R (on the application of MK) v Barking and Dagenham London Borough Council [2013] EWHC 3486 (Admin) [Judgment on Lexis, not on Bailii yet]

A judicial review raising the extent of a Council’s duties and powers under s.17 Children Act 1989 and s.1 Localism Act 2011 (the general power of competence) in providing housing for someone not otherwise eligible for housing assistance.

MK was from Nigeria. She was in the UK illegally. A current application for leave to remain had been refused and was under appeal to the First Tier Tribunal. (If MK left the UK, this appeal would fall.) MK’s age was unclear. Barking had assessed her date of birth to be 4 June 1993 and that assessment was taken as correct in this case, though MK claimed to be two years younger.

She had been living with her aunt, Ms A, and her aunt’s two young children. She first came to Barnet Council’s attention when Ms A was imprisoned for fraud. A family friend came to look after the children, including MK. At that time, both Ms A’s children and MK were taken as ‘children in need’ by Barnet. The 2009 assessment found that MK regarded Ms A as her mother and helped out with the care of the two younger children.

Ms A herself did not have leave to remain and applied for leave for herself, her children and MK. This is has not yet been decided.

On Ms A’s release, the family moved to barking. MK attended school, got her A levels and an offer of a degree place, though funding was not available due to her uncertain immigration status.

Ms A faced eviction from her private rented accommodation and sought assistance from Barking. Barking initially proposed that the whole family should return to Nigeria, but after Birmingham City Council v Clue [2011] 1 WLR 99, in view of Ms A’s article 8 application for leave to remain, Barking offered Ms and her two children support and accommodation under s.17 Children Act 1989. Barking declined to assist MK. Ms A has a one bedroom flat with her two sons. MK was staying there, on the floor, then with a friend, before becoming homeless.

Barking had found that MK was not a child in need, nor a formerly relevant child, having never been a looked after child. Barking decided that it had no power to provide MK with accommodation. Their initial assessment had noted that MK had a home life with Ms A and the children.

MK brought a judicial review, arguing:

that she is destitute and that unless accommodation and monetary assistance is given to her, the impact of her current circumstances, having regard to her age, her sex and the length of time she is likely to be without support, is likely to be so severe as to amount to inhuman or degrading treatment within the meaning of that phrase in article 3 of the European Convention of Human Rights. She also maintains that her current situation impairs her right to a family and private life under article 8

and

that the Defendant had the power to act to avoid a breach of those rights, i.e. by making use of section 17 (3) of the Children Act 1989 (coupled with section 17 (6)) or by using their power under section 1 of the Localism Act 2011.

Barking argued that:

Section 17 (3) cannot and should not be used to avoid the impact of statutory provisions preventing the Claimant, who has no right to remain in the UK, from accessing most benefits. That section is clearly designed to benefit children and not a member of their family and the purported use of the section is ultra vires the authority.

Neither can the Localism Act be used to avoid the prohibitions on other statutory means of relief which might otherwise be available to the Claimant were it not for her immigration status.

The High Court noted that both the s.17 Children Act and the s.1 Localism Act powers were constrained by paragraph 1 of Schedule 3 of the Nationality, Immigration and Asylum Act 2002, which prevented their use for those unlawfully in the UK save to the extent that it was necessary to prevent a breach of their convention rights (para 3(a) of Schedule 3).

MK’s argument that there was a power under s.17, as accommodating MK with the family would promote or safeguard the welfare of the children. However, the High Court accepted Barking’s assessments which found that Ms A’s parenting capacity was adequate and there was no reason to regard MK as an integral part of the family. (The Holmes-Moorhouse approach to homeless review decisions being expressly adopted for Children Services assessments and a review here).

ML argued that this case was the same as Clue, and

were support under section 17 (3) and (6) to be withheld there would be a breach of convention rights in the sense that the Claimant would be destitute and her article 3 rights would be likely to be breached, unless she returned to Nigeria in which case she would forfeit her extant appeal which is based on human rights grounds. Section 17 (3) is sufficiently broad to cover the provision of accommodation and cash to the Claimant, a member of the family of her two nephews.

Barking argued that MK was seeking support and accommodation for herself, but, not being a child in need or formerly relevant child, s.17 support could only be provided where required to promote or safeguard the welfare of the children, here Ms A’s two sons. There was therefore no power to use s.17 and to do so would be both ultra vires and contradict a clear government policy.  R.(G) v Barnet London Borough Council [2004] 2 AC 208 (HL(E))  establishes that it is not possible to carve out a section 17 duty to house families where children are already accommodated. Per Blackburn-Smith v Lambeth London Borough Council [2007] EWHC 767 (Admin) and Dobbs J:

” the defendant’s powers 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;…”

The High Court agreed with Barking.

Section 17 (1) gives a clear indication of the purposes for which the powers in that part of the Children Act should be exercised. To utilise the section 17 (3) power either to house the claimant separately or even to accommodate her by granting her a licence to live at the flat in which her aunt and her cousins are housed would, in my judgment, be using the power for a collateral and improper purpose. I agree that to use the section in this way would be ultra vires the authority.

On the Localism Act, the s.1 power was to enable a Local Authority to have the power of an individual.

an individual is not able to provide part III Children Act services nor part VII Housing Act services nor public money which comprise the services and things which the Claimant is, in fact, seeking. Those functions may only be exercised by a local authority. Section 1 of the Localism Act is an enabling section which, for example, gives a Local Authority the power to enter into contracts or leases. It was not intended by Parliament as a means of overriding a clear statutory scheme prohibiting the provision of benefits of all kinds to those unlawfully in the UK.

Adopting the words of Sedley LJ in R(Badu) v London Borough of Lambeth [2006] 1 WLR 505 at para 72 speaking of section 2 of the Local Government Act 2000, the predecessor of section 1 of the Localism Act in England:

“[A] local authority…is not obliged but… is permitted to use its alternative powers [in section 2] so long as … it does not exercise them with the object simply of circumventing restrictions – even restrictions which are incompatible with Convention rights – built into the impugned power…”

So section 1 of the Localism Act 2011 “may not be used to empower the Defendant to provide accommodation and basic subsistence to the Claimant.”

And finally, did:

the combined effect of [R (Limbuela) -v- Secretary of State for the Home Department [2006] 1 AC 396 (HL(E)) ] and Clue establish that there is a free standing duty to accommodate and provide cash to a person like the Claimant who is within the boundaries of a local authority and whose Convention rights are threatened? Is there some positive duty independent of the Children Act part III or Housing Act duties?

The High Court held not. Limbuela was simply a case about the proper statutory construction of s.55(5)(a) NIAA. Notably, Lord Bingham’s judgment began:

“A general public duty to house the homeless or provide for the destitute cannot be spelled out of article 3.”

The Court of Appeal decision in Clue expressly concerned a scenario in which

a person is unlawfully present in the United Kingdom within paragraph 7 of Schedule 3 [to] the 2002 Act, and is destitute and would otherwise be eligible for services of a kind listed in paragraph 1 of Schedule 3” [Emphasis in judgment]

But in this case, even if MK were lawfully present she would not be eligible for s.17 assistance, for the eases given earlier.

For good measure, the High Court quotes Sedley LJ in Badu

“What Hooper’s case ….does in my respectful view establish is that a power to make alternative provision does not become a duty simply because the principal power is subject to statutory restrictions which are incompatible with Convention rights.

By parity of reasoning, all such powers remain in being. But is it then open to the public authority in whom they are vested, if minded to do so, to use them for the purpose of circumventing or replacing the non-compliant one? Once the purpose of section 6(2) is recognised as being the preservation of Parliamentary sovereignty, the answer must be no. Such a use of power would have an illicit purpose. Thus a local authority which resolved to use section 17(6) of the Children Act 1989 in all cases which fell foul of section 185(4) of the Housing Act 1996 would in my judgment be abusing its powers.

Application for Judicial Review dismissed.

There is no free standing power vested in the Defendant to accommodate the Claimant nor are they permitted to exercise their section 17 Children Act or section 1 Localism Act powers to assist the Claimant and, as a result, I dismiss her application.