Paulina Mensah v Salford City Council

Hearing date: 16 th October 2014

INTRODUCTION

This is a claim for judicial review of the policy adopted by Salford City Council ("the Council") for calculating the amount of financial assistance to be provided under section 17 of the Children Act 1989 ("the 1989 Act") to meet the needs of children and their parents who are destitute as they had no accommodation and no means of providing for their living requirements, in circumstances where the parents are non-British nationals who, by reason of their immigration status, are not eligible to claim social security benefits or housing benefits.

The Council's policy is to provide each family with accommodation and to pay the utility bills and council tax for the property. In addition, each family also receives a sum of money by way of financial assistance. The Council has a policy of calculating the basic amount of financial assistance to be provided by reference to the amount that the Secretary of State would provide to a failed asylum seeker and his or her dependants to enable them to purchase food and essential toiletries, pursuant to section 4 of the Immigration and Asylum Act 1999 ("the 1999 Act"). The policy has a degree of flexibility within it and the Council may provide assistance in excess of this level if it is needed.

The claimants contend that this approach to calculating the level of assistance is unlawful. They contended that it is not lawful to use a level of support calculated for one statutory purpose, the provision of subsistence for failed asylum seekers, for a different statutory purpose namely the performance of a duty intended to safeguard and promote the welfare of children in need, or that it is irrational to do so.

THE FACTUAL BACKGROUND

Ms Mensah

Ms Mensah is a national of Ghana. She came to the UK on 19 May 2010 on a visitor's visa. She met and formed a relationship with a man and became pregnant by him. Ms Mensah gave birth to a child, Edwin, in March 2011. He is now 3 years old. The relationship between Ms Mensah and the father broke down. Ms Mensah first stayed with friends, and then the pastor of her church for a period of some five or six months. It was not feasible for Ms Mensah and Edwin to remain there after August 2013. Ms Mensah therefore approached the Council in July 2013 for assistance under section 17 of the 1989 Act.

The Council carried out an initial assessment of Edwin's needs. The initial assessment noted that the main factor which prevented Ms Mensah from meeting Edwin's needs arose from her immigration status. She was not entitled to have recourse to social security benefits or housing benefits and was potentially homeless.

The Council subsequently provided accommodation in the form of bed and breakfast accommodation. In April 2014, Ms Mensah was provided with a furnished, self-contained flat. The flat has two bedrooms, a sitting room, a kitchen and a bathroom. The furnishings include a cooker and a fridge. The Council pays the rent of £189.50 a week (which includes utility bills). The Council also pays the council tax for the property. In addition, Ms Mensah receives £45 a week from the Council, and £25 a week from Edwin's father. The Council has also provided additional assistance from time to time by way of additional furniture, bedding, a microwave oven, and toys and clothing for Edwin as needed. Clothing was provided on 4 July 2014 and a sum of £79 was provided for clothing on 15 July 2104. It is proposed to provide additional winter clothing for Edwin when the weather becomes colder.

Edwin has also been identified as having significant delay in his physical development and his speech and language. He has been provided with support from a speech and language therapist, a community paediatrician and the audiology service. He attends a nursery, under an induction course, for two hours a day two days a week and the numbers of hours is to increase.

Ms Scragg, who is a family support worker, has had responsibility for Edwin's case since 10 April 2014. She visits Ms Mensah and Edwin approximately every three weeks. She explains that during each visit she is able to discuss with Ms Mensah the current levels of support provided and any needs for additional support that they may have. Ms Scragg sets out the support currently being provided to Ms Mensah in her two witness statements. At the end of her first statement, she concluded that:

"My view is that Ms Mensah is able to meet Edwin's needs with the support currently available to her. In the event that Edwin has any additional needs a request is made to senior management within Children's Services who will consider each request on its merits."

Ms Mensah has also made two witness statements. The first concerned the situation when she was provided with bed and breakfast accommodation. The second, signed on 16 September 2014, was made after she and Edwin had moved to the flat. Ms Mensah explains that she has no complaint about her accommodation and that she is grateful for the accommodation. She explains that she is given £100 a month by Edwin's father and £90 a fortnight from the Council. Her total income is £68.04. Ms Mensah explains in detail that she has to pay £13.50 for a weekly bus pass and has to pay £1.15 a week to the National Health Service as she was charged for her maternity care. She has a mobile phone which costs £2.50 a week. That leaves her with £50.89 a week to spend on food and essential toiletries for both her and Edwin. She explains how she gives priority to ensuring that Edwin has sufficient healthy food and she herself eats what is available and drinks only water. She is not able to provide Edwin with the kind of activities usually enjoyed by children, such as swimming or days out, as she simply has no money to pay for them. She explains that their lives therefore are very limited, and she cannot give her son the opportunities that other children have and is concerned that this may have an impact on his development. She explains that life is very hard and, if there is any unexpected expenditure (such as, for example, a fee of £140 that she had to pay for a tribunal hearing in connection with her immigration status) that leaves her without money to buy sufficient food.

Ms Bello

Ms Bello is a national of Nigeria. She first came to the United Kingdom in about 2006. She formed a relationship with a British national. She returned to Nigeria but returned on a number of occasions to the UK to visit him. They had three children, one born on 22 September 2008, one on 24 April 2011 and the youngest born on 8 September 2012. The children are, therefore, 6, 3 and 2 years old. The relationship between Ms Bello and the father of the children broke down and they are no longer together. Ms Bello decided to come and settle permanently in the United Kingdom in July 2012 as she wished her three children, who are British nationals, to grow up in the United Kingdom.

In her witness statement, Ms Bello says that she initially lived with her sister who was working at a bank and could support and accommodate Ms Bello and the three children. Her sister was eventually relocated with her work and moved to a two-bedroom flat in Salford. The sister occupied one bedroom and Ms Bello and her children the other. In October 2013, however, the sister returned to Nigeria.

Ms Bello then approached the Council for assistance. The Council carried out an assessment of needs for each of the three children. At that stage, Ms Bello had not been given leave to remain in the United Kingdom under the Immigration Rules and was not entitled to claim social security benefits or housing benefits. The assessments note that there were no concerns over Ms Bello's care for her children. The assessments noted that the "risks are that the children will be destitute" without support from the Children's Services department of the Council and consequently that the Council would support Ms Bello financially and pay for bed and breakfast accommodation.

Initially, the family were provided with temporary bed and breakfast accommodation but were then provided with a first floor, two-bedroomed self-contained flat. The only flat that could be found was outside Salford as private landlords were unwilling to rent a property to a person such as Ms Bello who did not have leave to remain in the United Kingdom. The flat is opposite a bus stop from where a bus travels directly to the oldest child's school. The Council has been looking for alternative accommodation for the family closer to the school.

The flat has two bedrooms, a living room, a kitchen and a bathroom. It is furnished with beds, wardrobes, a sofa and armchair, a dining table and four chairs and a cooker and fridge/freezer. There are two double beds in one bedroom, and a single bed and bunk beds in the other. A washing machine was subsequently installed in the flat. Ms Bello brought some items with her such as bedding and utensils and the Council provided the additional bedding and crockery that the family needed. The Council also...