e-flash 401
R (SO) v Barking & Dagenham LBC
[2010] EWCA Civ 1101
Court of Appeal: Jacob, Leveson and Tomlinson LJJ
The Court of Appeal has confirmed that local authorities have a power to provide accommodation to former relevant children under s.23C(4)(c) of the Children Act 1989. When considering whether to provide a former relevant child, who was also a failed asylum seeker, with accommodation under s.23C(4)(c) the respondent authority was not entitled take into account the possibility of the appellant being provided with accommodation by the UK Borders Agency under s.4(2) of the Immigration and Asylum Act 1999.
Introduction
A social services authority must provide accommodation for any child present in their area who appears to be in need owing to the person who has been caring for him being prevented from providing him with suitable accommodation or care: s.20(1)(c) of the Children Act 1989 (“the 1989 Act”). Upon being provided with accommodation under s.20 that child becomes looked after: s.22 of the 1989 Act.
When a person who was previously looked after by the local authority turns 18, and had been looked after for a period of 13 weeks, they become a former relevant child: s.23C(1)(b), Sch.2, para.19B of the 1989 Act and reg.3(1) Children Leaving Care Regulations 2001.
While there is no explicit duty to provide former relevant children with accommodation, the relevant authority must provide former relevant children with “other assistance” as his welfare requires: s.23C(4)(c).
Other assistance - in the context of Pt. 3 of the 1989 Act and its two preceding statutes – has been construed by the Court of Appeal as including the provision of accommodation: R (W) v Lambeth LBC [2002] 2 All ER 901; R v Tower Hamlets LBC ex. parte Monaf (1988) 20 HLR 529; Attorney General ex rel. Tilley v Wandsworth LBC [1981] 1 WLR 854.
The UK Borders Agency may provide or arrange for the provision of accommodation to someone who was an asylum seeker, but who has had their claim rejected: s.4(2) of the Immigration and Asylum Act 1999 (“the 1999 Act”). The power to accommodate is residual and may not be used if the asylum seeker is entitled to accommodation under some other provision: R (Westminster CC) v NASS [2002] 1 WLR 2956.
Facts
The appellant was a national of Eritrea. On September 25, 2007, he entered the UK alone and claimed asylum. Upon arrival he claimed to be 17 years old and was accommodated by the respondent authority under s.20 of the 1989 Act after they accepted that he had been born on July 6, 1990. The UK Borders Agency refused the appellant’s claim for asylum and his appeal against this decision was finally dismissed on October 18, 2008. In dismissing the appeal, an immigration judge found as a fact that the appellant had been born on February 21, 1987. However, the respondent authority did not re-assess the appellant’s age and continued to treat him as though he was born on July 6, 1990.
On October 9, 2009, the respondent authority notified the appellant that they would cease to provide him with accommodation because, as a failed asylum seeker, he was entitled to support under s.4 of the 1999 Act.
The appellant issued a claim for judicial review on the basis that, firstly, the respondent authority had failed to consider whether he was entitled, as a former relevant child studying for a diploma at Lambeth College, to be accommodated by the respondent authority under s.23C(4)(c) of the 1989 Act and that, secondly, the respondent authority had made an error of law by considering he was entitled, when he was not, to support under s.4 of the 1999 Act.
On March 3, 2010, the Administrative Court dismissed the claim for judicial review on the ground that the respondent authority lacked the power to accommodate former relevant children under s.23C(4)(c) of the 1989 Act. The Administrative Court gave the appellant leave to appeal.
The Court of Appeal
The Court of Appeal allowed the appeal. S.23C(4)(c) did empower local authorities to provide accommodation to former relevant children. The draftsman had used language – “other assistance” - which the Court of Appeal had construed on three separates occasions, in a similar context, as encompassing the provision of accommodation. It was highly unlikely that the draftsman would have used identical language if he did not intend other assistance to include the provision of accommodation.
Nor could the respondent authority, when considering whether the appellant’s welfare required that he be accommodated by them under s.23C(4)(c), take into account the possibility that he could have been accommodated by the UK Borders Agency under s.4(2) of the 1999 Act. The power under s.4(2) was residual and could not be exercised if the failed asylum seeker was entitled to accommodation under some other provision, such as s.23C(4)(c).
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