Section 17: no recourse to public funds

The latter half of 2014 saw the Administrative Court consider challenges to local authority decisions concerning the provision, under s. 17 of the Children Act 1989, of financial support for families who have no recourse to public funds. Eirwen Pierrot examines the rulings.

A key issue in the four cases (in chronological sequence) of R (PO, KO and RO) v Newham LBC [2014] EWHC 2561; R (Mensah) v Salford CC [2014] EWHC 3537, heard together with R (Bello) v Salford CC; and R (C, T, M and U) v Southwark LBC [2014] EWHC 3983 was whether the local authority had acted lawfully in formulating policies that used the level of payments made under other statutory schemes (such as child benefit and humanitarian support provided for failed asylum seekers) as benchmarks for amounts payable as subsistence for destitute families under section 17.

The Court in all three judgments concluded that such an approach could in principle be lawful, provided the authority could give a rational explanation for the level of these payments and provided the policy allowed for additional payments in exceptional circumstances or where necessary for the welfare of the children.

Newham case

This case concerned a family comprising a Nigerian national and her three children, who were the claimants. In March 2013 they had faced eviction for rent arrears and had sought accommodation and financial support from Newham. The authority accepted the children were in need for the purposes of section 17 and provided the family with accommodation (together with the payment of all utilities and council tax) and with £50 a week as subsistence. It also paid nearly £20 a week for travel to and from school.

The claim was issued in October 2013. In January 2014 the family were given leave to remain in the UK and became eligible for State benefits and housing assistance but the Court nonetheless considered the legality of Newham’s NRPF policy in such a case.

This policy stated that subsistence payments would be determined on a case-by-case basis ‘considering the individual situation of the family’. It then set out standard payment rates (for example, £35 a week for a lone parent with two children) but it also provided that in exceptional circumstances additional financial support may be required and that if a person asked in writing for more there would be an internal review as to whether any further sum was required.

The policy did not itself explain how these standard rates had been determined but a witness statement did; they were derived from child benefit rates.

John Howell QC, sitting as a Deputy High Court Judge, found there was nothing unlawful in principle in a local authority prescribing standard rates of payment to meet the subsistence needs of families with no recourse to public funds (rather than make individual decisions in the case of each such family), provided its policy allowed for exceptions in exceptional circumstances. He commented that 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 was 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.”

However, he considered that for such a policy to be lawful, its starting-point, against which any exceptional circumstances had to be rated, had to be properly evaluated and he did not consider the use of child benefit rates to be a lawful starting-point. He observed that not only is child benefit not intended to meet by itself all the financial costs of bringing up a child in normal circumstances (it is, for example, paid in addition to income support, which includes an element of financial support for children) but also it is not designed to meet by itself a child’s subsistence needs, as illustrated by the fact that the asylum support payable for a child aged between 3 and 16, which is required by EU law to be adequate to ensure the maintenance of an adequate standard of health and the enjoyment of a dignified standard of living, is nearly four times the amount of child benefit payable for a second child - £52.96 a week set against £13.55.

A further flaw in the policy was that the use of child benefit rates meant that no provision was made for the subsistence needs of adults. John Howell QC reasoned that if the local authority was seeking to keep the family together in the children’s interests, then it made no sense to leave the adults to starve. Although those here unlawfully face a statutory bar (Schedule 3 to the Nationality, Immigration and Asylum Act 2002) to receiving section 17 support beyond what is necessary to avoid a breach of ECHR rights, any such support should be in addition to that provided for the children.

Salford cases

Mensah concerned a Ghanaian national, the claimant, and her son, who was a British national. Bello concerned a Nigerian national, the claimant, and her three children, who were British nationals. The Home Office had decided, in accordance with the decision of the European Court of Justice in Zambrano and consequent amendments made to the EEA Regulations 2006, that Ms. Bello had a derivative right to reside in the UK as the primary carer of her children but had not accepted this was so in the case of Ms. Mensah, who was awaiting the outcome of an appeal against its decision. Nonetheless Salford accepted she had such a right and the hearing, before Lewis J, proceeded on this basis.

In each case the authority had decided to provide accommodation (together with the payment of all utilities and council tax) and financial support, which was based on the amounts payable by the Home Office to failed asylum-seekers and their dependants under section 4 of the Immigration and Asylum Act 1999 in order for them to purchase food and essential toiletries. The amounts payable each week were £45 to Ms. Mensah (she also received £25 a week from her child’s father) and £140 to Ms. Bello. A witness statement the authority produced explained the rationale for its policy, which included this: “[Salford] considers that for administrative convenience and fairness there should be a base level rather than that its social workers should have to calculate in every case precisely how much assistance is needed - but with the flexibility for assistance in excess of this level if it is needed.”  

The claimants argued, amongst other things, that it was unlawful to use an amount calculated for a different statutory purpose, under section 4, in order to pursue another, namely the promotion and safeguarding of the welfare of children in need under section 17 but Lewis J found that the authority’s approach was rational and gave four substantive reasons for this:

1. There is nothing inherently unlawful in one public body having regard to the level of subsistence payments fixed by another public body as being necessary to avoid or alleviate destitution;
2. The authority had not confused the two statutory purposes, where it was dealing with children who were in need because they faced destitution;
3. Section 4 payments only covered food and essential toiletries but Salford’s policy (and practice) was to provide additional assistance, including the provision of clothing, if such a need was identified;
4. The possibility of a child needing such support for an extended time does not make the policy unlawful.

In short, he held that that authority’s policy was intended to address a particular set of needs arising from destitution and it was therefore rational to use as a base figure the amount provided by central government for failed asylum seekers and their dependants who appear to be destitute, provided it was satisfied the children’s needs were met, for example by the provision of winter clothing and school uniform in addition.

Southwark case

This case concerned a Nigerian couple and their four children. In May 2012 the mother and three of the children (the fourth had yet to be born), who were the claimants, had faced eviction for rent arrears and had sought accommodation and financial support from Southwark. The authority accepted that the children were in need and provided the family, latterly the father and the fourth child as well as the four claimants, with accommodation (together with the payment of all utilities and council tax) in a series of placements, latterly in Rochdale.

As for financial support, £47.10 a week for the four claimants (in addition to £30 in food vouchers from a charity) was to begin with considered to be adequate (subject to additional one-off items of expenditure), based as it was on the mother’s own estimate of essential needs. There was then an increase, to £86 a week, following the issuing of proceedings, but following re-assessment the amount paid each week reverted to £47.10 plus a payment for travel of nearly £20 (plus £30 in vouchers). By the time of the hearing, however, the family was receiving nearly £217 a week from Southwark but they no longer received the vouchers. This amount had been decided on following a further re-assessment (the sixth) a fortnight before the hearing, which had stated that ‘by way of a benchmark’ the level of support had been ‘cross-referenced’ to the levels provided under section 4 of the 1999 Act.

The principal issue for Bobbie Cheema QC, sitting as a Deputy High Court Judge, to consider was whether the authority had acted unlawfully in respect of its financial support decisions prior to that of November 2014. She found it had not, which neatly illustrates how in such cases an authority’s reasons for deciding on a particular amount will be key rather than the amount itself.

The claimants based their arguments on the differences between the amounts decided on over the 2½ years in question and on a reference in the authority’s Grounds of Defence to child benefit rates. The judge concluded, however, that Southwark had sought to provide (on each occasion in question) a detailed, case-sensitive assessment of the children’s needs responsive to changes in circumstances and that the reference to child benefit was, on the facts, a red herring. She found that although the earlier figures were low the evidence had not led her to conclude that they had been reached through any improper, unfair or irrational process. She also found that as a matter of fact the children’s needs had been met.    

Key principles

A number of key principles can be distilled from the above cases, which Children’s Services departments should have in mind when formulating and applying policies concerning section 17 provision for families with no recourse to public funds:

1. The type of support and amount of any monetary payments a local authority will provide to a family is within the broad discretion of the local authority. The Court’s function is limited to reviewing the legality of its decision-making on traditional public law grounds.
2. The provision of section 17 support must be based on the assessed needs of the children.
3. However, a local authority is entitled to have a policy that identifies, as standard payments, how much is likely to be needed in order to avoid or alleviate destitution in the case of a child, not least this will be administratively efficient and will reduce the risk of unfair and unjustifiable differences in amounts paid.
4. The figures contained within any policy must themselves have been lawfully and rationally determined. Figures based simply on child benefit rates will not pass the test of rationality. However, where the policy relates to provision for destitute families there is nothing inherently unlawful about a local authority having regard to payments made to failed asylum seekers and their dependants, their purpose also being to alleviate destitution.
5. Where the local authority does use a policy of standard payments it must not fetter its discretion by the blanket application of that policy. The policy must allow for exceptional circumstances, where the welfare of the child requires an increase in them or additional provision in kind.
6. Where it is in a child’s interests to be brought up by his family, section 17 support must also be calculated to provide for the needs of the parent – but, if the parent is here unlawfully, no more than is necessary to avoid the breach of rights under the ECHR or the EU Treaties.

Eirwen Pierrot is a Pupil Barrister at Field Court Chambers. She can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..