MN and KN v London Borough of Hackney
| Jurisdiction | England & Wales |
| Judge | Mr Justice Leggatt |
| Judgment Date | 10 May 2013 |
| Neutral Citation | [2013] EWHC 1205 (Admin) |
| Docket Number | Case No: CO/2941/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 May 2013 |
[2013] EWHC 1205 (Admin)
Mr Justice Leggatt
Case No: CO/2941/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Benjamin Tankel (instructed by National Youth Advocacy Service) for the Claimant
Thomas Amraoui (instructed by Browne Jacobson) for the Defendant
Hearing date: 11 April 2013
Introduction
This is a claim for judicial review of a decision of the defendant local authority ("Hackney") dated 16 March 2012 to refuse to provide accommodation and support to the claimants, together with their parents, under section 17 of the Children Act 1989. The claimants claim that in taking this decision Hackney acted unlawfully, and they seek a declaration to that effect.
Permission to proceed with the claim was initially refused on paper but was granted on 4 October 2012 following an oral hearing.
The Facts
The claimants are two children, a brother and sister. At the time of the decision they were aged, respectively, 3 and 13. To protect their anonymity the court has ordered that they be referred to as MN and KN.
The claimants and their parents are Jamaican nationals who are present illegally in the United Kingdom. KN was born in Jamaica in November 1998. Her father, Mr N, entered the UK on 10 June 2000 on a visitor's visa valid for four weeks. However, he has never left. KN (then aged 2) and her mother, Ms S, joined him in the UK in July 2001, also entering on visitor's visas. The evidence does not disclose the date when the visas expired, but they too have stayed here ever since. MN was born in the UK in September 2008. He suffers from an atypical form of autism which was diagnosed in May 2011.
The family made no attempt to establish a right to live in the UK until March 2010, when they applied for leave to remain. That application was refused by the Secretary of State for the Home Department in a letter dated 10 November 2010. In March 2011 solicitors representing the family made a request for this decision to be reconsidered or, failing that, for a decision to be taken to give directions to remove the family from the UK. The reason for the latter request was that an appeal lies to a tribunal against a decision to give removal directions whereas there is no right of appeal against a decision to refuse leave to remain. To date, however, no decision has been taken to set removal directions but nor has the Secretary of State reconsidered the decision to refuse leave to remain.
From the time when they first arrived in this country until March 2011, the family lived here without seeking any assistance from social services. It appears that they lived with various relatives or friends who also provided them with financial support, sometimes in return for child care and other domestic help. For some of the period Mr N also earned some money by selling pirated DVDs in a street market.
Ms S first approached Hackney in March 2011 stating that she was about to become homeless. Hackney's response was that, because of her immigration status, she was not entitled to housing assistance. She next contacted Hackney in January 2012 stating that she was once again facing homelessness. Assistance was again refused, but on 30 January 2012 Hackney commissioned an assessment of whether the claimants were children in need as defined in section 17 of the Children Act 1989 (the "Children Act assessment").
On 5 March 2012 solicitors instructed by Ms S wrote to Hackney saying that the family would be street homeless from 16 March. This was followed by a letter before action dated 14 March 2012 which stated that, although the family were currently staying temporarily with a friend, they had been asked to leave before 17 March 2012 and would then be homeless and destitute unless Hackney provided them with accommodation and financial assistance.
Hackney had by that time nearly completed the Children Act assessment together with a further assessment of whether there would be a breach of article 3 or article 8 of the European Convention on Human Rights if support for the family was refused (the "ECHR assessment"). For the purpose of these assessments a social worker, Mr Donald Brown, met members of the family on four occasions and made other enquiries. The Children Act assessment was completed and sent to Ms S's solicitors on 15 March 2012. Its conclusion was that the claimants were not children in need for the purpose of section 17. I shall have to return to the reasons for that conclusion which are at the centre of the dispute in this case.
The ECHR assessment was sent to Ms S's solicitors on 16 March 2012. Its conclusion was that there would not be a breach of article 3 or article 8 if support was refused.
On 19 March 2012 these proceedings were begun seeking judicial review of Hackney's decision to refuse accommodation and support and also seeking urgent interim relief. On the same day Lloyd-Jones J made an order requiring Hackney to provide the claimants and their parents with support and suitable temporary accommodation. Such support and accommodation have since been provided while these proceedings are continuing. It remains Hackney's position, however, that the family are not in fact destitute and in need of such assistance.
The Statutory Framework
The relevant duties and powers of Hackney with regard to the provision of support are conferred by sections 17 and 20 of the Children Act 1989. Pursuant to section 17(1), it is 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."
Any service provided by a local authority in the exercise of a function conferred on them by section 17 "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": see section 17(3). The services provided "may include accommodation and giving assistance in kind or, in exceptional circumstances, in cash": see section 17(6).
Pursuant to section 17(10), a child is 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 [of the Act];
(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of services; or
(c) he is disabled."
Section 17 does not impose a specific duty on a local authority to provide accommodation or any other service to meet the assessed needs of any individual child: see R(G) v Barnet LBC [2004] 2 AC 208.
Section 20 of the Act does impose a specific duty on a local authority to:
"(1) … provide accommodation for any child in need within their area who appears to them to require accommodation as a result of –
…
(c) the person who has been caring for him been prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care."
Unlike section 17, however, section 20 does not give the local authority power to provide accommodation for any other member of the child's family.
Also relevant to the issues in this action is Schedule 3 to the Nationality, Immigration and Asylum Act 2002. This provides for the withholding and withdrawal of support from certain categories of person. The provisions of Schedule 3 relevant for present purposes are the following:
Paragraph 1(1): "A person to whom this paragraph applies shall not be eligible for support or assistance under … (g) section 17 … of the Children Act 1989 … (k) section 2 of the Local Government Act 2000 …"
Paragraph 1(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 …"
Paragraph 2(1): "Paragraph 1 does not prevent the provision of support or assistance … (b) to a child …"
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 purpose or performance is necessary for the purpose of avoiding a breach of (a) 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 …"
The inter-relationship between these provisions and section 17 of the Children Act 1989 is not straightforward. As a matter of construction, however, and as analysed in R (M) v Islington LBC [2005] 1 WLR 884, the effect of Schedule 3 of the 2002 Act as it applies in the present case appears to me to be as follows:
(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 section 17 (see paragraph 7).
(2) However, as the claimants are children, paragraph 1 does not prevent the provision of support or assistance to them (see paragraph 2(1)(b)).
(3) Nevertheless, paragraph 1 does indirectly have this effect so long as the claimants are living...
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