act with the different purpose of providing facilities for the accommodation of failed asylum seekers under section 4 of the 1999 Act. Rather, the council is dealing with children who are in need because they face destitution. Given the pressures on their budget, the council has to assess the amount they consider appropriate to avoid the risk of destitution. In that respect, the council has had regard to the amounts that other public bodies consider necessary, as a minimum, to avoid destitution. That is, in principle, a lawful approach."
"39…[T]he only question for us is whether the local authority arbitrarily fixed the rate of financial support it was willing to provide by reference to other statutory benefits instead of the assessed needs of the family….
40. I am not persuaded it did. Financial and other support provided to the family was based on frequent assessments….[and whilst they] had an eye to the amounts payable by way of other benefits, but I am not persuaded that they treated them as in any sense a starting point or benchmark for determining the amount of support this family needed.
44….[T]he intervener submitted that Mensah had been wrongly decided. It is unnecessary for the purposes of this appeal to reach any final conclusion on that question. Much might depend on the approach that the local authority adopted in practice and whether the local authority's consideration of the base figure for failed asylum seekers effectively restricted its ability to make a proper assessment of the needs of the children in question. It does seem to me, however, that a level of support considered adequate simply to avoid destitution in the case of a failed asylum-seeker is unlikely to be sufficient to safeguard and promote the welfare of a child in need and by extension the essential needs of the parent on whom the child depends for care. Ultimately what matters is whether the assessment when completed adequately recognises the needs of the particular child."
[44] is relied on by Mr Khubber here. It was plainly obiter, like the passages he relies on from the judgment of Sir Ernest Ryder SPT, since the Court of Appeal did not have to make a finding that fixing s.17 ChA support at Asylum Support levels was unlawful, as that had not happened on the facts. Vos LJ (as he then was) agreed with the observations of Moore-Bick V-P and those of Sir Ernest Ryder SPT.
"20 That is simply to re-state in practical terms the need for a rational and hence consistent approach to decision making. It permits of appropriately phrased internal guidance or cross-checking that is consistent with the Secretary of State's statutory guidance but does not suggest, let alone approve of a policy or practice of fixing financial support by reference to the support available under other statutory schemes and for other purposes. In this case the questions…were answered by repeated assessments the contents of which are not challenged. The issue that remains is whether the local authority fettered its discretion in an inappropriate way…
21 Given that the legislative purpose of s. 17 CA 1989 in the context of s. 11 of CA 2004 is different from that in ss.4 and 95 IAA 1999, it would be difficult for a local authority to demonstrate that it had paid due regard to the former by adopting a practice or internal guidance that described as its starting point either the child benefit rate or either of the IAA support rates. The starting point for a decision has to be an analysis of all appropriate evidential factors and any cross-checking that there may be must not constrain the decision maker's obligation to have regard to the impact on the individual child's welfare and the proportionality of the same.
22 There is no necessary link between s.17 CA 1989 payments and those made under any other statutory scheme; quite the contrary. The s.17 scheme involves an exercise of social work judgment based on analysis of information derived from an assessment…applicable to a heterogeneous group of those in need. That analysis is neither limited nor constrained by a comparison with the support that may be available to any other defined group, no matter how similar they may be to the s.17 child in need. In any event, the circumstances of those who qualify for s.17 support, those who have...arrived seeking asylum and those who have failed in their application to be granted asylum are sufficiently different that it is likely to be irrational to limit s.17 support to that provided for in a different statutory scheme.
27…There is a difference of substance between an appropriate and lawful cross-check and inflexible fixing of rates whether by…an extraneous and inappropriate rate as a starting point or an inflexible policy or practice.
28…[T]here was no practice or policy in this case which establishes a basis for the claim nor which is comparable to the process of set rates fixation which was criticised in R(PO)…
29…[If] the local authority should have 'benchmarked' its support payments to the IAA 1999 support levels or indeed to any other fixed rate would be likely to be an irrational fetter on the local authority's discretion if it were not done in the context of an appropriate evidential exercise…….. I should not, however, be taken as endorsing Mensah', insofar as Lewis J gave the impression in [47]—[50] that the local authority's starting point should ever be amounts fixed under other statutory schemes."
a. Whilst both Sir Ernest Ryder SPT and Moore-Bick V-P in R(C) disapproved obiter of using Asylum Support as a 'starting-point' to s.17 ChA support, both said it was legitimate as a 'cross-check'. However, neither define or differentiate what they meant by either term. Therefore, it is also important to consider their statements of principle underlying that distinction.
b. This is particularly true because in R(PO), the 'starting-point' was child benefit rates subject to 'exceptional circumstances' but in R(Mensah) the 'starting-point' was quite different: s.4 IAA support to failed asylum-seekers subject to increase 'if needed'. Sir Ernest Ryder SPT disapproved of the reasoning in R(Mensah) but did not over-rule it. Moore-Bick V-P did not even go that far and simply said it was unnecessary to decide whether it was correct. Neither queried R(PO), indeed Sir Ernest Ryder SPT endorsed it as reflecting the need for rational and consistent decision-making.
c. In my view, the underlying principles Sir Ernest Ryder SPT discussed in R(C) were threefold. Firstly, the differences in statutory purpose and effect between s.17 ChA and Child Benefit and the support schemes under s.4 and 95 IAA. Secondly, the true 'starting-point' for s.17 ChA was a full needs assessment focusing on safeguarding and promoting welfare for the particular children in the particular case (see [21]). Thirdly, s.17 support should not be 'fixed' ([20], [27] and [28]) or 'limited' ([22]) by reference to those other statutory support rates, in other words, by the authority fettering its discretion (see [20]). Moore-Bick V-encapsulated the key point at [44]:
"Much might depend on the approach that the local authority adopted in practice and whether the local authority's consideration of the base figure for failed asylum seekers effectively restricted its ability to make a proper assessment of the needs of the children in question…. Ultimately what matters is whether the assessment when completed adequately recognises the needs of the particular child."
Lawfulness of the Defendant's Policy(-ies)
"9.…The support provided is intended to prevent destitution and ensure that children within NRPF families are not at risk…
10. The s.17 budget is allocated based on the specific needs of the child and their family, not on their wants or preferences. This means that funding decisions are made with the primary goal of addressing the essential needs that are necessary to safeguard and promote the child's welfare….
13. Coventry Children Services assess the circumstances of each child and family to determine what support is required to ensure the child's safety, health, and well-being. This typically includes providing financial assistance for necessities such as food, clothing, and shelter, or funding services that help maintain a stable home environment.
14.The key principle is that the s.17 budget is used to meet critical needs, particularly when failing to do so could lead to more severe outcomes, such as the need for the child to be taken into care. It is not intended to cover non-essential items or services that, while desirable, are not necessary for the child's welfare.
15. [In the s.17] budget, social worker managers do have the discretion to go beyond a minimum base rate of support, depending on the specific circumstances and needs of the child and family. While the primary focus is meeting essential needs, there is flexibility to provide additional support if it is deemed necessary to safeguard and promote the child's welfare.
16. For example, if a family is facing unique challenges that require more than just basic support, such as needing specialised services, emergency housing, or additional financial assistance to prevent a crisis. This discretionary support is assessed on a case-by-case basis, ensuring that the level of assistance provided is proportionate to the child's needs and the potential risks involved.
17.This discretion allows social workers…to respond to the specific situations they encounter, going beyond a one-size-fits-all approach and ensuring each child receives the level of support they need to thrive…
18. Whilst an assessment of a child and family's needs are being assessed Coventry Children Services will financially support a family applying a baseline amount. This is equivalent to the national rates… for those seeking asylum, under s.95 Immigration and Asylum Act 1999. The rates are reviewed annually and increased in line with inflation. Coventry adopts this approach to ensure consistency across our social work teams and to ensure that families receive support pending their needs being assessed."
"[Para 9 of] the statement….explicitly states by way of explanation of the policy that 'the support provided is intended to prevent destitution and ensure that children within NRPF families are not at risk'. It is submitted that preventing destitution and ensuring that children are not 'at risk' is clearly not the proper purpose of s.17 support. If the level of support an authority provides is intended only to prevent destitution, this is 'unlikely to be sufficient' (per Moore-Bick V-P in C) to satisfy the s.17 duty or achieve the aims and objectives that underpin that duty."
In my judgment, this is not a fair reading of Mr Heeley's statement which takes para.9 out of context of the rest of the passage I have quoted. To start with, whilst Mr Heeley said at para.9 that s.17 support was intended to avoid destitution and ensure children were not at risk, which is poorly expressed, he went on in the very next paragraph to say 'the primary goal of addressing the essential needs that are necessary to safeguard and promote the child's welfare' which was clearly what he meant. This is also clear from paras.13 and 14 where he differentiated 'essential' or 'critical' needs from 'non-essential needs'. Moreover, at para.15 he emphasised the 'flexibility to provide additional support if it is deemed necessary to safeguard and promote the child's welfare'. Read in that context, para.9 of Mr Heeley's statement in isolation is not expressive of the true approach that he is describing.
"Providing Support
The local authority has a power to provide a wide range of services in order to meet assessed needs under section 17 Children Act 1989. The local authority is not under a duty to meet all formally assessed needs; section 17 is a target duty and may take into account its resources in determining which needs are to be met, but such a decision must be reached rationally and the local authority must act reasonably.
The Court in R (C, T, M & U) [aks. R(C)]…set out the following principles:
- An assessment must be carried out to determine the needs of a particular child, in line with statutory guidance and with proper consideration of the best interests of the child;
- Support for families with NRPF should not be fixed to set rates or other forms of statutory support without any scope for flexibility to ensure the needs of an individual child are met;
- Local authorities must undertake a rational and consistent approach to decision making, which may involve cross-checking with internal guidance or other statutory support schemes, so long as this does not constrain the local authority's obligation to have regard to the impact of any decision on a child's welfare.
The Asylum Support webpage (GOV.UK) sets out the basis for housing, financial support, access to NHS healthcare and schools which may be available for an asylum seeker and their family while waiting to find out if they will be given asylum…
Excluded Groups
When a family with NRPF requests support, the local authority must establish whether the parent is in an excluded group, and therefore the family can only be provided with the support or assistance that is necessary to prevent a breach of their human rights– a 'human rights assessment'….
Schedule 3 does not mean that assistance can automatically be refused to a family when the parent is in an excluded group, because support must be provided where this is necessary to avoid a breach of the family's human rights. The purpose of Schedule 3 is to restrict access to support for a family where the parent is in an excluded group because they either have no permission to remain in the UK, or can no longer self-support, and when returning to country of origin (where they may be able to access employment and receive services), would avoid a breach of human rights which may occur if they remain destitute in the UK. This means that, along with establishing whether there is a child in need, local authorities must identify whether there are any legal or practice barriers preventing the family's return to the parent's country of origin, as return cannot be considered unless these are cleared…by….a human rights assessment."
I set out the Support Rates Page in full, but annotate it for convenience:
"2024/2025 NRPF Support Rates per Week
£49.18 per person [i.e. the full s.95 Asylum Support rate]
£9.50 Child under 1 year
£5.25 Child aged 1-3 years
£5.25 Pregnant mother [all of which track the Asylum Support scheme]
Gas £24.10
Electricity £24.10
Water £8.40 [which do not arise if there is free accommodation, as here and typically is the case with full Asylum Support)
Maternity grant, one off payment £300 if not supported by DWP. [Again, similar to Asylum Support but are not relevant in this case]
Bus passes/School Uniform can also be provided as required. [The key respect in which the 'Support Rates Page' is higher than Asylum Support]."
a. Firstly, insofar as the argument is that the Support Rates Page is a free-standing policy, that is simply not open to the Claimant. It was not pleaded, referred to in the Skeleton Argument or as far as I recall, mentioned in argument. It appeared for the first time in the CPHN, so the Defendant had no fair opportunity to put in evidence (as opposed to submissions) on it.
b. Secondly, treating the Support Rates Page as a free-standing policy would be inconsistent with Mr Heeley's unchallenged (indeed, relied-on) evidence of how the policy operates. But even ignoring that evidence, the challenge is inconsistent with the existence of the NRPF Policy itself, as Mr Alomo argued. It would be unrealistic to ignore the main policy as it is obvious the Support Rates Page is in effect an appendix to it, even if not expressly described as such. As stated in R(A) at [34] a policy is to be read objectively having regard to the intended audience. Here whilst I understand the NRPF policy and Support Rates Page were published, the people actually using them on a daily basis and their main intended audience were social workers and other staff of the Defendant. Moreover, as stated in R(W) at [43], [62]-[63] and [66], a policy (including, I would add, what is included in the 'policy') has to be read 'sensibly, according to the natural and ordinary meaning of the words used', which may start with detailed linguistic analysis but also involves 'standing back and reading the document as a whole to see what message caseworkers would draw from it'. The Support Rates Page does not even define what 'NRPF' means, which naturally leads one to look for another or wider policy alongside which it must be read.
c. Thirdly, taking into account both documents as part of the same policy, the Support Rates Page does not render the NRPF policy inflexible providing that both are read together properly in that way as intended. For the purposes of the main NRPF policy, the Support Rates Page is simply 'internal guidance' related to 'another statutory scheme', but the support can and should, as the main policy says, be flexed so it does not constrain the authority's obligation to have regard to the children's welfare and ensures that assessed needs of individual children are met, consistent with s.17 ChA.
For those reasons, I also reject the 'Support Rates Page inflexibility' challenge.
post-hearing note, is that even if the Support Rates Page is read with the NRPF policy, it might appear to cut down its flexibility almost to the point of apparent mutual inconsistency. As I have said, properly read together and applied in the way Mr Heeley describes, there is no difficulty, since the main NRFP policy makes the cardinal point that support should not be fixed to set rates, but flexible to meet individual children's needs. Yet, on the face of it, if not read properly e.g. in isolation, the Support Rates Page risks giving a misleading instruction of how the policy as a whole works. It just sets out the Asylum Support rates and adds 'Bus Passes / School Uniform can be provided as required'. However, what about any other services or support to a child (even if, as I have found provision in a 'Category 3' case is 'restricted' to the family) ? On a casual reading, a social worker may wrongly assume support is limited to the Support Rates Page. In short, this risk was why I referred to R(A) and granted permission on Ground 4. Nevertheless, Mr Alomo persuaded me it is not made out:
a. Firstly, I accept that the NRPF policy read along with the Support Rates Page falls within the scope of a R(A) type (iii) policy where the Defendant, although not under a duty, has issued a policy purporting to give a full account of the law to its staff applying it, as it is effectively internal guidance to staff as to how they should carry out their functions. Moreover, the main NRPF policy is comprehensive and specifically legal, referring to case-law like R(C). However, there is no complaint of any actual R(A) 'type (i)' 'specific misstatement of law' in the main NRPF policy; and as Mr Alomo points out, there is no statement of the law at all in the Support Rates Page.
b. Secondly therefore, the Claimant must show that between the two documents, there was an 'omission having the effect when the policy is read as a whole that it presents a misleading picture of the true legal position'. (Whilst I accept the point that Lords Sales and Burnett at in R(A) referred to 'broad types', that is unquestionably an essential element of (iii)). But again, there is no complaint of omission in the main NRPF policy, the attack purely relates to the terms of the Support Rates Page.
c. Thirdly, I accept that the Support Rates Page has 'omissions' in the sense that it would have been much better if it had said words to the effect of 'minimum baseline for NRPF families in excluded groups under the NRPF policy subject to welfare flexibility as necessary' as described by Mr Heeley; or even just 'Bus passes, school uniform and other support can also be provided as required'. It is badly-drafted. However, that is only unlawful if the omissions have the effect that the policy read as a whole presents a misleading picture of the true legal position (which would mean it authorises or approves unlawful conduct, which is the underlying test set out in R(A)).
d. Fourthly, I am persuaded by Mr Alomo that the Support Rates Page read together with the NRPF policy does not have a legally-misleading effect. The Support Rates Page is best seen as 'internal guidance' which cross-checks with the Asylum Support scheme, contemplated as legitimate in R(C), as rightly summarised in the policy itself. After all, it also states in terms that 'Support for families with NRPF should not be fixed to set rates or other forms of statutory support without any scope for flexibility to ensure the needs of an individual child are met'. Whilst interpretation of a policy is a matter objectively for the Court not the authority, since it must also be read as a whole, read in the light of the main NRPF policy, all the Support Rates Page itself does is just set the 'subsistence baseline' as Mr Heeley describes.
e. Finally, I consider this is a good example of the real difference between the approach in R(A) and the approach it disapproved. As Lord Sales and Burnett stressed in R(A) at [48], there is no requirement to eliminate uncertainty in drafting a policy and as they added at [65], the issue is not whether there is an 'unacceptable risk of unlawfulness'. I accept that if the Support Rates Page were read in isolation, it would be legally misleading, but if it is read properly alongside the main NRPF policy, it is not. The risk that the Support Rates Page could wrongly be read in isolation in a particular case does not render the whole policy unlawful. As put in R(A), it can be operated in a lawful way and does not authorise or approve unlawful conduct
Accordingly, I dismiss the 'R(A) misstatement' challenge and indeed Ground 4. However, I come back to this 'misinterpretation risk' now under Ground 3.
Ground 3: Legal Misdirection
The challenges to and conclusions of the assessment
"[T]he children do not get to routinely engage in lots of wider activities which appears to be the family's main worry. Children's Services provide the statutory support rates and whilst it would be lovely to be in a position where this could be increased so the family could have more day trips out, electronic devices etc, this is not possible." (my italics)
In their post-hearing note, Mr Khubber and Ms Sekhon summarised this challenge
"Under Ground 3 C submits that the current decision as to financial provision by D is unlawful by way of a misdirection in law i.e. by a) reference and reliance on current financial provision being in line with 'statutory support rates' and 'the updated Asylum support amount'."
In the Statement of Facts and Grounds, this part of the challenge was put this way:
"D has erred and misdirected itself in law by concluding that it is prevented from providing additional support to C on the basis that it provides support in line with the 'statutory support rates'…..There are no 'statutory support rates' for the purposes of s.17 and D errs in law by claiming that the[y] prevent it from providing additional support. D has a duty to provide additional support because it has identified needs...currently not being met."
This is a straightforward 'legal misdirection' argument relying on R(C) to contend it was an error of law in the assessment to consider either that there were 'statutory support rates' for s.17 ChA, or that it was 'not possible' to provide further support as the Claimant's family received financial provision at Asylum Support rates.
a. Firstly, even if the NRPF policy included the Support Rates Page and was lawful (as I found), the assessment applied the policy unlawfully rigidly and inconsistently with s.17 ChA's focus on welfare. In granting permission on Ground 3, I suggested that overlapped with Ground 4, but in the Claimant's post-hearing note (CPHN) it was argued as part of Ground 4 at para 5(i);
b. Secondly, even if support for the Claimant's family were 'restricted' (as I have now found in Ground 1A), assessing financial assistance essentially at Asylum Support rates was unlawful as it only met 'subsistence needs' rather than 'welfare needs' (argued as part of Ground 1 in CPHN at para 4(iii));
c. Thirdly, the other part of the original Ground 3 alleges a separate legal misdirection in the assessment by focussing on whether the family's finances gave rise to 'safeguarding issues' rather than focussing on welfare.
This 'wide' version of Ground 3 is a rather different challenge combining (a) a 'no-fettering' argument; (b) an 'inconsistency with statutory purpose' argument; and (c) a legal misdirection argument. But all focus on s.17 welfare.
"In construing assessments and care plan reviews, it should not be overlooked that these are documents that are usually drafted by social workers. They are not drafted by lawyers, nor should they be. They should be construed in a practical way against the factual background in which they are written and with the aim of seeking to discover the substance of their true meaning."
I also bear in mind that in R(Ireneschild) v Lambeth LBC [2007] HLR 34 (CA) Hallett LJ (with whom Dyson LJ, as he then was, agreed) observed at [71]-[72] that a social work assessment is an iterative document to which the individual can respond and which can be amended (the April 2024 assessment here was added as an 'update' to the August 2023 initial assessment and should be read as such).
"34 In the first place the authorities…emphasise the need for the assessment to embody 'a realistic plan of action'. That is an aspect of the duty to assess and indeed, a critical factor in determining whether that duty has been properly performed. But the authorities [do not] qualify what was said by the House in R(G) v Barnet LBC [2004] 2 AC 208 …. that there is, as such, no duty to provide the assessed services.
35 The second point appears from R (K) v Manchester CC (2007) 10 CCLR 87, para 39 that the assessment must address not only the child's immediate, current circumstances but also any imminent changes in [them].
36 The third point emerges from R(B) v Barnet LBC (2009) 12 CCLR 679 …. The assessment was struck down [as] it provided no realistic plan of action for meeting the child's assessed needs, one of the reasons being, at para 34, that [a third party provide under the plan] was not yet open. Though this was treated as a reason why the assessment itself was unlawful, it seems to me to illustrate a wider point. If a local authority is to say that a child who would otherwise be, in the statutory sense, a child in need is not, because his relevant needs are being met by some third party, then the authority must demonstrate that the third party is actually able and willing (or if not willing can be compelled) to provide the relevant services."
It is also helpful to consider what Munby LJ said about 'in need' at [28]-[29]:
"28 Section 17(10) provides: "[A] child shall be taken to be in need if (a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part…
29 The final words in sections 17(a)…are important. The duties of a local authority do not extend to all children who might be said to be 'in need'. Apart from a child who is 'disabled' in the statutory sense, they apply only to a child who 'without the provision for him of services by [the] local authority will fall within one or other of the statutory criteria…."
"12 It is settled law that the s.17 scheme does not create a specific or mandatory duty owed to an individual child. It is a target duty which creates a discretion in a local authority to make a decision to meet an individual child's assessed need. The decision may be influenced by factors other than the individual child's welfare and may include the resources of the local authority, other provision that has been made for the child and the needs of other children (see, for example R(G) v LBC [2004] 2 AC 208 at [113] and [118]). Accordingly, although the adequacy of an assessment or the lawfulness of a decision may be the subject of a challenge to the exercise of a local authority's functions under s.17, it is not for the court to substitute its judgment for that of the local authority on the questions whether a child is in need and, if so, what that child's needs are, nor can the court dictate how the assessment is to be undertaken. Instead, the court should focus on the question whether the information gathered by a local authority is adequate for the purpose of performing the statutory duty, i.e. whether the local authority can demonstrate that due regard has been had to the dimensions of a child's best interests for the purposes of s. 17 CA 1989 in the context of the duty in s. 11 of the Children Act 2004 to have regard to the need to safeguard and promote the welfare of children….
22 There is no necessary link between s.17 payments and those made under any other statutory scheme; quite the contrary. The s.17 scheme involves an exercise of social work judgment based on the analysis of information derived from an assessment…applicable to a heterogeneous group of those in need. That analysis is neither limited nor constrained by a comparison with the support that may be available to any other defined group, no matter how similar they may be to the s.17 child in need. In any event, the circumstances of those who qualify for s.17 support [and] those who have just arrived seeking asylum…are sufficiently different that it is likely to be irrational to limit s.17 support to that…in a different statutory scheme."
Whilst I found under Ground 4 that the Defendant's policy did not unlawfully 'fix' or 'limit' provision at Asylum Support levels, it is alleged in Ground 3 that the assessment itself was a 'rigid application' of the policy. The 'no fettering' principle relating to decisions rather than policies was explained in R(A) at [3]:
"In the case of policies in relation to the exercise of statutory discretionary powers, it is unlawful for a public authority to fetter the discretion conferred on it by statute by applying a policy rigidly and without being willing to consider whether it should not be followed in the particular case."
"Since the [Initial Assessment] in August 2023, Children's Services have supported [LC] and children to obtain suitable temporary accommodation and provided financial support. This is ongoing whilst the[ir] immigration application sits with the Home Office….[U]ntil then, [LC] is completely dependent on Children's Service for accommodation and finances…..[LC] and the children experienced instability with their hotel accommodation and lower weekly sustenance payments. The family are now living in a house…which is more suitable for the family and caters to all of the children's basic care needs. Whilst not ideal as it is still temporary accommodation, [LC] has stated that the family are managing okay living there. [LC] is now all receiving the updated Asylum Support amount, which is £192 every week [sic]. [LC] has said that she successfully budgets this money to ensure that the children's basic care needs are met. [LC] also receives bus tickets every week to ensure she can get the children to their schools. I can appreciate that this tight budget does not always allow the children to engage in wider activities outside of the family home however it is not presenting as a safeguarding issue. The children all appear happy and healthy and have been seen at home and school. I have spoken with [LA] and [LR] about their position, and how this differs from their peers, and they appear understanding and hopeful that in time, this may change.
It is really positive to see the school supporting [LC] and the children through a variety of ways. All school trips have been fully funded by the school for the children and therefore they have not had to miss out on fun and educational experiences. [LG] receives free school dinners and the schools have also accessed their boot funds to provide some essential items. Both pastoral teams are aware of the children's current lived experience and therefore can observe and notify LC/services if they are worried about the children. Both schools have said how polite, friendly, hard-working and lovely LG, LA and LR are. LC should be very proud that despite the difficulties she has faced, and continues to face, all three children have great school feedback and are polite and friendly…..
Throughout this updated assessment, there has been no safeguarding concerns raised or highlighted. The children are well cared for, [LC] manages her finances well and the children all attend school daily. The family are living to their current means, which does mean that the children do not get to routinely engage in lots of wider activities which appears to be the family's main worry. Children's Services provide the statutory support rates and whilst it would be lovely to be in a position where this could be increased so the family could have more day trips out, electronic devices etc, this is not possible.
I have visited the family many times over the past year, as have other colleagues, and they are always welcoming, warm and friendly. [LC] and the children have a good relationship with Children's Services and communicate very well. As there are no ongoing safeguarding concerns, and an updated Children and Families Assessment has been completed, it is possible that the family will be transferred over to the NRPF team….[LC] will continue to receive the same level of financial and housing support."
"As the family continue to require financial and accommodation support to ensure [LC] can meet their basic care needs, alongside the ongoing Human Rights Assessment, I recommend that the children continue to be supported under the remit of s.17 Child In Need- Support the family into more appropriate accommodation.- Provide financial support for the family whist they do not have access to public funds. - Continue to link in with the Law Centre on the progress of the Human Rights application."
"….This assessment reflects the current needs of the family and reaffirms that [LC] is doing incredibly well to ensure that the children's needs continue to be met despite the challenges they face in a temporary home. [LC] is in receipt of the updated Asylum support amount, which is £192 [sic] every week, alongside travel vouchers which enable the family to continue accessing the same schools and the community on a weekly basis. There is an absence of safeguarding concerns which has been the case since the referral where [LC] demonstrated her ability to protect and prioritise the safety and needs of the children despite concerns relating to her status. Until the outcome of the Home Office application, [LC] and the children will continue to be supported…Ongoing efforts will be made to find them accommodation that is more attuned to the needs of the family and regular updates will be sought in respect of the outstanding immigration status."
The 'narrow' Ground 3
"The children do not get to routinely engage in lots of wider activities which appears to be the family's main worry. Children's Services provide the statutory support rates and whilst it would be lovely to be in a position where this could be increased so the family could have more day trips out, electronic devices etc, this is not possible." (my italics)
Mr Khubber and Ms Sekhon's argument is simple. There are no 'statutory support rates' for s.17 ChA and the statement that 'it is not possible' to increase support as the family already received financial provision at Asylum Support rates constituted a legal misdirection as it was inconsistent with s.17 ChA and R(C). I initially focus on this 'narrow' Ground 3, because it has been the core of Ground 3 from the start and does not depend on any widening of, or change in, Ground 3.
a. Firstly, that this passage was just loose language to be read fairly in the context of the rest of the assessment and its background (R(McDonald)) as not referring to law at all, but simply to the Defendant's Support Rates Page and the truism it would be 'lovely' but not 'possible' to have all we want.
b. Secondly, that if the social worker did mean the family were receiving all the law required, that was legally correct as it was indeed 'not possible' to increase financial support for additional activities or provision because they were not 'needs' it was necessary to meet under s.17 ChA (see R(VC)).
c. Thirdly, if the passage simply meant the family were receiving all the social worker thought the law required, he also knew provision could go beyond the Support Rates Page level, as there had been additional provision before.
d. Fourthly, if the passage meant the family could legally receive no more than listed on the Support Rates Page, that was actually higher than Asylum Support as including bus passes for the family, so was consistent with R(C).
e. Finally, in fairness to the Defendant, I have also borne in mind another argument relying on Mr Alomo's submissions on Ground 1A and 1B which I have already accepted. As I found that financial support to the Claimant's family was limited to what was necessary to avoid ECHR breach and that no further financial support is 'necessary' to do so, the assessment may actually have been right to conclude further support was 'not possible'.
"[T]he family's financial difficulties…weighs upon [the Claimant] and [LA]. Both have spoken to me about wishing they had more money to engage in more activities with their friends outside of school, however are understanding that there are limitations to what they can do, which is through no fault of their mother. I have explained that the family are completely reliant on Children's Services for finances and that this has been assessed to ensure they are receiving the legal requirement. [LC] has been given extra payments on an irregular basis so she can take the children to activities such as the cinema, fast food restaurants etc." (My italics)
I return to those irregular payments, but 'ensuring the family receive the legal requirement' is if anything even more indicative of the social worker considering there was a 'legal requirement' for support under s.17 ChA and equating that later with what he called the 'statutory support rates': an intrinsically legal term. Indeed, elsewhere in the assessment the social worker referred to (incorrect) Asylum Support rates as did his manager. The social worker was clearly talking about what the law 'required' or rendered 'possible'. In my judgment, the natural reading of the passage in the context of the rest of the assessment is that the family were receiving all the law 'required' and it was 'not possible' to increase support.
"[T]he family's financial difficulties…weighs upon [the Claimant] and [LA]. Both have spoken…wishing they had more money to engage in more activities with their friends outside of school… I have explained...[support] has been assessed to ensure they are receiving the legal requirement…."
(I also analyse this argument again under Ground 2, since Mr Khubber and Ms Sekhon submit there that whether or not the assessment contained a legal misdirection as pleaded in (the narrow) Ground 3, it was 'irrational' given the assessment to set support at the level it was, given 'unmet needs' under s.17 CA).
"The children do not get to routinely engage in lots of wider activities which appears to be the family's main worry" and:
"It is clear that the family's lack of finances does impact on their quality of life however this is not to a level that is of a safeguarding concern."
I return to these observations on Ground 2 (and the 'safeguarding' point on the 'wide' Ground 3), but for the moment, the key point is that the social worker actually accepted tightness of finances was affecting the children's welfare (even if not a safeguarding concern), indeed their 'quality of life'. In law, this is indisputably a 'welfare need' under s.17(10) ChA, or at least as explained in R(C), s.17 ChA and s.11 CA 2004 is the assessment must have due regard to the need to promote welfare. Yet, the apparent reason for not increasing support to do so was it was 'not possible' as the family were receiving their 'legal requirement', which was legally incorrect (since even if it was not 'necessary' to provide financial assistance to avoid an ECHR breach, direct provision could still be made).
"I have explained [to the older children] the family are completely reliant on Children's Services for finances and that this has been assessed to ensure they are receiving the legal requirement. [LC] has been given extra payments on an irregular basis so she can take the children to activities such as the cinema, fast food restaurants etc." [i.e. the £40 at Easter 2024]
a. Firstly, the suggestion the social worker thought it was unnecessary to increase weekly support as he knew it could be supplemented on occasion is inconsistent with him saying that increased provision beyond what he called 'statutory support rates' was 'not possible' as opposed to saying that it would only be 'necessary on occasion' etc. 'Not possible' is consistent with him believing the family were already receiving all the law required, as would have been the impression from the Support Rates Page in isolation.
b. Secondly, whilst the additional payments were mentioned elsewhere in the assessment, there was no reference to them at all in the social worker's concluding analysis (whether as qualifying 'not possible' or otherwise) or in the manager's approval. Nor is there any reference to them in the future as part of a 'realistic plan' for support as required by s.17 ChA (R(VC)).
c. Thirdly, that is explained by the background to the April 2024 assessment (R(McDonald)). It is true it noted the family had received extra money during holidays. However, the 2023 supplements were when the family were receiving £135 per week, but when the Asylum Support Rate was £40.85 rather than £49.18 (see Reg.10 Asylum Support Regulations 2000). So those supplements did not top up to anywhere near Asylum Support level. By Easter 2024, the family were regularly receiving £192 - £194 per week, which the social worker and his manager thought was the 2024 Asylum Support rate for the family (in fact it was £196.72). However, the social worker knew the Easter top-up was against the background of recent serious under-payment down to £117 as recently as January 2024. The assessment came before any (disputed) payment in June 2024. Additional payments had been done in the past, there was no plan for them in the future.
In short, I find the assessment proceeded on the basis that it was 'not possible' to increase financial support to provide for more children's activities, as the family were receiving their 'legal requirement' of Asylum Support rates as set in the Support Rates Page. That is a misdirection of law given R(C) in precisely the way Ground 3 contends, subject to two further points I deal with now.
a. Firstly, that is not what the social worker said in the assessment. He did not consider at all whether any further support was necessary to prevent breach of Art.8 still less conclude that it was not. I concluded it was not on evidence.
b. Secondly, were I to conclude the social worker was 'accidentally right', that would effectively be saying his legal misdirection made no substantial difference under s.31(2A) Senior Courts Act 1981, a point not raised by the Defendant and on which I have heard no submissions at all by the parties.
c. Thirdly, in any event, I am not satisfied the social worker was 'accidentally right', at least in saying the family had received the 'legal requirement' (not limited to financial support). Even if it was entirely lawful not to increase financial support given para.3 Sch.3 NIAA, it was entirely possible under para 2(1)(b) for the children to receive direct support, e.g. English lessons or singing lessons for the Claimant, or other funded activities. Whilst not necessary to avoid ECHR breach, they were perfectly 'possible', but were not considered due to legal misdirection. I uphold the 'narrow' Ground 3.
The 'wide' Ground 3
a. Firstly, even if the NRPF policy included the Support Rates Page and was lawful (as I found), the assessment applied the policy unlawfully rigidly and inconsistently with s.17 ChA's focus on welfare. In granting permission on Ground 3, I suggested that overlapped with Ground 4, but in the Claimant's post-hearing note (CPHN) it was argued as part of Ground 4 at para 5(i);
b. Secondly, even if support for the Claimant's family were 'restricted' (as I have now found in Ground 1A), assessing financial assistance essentially at Asylum Support rates was unlawful as it only met 'subsistence needs' rather than 'welfare needs' (argued as part of Ground 1 in CPHN at para 4(iii));
c. Thirdly, the other part of the original Ground 3 alleges a separate legal misdirection in the assessment by focussing on whether the family's finances gave rise to 'safeguarding issues' rather than focussing on welfare.
I am satisfied the Defendant and Mr Alomo himself had a fair opportunity to address all these points, even if advanced under different 'headings'.
"[LC] is in receipt of the updated Asylum support amount, which is £192 [sic] every week, alongside travel vouchers which enable the family to continue accessing the same schools and the community on a weekly basis."
(As I have already said, it also did not help that the social worker and manager had the Asylum Support rate slightly wrong). Accordingly, even if I am wrong that there was a legal misdirection on raising financial support as alleged in the original Ground 3 itself, I would accept that the approach taken on assessment practically and unlawfully fettered the Defendant's statutory discretion under s.17 ChA to provide support direct to the children under para 2(1)(b) Sch.3 NIAA. That is unaffected by rejection of Grounds 1A, 1B and 4. Indeed, it is consistent in 4 with why I rejected the challenge to the policy as opposed to the decision.
"The explicit statutory focus in s.17 CA on promoting welfare' makes the statutory scheme of s.17 different from that of asylum support in section 95–96/122 IAA and Regs 9 and 10 [Asylum Support Regulations or ASR] which limits support to 'adequate accommodation' and 'essential living needs'. This is borne out by the precision with which "essential living needs' are defined and calculated in the ASR. It is this exclusion of toys, recreation and entertainment which in statutory language clearly illustrates the asylum support scheme provides 'subsistence' support and a far cry from s.17's "promotion of welfare", notwithstanding s.11 CA04, as Gross LJ explained in R(JK Burundi) v SSHD [2017] 1 WLR 4567 (CA), para 67:
" …The language of the statutory and other provisions in question provide for a subsistence rather than a welfare standard. Proper consideration of the 'best interests' of the child neither requires nor permits the rewriting of either the IAA 1999….to provide some different and welfare driven standard."
Further evidence of the 'capping' of asylum support to 'subsistence' levels is offered by exclusion of such support under s.17 CA support from such families in ss.122(5)–(7) IAA. This difference between 'NRPF s.17 support' and asylum support was stressed in R (C) by Sir Ernest Ryder SPT, but also by Moore-Bick LJ at para 44…Therefore, I agree …that the focus of section 17 CA on 'welfare' on one hand and of asylum support on 'essential living needs' or 'subsistence' on the other is entirely different."
In short, as Sir Ernest Ryder SPT said in R(C) at [22]-[24], Asylum Support is specifically calibrated to meet only 'essential living needs', which is why at earlier in this judgment, I suggested s.17 provision equivalent to Asylum Support would likely avoid breach of Art.3 ECHR, but not necessarily Art.8 ECHR (or indeed Art.2 Prt.1 ECHR). But I also maintain my view at R(BCD) at [101]:
"Of course, some non-asylum-seeking children's assessed needs for financial support under s.17 CA will only be for the provision of 'essential living needs'. Those children may have no other assessed needs at all, or all the rest of their assessed needs can be provided directly to them (e g a free playgroup, counselling etc). But that depends on this being the conclusion of the specific child's assessment, as Sir Ernest Ryder SPT said in R (C)."
"[LC] is now all receiving the updated Asylum Support amount, which is £192 every week [sic]. [LC] has said that she successfully budgets this money to ensure that the children's basic care needs are met."
"It is clear that the family's lack of finances does impact on their quality of life however this is not to a level that is of a safeguarding concern."
The first quote shows that even the £192 pw is enough to cover basic care needs (which after all is exactly what Asylum Support is calibrated to do), but still leaves a shortage of money affecting the children's quality of life. So, I find support has not been provided to promote welfare, inconsistently with s.17 ChA.
"I can appreciate that this tight budget does not always allow the children to engage in wider activities outside of the family home however it is not presenting as a safeguarding issue."
The social worker made such observations on five occasions. Mr Khubber and Ms Sekhon point out in R(HC) at [46] Lady Hale said of s.17 ChA: 'safeguarding is not enough, [children's] welfare has to be actively promoted'. The same welfare-orientated point is made in R(C). Absence of safeguarding issues does not mean absence of need for support to promote welfare under s.17 ChA. In fairness, as I pointed out when granting permission, the fact a social worker repeatedly states in a s.17 needs assessment that a particular issue does not give rise to a safeguarding concern does not in itself prove they have limited the scope of 's.17 needs' to ones giving rise to safeguarding issues rather than welfare. It is also true, as Mr Alomo pointed out, that the assessment is full of positive 'welfare references' e.g. good health and how well the children are doing at school. But as Mr Khubber replied, when the social worker acknowledged a problem (e.g. the frustrations of the children and their mother on their finances, clearly 'weighing on' the two older children), he consistently said 'it was not a safeguarding need' without expressly considering whether it was a 'welfare need' even when he had effectively concluded as such himself e.g. the 'impact on quality of life' 'however this is not to a level that is of a safeguarding concern'. Yet the social worker did not recommend any additional support as he was wrongly focussing on monitoring safeguarding rather than improving the children's welfare.
Ground 2: Irrationality
"The court should focus on whether…the local authority can demonstrate that due regard has been had to the dimensions of a child's best interests for …..s. 17 CA 1989 in the context of the duty in s. 11 ChA 2004 to have regard to the need to safeguard and promote the welfare of children….
[T]he circumstances of those who qualify for s.17 support [and] those…. seeking asylum…are sufficiently different that it is likely to be irrational to limit s.17 support to that…in a different statutory scheme."
Result and Consequential Orders
"(1) The court has discretion as to (a) whether costs are payable by one party to another; (b) the amount of those costs, and (c) when they are paid.
(2) If the court decides to make an order about costs: (a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, but (b) the court may make a different order…
(4) In deciding what cost order…to make, the court will have regard to: (a) the conduct of all the parties; (b) whether a party has succeeded on part of its case, even if that party has not been wholly successful….
(5) The conduct of the parties includes…(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (c) the manner in which a party has pursued or defended its case or a particular allegation or issue…"
As Mr Alomo points out, on the five arguments the Claimant pursued, she was successful on Grounds 2 and 3 but unsuccessful on Grounds 1A, 1B and 4. As he fairly says, those grounds on which the Claimant lost have taken up much more analysis by Counsel and myself than the grounds on which she won. Moreover, the grounds on which the Claimant lost are also sufficiently important to her to pursue permission to appeal on Grounds 1A and 1B even though she succeeded in quashing the challenged assessment (subject to the Lake point). Mr Alomo even questioned whether the Claimant was the successful party under CPR 44.2. However, as Mr Khubber and Ms Sekhon point out, the 'target' of the claim was the challenged assessment and the Claimant has succeeded in quashing that. As Singh LJ said in ZH (Afghanistan) v SSHD [2018] 3 Costs LO 357 (CA) at [67], the underlying rationale for the rule that costs follow the event in CPR 44.2 is that a party has had to spend those costs in coming to court to vindicate their rights which if the other party had not violated it would not have had to pay. Likewise, as Lord Toulson explained in Hunt v Somerset Council [2015] 1 WLR 3575 (SC) at [16], where a claimant succeeds in a judicial review claim in establishing the defendant acted unlawfully, unless there was a good reason, they should recover reasonable costs. I have found the assessment was unlawful and the Claimant was entitled to come to come to Court to have it quashed. She is undoubtedly the successful party and the Defendant should pay (at least some) of her costs.