SO, R (on the application of) v London Borough of Barking and Dagenham [2010] EWCA Civ 1101

I’m a bit slow in getting to this one (and the rest of our backlog). We’re all more than a little busy. My apologies.

This is the Court of Appeal hearing of a case that first surfaced as a more than surprising result in a Judicial Review decision – [2010] EWHC 634 (Admin) [which we unaccountably missed at the time] – in which the court found that a Local Authority could derive no power to provide accommodation for a ‘formerly relevant child’ under s.23C(4)(c) Children Act 1989, although the primary issue at JR had been whether the LA or NASS had a duty to accommodate a formerly relevant child who was also an asylum seeker.

Unsurprisingly, the JR went to the Court of Appeal. The Court of Appeal noted that this was a complex issue, as evidenced by the actions of the Secretary of State for the Home Department, who, having been joined, took the view that there was no power to accommodate under s.23C(4)(c) and in any event, that the LA was entitled to rely on accommodation being provided by NASS. That was until a week before the hearing, at which the SoS argued precisely the opposite. The Children’s Society also applied to be joined as intervener.

The background was that SO had applied for asylum in 2007 as an Eritrean child. The LA had assessed him as being 17. The SoS had refused his asylum claim on the basis that he was a 20 year old Saudi who had applied for entry as a visitor. That case went to appeal and was dismissed and a fresh claim was refused. Meanwhile, SO had been accommodated as a child under s.20 Children Act by the LA, which had not revisited it’s own assessment of SO’s age. The LA continued to accommodate SO until June 2009 when support was terminated, in part because accommodation was available from NASS under s.4 Immigration and Asylum Act 1999. This decision was challenged in the present proceedings.

The Court of Appeal was asked to consider the case on the basis that:
a) SO was an asylum seeker, rather than a failed asylum seeker
b) SO was now 20, rather than 23 as thr AIT had found – the AIT’s decision not being conclusive (R(A) v Croydon LBC: R(M) v Lambeth LBC [2009] 1 WLR 2557 )
c) The Court was to ignore the fact that SO was receiving education and training as set out in his pathway plan.

Reluctantly, the Court did so, on the basis that this was of wider application than SO’s possibly academic case.

Issue 1. Does a local authority enjoy a power to accommodate a former relevant child under s.23C(4)(c) of the Children Act 1989?

The Court held that it does, solely on the basis that the language in s.23C(4)(c) mirrors that of s.17(6). That latter section had been held to confer a power to provide accommodation in R(W) v Lambeth LBC [2002] 2 All ER 901, even before the insertion of a specific reference to accommodation made by Adoption and Children Act 2002. So, on the basis that there was no redundancy in the subsections of s.23(4), and that the purpose of the amendment to s.17 by the Adoption and Children Act was to put that section’s purpose beyond doubt, not to change it, the same words in s.23C(4)(c) must be held to convey the same power to provide accommodation.

The High Court decision overturned on this issue.

Issue 2. Can the council look to NASS support when considering whether a former relevant child’s welfare requires that he be accommodated by it?

If SO was to be taken as an asylum seeker, there was the possibility of support under s.95 Immigration and Asylum Act 1999. Was a Local Authority entitled to take that into account in considering whether it had a duty to provide accommodation. Equally, can the Secretary of State take the possibility of local authority assistance into account in deciding on support via NASS.

Following the principles in R(Westminster City Council) v NASS [2002] 1 WLR 2956 on the amendments of s.21 National Assistance Act 1948 by Immigration and Asylum Act 1999, the Court held that:

since the powers under s.95 (and s.4) of the Immigration and Asylum Act 1999 are residual, and cannot be exercised if the asylum seeker (or failed asylum seeker) is entitled to accommodation under some other provision, a local authority is not entitled, when considering whether a former relevant child’s welfare requires that he be accommodated by it, to take into account the possibility of support from NASS.

The High Court overturned on this point also.

The case was remitted to the High Court for determination of SO’s age.

This is a welcome decision. The High Court decision had caused considerable difficulties, most particularly in the finding that there was no power to provide accommodation for the formerly looked after child to age 21 (or 24 if in full time education). Now that is clarified, and any confusion/buck passing between the Local Authority and NASS sorted out.