R PO and Others v The Council of the London Borough of Newham
| Jurisdiction | England & Wales |
| Judge | John Howell |
| Judgment Date | 28 July 2014 |
| Neutral Citation | [2014] EWHC 2561 (Admin) |
| Date | 28 July 2014 |
| Docket Number | Case No: CO/15518/2013 |
| Court | Queen's Bench Division (Administrative Court) |
[2014] EWHC 2561 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
John Howell QC
Sitting as a Deputy of the High Court
Case No: CO/15518/2013
Ms Shu Shin Luh (instructed by Coram Children's Legal Centre) for the Claimants
Mr Bryan McGuire QC (instructed by Solicitors to the Defendant) for the Defendant
Hearing dates: 4 and 5 July 2014
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
John Howell QC
John Howell QC:
This is a claim for judicial review brought by three children, who are Nigerian nationals, about the level of financial assistance that the Defendant, the Council of the London Borough of Newham, provided under section 17 of the Children Act 1989 to meet the subsistence needs which they and their mother had (as they were destitute) while the Secretary of State for the Home Department was considering whether or not they and their mother should be granted leave to remain in this country.
After permission to make this claim was granted by David Elvin QC (sitting as a Deputy High Court Judge) on December 2 nd 2013, the Claimants and their mother were granted leave to remain here by the Secretary of State on January 20 th 2014. Thereafter they were eligible for assistance with their housing, and to the benefits, that others in this country normally are. The Council has also acknowledged, in the skeleton argument filed by Mr Bryan McGuire QC (who appeared on its behalf), that it made three errors when dealing with the Claimants' case and it has offered to reconsider the adequacy of payments made to them and whether to backdate any additional sum which they should have received. The Council proposes to do this in accordance with its "Policy and practice guidance in respect of those with no recourse to public funds" (" the NRPF Policy").
The Claimants contend, however, that any decision made in accordance with the NRPF Policy would be unlawful. In the circumstances as they now are, that remains the only issue, among the many raised by Ms Shu Shin Luh (who appeared on behalf of the Claimants), with which it is necessary to determine.
THE BACKGROUND TO THIS CLAIM AND TO THE ISSUE TO BE DETERMINED
In March 2002, when she was 1, the First Claimant, PO, arrived in this country from Nigeria with her mother, BO, who is also a Nigerian national, on a visitor's visa. They overstayed their visa. They were joined here in 2003 by PO's father, AO, who is another Nigerian national. He also arrived in this country on a visitor's visa and overstayed. It appears that they may have returned to Nigeria in December 2004 and then returned on a two year visa in January 2005. BO had two further children, born in this country, with AO: KO, the Second Claimant, who was born in December 2005, and RO, the Third Claimant, who was born in December 2009. While BO was pregnant with RO, AO was arrested and convicted of fraud in 2009. An application that they had made for leave to remain in this country, relying on Article 8 of the European Convention on Human Rights, was refused in May 2010; their appeal was dismissed on September 16 th 2010 and a further appeal was dismissed by the Upper Tribunal on May 17 th 2011.
AO and BO eventually separated in August 2011. In September 2011 BO made a further application for leave to remain this country under Article 8. This was refused by the Secretary of State for the Home Department on February 8 th 2012 with no right of appeal. On October 15 th 2012 BO's solicitors asked the Secretary of State to reconsider that decision. It appears that the Council was only informed that such a request had been made on March 14 th 2013. By then, however, the Claimants had already been referred to the Council by the Children's Society for a "children in need" assessment and they had solicitors acting on their behalf who were in contact with the Council. They and their mother were due to be evicted from the accommodation in which they had been staying on March 15 th 2013.
Faced with their imminent homelessness, the Council recognised in practice that the family was destitute and that the Claimants, who were then aged 12, 7 and 3, were children in need.
Accordingly, on March 15 th 2013, the Council provided the family with accommodation in a two bedroom flat, with a kitchen, living room and bathroom, in Ilford in Redbridge. The Council met the cost of the rent and council tax for, and of the water, gas and electricity consumed at, the premises, some £1,302 a month.
Following intervention by the Claimants' solicitors, from April 18 th 2013, the Council paid £50 per week to meet the subsistence needs of the family. It appears that this simply reflected the set rates that "senior management" at the Council had decided should be paid to families who had no access to normal benefits. Despite a number of requests made on the Claimants' behalf before this claim for judicial review was filed, no written policy governing these rates and no explanation of their basis was provided by the Council. Indeed, in response to this claim for judicial review which impugned them, the Council has not produced any document even setting out what these rates then were, much less any document recording the decision to adopt them or providing reasons for their adoption. Mr McGuire told me there are none.
The Claimants were also in school in Newham. In May 2013 the Council also provided BO with an oyster card with credit of £19.60 per week to enable her to take and collect the Claimants from school by bus.
On August 1 st 2013 solicitors acting for the Claimants sent yet another letter before claim complaining that the Council had still not carried out any assessment of the Claimants' needs or provided appropriate support for them under section 17 of the Children Act 1989. On August 6 th 2013 BO and the claimants made an application for leave to remain under the Immigration Rules. The Council asked to be given until August 15 th 2013 to respond to the letter before claim. In the event no response from the Council to this letter before claim was made before this claim for judicial review was filed on October 16 th 2013. The claim impugned the failure to carry out any lawful assessment of the Claimants' needs and the financial support being provided to meet the subsistence needs which they and their mother had.
In its Acknowledgement of Service dated October 30 th 2013, indicating an intention to contest the claim, the Council sought an extension of time for filing its summary grounds of resistance. In these summary grounds, dated November 4 th 2013, the Council revealed, for the first time, that it had in fact completed a core assessment with respect to the Claimants on May 7 th 2013 and it asserted that the provision made for them was adequate. These grounds were accompanied by a witness statement by Ms Judith Kinobe, a Practice Manager employed by the Council, that asserted that "the support being given to this family in comparison with families on benefits is adequate as their accommodation and bills are paid for". These documents were also accompanied by disclosure of a Core Assessment of PO and her siblings completed in May 2013, as well as a copy of the NRFP Policy that had been approved, shortly before, on October 31 st 2013. The disclosed Core Assessment recorded that the family were destitute and required help with travelling costs, weekly subsistence and housing accommodation. It indicated that "a weekly subsistence of £50.00 has been approved for [their mother] and her children" and that "she will also receive weekly support with travel" but it provided no indication why it was considered (if it was) that £50 was sufficient in respect of their subsistence needs or how that amount had been determined or by whom it had been approved.
On November 12 th 2012 His Honour Judge Dight gave the Claimants permission to make further submissions arising from the disclosure provided by the Council. The Claimants accordingly filed a Reply, dated November 15 th 2013, that supplemented their initial grounds. The Reply impugned the core assessment completed in May 2013, the financial support provided and the NRFP Policy to the extent that any reliance was placed on it. As I have mentioned, on December 2 nd 2013, Mr David Elvin QC gave the Claimants permission to bring this claim for judicial review. At the outset of the hearing before me I gave the Claimants permission to supplement the grounds on which this claim is made by reliance on their Reply (as that was formally required) without prejudice to the question whether (as Mr McGuire contended) relief should be refused in any event even if any ground of challenge could be made good.
As I have also already mentioned, on January 20 th 2014, the Secretary of State gave BO and the Claimants limited leave to remain in this country. Accordingly they became eligible as others in this country normally are for assistance with housing and various benefits. It appears that they began to receive income support on April 25 th 2004, child benefit for PO and KO in mid May 2014 and child tax credits on June 26 th 2014. The last payment from the Council to meet their subsistence needs was made on May 19 th 2014. On June 30 th 2014 they were required to leave the flat that had been provided by the...
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