The King on the application of AAM v London Borough of Bromley

Hearing dates: 15 May and 4 June 2025

Approved Judgment

This judgment was handed down remotely at 10.30am on Monday 23 June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Jonathan Moffett KC, sitting as a Deputy High Court Judge

A. INTRODUCTION

This claim for judicial review raises the issue of whether the Defendant (“the Council”) reached a lawful decision as to what assistance it should provide to the Claimant under ss 24 and 24A of the Children Act 1989 (“the 1989 Act”).

The Claimant is a young adult and an asylum-seeker. For a brief period prior to his 18 ^th birthday, the Claimant was provided with accommodation by the Council. The Council required the Claimant to leave that accommodation very shortly after he turned 18, and thereafter the Claimant has resided in accommodation (“NASS accommodation”) provided by the Interested Party (“the Secretary of State”) under s 95 of the Immigration and Asylum Act 1999 (“the 1999 Act”). On 16 August 2024, the Council finalised a pathway plan (“the pathway plan”) which sets out the assistance that the Council decided to provide to the Claimant.

The Claimant contends that the pathway plan is unlawful, primarily on the ground that the Council's decision that it will not provide him with accommodation is said to be unlawful. One of the Claimant's grounds of challenge raises a point of law as to the relationship between the Council's functions under ss 24 and 24A of the 1989 Act and the Secretary of State's functions under s 95 of the 1999 Act. The Claimant argues that, in light of House of Lords and Court of Appeal case law on the relationship between analogous social services functions and the Secretary of State's functions, the Council was, when deciding what assistance it would provide to the Claimant, required to disregard the fact that the Claimant was being provided with NASS accommodation by the Secretary of State.

Permission to apply for judicial review was granted by an order of Mr CMG Ockelton, sitting as a Deputy High Court Judge, dated 14 February 2025. Mr Ockelton made an anonymity order in respect of the Claimant, and it is important to note that, as I explain below, that order remains in force. Accordingly, there must be no reporting of the Claimant's identity, or of any other information which may lead to his identification. Mr Ockelton refused an application by the Claimant for the claim to be expedited, an application which was subsequently renewed. It does not appear that the renewed application for expedition was ever formally determined by the Court, but the Court was in any event able to offer an early substantive hearing.

At the substantive hearing, the Claimant was represented by Ms Amanda Weston KC and Ms Jennifer Twite, and the Defendant was represented by Mr Hilton Harrop-Griffiths. I am grateful to all counsel for their submissions.

The Secretary of State filed an acknowledgment of service stating that she adopted a neutral position on the claim and that she did not intend to participate in the proceedings. Accordingly, the Secretary of State was not represented at the substantive hearing, and I have received no submissions from her.

In view of the length of this judgment, it may be of assistance to the reader if I were to provide an index to the topics that it covers:

A. Introduction: paragraphs 1 to 8

B. Anonymity: paragraphs 9 to 10

C. The issues: paragraphs 11 to 16

D. The evidence: paragraphs 17 to 24

E. The factual background: paragraphs 25 to 59

F. The legislative and policy framework

(1) Local authority functions under Part III of the 1989 Act: paragraphs 60 to 83

(2) The Secretary of State's functions under the 1999 Act: paragraphs 84 to 92

G. Issue 1: the relationship between the 1989 Act and the 1999 Act: paragraphs 93 to 143

H. Issue 2: exceptional circumstances: paragraphs 144 to 150

I. Issue 3: the conventional public law challenges to the pathway plan

(1) Introduction: paragraphs 151–154

(2) Financial resources: paragraphs 155 to 160

(3) Mental health needs: paragraphs 161 to 168

(4) Accommodation: paragraphs 169 to 179

J. Issue 4: compliance with the Care Leavers (England) Regulations 2010 (“the 2010 Regulations”): paragraphs 180 to 183

K. Postscript

L. Summary and remedy: paragraphs 185 to 187

The provisions which are of most relevance for the purpose of the Claimant's claim are ss 24 and 24A of the 1989 Act and s 95 of the 1989 Act. For convenience, I shall in this judgment refer to those provisions as simply “s 24”, “s 24A” and “s 95”, respectively.

B. ANONYMITY

In the claim form, the Claimant made an application for an anonymity order, on the grounds of his age and vulnerability, and the fact that he is an asylum-seeker whose claim for asylum is based on his sexuality. In his order of 14 February 2025, Mr Ockelton granted a withholding order, a restricted reporting order under s 11 of the Contempt of Court Act 1981, and an order restricting access to documents on the Court's file under CPR 5.4C(4). Mr Ockelton's orders were not expressed to be time limited, and accordingly they continue in force unless varied or discharged by the Court. Nevertheless, at the outset of the hearing I canvassed with the parties whether those orders should be maintained. For the Claimant, Ms Weston submitted that the orders should continue in force; for the Council, Mr Harrop-Griffiths adopted a neutral stance.

An anonymity order of the kind made by Mr Ockelton constitutes a departure from the important constitutional principle of open justice, to which significant weight must be attached: see the guidance set out in the judgment of Nicklin J in PMC v A Local Health Board [2024] EWHC 2969 (KB). Nevertheless, bearing in mind the fact that the Claimant is an asylum-seeker who claims a well-founded fear of persecution and the fact that at the hearing reference would be (and was) made to his sexuality and to medical matters which would otherwise be private, I considered that the derogation from the principle of open justice was justified, and that Mr Ockelton's order should remain in force. I remain of that view. Accordingly, any report of these proceedings or this judgment must not directly or indirectly identify the Claimant.

C. THE ISSUES

In the statement of facts and grounds which accompanied the claim form, the Claimant advanced five grounds of challenge. As I understood them, they were to the following effect.

(1) The Council's failure to contact the Claimant, or to keep in touch with the Claimant adequately or at all, from 9 January 2023 “to date” constituted a breach of the Council's duty under s 24A(3)(a) to advise and befriend the Claimant, and to keep in contact with the Claimant in order to discharge its functions under s 24(4).

(2) The Council's assessment of the Claimant's needs, and the pathway plan, were unlawful and/or irrational, and did not comply with the Care Leavers (England) Regulations 2010 (SI 2010 No 2571) (“the 2010 Regulations”).

(3) There were two parts to ground three:

(a) the Council unlawfully took into account the NASS accommodation provided by the Secretary of State when considering whether to exercise its discretion under s 24A(4) and (5)(a) to provide accommodation to the Claimant; and

(b) in any event, the Council unlawfully failed to exercise its discretion under s 24A(4) and (5)(a) to provide the Claimant with accommodation.

(4) The Council erred in law by misdirecting itself as to what constitute “exceptional circumstances” for the purposes of s 24A(5).

(5) When exercising its discretion under s 24A(4) and (5)(a), the Council unlawfully failed to act in accordance with national guidance and its policy by failing to provide the Claimant with suitable accommodation and a personal advisor.

Mr Ockelton refused permission to apply for judicial review on ground one. He considered that ground one had been brought out of time, because it related to events which had occurred before the finalisation of the pathway plan on 16 August 2024, and which therefore occurred more than three months before the claim form was filed on 15 November 2024. Mr Ockelton took the view that the pathway plan had rendered academic any challenge to events which occurred before its preparation, and that there was no good reason for extending time in respect of a ground of challenge which had become academic. The Claimant renewed his application for permission on the first ground of challenge by way of a notice of renewal dated 21 February 2025. In accordance with the directions given by Mr Ockelton, the parties agreed that this renewed application should be dealt with at the substantive hearing.

In view of the way in which the various grounds of challenge were addressed in the Claimant's statement of facts and grounds and skeleton argument, and the agreed list of issues, and in view of the breadth of the matters which were addressed in the evidence on which the Claimant proposed to rely, at the outset of the hearing I sought to clarify with Ms Weston how exactly she intended to put the Claimant's case on each ground of challenge and exactly what evidence she proposed to rely on. Having done so, I afforded her some time to reflect and to take instructions before articulating the Claimant's final position.

Having done so, Ms Weston...