The King (on the application of) GW (a child by his mother and litigation Friend RM) v Dudley Metropolitan Borough Council

Hearing date: 9 th July 2025

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 claim for judicial review concerns the meaning of ‘child in need’ under s.17 Children Act 1989 (‘CA’) for families who have ‘no recourse to public funds’ (‘NRPF’). They have no access to the mainstream benefits and housing systems due to their restricted immigration status. Whilst asylum-seeking families can receive Asylum Support from the Home Office, other NRPF families are supported by local authorities. One of the main ways this is done is support for the children under s.17 CA, which can be by direct provision, accommodation, or financial support. But such s.17 support is only available for a child or children if they are ‘in need’.

That is the key issue in this case, unlike some of the other cases to which I was referred (and decided) about level of s.17 support for children assessed as ‘in need’ in NRPF families. More relevant are three recent Court of Appeal cases about when a child is ‘in need’ under s.17: R(DF) v Essex CC [2025] PTSR 806, R(TW) v Essex CC [2025] EWCA Civ 4 and R(BC) v Surrey CC [2025] EWCA Civ 719. However, all these cases concerned British children. The present case therefore is an opportunity to examine the concept of a ‘child in need’ in s.17 with the assistance of that guidance, but in the rather different context of children in NRPF families.

Many people might think children in NRPF families are obviously ‘in need’. Whilst the children have access to universal healthcare and can go to school, NRPF families are still some of the poorest families in our community, as shown by evidence in another case involving the same Counsel before me in 2024. In 2022, in the ‘Cost of Living Crisis’, the Joseph Rowntree Foundation estimated then-Asylum Support rates (which had been applied by the authority in that case as the rate of s.17 support) as significantly lower than the ‘destitution threshold’ based on the average weekly expenditure of the poorest 10% of society. In 2023, Asylum Matters found 80% of families on Asylum Support cannot buy the clothes they need and 45% cannot buy the food they need, so parents often go hungry to feed their children. Project 17 also discussed how such poverty affects children's physical and mental health.

However, despite all those practical and financial challenges, many parents in NRPF families do just about manage to meet their childrens' needs, albeit often at the expense of their own. It is a testimony to those parents' resilience, strength — and above all, their love for their children. Moreover, ‘NRPF families’ is an umbrella term encompassing a wide range of families with different immigration statuses, some of whom are in the UK lawfully and can work and rent their home privately.

That is true of the Claimant's family here. He is a 10-year old boy and has been granted anonymity (as ‘GW’) alongside his 8-year old brother (‘XW’), baby sister born in October 2024 (‘ZW’), father (‘BW’) and mother and Litigation Friend (‘RM’). The family are Zimbabwean nationals but came to the UK in 2023 on RM's skilled work care visa, which authorised her (and BW) to work, but not to have any recourse to public funds. As I shall explain, RM alleged exploitation by her then-employer and in April 2024, the Home Office National Referral Mechanism (‘NRM’) accepted there were ‘reasonable grounds’ to believe that. Since then, RM has received financial support from the NRM which is less overall than the Asylum Support rate (as there is no element for BW who is authorised to work but does not).

The family were first referred to the Defendant in May 2024. On 5 ^th July 2024, it concluded the Claimant and his brother were not ‘in need’, despite the exploitation of RM by her previous employers, problems with her new employer (whom I shall explain is linked to the family's landlord and RM's estranged sister) and BW's unfitness to work. In October 2024, just after ZW was born and RM started a period of maternity leave to care for her, RM brought on behalf of the Claimant a judicial review claim of that first assessment. Permission was given and the case was listed before HHJ Worster in Birmingham on 10 ^th December 2024. However, at that hearing, the Claimant agreed to withdraw the claim on the basis the Defendant agreed to reassess the children (now including ZW) by 9 ^th January 2025.

For reasons disputed between the parties, that assessment did not happen until 9 ^th April 2025 (‘the April assessment’) — after RM had issued the Claimant's second judicial review claim alleging unlawful delay, pointing out the family's landlord in March 2025 gave notice seeking possession. On 14 ^th April 2025, the Claimant issued additional grounds challenging that assessment. On 17 ^th April 2025, HHJ Rawlings refused permission on the unlawful delay challenge as it was academic now the April assessment had been produced, but made procedural directions about the additional grounds of challenge to the April assessment. After the Summary Grounds of Defence (‘SGD’) to the additional grounds were filed in May 2025, I directed a hearing to consider permission on those additional grounds, the oral renewal of permission on the unlawful delay ground and the application for interim relief. At a hearing on 4 ^th June 2025, I refused permission on the unlawful delay ground as academic for similar reasons as HHJ Rawlings had done, but I granted permission on the additional grounds of challenge and made new directions expediting the claim to a hearing on 9 ^th July 2025, rather than ordering interim relief.

There are four live grounds of challenge to the April assessment — three for which I gave permission at the June hearing, supplemented by Ground 4, articulated orally then but now in writing, for which I gave permission at the July hearing:

(1) Ground 1: ‘ Misdirection on the facts and in law when considering whether C is a child in need: need for additional provision to meet welfare needs’. The nub of this ground is the allegation that the Defendant wrongly applied a ‘destitution threshold’ to its assessment of whether the Claimant was ‘in need’.

(2) Ground 2: ‘Misdirection on the facts and in law when considering whether C is a child in need: availability of housing provision to avoid street homelessness’. The nubs of this ground are the allegations that the Defendant (i) failed to take a ‘forward-looking’ to that issue given the precarity of the family's housing; (ii) wrongly relied on a suggested defence to a possession claim; and (iii) wrongly applied a ‘homelessness threshold’ for the Claimant being ‘in need’.

(3) Ground 3: ‘ Misdirection on the facts and in law when considering whether C is a child in need: availability of voluntary return to Zimbabwe’. The nub of this ground is the allegation that the Defendant wrongly relied on its view that the family could return to Zimbabwe to improve its material situation, when that would have the effect of frustrating RM's claim to residence under the NRM.

(4) Ground 4: ‘Irrationality’. The nub of this ground is: (i) if any of Grounds 1–3 succeed, the assessment was also irrational; or (ii) even if not, the cumulative effect of the factual issues in those Grounds show the assessment was irrational.

Given the rather convoluted entangling of the assessment process with the litigation, I will not separate out the factual background from the litigation history in this judgment. Instead, I first set out the factual and litigation background to the April 2025 assessment under challenge, then consider that assessment in detail and briefly the developments in the three months since, before analysing the legal framework and the issues of law arising, then finally turning to my conclusions on the four Grounds.

Background to the April 2025 Assessment

RM, BW and their children are Zimbabwean nationals (including ZW, who alone among the family was born here). Tragically, RM and BW had an older daughter who died aged only 13. This was why RM became a carer in Zimbabwe and ran a support service for families of disabled children. RMs' sister (whom I shall call ‘MM’) is the director and main shareholder of both: a property company which I shall call ‘TG’, currently RM's landlord; and (through a holding company) a domiciliary care company which I call ‘Z’, currently RM's employer. It is clear MM controls both companies; and due to her actions, RM is estranged from her.

RM came to the UK first in January 2023 on her visa to work for a care company which I shall abbreviate to ‘PVC’, which as far as I know is not owned or run by MM. A foreign national working in the UK care sector like RM must have a ‘Sponsor’, typically a British business licenced to employ them. This makes such ‘sponsored workers’ particularly reliant on their employer for their immigration status, not just their wages. Sadly, on occasion, this also means such workers are particularly vulnerable to exploitation by their sponsor, which RM alleges happened with PVC. In her initial witness statement in the first judicial review, she said that in the seven months she worked with PVC from January to August 2023, she was only paid around £20 in total and PVC also...