R C, T, M and U v London Borough of Southwark Coram Children's Legal Centre (Intervener)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Vos,Lord Justice Moore-Bick,Senior President of Tribunals,and |
| Judgment Date | 12 July 2016 |
| Neutral Citation | [2016] EWCA Civ 707 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 July 2016 |
| Docket Number | Case No: C1/2014/4193 |
[2016] EWCA Civ 707
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
Ms bobbie Cheema QC sitting as a Deputy Judge of the High Court
CO/13715/2012
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
(Vice President of the Court of Appeal, Civil Division)
SENIOR PRESIDENT OF TRIBUNALS
and
Lord Justice Vos
Case No: C1/2014/4193
and
Mr Richard Drabble QC and Mr Ranjiv Khubber (instructed by Shelter Legal Services) for the Appellants
Ms Fenella Morris QC and Ms Sian Davies (instructed by Southwark Legal Services) for the Respondent
Miss Shu Shin Luh (instructed by Coram Children's Legal Centre) for the Intervener
Hearing date: 27 April 2016
Approved Judgment
Senior President of Tribunals:
This is an appeal against the order made by Ms Bobbie Cheema QC sitting as a Deputy Judge of the High Court on 28 November 2014 dismissing the appellants' claims for judicial review and damages. The claim challenged the lawfulness of the accommodation and the level of financial support provided to a family by a local authority. The decision of the Administrative Court is reported at [2014] EWHC 3983 (Admin).
The claim was made by C, who is the mother and litigation friend of T, M and U who are children aged between 12 and 6 years who, together with a baby, E, are dependent on her. The appellants are all Nigerian nationals who have been refused leave by the Secretary of State to remain in the United Kingdom on humanitarian grounds. C is an overstayer i.e. she remained in the UK after the expiry of her visa and in breach of immigration controls. The respondent is a local authority in England responsible for making a decision about the level of financial support to the family who have no right of recourse to public funds.
The grounds of appeal as originally settled were extravagant and we are very grateful to Mr Drabble QC and Mr Khubber, who did not appear below, for the careful manner in which they re-cast this appeal. I do not intend to deal with any of the grounds which were not pursued. Before us, the appeal was limited to three issues:
i) Whether the respondent had an unlawful policy or practice of setting financial support to those seeking assistance under section 17 of the Children Act 1989 ['CA 1989'] at the level of child benefit in the circumstance that they otherwise had no right of recourse to public funds;
ii) Whether after the decision of the Administrative Court in R (PO & Ors) v Newham London Borough Council [2014] EWHC 2561 (Admin) the respondent had an unlawful policy or practice of setting financial support to those seeking assistance under section 17 CA 1989 at the level of payments which would have been made to asylum seekers or failed asylum seekers by the Secretary of State under sections 4 and 95 of the Immigration and Asylum Act 1999 ['IAA 1999'] in the circumstance that they otherwise had no recourse to public funds;
iii) Whether the respondent breached the appellants' article 8 ECHR rights because it provided them with financial support at a level less than that which it knew was necessary to prevent breach and, if so, are the appellants entitled to damages in respect of the breach?
There are two ancillary applications which we reserved until the conclusion of the argument in the appeal. The first is to adduce additional evidence concerning the relationship between child benefit rates and the respondent's assessment of 'the subsistence needs' of the children, and the second is to rely on an additional ground which became the second issue before us. We considered all the material relied upon in respect of these two applications de bene esse and we considered the additional ground of appeal as if leave had been granted. There was no opposition to the additional evidence being adduced. For the reasons which follow, I would have granted the applications but would dismiss this appeal.
There is no need to recite all of the more detailed facts around which the claim was based because they are set out in the judgment of the Administrative Court at [5] to [26]. A summary of the background is, however, helpful to an understanding of the issues in the appeal. The local authority undertook four full assessments of need and two financial support assessments. They provided accommodation throughout. They provided financial support in cash and in kind by the payment of utility bills and rent, regular financial support payments, school and activity transport costs and occasional payments for items such as winter and school clothing. The local authority have always admitted that they had regard to the levels of child benefit and IAA 1999 support that were payable but denied that they fettered their discretion or had an unlawful policy or practice of using those rates as a starting point for the decisions that they made.
The following summary of the support provided by the local authority is relevant:
i) The family were self-supporting until the father left at which point, to avoid what was described by the local authority as 'the prospect of imminent destitution', C approached the local authority's children services department on 21 May 2012.
ii) The first assessment of need for the purposes of section 17 CA 1989 was begun on that day. It concluded that the family's needs would be met by their return to Nigeria with accommodation being provided in the event that it was necessary pending return or any further application for leave to remain in the UK.
iii) Consistent with the conclusion of the first assessment, the family were accommodated by the local authority when they faced eviction for non—payment of rent. After a night in bed and breakfast accommodation they moved to accommodation close to the children's school.
iv) The local authority assessed the needs of the children for financial support on 17 July 2012 when the family's savings were at the point of being exhausted. C sought between £45.50 and £51.50 per week to cover the balance of a household budget that she had compiled having given credit for the value of vouchers that at the time she was receiving from Kids Company. The local authority provided £47.10 per week from 20 July 2012 together with bus passes for the cost of transport to school and for other activities for the children.
v) A second assessment was requested by C on 4 September 2012. That assessment concluded with an offer by the local authority of more spacious accommodation which C rejected because it was further away from the children's school and her support network. A similar offer was made by the local authority in December 2012 which C also rejected for the same reason.
vi) The claim for judicial review was issued on 19 December 2012. On 20 December the local authority offered the family a three bedroom property which C accepted and increased the financial support payments to £86.00 per week pending further assessment.
vii) A third assessment was completed on 21 January 2013. It included a finance assessment carried out on 9 January 2013. The local authority did not accept C's budget, not all of which was evidenced by receipts, with the consequence that financial support payments reverted to the previous sum of £47.10 per week, net of other financial support which continued.
viii) On 12 February 2013 the family moved to accommodation in Crystal Palace and by June 2013 the father had been released from prison and had moved back in with the family. E was born in October 2013.
ix) In February 2014 financial support payments were increased to £60.50 per week net of other support.
x) The fourth assessment which began on 20 February 2014 had regard to the new family circumstances. Financial support payments were increased to £80.70 per week, net of other support. The family were offered a move to Manchester which was refused.
xi) A fifth assessment was undertaken in May 2014 leading to an increase in the financial support payments to £140 per week net.
xii) In June 2014 the family agreed to move to the North West of England. They were temporarily accommodated in Catford before being accommodated in Rochdale on 1 September 2014.
xiii) A sixth assessment was completed on 6 November 2014. C's expenditure budget was accepted in its entirety. Financial support payments were increased to £216.92 per week. The assessment took account of increased travel costs and the cessation of the benefit of the Kids Company vouchers.
xiv) The family remain in a 3 bedroom furnished house in Rochdale where all utility bills are paid by the local authority and they are in receipt of both regular and occasional financial support which continues to be re-assessed.
Aside from the chronology of events that I have summarised which is not in issue in this appeal, the judge came to the following conclusions or value judgments which are not challenged:
i) The first needs assessment of the local authority was "a thorough and detailed piece of work". It concluded that the children were "happy and confident, well behaved" and that "there were no signs of neglect".
ii) The third assessment "followed the previous two being a detailed evidence based document".
iii) At the time of the fourth assessment "the children were thriving".
iv) The children were "well looked after".
v) The needs of the family were met and their altered circumstances over time were provided for.
vi) There is no evidence that the children or the family were discriminated against by the local authority because of their nationality or immigration status.
Although the grounds of appeal that have been discarded incorporated a number of novel and probably unsustainable propositions of law, the statutory...
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