R (on the application of O) v Barking and Dagenham London Borough Council (Secretary of State for the Home Department, interested party; The Children's Society intervening)
| Jurisdiction | England & Wales |
| Judgment Date | 2011 |
| Year | 2011 |
| Date | 2011 |
| Court | Court of Appeal (Civil Division) |
Children – Local authority – Former relevant child – Person seeking asylum assessed as under 18 years – Local authority providing asylum seeker with accommodation – Claim for asylum being dismissed – Local authority subsequently terminating support for failed asylum seeker – Whether local authority empowered to provide accommodation to former relevant child – Whether local authority entitled to take into account support that might be given to former relevant child by National Asylum Support Service – Children Act 1989, s 23C(4)(c) – Immigration and Asylum Act 1999, s 95(1).
On 25 September 2007, the claimant, a national of Eritrea, arrived in the United Kingdom and claimed asylum. The respondent local authority assessed his age on 2 October 2007 as 17 years old. The Secretary of State subsequently refused his claim to asylum, which was affirmed by an immigration judge. From the time the claimant first claimed asylum until his eighteenth birthday, the local authority accommodated him as a child pursuant to its general powers under the Children Act 1989. Following that date, it continued to accommodate him, notwithstanding the immigration judge’s decision. On 9 October 2009, the local authority terminated its support for the claimant, who challenged that decision in the Administrative Court. Section 23C(4)a of the 1989 Act provided that it was 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’. A ‘former relevant child’ was a child formerly in care who had attained the age of 18. Support could also be provided to asylum seekers through the National Asylum Support Service (NASS), pursuant to s 95(1)b of the Immigration and Asylum Act 1999. In
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a Section 23C, so far as material, is set out at [21], below.
b Section 95(1), so far as material, is set out at [31], below.
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the Administrative Court, the judge held that s 23C(4)(c) did not provide a local authority with the power to provide accommodation. He also held that the local authority was entitled to conclude that the claimant, as a former relevant child asylum seeker, would be likely to receive assistance from NASS and that his welfare, thus, did not require the provision of accommodation by the local authority. The claimant appealed against that decision to the Court of Appeal, before which the following two questions arose: (i) whether s 23C(4)(c) of the 1989 Act empowered the local authority to provide accommodation to a former relevant child; and (ii) whether the local authority, when considering whether a former relevant child’s welfare required that he or she be accommodated by it under s 23C(4)(c), could take into account that support might be given by NASS pursuant to s 95 of the 1999 Act.
Held – (1) Section 23C(4)(c) of the 1989 Act provided a local authority with power to provide accommodation to a former relevant child. The use by the legislative draftsmen in sub-s (4)(c) of language which had already been construed by the court in a similar context as encompassing the provision of accommodation was critical. To construe sub-s (4)(c) as not encompassing accommodation would be to introduce an unacceptable element of inconsistency and the conclusion of the judge at first instance in that respect was incorrect (see [30]–[31], [42]–[43], below); A-G (ex rel Tilley) v Wandsworth London BC [1981] 1 All ER 1162, R v Tower Hamlets London Borough, ex p Monaf (1988) 20 HLR 529 and R (on the application of W) v Lambeth London BC[2002] 2 FCR 289 considered.
(2) Since the powers under s 95 of the 1999 Act were residual, and could not be exercised if the asylum seeker (or failed asylum seeker) was entitled to accommodation under some other provision, a local authority was not entitled, when considering whether a former relevant child’s welfare required that he or she be accommodated by it, to take into account the possibility of support from NASS. It followed that the judge at first instance erred on that point and the appeal would, accordingly, be allowed (see [40], [42]–[43], below); R (on the application of Westminster City Council) v National Asylum Support Service [2002] 4 All ER 654 considered.
Cases referred to in judgmentsA v Lambeth London BC[2001] EWCA Civ 1624, [2001] 3 FCR 673, [2002] 1 FLR 353.
A-G (ex rel Tilley) v Wandsworth London BC [1981] 1 All ER 1162, [1981] 1 WLR 854, CA.
R (on the application of A) v Croydon London BC, R (on the application of M) v Lambeth London BC[2009] UKSC 8, [2009] 3 FCR 607, [2010] 1 All ER 469, [2009] 1 WLR 2557, [2010] 1 FLR 959.
R (on the application of AW) v Croydon London BC[2007] EWCA Civ 266, [2007] LGR 417, [2007] 1 WLR 3168.
R (on the application of W) v Lambeth London BC[2002] EWCA Civ 613, [2002] 2 FCR 289, [2002] 2 All ER 901, [2002] 2 FLR 327.
R (on the application of Westminster City Council) v National Asylum Support Service[2002] UKHL 38, [2002] 4 All ER 654, [2002] 1 WLR 2956; affg[2001] EWCA Civ 512, (2001) 33 HLR 938.
R (on the application of ZA (Nigeria)) v Secretary of State for the Home Dept [2010] EWHC 718 (Admin), [2010] All ER (D) 297 (Mar).
R v Hammersmith and Fulham London BC, ex p M [1997] 30 HLR 10, CA.
R v Tower Hamlets London Borough, ex p Monaf (1988) 20 HLR 529, CA.
AppealSO (a former relevant child) appealed with permission from the decision of the Administrative Court (Calvert-Smith J) on 3 March 2010 ([2010] EWHC 634 (Admin), [2010] LGR 597) dismissing SO’s application for judicial review of the decision of the London Borough of Barking and Dagenham terminating its support of him. The Secretary of State for the Home Department appeared as an interested party. The Children’s Society intervened. The facts are set out in the judgment of Tomlinson LJ.
Richard Drabble QC and Tim Buley (instructed by Fisher Meredith LLP) for the appellant.
Ashley Underwood QC and Kelvin Rutledge (instructed by London Borough of Barking Legal Department) for the respondent.
Elisabeth Laing QC and David Blundell (instructed by the Treasury Solicitor) for the Secretary of State.
Ian Wise QC and Stephen Broach (instructed by The Children’s Society) for The Children’s Society.
12 October 2010. The following judgments were delivered.
TOMLINSON LJ(giving the first judgment at the invitation of Jacob LJ).
[1] This appeal raises the question upon whom falls the financial burden of providing accommodation to an 18-year-old asylum seeker who is also a ‘former relevant child’, to the extent that his welfare requires it, where the asylum seeker is not in education or training. Does it fall upon the local authority, pursuant to its duty under s 23C(4)(c) of the Children Act 1989, as amended, or does it fall upon the National Asylum Support Service (hereinafter NASS), and thus upon the Secretary of State, pursuant to his powers under the Immigration and Asylum Act 1999?
[2] The context in which the court has been asked to determine this question is an appeal from a decision of Calvert-Smith J ([2010] EWHC 634 (Admin), [2010] LGR 597), who held that a local authority derives from s 23C(4)(c) no power to provide accommodation, whether to a former relevant child asylum seeker or to any other person. He did not therefore need to decide what was the inter-relationship between the power or duty of the local authority and the power of the Secretary of State. However, the
judge went on to indicate that had that latter question arisen, he would have held that the local authority was entitled to conclude that the former relevant child asylum seeker would be likely to receive assistance from NASS, at least until the result of any application for such assistance was known, and thus that his welfare did not require the provision of accommodation by the local authority.
[3] The decision of the judge has apparently been received in some quarters with consternation and surprise, not least because local authorities have, we were told, on many occasions accepted an obligation to provide accommodation to ‘former relevant children’, ie those who were formerly in care but who have attained the age of 18, which is the class of persons with which s 23C(4)(c) of the 1989 Act is concerned. Concern for the interests of this vulnerable cohort prompted an application by The Children’s Society to be joined as an intervener. So too, in due course, on 15 April 2010 the Secretary of State was similarly joined, albeit not at his behest. It is a measure of the impenetrable nature of the legislation with which the court is concerned that until a week before the hearing it was the position of the Secretary of State that the local authority indeed enjoyed no power under s 23C(4)(c) of the 1989 Act to provide accommodation to a former relevant child, and furthermore that the local authority was, in the case of a former relevant child asylum seeker, entitled to rely upon the availability of NASS accommodation. The Secretary of State appeared at the hearing and argued to precisely the contrary effect on both points. I do not say this by way of criticism. There is nothing wrong with second thoughts, and as it happens I have concluded that the second thoughts of the Secretary of State were correct. It does, however, demonstrate that the legislation is far from clear.
[4] It will be apparent, therefore, that by the time the issue reached this court the concern was far removed from simply the interests of the nominal applicant, SO, to whom the local authority has in any event and to its credit at all times provided, and continues to provide, accommodation, a subsistence allowance of £51.85 per week for food and other essentials and travelling expenses of £118.30 per month to enable him to pursue a full-time...
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