The Queen (on the application of ES) v The London Borough of Barking and Dagenham
| Jurisdiction | England & Wales |
| Judge | Mr Robin Purchas QC |
| Judgment Date | 27 March 2013 |
| Neutral Citation | [2013] EWHC 691 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/12322/2012 |
| Date | 27 March 2013 |
[2013] EWHC 691 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Robin Purchas QC
(Sitting as a deputy judge of the High Court)
Case No: CO/12322/2012
Azeem Suterwalla (instructed by Wilsons Solicitors) for the Claimant
Kelvin Rutledge (instructed by the Borough Solicitor) for the Defendant
Hearing dates: 19 th March 2013
Introduction
The Claimant seeks judicial review of the Defendant's failure to assess her son's needs for the purposes of providing accommodation and support under section 17 of the Children Act 1989 ("the 1989 Act"). While the case is specific to its particular facts, it raises the question of the extent to which the Defendant could rely upon the Secretary of State's power to provide facilities for accommodation under section 4 of the Immigration and Asylum Act 1999 ("the 1999 Act") in deciding whether or not to carry out an assessment of need.
The Facts
The Claimant is an Albanian, who arrived in this country on the 27 th June 2009 and claimed asylum and humanitarian protection because of her fear of domestic violence if she returned to her country of origin. She stated that she had been raped and had become pregnant. Her son was born on the 18 th February 2010. Her claim for asylum and humanitarian protection was rejected on the 22 nd September 2009, on grounds including that there was no reason for her not to return to Albania where there was sufficient protection under the law. In July 2012 she sought support for her son from the Defendant under section 17 of the 1989 Act. At the time the Claimant and her son were staying with a family friend on a temporary basis.
The Defendant carried out an initial assessment of need, which was completed by the 7 th September 2012. The assessment considered the child's health, emotional and behavioural needs and concluded that there was no concern regarding the Claimant's ability to respond to the child's needs appropriately in that respect. The assessment concluded:
"At the moment the family are staying with a close friend, this is helping them achieve some sense of stability and mother should be able to access support and services from Children Centre. Mother is not in a relationship and is hoping to resolve her outstanding immigration through the support of Shpresa Programme."
I should explain that the Shpresa Programme ("the Project") was a charitable organisation for the support of refugees from Albania and Kosovo. The assessment went on to conclude:
"From 2009 to date (the Claimant) appears to have been supported by a network of friends and relatives as well as taking up part time work as a cleaner. At the moment (the Claimant) does have accommodation … (the Claimant and her son) have their own bedroom to sleep in and the room is furnished to meet their needs – their clothes and soft furnishings are in the room and there is nothing to suggest that their occupation of this room is temporary or even recent. (The Claimant) may be struggling financially but she is being helped by charities as well as (the family friend). … This assessment concludes that (the son's) developmental needs, including, health, education and emotional and behavioural can be met through universal services. (The Claimant) has identified that she does need to focus on (the son's) emotional and behavioural development, she has acknowledged that his exposure to (domestic violence) between 2011 and early 2012 has affected his social and emotional development. She needs to engage with the health visiting and multi-agency network to address his distress. (The son) does not like meeting new people, he does not like visitors and mother has said she is not going out. (The Claimant) will have to prioritise this issue by engaging with the Children's Centre services set up to offer support and activities. This need can be met appropriately in the community within universal service provision such as health visiting and Children Centre, the (social worker) will provide written information on local provision as well as make a referral to the health visiting team on this need.
Decision on provision of section 17 support
The UKBA have informed us on two separate occasions that mother remains a failed asylum seeker who has no legal basis to be in the UK. It was also confirmed that no application for leave to remain has been lodged to date (5.9.12). Therefore this assessment concludes that mother's immigration status remains that of a failed asylum seeker, without a current application lodged with the UKBA this means that the local authority is excluded from supporting under s 54 and schedule 3 of the NIAA 2002. Our support would be limited to assisting (the Claimant) with help with cost of return flights to Albania or offering to place (the son) in local authority foster care, she is to continue to make her own arrangements with accommodation. The Claimant is aware that the only way she can regularise her insecure immigration status in the UK is by lodging a fresh application, she can then access s 95 support with accommodation and subsistence from NASS.
Practice manager's comment
(The Claimant) has failed in two asylum applications and is currently without any application lodged with the Home Office. I see no information contained in the report that would pose a barrier to (the Claimant) and her child returning to Albania. The son's care with his mother is good enough and there is nothing about (the Claimant's) parenting that raises concerns thus the son is not in need of section 17 support from Children's Social Care. Given that the existing legislation is clear regarding the level of support that may be provided the local authority, following assessment, is closing this case."
By letter dated the 27 th September 2012 the Defendant wrote to the Claimant explaining that the application based on the Claimant's destitution
"has been addressed in the assessment in that we conclude that based on your current immigration status the local authority will only help with the cost of return flights to Albania. At the moment your status is that of a failed asylum seeker with no current application lodged with the UKBA to regularise your insecure immigration status. If you have made an application to the UKBA in the meantime then please bring in documentary evidence to the office by Tuesday the 25th September 2012 so that I can amend the assessment to reach a further view on whether Children's Services can lawfully provide support under section 17 of the Children's Act."
I should comment at this stage, for reasons set out later in this judgment, the conclusion that the Defendant was unable to provide support under section 17 was incorrect in law in that by virtue of paragraphs 2 and 3 of Schedule 3 to the Nationality, Immigration & Asylum Act 2002 ("the 2002 Act"), there was no prohibition on the provision of support under section 17 to a child or to the extent necessary to avoid a breach of Convention rights.
On the 28 th September 2012 the Claimant attended the UKBA Reporting Centre to make further submissions in support of her asylum claim, as confirmed in the letter from the UKBA of that date. On the 2 nd November 2012 further representations were made to the UKBA by other solicitors acting on behalf of the Claimant in support of the asylum claim and asking that it be treated as a fresh claim. No decision has been made on that application, which has not accordingly been accepted as a fresh claim.
On the 1 st November 2012 the family friend, who had been providing accommodation for the Claimant and her son, asked her to leave on the 2 nd November 2012 because the accommodation would no longer be available. The Claimant and her son then moved temporarily to share a room with a friend but that arrangement could only continue until 12 th November.
On the 5 th November 2012 the Claimant's solicitors emailed the Defendant, setting out the position as described above, including reference to the further asylum representations, concluding:
"In view of this information we request that you urgently reconsider your decision regarding (the son's) section 17 application. The Claimant cannot return to Albania as she fears persecution there. She and her young son are shortly to be made street homeless as the friend who is accommodating them can only do so until the 12th November 2012."
On the 6 th November 2012, with the help of the Red Cross, the Claimant made an application to the UKBA seeking support under section 4 of the 1999 Act on the grounds that she was destitute and that the provision of accommodation was necessary for the purposes of avoiding a breach of her Convention rights.
On the 8 th November 2012 the solicitors sent a further email to the Defendant that the Claimant was due to be made homeless on the 12 th November and that the son had been "very unwell and is awaiting an operation". On the same day, the Defendant's solicitor responded by email:
"As discussed, your client is entitled to NASS support, the local authority are prevented through statutory provisions from (providing) support to such families where this support is available. We understand that your client has made an application for NASS. The Border Agency have an absolute duty to provide emergency accommodation to those that they owe a duty to as is the case here, and whilst they consider their application. We are happy to progress this on her behalf if the British Red...
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