R and Others v Newcastle City Council
| Jurisdiction | England & Wales |
| Judge | Sir Stanley Burnton,Lord Justice McCombe,Lord Justice Laws |
| Judgment Date | 31 July 2013 |
| Neutral Citation | [2013] EWCA Civ 960 |
| Docket Number | Case No:C1/2013/0651 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 2013 |
[2013] EWCA Civ 960
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Timothy Straker QC (sitting as a Deputy High Court Judge)
CO96292012.[2013] EWHC 355 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lord Justice McCombe
and
Sir Stanley Burnton
Case No:C1/2013/0651
Hilton Harrop-Griffiths (instructed by Newcastle City Council Legal Services) for the Appellant
Shazia Akhtar (instructed by Public Interest Lawyers) for the Respondents
Introduction
This is an appeal by Newcastle City Council ("Newcastle") against the order of Timothy Straker QC, (sitting as a Deputy High Court Judge), quashing Newcastle's decision in a letter dated 28 August 2012 refusing to make grants to the Respondents in respect of their university fees. It raises questions as to the proper construction and application of sections 23C(4) and 24B(2) of the Children Act 1989 ("the Act") as amended.
Having heard the parties' submissions, we announced our decision to dismiss the appeal, and that our reasons for doing so would be given in written judgments to be handed down subsequently. This judgment sets out my reasons for dismissing the appeal.
The facts
The facts relevant to this appeal are not in dispute and may be shortly stated. The Respondents are brothers and are nationals of Ethiopia. Yonas Kebede was born on 1 November 1991, and is therefore aged 21; Abiy Kebede was born on 17 May 1993, and is therefore aged 20. They came to this country in 2004. They were abandoned by their older brother, and from September 2007 were accommodated by Newcastle under section 20 of the 1989 Act. Until they reached 18, each of them was an "eligible child". On their respectively reaching the age of 18, each of them became a "former relevant child" within the meaning of the Act.
Both Yonas and Abiy Kebede have discretionary leave to remain in this country until 20 November 2014. They wish to take up university places. By reason of their immigration status, they are ineligible for state (i.e., central government) funding for their university fees, which may also be higher for them, as foreign nationals, than the fees charged to UK (and EU) citizens. They therefore sought funding from Newcastle. It is Newcastle's refusal to provide funding that is the object of these proceedings.
Section 24B(2) of the Act, which I shall set out below, requires a local authority to make a grant to a former relevant child "to enable him to meet expenses connected with his education or training". In correspondence with the solicitors acting for the Respondents, Newcastle contended that the expenses to which this provision refers are incidental expenses, such as the cost of stationery, but not the fees charged for the education or training in question. In addition, it contended that even if university fees are in scope, it was entitled to take its limited resources into account in deciding whether or not to make a grant. In a letter dated 8 August 2012, Rosemary Muffitt, its Senior Solicitor, stated:
"Even if such fees can be expenses connected with education, the second part of the test is whether the prospective student's educational needs require it, which ultimately must be for the authority rather than him to decide. Your clients no doubt argue that they need to go to university but does the legislation require the authority to give the assistance sought … when it would take up a very significant portion of its hard-pressed resources? Newcastle is adamant that it does not."
In her letter dated 28 August 2012, responding to the Respondents' letter before action, Ms Muffitt stated:
"Firstly, there is the point about 'expenses connected with education'.
Secondly, even if this phrase does cover such fees, the authority does not consider it to be an appropriate use of its scarce resources to act as a surrogate loan company when Parliament has decided that persons with your clients' immigration status should no longer have access to such assistance. In addition there is the considerable risk that the authority would not be able to enforce any loan it makes, because it would not be able to keep track of your clients and their earnings, even if they remain in the UK. …"
The legislative framework
Sections 23C and 24B of the Act, as amended, are so far as relevant as follows:
" 23C Continuing functions in respect of former relevant children
(1) Each local authority shall have the duties provided for in this section towards——
(a) a person who has been a relevant child for the purposes of section 23A (and would be one if he were under eighteen), and in relation to whom they were the last responsible authority; and
(b) a person who was being looked after by them when he attained the age of eighteen, and immediately before ceasing to be looked after was an eligible child,
and in this section such a person is referred to as a "former relevant child".
….
(4) It is the duty of the local authority to give a former relevant child——
(a) assistance of the kind referred to in section 24B(1), to the extent that his welfare requires it;
(b) assistance of the kind referred to in section 24B(2), to the extent that his welfare and his educational or training needs require it;
(c) other assistance, to the extent that his welfare requires it.
(5) The assistance given under subsection (4)(c) may be in kind or, in exceptional circumstances, in cash.
(5A) It is the duty of the local authority to pay the relevant amount to a former relevant child who pursues higher education in accordance with a pathway plan prepared for that person.
(5B) The appropriate national authority may by regulations——
(a) prescribe the relevant amount for the purposes of subsection (5A);
(b) prescribe the meaning of "higher education" for those purposes;
(c) make provision as to the payment of the relevant amount;
(d) make provision as to the circumstances in which the relevant amount (or any part of it) may be recovered by the local authority from a former relevant child to whom a payment has been made.
(5C) The duty set out in subsection (5A) is without prejudice to that set out in subsection (4)(b).
(6) Subject to subsection (7), the duties set out in subsections (2), (3) and (4) subsist until the former relevant child reaches the age of twenty-one.
(7) If the former relevant child's pathway plan sets out a programme of education or training which extends beyond his twenty-first birthday——
(a) the duty set out in subsection (4)(b) continues to subsist for so long as the former relevant child continues to pursue that programme; and
(b) the duties set out in subsections (2) and (3) continue to subsist concurrently with that duty.
…
(9) Section 24B(5) applies in relation to a person being given assistance under subsection (4)(b) [or who is in receipt of a payment under subsection (5A)] as it applies in relation to a person to whom section 24B(3) applies.
(10) Subsections (7) to (9) of section 17 apply in relation to assistance given under this section as they apply in relation to assistance given under that section.
…
24B Employment, education and training
(1) The relevant local authority may give assistance to any person who qualifies for advice and assistance by virtue of section 24(1A) or section 24(2)(a) by contributing to expenses incurred by him in living near the place where he is, or will be, employed or seeking employment.
(2) The relevant local authority may give assistance to a person to whom subsection (3) applies by——
(a) contributing to expenses incurred by the person in question in living near the place where he is, or will be, receiving education or training; or
(b) making a grant to enable him to meet expenses connected with his education or training.
(3) This subsection applies to any person who——
(a) is under twenty-five; and
(b) qualifies for advice and assistance by virtue of [section 24(1A) or] section 24(2)(a), or would have done so if he were under twenty-one.
(4) Where a local authority are assisting a person under subsection (2) they may disregard any interruption in his attendance on the course if he resumes it as soon as is reasonably practicable.
(5) Where the local authority are satisfied that a person to whom subsection (3) applies who is in full-time further or higher education needs accommodation during a vacation because his term-time accommodation is not available to him then, they shall give him assistance by——
(a) providing him with suitable accommodation during the vacation; or
(b) paying him enough to enable him to secure such accommodation himself.
(6) The appropriate national authority may prescribe the meaning of "full-time", "further education", "higher education" and "vacation" for the purposes of subsection (5)."
It can be seen that in the case of a former relevant child, by virtue of section 23C(4), what would otherwise be a discretion to provide the assistance specified in section 24B(2) is a duty.
The judgment below
Before the judge, Newcastle submitted that, as it had contended in correspondence, the phrase "expenses connected with his education" did not extend to the fees charged by an educational institution, but was limited to incidental expenses incurred for the purposes of education. The judge addressed this submission in paragraphs 12 and 13 of his judgment:
"12. Mr Harrop-Griffiths, for Newcastle City Council, says that meeting expenses...
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