No educational funding for care leaver

Money iStock 000008683901XSmall 146x219Legal actions over local authorities' refusal to fund education for care leavers after 21 are increasing following the Kebede case. Bryan McGuire QC looks at the latest High Court ruling.

Solihull Metropolitan Borough Council has defeated a judicial review claim that it had unlawfully refused to provide funding, accommodation and support for a 21-year-old care leaver and failed asylum seeker to attend an Early Years foundation course.

In Nfuni v Solihull MBC [2013] EWHC 3155 (Admin) the claimant had been lawfully supported until her 21st birthday when Solihull indicated it would cease support. The claimant sought continued support on the basis that:

  1. It was wrong to conclude that its duty to a care leaver came to an end on her 21st birthday, because her pathway plan at that stage already provided for a programme of education, which she was still pursuing, and a duty to fund her next intended course had already been triggered;
  2. Whether or not that was the case, the council was wrong in law to conclude that the claimant had no educational need to pursue the course she now wished to embark on by reason of her immigration status, with the result that the council was obliged to continue funding her accommodation and education.

Both claims were defeated:

  1. As to whether the claimant was already on a “programme”, the court held there must be something which can properly be called a "programme", and that this must consist of a step or series of identifiable steps that the parent has decided that it approves or intends that the child should follow, although no exhaustive definition could be proffered. On the facts of this case, the claimant’s wish to study Early Years was not part of a programme.
  2. As to whether Solihull was obliged to fund the claimant’s Early Years foundation course which she found subsequently, Solihull found, having regard to all the circumstances and in particular her uncertain immigration status, that her education and welfare needs did not require that she attend this course. The duty to provide funding was not triggered. The court upheld Solihull’s decision as within its range of reasonable conclusions.

Comment

Challenges to refusal to fund education for care leavers post 21 have become more common, particularly since the courts have stated in clear terms (in Kebede) that local authorities cannot have regard to their own finances in deciding whether to fund such courses. The importance of this decision is twofold:

(i)      It confirms that when considering whether a duty to fund is triggered, that is to say whether the person’s educational needs require this service, the local authority can properly ask itself whether her educational needs require that she starts a course she may not finish. And in answering that question, immigration status may be a highly relevant consideration.

(ii)      It gives a clearer indication of what words in a pathway plan might be treated as amounting to embarking on a programme of education.

Bryan McGuire QC is a barrister at Cornerstone Barristers and represented Solihull in this case.