The King (on the application of) LR (a child by mother and Litigation Friend LC) v Coventry City Council

Hearing date: 21 st November 2024

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.

HHJ

Introduction

This case concerns some of the poorest families in our community. It is a judicial review claim relating to local authority provision to families who have ‘no recourse to public funds’, namely no access to the mainstream benefits and housing systems due to their restricted immigration status. However, such families can be supported either by the Home Office (if asylum-seekers), or by local authorities as here. The case examines several legal aspects of this field including: statutory interpretation, the inter-relationship between statutory schemes (especially rates of support); the lawfulness of a local authority's policy of support to families in this position, which affects many families supported by that authority's policy; and the lawfulness of an assessment of need in one individual family's case. But hopefully I will not lose sight of the human aspect of life for all families in this difficult position.

The Defendant, Coventry City Council, has a ‘No Recourse to Public Funds’ (‘NRPF’) policy and the Claimant is a 15-year old whose family is supported under it. I anonymised her as ‘LR’ and her mother and litigation friend as ‘LC’. The Claimant, her mother and two younger brothers ‘LA’ (now 13 years old) and ‘LG’ (now 6 years old) are Nigerian nationals, although LG was born in the UK after the rest of the family arrived here in 2012. At that time, the family had leave to remain, but that subsequently expired and they ‘over-stayed’ without leave. As a result, they are ineligible for the main benefits system. LC separated from her husband in 2023 due to domestic abuse and applied to the Home Office for leave to remain in November 2023, which is still not determined. In the meantime, the family has received support from the Defendant under its NRPF policy of accommodation, bus passes and financial support (cash). At times the latter has been lower than Asylum Support rates (in 2024 £49.18 per week per person), but since soon after the challenged assessment on 24 ^th April 2024, the family has received the cash equivalent of Asylum Support (for the four of them, £196.72 per week).

This claim is a sequel to R(BCD) v Birmingham Children's Trust [2023] PTSR 1277 where I held a different NRPF policy discriminated in breach of Art.14 ECHR. In the course of doing so, I decided the effect of s.17 Children Act 1989 (‘ChA’) and Sch.3 Nationality, Immigration and Asylum Act 2002 (‘NIAA’) were that families lawfully in the UK but ineligible for the mainstream benefits system (as in R(BCD)), were in a different ‘statutory category’ either from families seeking asylum, or from families unlawfully in the UK (like the Claimant's family in the present case) whose entitlement to support was more restricted. In R(BCD), the real issue was whether families lawfully in the UK (which I found all that family to be) were in a different ‘statutory category’ than asylum-seeking families, so my conclusion that families unlawfully in the UK were in yet another statutory category was not an essential finding. In R(BCD), whilst the claimant argued for that and the defendant against it, in this case the roles are reversed. Mr Alomo for the Defendant supports that finding, whilst Mr Khubber and Ms Sekhon for the Claimant submit it was wrong. I gave permission in this case to re-argue this point and reserved it, as if my finding in R(BCD) was wrong, it would be better and quicker for me to correct it. I was also conscious that it would be better for the point to be decided in a case in which it was determinative and involving a family unlawfully in the UK, like this case.

I also gave permission to argue the other grounds of challenge, which raise different but related issues to R(BCD). They rather overlap and repeat, which is why I tried to pin them down when granting permission on all four grounds. But they rather morphed again in oral argument and in the Claimant's post-hearing note (‘CPHN’). What I will call Ground 1A is the interpretation of Sch.3 NIAA, revisiting R(BCD) and what I called a ‘cap’ (CPHN paras.4(i), (ii) and Annexe 1). Ground 1B alleges current support breaches Art.8 ECHR (CPHN para 4(iv)). (The point in para 4(iii) CPHN I saw as part of Ground 3 when I granted permission and I consider it there). Next, I consider the Claimant's challenge to the Defendant's policy (Ground 4 and CPHN paras.5(ii) and (iii)). However, again para.5(i) CPHN is not a challenge to the policy, but to the assessment and again I consider as part of a ‘wide’ Ground 3). Then I consider both the original ‘narrow’ Ground 3 and the ‘wide’ version incorporating those other legal challenges at CPHN paras.4(iii), 5(i) and 6. Finally, I consider Ground 2: an irrationality challenge (discussed briefly at CPHN para.7).

Background

I take the factual background from the helpful Skeleton Arguments, the documents in the bundle and statements on one hand by the Claimant, her mother and their solicitor Mr Bates; and the other, from Mr Heeley, a Social Worker and the Defendant's Strategic Lead for Help and Protection. Whilst there were a few minor factual differences between the parties, nothing turns on those differences. However, I also will bear in mind the support to the Claimant's family from the Defendant has fluctuated over the last 18 months. I will consider first the background to and the terms of the Defendant's NRPF policy, then the Claimant's family's circumstances, then the challenged assessment and claim.

The background to and terms of the Defendant's NRPF Policy

In R(BCD) at [40]–[95], I endeavoured to explain the legislative and policy background to local authority NRPF policies and there is no need to repeat all that here. However, in very brief summary, those who are ‘subject to immigration control’ as requiring leave to remain, are ineligible for support under the mainstream welfare benefits system and local authority social housing. The Divisional Court in R(ST) v SSHD [2021] 1 WLR 6047 upheld this system. Whilst this is called ‘No Recourse to Public Funds’ (‘NRPF’), that is a misnomer as such individuals and families can receive support under other statutory schemes. However, support under each scheme differs, so in R(BCD) at [96]–[115], I described them as different ‘statutory categories’ of support. For example, asylum-seekers (unless disabled) and their families are ineligible for support from local authorities, but can access Home Office Asylum Support to avoid ‘destitution’. It provides for ‘subsistence needs’ like accommodation; and money for food, toiletries and clothing, but not children's ‘welfare needs’ like toys (see R(BCD) at [66]–[75]), typically by a weekly payment per person, currently in 2024 £49.18. By contrast, non-asylum-seeking NRPF families can be provided by local authorities under s.17 Children Act 1989 (‘ChA’) with accommodation, services and financial support: taking into account not just ‘subsistence needs’, but also children's ‘welfare needs’: R(C) v Southwark LBC [2016] HLR 36 (CA). So, in R(C), the Court of Appeal held that it would be unlawful to fix s.17 ChA support at the same level as the weekly Asylum Support per person payment. That underpins all the grounds of challenge in this case to differing extents.

The conclusion in R(C) on the level of support to NRPF families entitled to local authority support came after R(M) v Islington LBC [2005] 1 WLR 884 (CA) and R(Clue) v Birmingham CC [2010] PTSR 2051 (CA) discussed the type and duration of local authority support to NRPF families, given the implementation of the restrictions on support in the Nationality, Immigration and Asylum Act 2002 (‘NIAA’). Before R(M), cases usually focussed on local authority support to fund NRPF families to return to their country of origin (see e.g. R(Kimani) v Lambeth LBC [2004] 1 WLR 272 (CA)). However, in R(M), the Court of Appeal held a local authority could provide accommodation to NRPF families under para.10 Sch.3 NIAA and Withholding and Withdrawal of Support Regulations 2002 (‘WWSR’) pending the resolution of a family's application for leave to remain in the UK, provided they were not in breach of removal directions. Moreover, in R(Clue), the Court of Appeal held that a local authority should not refuse financial support to a NRPF family pursuing an application for leave to remain under Art.8 ECHR (unless it was obviously hopeless or abusive) if that refusal would effectively require the family to leave the UK and abandon that application. I return to both cases (and the challenged part of R(BCD) later as they are relevant to Ground 1A).

Particularly in an ongoing ‘Cost of Living Crisis’, what may seem to other families like very small differences in financial support can make a huge practical difference to NRPF families. As discussed in R(BCD) at [26] and [58]–[60] and in the research Mr Bates quotes in his statement from Project 17 in 2019, the Joseph Rowntree Foundation in 2022 and by Asylum Matters in 2023, life on Asylum Support or its near-equivalent is extremely hard. Even on the lower 2022 figures, the Joseph Rowntree Foundation estimated the ‘destitution threshold’ based...