R Yonas Admasu Kebede Abiy Admasu Kebede v Newcastle City Council
| Jurisdiction | England & Wales |
| Judge | The Deputy Judge |
| Judgment Date | 15 February 2013 |
| Neutral Citation | [2013] EWHC 355 (Admin) |
| Docket Number | CO/9629/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 February 2013 |
[2013] EWHC 355 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Timothy Straker QC
(Sitting as a Deputy High Court Judge)
CO/9629/2012
Ms S Akhtar (instructed by NYAS) appeared on behalf of the Claimants ( Mr L Glenister appeared for the read out judgment only)
Mr H Harrop-Griffiths (instructed by Newcastle City Council) appeared on behalf of the Defendant
Hearing date: 1 February 2013
(As Approved)
This is an application for judicial review made by two brothers, Yonas Kebede and Abiy Kebede, who are aged 21 and 19 respectively. Yonas Kebede was born on 1 November 1991 and Abiy Kebede was born on 17 May 1993. They are Ethiopian nationals, having been born in Ethiopia to Ethiopian parents. However, they have been in this country since September 2004. They appear to have been abandoned by their relatives so that in about August 2007 they came to be looked after by Newcastle City Council. That council is the defendant in these proceedings.
The brothers, who I am told do not have passports of any sort, have had their asylum claims refused, but each has discretionary leave to remain in the United Kingdom until the end of November 2014.
Each of the brothers would like to go to university in this country, but each in that respect has a problem, namely the payment of the fees required by universities. It is, of course, well known that tuition fees are payable and that many undergraduates in the United Kingdom pay such fees through student loans. The relevant regulations are the Education (Student Support) Regulations 2011, SI/2011/1986. These were made under section 22 of the Teaching and Higher Education Act 1998. However, it must immediately be noted that as they, the claimants, are not British subjects or citizens, and have but discretionary leave to remain in the United Kingdom, they are ineligible for the student support (ie loans for tuition fees) provided by the 2011 Regulations. Furthermore, the brothers are in fact to be classified as overseas students by virtue of the Education (Fees and Awards) (England) Regulations 2007, SI/2007/779.
The Children Act 1989 recognises that when someone reaches the age of majority (ie becomes 18) he does not necessarily leave behind all the problems which may loosely be described as growing up. Accordingly, by section 23C of the Children Act 1989, continuing functions are provided in respect of former relevant children. A former relevant child is a person as defined by section 23C(1) of the Children Act 1989, and is either a relevant child or someone who was being looked after. A relevant child is someone who was an eligible child and is aged 16 or 17. An eligible child is someone who has been looked after for 13 weeks beginning with the age of 14.
There is no dispute but that, for the purposes of the Act, each of the brothers is a former relevant child in relation to whom Newcastle were the last responsible authority. Such being the case, it is, in consequence of section 23C(4) of the 1989 Act, the duty of Newcastle City Council to give each of the brothers:
(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 requires it;
(c) other assistance, to the extent that his welfare requires it.
The assistance under (c) may be in kind or, in exceptional circumstances, cash.
On the face of it, the duties owed to former relevant children could last forever. However, by section 23C(6) the duties set out in section 23C(2), (3) and (4) subsist, subject to a proviso, until the former relevant child in question attains the age of 21. The proviso, given by section 23C(7), is that if that former relevant child's pathway plan sets out a programme of education or training which extends beyond his 21st birthday, then the duty in section 21C(4)(b) subsists, so long as the former relevant child continues to pursue that programme and the duties in section 23C(2) and (3) subsist concurrently with that duty.
The assistance mentioned by reference to section 24B in section 23C(4)(a) and (b) is, in respect of (a), a contribution of expenses incurred by the former relevant child in living near the place where he is, or will be, employed or seeking employment; and, in respect of (b), a contribution to expenses incurred in living near the place where he is, or will be, receiving education or training or making a grant to enable him to meet expenses connected with his education or training.
The case for the claimants is that Newcastle City Council have unlawfully failed fully to consider their ability to fund the claimant's tuition fees at the respective universities which the brothers wish to attend and that there is, in fact, a duty to provide assistance. A mandatory order is sought requiring Newcastle City Council to provide the claimants with financial support, either by way of grant or loan, to cover their tuition fees.
The position taken by Newcastle City Council is a denial that they are under any duty to pay tuition fees for the claimant's chosen courses, or lend them money for that purpose.
I do not understand Newcastle City Council, whose case has been presented by Mr Harrop-Griffiths, to say that Newcastle City Council are not statutorily (in one way or another) empowered to pay such fees or give a loan for the fees to be paid. They say, assuming they had a discretion, that they exercised it lawfully and rationally.
The principal focus of the argument was about the meaning of section 23C of the Children Act 1989 in combination with section 24B. I use the phrase "in combination" because section 23C, as stated above, expressly refers to section 24B(2). This means that, for the purposes of this case, the relevant statutory language provided it as the duty of Newcastle City Council to give the brothers assistance to the extent their welfare and their educational needs required it by making a grant to enable them to meet expenses connected with their education.
Mr Harrop-Griffiths, for Newcastle City Council, says that meeting expenses connected with education does not, as a matter of statutory construction of section 24B(2), embrace tuition fees. I find that a very difficult argument to accept. The material words are not defined in the Act and it is not suggested that they are terms of art bearing particular meanings. They are ordinary English words, which need, in context, to be construed. If, in ordinary parlance, I say that I am meeting the expenses of, say, a relative in connection with education, it would, I suggest, be a surprise to anyone listening to learn that my apparent generosity had nothing to do with the cost of tuition. The argument is that expenses connected with someone's education presupposes that such a person is in education, and that therefore tuition fees had either been met or are not, as a matter of language, part of the expenses connected with education, which education (by definition) is in place.
I consider such an argument as put on behalf of the City Council cannot be accepted. First, a principal expense associated with education is the cost of tuition. There is an inseparable connection between tuition and education. I appreciate there are well known instances of the autodidact, but this does not undermine the inseparability of the connection. Second, as a matter of ordinary, natural language, tuition fees are expenses connected with education. Third, the argument falls into difficulties as soon as it is questioned. Why might a text book recommended by a tutor be an expense connected with education, but not the expense associated with the tutor? Is extra tuition an expense connected with education? If so, why not tuition? These questions all reveal that the argument cannot, to my mind, succeed.
Accordingly it follows it was the duty of Newcastle City Council to give assistance by making a grant to enable the brothers to meet expenses connected with their education to the extent that their educational needs required it.
It is now necessary to explain what happened. The claim form, issued on 11 September 2012, identifies the challenged decision as that taken by the Newcastle City Council on 8 August 2012. On that date the City Council wrote to NYAS recording that the brothers were ineligible for support under the Education (Student Support) Regulations 2011 and that Newcastle understood the issue to be whether the Council had to pay tuition fees, which could be as much as £30,000 per annum each.
The letter continued by referring to section 23CA of the Children Act 1989. However, it was subsequently made explicit, as it was made explicit to me, that the present situation does not concern section 23CA but rather section 23C to which I have earlier referred.
In a letter dated 28 August 2012, Newcastle City Council noted that reliance was placed on section 23C rather than section 23CA. It is this letter of 28 August 2012 which reveals the thinking of the City Council and can, in effect, be taken as the decision letter. I do not consider any point arises in consequence of the fact that the claim form refers to the letter of 8 August.
The letter of 28 August repeats a point made in the letter of 8 August, namely that the statutory phrase "expenses connected with education" did not...
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