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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> C, T, M and U, R (on the application of) v London Borough of Southwark  EWCA Civ 707 (12 July 2016)
Cite as:  HLR 36,  EWCA Civ 707
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ON APPEAL FROM THE ADMINISTRATIVE COURT
Ms bobbie Cheema QC sitting as a Deputy Judge of the High Court
Strand, London, WC2A 2LL
B e f o r e :
(Vice President of the Court of Appeal, Civil Division)
SENIOR PRESIDENT OF TRIBUNALS
LORD JUSTICE VOS
| THE QUEEN
on the application of C, T, M and U
|- and -
|LONDON BOROUGH OF SOUTHWARK
- and -
Ms Fenella Morris QC and Ms Sian Davies (instructed by Southwark Legal Services) for the Respondent
Miss Shu Shin Luh (instructed by Coram Children's Legal Centre) for the Intervener
Hearing date: 27 April 2016
Crown Copyright ©
Senior President of Tribunals:
i) Whether the respondent had an unlawful policy or practice of setting financial support to those seeking assistance under section 17 of the Children Act 1989 ['CA 1989'] at the level of child benefit in the circumstance that they otherwise had no right of recourse to public funds;
ii) Whether after the decision of the Administrative Court in R (PO & Ors) v Newham London Borough Council  EWHC 2561 (Admin) the respondent had an unlawful policy or practice of setting financial support to those seeking assistance under section 17 CA 1989 at the level of payments which would have been made to asylum seekers or failed asylum seekers by the Secretary of State under sections 4 and 95 of the Immigration and Asylum Act 1999 ['IAA 1999'] in the circumstance that they otherwise had no recourse to public funds;
iii) Whether the respondent breached the appellants' article 8 ECHR rights because it provided them with financial support at a level less than that which it knew was necessary to prevent breach and, if so, are the appellants entitled to damages in respect of the breach?
i) The family were self-supporting until the father left at which point, to avoid what was described by the local authority as 'the prospect of imminent destitution', C approached the local authority's children services department on 21 May 2012.
ii) The first assessment of need for the purposes of section 17 CA 1989 was begun on that day. It concluded that the family's needs would be met by their return to Nigeria with accommodation being provided in the event that it was necessary pending return or any further application for leave to remain in the UK.
iii) Consistent with the conclusion of the first assessment, the family were accommodated by the local authority when they faced eviction for non- payment of rent. After a night in bed and breakfast accommodation they moved to accommodation close to the children's school.
iv) The local authority assessed the needs of the children for financial support on 17 July 2012 when the family's savings were at the point of being exhausted. C sought between £45.50 and £51.50 per week to cover the balance of a household budget that she had compiled having given credit for the value of vouchers that at the time she was receiving from Kids Company. The local authority provided £47.10 per week from 20 July 2012 together with bus passes for the cost of transport to school and for other activities for the children.
v) A second assessment was requested by C on 4 September 2012. That assessment concluded with an offer by the local authority of more spacious accommodation which C rejected because it was further away from the children's school and her support network. A similar offer was made by the local authority in December 2012 which C also rejected for the same reason.
vi) The claim for judicial review was issued on 19 December 2012. On 20 December the local authority offered the family a three bedroom property which C accepted and increased the financial support payments to £86.00 per week pending further assessment.
vii) A third assessment was completed on 21 January 2013. It included a finance assessment carried out on 9 January 2013. The local authority did not accept C's budget, not all of which was evidenced by receipts, with the consequence that financial support payments reverted to the previous sum of £47.10 per week, net of other financial support which continued.
viii) On 12 February 2013 the family moved to accommodation in Crystal Palace and by June 2013 the father had been released from prison and had moved back in with the family. E was born in October 2013.
ix) In February 2014 financial support payments were increased to £60.50 per week net of other support.
x) The fourth assessment which began on 20 February 2014 had regard to the new family circumstances. Financial support payments were increased to £80.70 per week, net of other support. The family were offered a move to Manchester which was refused.
xi) A fifth assessment was undertaken in May 2014 leading to an increase in the financial support payments to £140 per week net.
xii) In June 2014 the family agreed to move to the North West of England. They were temporarily accommodated in Catford before being accommodated in Rochdale on 1 September 2014.
xiii) A sixth assessment was completed on 6 November 2014. C's expenditure budget was accepted in its entirety. Financial support payments were increased to £216.92 per week. The assessment took account of increased travel costs and the cessation of the benefit of the Kids Company vouchers.
xiv) The family remain in a 3 bedroom furnished house in Rochdale where all utility bills are paid by the local authority and they are in receipt of both regular and occasional financial support which continues to be re-assessed.
i) The first needs assessment of the local authority was "a thorough and detailed piece of work". It concluded that the children were "happy and confident, well behaved" and that "there were no signs of neglect".
ii) The third assessment "followed the previous two being a detailed evidence based document".
iii) At the time of the fourth assessment "the children were thriving".
iv) The children were "well looked after".
v) The needs of the family were met and their altered circumstances over time were provided for.
vi) There is no evidence that the children or the family were discriminated against by the local authority because of their nationality or immigration status.
For the purposes of this Part a child shall be taken to be in need if -
(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
(c) he is disabled,
'family' in relation to such a child includes any person who has parental responsibility for the child and any other person with whom he has been living."
"17(1) It shall be the general duty of every local authority (in addition to other duties imposed on them by this Part) –
(a) to safeguard and promote the welfare of children within their area who are in need; and
(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,
by providing a range and level of services appropriate to those children's needs.
(2) For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part 1 of Schedule 2."
"…the defendant's powers [under section 17] were never intended to enable it to act as an alternative welfare agency in circumstances where Parliament had determined that the claimant should be excluded from mainstream benefits."
"It would be administratively absurd (if not impossible), and productive of unnecessary expense, if the amount required had to be assessed in each individual case without any guidance as to what is normally appropriate. Moreover, in practice, such an approach devoid of any general guidance would inevitably lead to unjustifiable and unfair differences in the amounts paid to different families in a similar position depending on the views of the individuals making or approving such assessments."
Lord Justice Vos:
Lord Justice Moore-Bick VP: