R (VC and Others) and Another v Newcastle City Council Secretary of State for the Home Department (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Munby,Mr Justice Langstaff |
| Judgment Date | 24 October 2011 |
| Neutral Citation | [2011] EWHC 2673 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/12891/2010 |
| Date | 24 October 2011 |
[2011] EWHC 2673 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING AT NEWCASTLE-UPON-TYNE
The Law Courts
Quayside
Newcastle-upon-Tyne NE1 3LA
Handed Down at the Royal Courts of Justice
Lord Justice Munby
Mr Justice Langstaff
Case No: CO/12891/2010
CO/3827/2011
and
Mr Stephen Broach (instructed by Ben Hoare Bell) for the Claimants
Mr Hilton Harrop-Griffiths (instructed by the Legal Services Division) for the Defendant
Ms Deok Joo Rhee (instructed by the Treasury Solicitor) for the Interested Party
Hearing dates: 18–19 April 2011
These are claims for judicial review in the nature of test cases to determine the relationship between the powers and duties of the local authority (in the present cases, Newcastle City Council) and the Secretary of State for the Home Department in respect of asylum seekers and their families under, respectively, section 17 of the Children Act 1989 and sections 4 and 95 of the Immigration and Asylum Act 1999. In the one case, permission was granted by His Honour Judge Behrens (sitting as a judge of the High Court) on 25 January 2011. In the other case we granted permission on 19 April 2011, during the course of the hearing.
The facts
Given that what are in issue here are points of general principle, my summary of the relevant facts – which are said to be typical of a number of other cases involving the same local authority – can be relatively brief.
The facts: VC's case
The claimants in this case are VC and her two children, DC and JC.
VC arrived in the United Kingdom on 10 December 2002 and claimed asylum at Heathrow Airport. Her claim was refused on 28 January 2003 and her appeal against that decision was dismissed on 12 June 2003. In reliance upon the dismissal of her appeal, the asylum support that VC had previously been receiving under section 95 of the 1999 Act was terminated in September 2003. DC was born on 2 August 2004, at a time when VC was living with the man she subsequently married on 6 December 2004 but from whom she is now separated (they last met in May 2006). On 26 August 2004 VC made further submissions to the Secretary of State (received on 19 October 2004) relying upon Article 3. On 5 November 2004 the Secretary of State rejected the further submissions and refused to treat them as a fresh claim. On 4 January 2005, following receipt of a pre-action protocol letter, the Secretary of State accepted these submissions as a fresh claim, but refused it. VC's appeal was dismissed on 15 April 2005.
In August 2005, following allegations of domestic violence, the local authority began to provide the family – VC and DC – with accommodation and support pursuant to section 17 of the 1989 Act. JC was born on 13 October 2005. Child protection investigations which had begun in March 2006 eventually concluded in October 2009 with a determination that no further child protection intervention was required, though accommodation and support services under section 17 continued to be provided.
In July 2009 the family made an application under a 'legacy' exercise and in August 2009 entered the legacy queue on the basis that it was a pre-March 2007 case which remained unresolved. On 18 February 2011, VC, DC and JC were granted indefinite leave to remain.
In February 2010 the local authority had begun a review of the 49 asylum seeking families (including VC's family) which were being supported under section 17. On 1 June 2010 JC, who suffers from sickle cell problems, was assessed by the local authority as being a child in need within the meaning of section 17. On 23 June 2010 DC was similarly assessed as being a child in need. By a letter dated 9 August 2010 the local authority told VC that she should apply to the Secretary of State for support under section 4 of the 1999 Act and said that if she did not it would not be possible for it to continue supporting her on an indefinite basis under section 17. A similar letter from the local authority dated 2 November 2010 said that if she did not apply for section 4 support within two weeks her section 17 support would be terminated. A similar letter dated 3 November 2010 was sent to her legal advisers, who responded with a letter before action on 11 November 2010. The local authority reiterated its stance in a reply to the letter before action dated 19 November 2010. Following further correspondence, proceedings were issued on 16 December 2010. The local authority filed its acknowledgement of service and summary grounds of defence on 7 January 2011. On 17 January 2011 a further initial assessment by the local authority found JC to be a child in need, indeed, a child with complex needs. On 25 January 2011, as I have said, Judge Behrens granted permission. The local authority filed its detailed grounds on 15 February 2011, followed by the Secretary of State, as the interested party, on 9 March 2011. On 23 March 2011 VC filed her reply and addendum grounds.
At the hearing before us, on 18 April 2011, VC and her children were represented by Mr Stephen Broach, the local authority by Mr Hilton Harrop-Griffiths and the Secretary of State by Ms Deok Joo Rhee. I should record that, if not the first time ever, this was the first occasion within living memory when the Divisional Court had sat at Newcastle-upon-Tyne.
At the outset of the hearing, and without opposition, we gave VC permission to rely on the further ground raised in her reply and addendum grounds and to adduce certain further evidence.
It was only during the hearing that it emerged that the case had been brought on what turned out to be a false basis (see below) and that, on what turned out to be by common consensus the true facts, the point at issue simply did not arise. The claimants' solicitors, however, were also acting for another client, K, whose case, it was agreed, did raise the crucial issue. Being reluctant in the circumstances either to abort the hearing (which by then was well advanced) or to proceed on the basis of a case which did not in fact raise the issue on which all parties were desirous of obtaining judgment, we agreed to make orders permitting K to commence proceedings (on the basis of facts which the parties were able to agree), dispensing with all the subsequent steps that would normally follow, and giving her permission to apply. In the event, the proceedings were issued on 21 April 2011.
The facts: K's case
The claimant in this case is K. She has two children, J and B.
K arrived in the United Kingdom on 23 December 2004 and claimed asylum at Heathrow Airport. Her claim was refused on 11 January 2005 and her appeal against that decision was dismissed on 21 December 2005. In reliance upon the dismissal of her appeal, the asylum support that K had previously been receiving under section 95 of the 1999 Act was then terminated. J was born on 29 January 2008. On 18 December 2007 the local authority had began to provide support and, from 17 January 2008, accommodation, both under section 17.
K submitted a 'legacy' questionnaire to the Secretary of State on 5 May 2009, a further letter in support being sent by her solicitors on 20 October 2009. As at the date of the hearing, her claim was yet to be determined. I understand that she has since been granted indefinite leave to remain.
B was born on 5 March 2010, the local authority increasing the level of the family's support accordingly. On 7 June 2010 the local authority wrote to K saying that if she did not apply for section 4 support within two weeks her section 17 support would cease. On 10 June 2010 K applied for section 4 support. Her application was refused on 14 June 2010 and her appeal from that decision was dismissed on 30 June 2010. (There has been no challenge to that decision.) The local authority wrote again on 3 November 2010, seemingly in ignorance of the fact that K had already made an unsuccessful application, saying that she needed to apply for section 4 support and again threatening to terminate her section 17 support. In the event, it was agreed by the local authority that her section 17 support would continue pending the outcome of VC's claim.
It is not said explicitly, but it is implicit, that the local authority has assessed J (and it may be also B) as being a child in need.
The statutory framework
Mr Harrop-Griffiths complains, as it seems to me with every justification, that the interaction between 'social services legislation' and 'asylum support legislation' has created what he calls a monstrous labyrinth. He reminds us that in R (AW) v London Borough of Croydon [2007] EWCA Civ 266 Laws LJ had described the task of the Court of Appeal on that occasion (para [16]) as involving quite an elaborate paper chase and had commented that
"the distribution of responsibility which is at the core of this case could surely have been provided much more clearly and simply."
I can only agree. Mr Harrop-Griffiths laments that in many respects the paper chase here is even more elaborate. Again I can only agree.
The statutory framework: local authority support
These cases relate, and relate only, to the local authority's powers and duties under section For reasons which will become apparent when, in due course, I come to consider the case-law, it is also necessary, however, to refer to certain other statutory functions of the local authority.
Local authority support: section 17
The general duty of the local authority under section 17 is set out in section 17(1):
"It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part) –
(a) to safeguard and promote the welfare of...
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