The High Court has quashed a decision by a London borough that the mother of two children who was also the full-time carer for her niece was not destitute.
In JA & Ors, R (On the Application Of) v The London Borough of Bexley  EWHC 130 AA, a 39-year-old national of Nigeria who by reason of now being in the UK without leave to remain has no recourse to public funds, was the litigation friend of the three claimants.
AA had become the full-time carer for her niece when her sister returned to Nigeria in 2013.
The claimants sought to challenge Bexley’s decision that AA was not destitute, and therefore they were not children in need of accommodation and support pursuant to section 17 of the Children Act 1989.
The council’s decision was made by way of a Children and Family Assessment dated 12 June 2018. The assessment relied in part upon the findings of a fraud investigation carried out by Bexley in 2017.
The London borough had contended that AA was concealing her resources and was far from destitute. In addition Bexley was of the view that AA and her family could and should return to Nigeria.
The council asserted that there had been ongoing investigations into the family's means and "they apparently live a lifestyle well beyond that which could be financed by the amounts given to them as subsistence by the local authority".
The claimants contended that Bexley’s decision was unlawful for the following reasons:
i) the decision was based on material errors of fact;
ii) the defendant council had failed to make sufficient enquiries and its decision was procedurally unfair;
iii) the defendant's decision was based on a failure to take account of relevant and material considerations. The council had also taken account of irrelevant matters; and
iv) further or alternatively, the defendant's decision was irrational, in that on the facts of this case this was not a decision open to the local authority to take.
Finding for the claimants, Judge David Casement QC concluded that:
- AA had a visible means of income prior to presenting herself as destitute;
- The claimants were clearly vulnerable if AA was destitute;
- AA did not have recourse to public funds as a result of her immigration status. During the course of the investigation no real consideration appeared to have been given by the council as to what AA would do if she was not provided with accommodation;
- It was “difficult to see how any proper assessment can be said to have been made without addressing the accommodation needs of the three children and their carer including the issues arising by reason of section 21. That is quite apart from the need for financial assistance”;
- The defendant had relied upon items of expenditure as indications of a lavish lifestyle without enquiring as to when the items were acquired and the sources of money involved. “AA's employment history prior to presenting herself as destitute in 2015 is clearly documented and was declared to the authority”. The significance of the date when a television, a computer and an IPAD were acquired was not taken into account by the council “and it ought to have been”;
- In taking each of eight possible sources of income in turn the council was unable to identify any evidence or legitimate basis for inference to support the decision that AA had or would have had access to funds and support such that AA and the claimants would not be destitute. It amounted to pure speculation. “Reliance was made upon inconsistencies or gaps in the accounts given by AA in interview but those inconsistencies were such as not to provide a reasonable basis to infer that she was not destitute”;
- There was no evidential basis to conclude that the father, MTA, had any ongoing relationship with AA or had provided any financial payments to AA other than a few very modest payments during a period of several years.
- The defendant was entitled to infer that monies obtained in exchange for goods or services whether that was for sewing, dressmaking or otherwise (AA had a large sewing machine at home). “However AA presented herself as destitute after she was informed it was illegal for her to do any paid work. That led her to give up her employment. Whilst relevant to credibility generally the payments that were received prior to the claim of destitution cannot show that she is not destitute after that claim is made.”
- Upon close scrutiny the findings that AA had recourse to other sources of funds was not properly based upon any of the evidence upon which the defendant relied in reaching the decision. “It was a decision which no reasonable authority could have reached on the evidence available.”
Judge Casement concluded: “The decision was flawed in that the defendant took into account matters which it ought not to have taken into account and failed to take into account matters which it should have taken into account.
“Given the evidence and materials before the defendant at the time of the decision or which reasonably could have been available to the defendant if appropriate enquiries had been made, the decision to find that AA was not destitute and that the claimants were not children in need was Wednesbury unreasonable.
“In these circumstances the claimants' grounds are made out and the claimants' application for judicial review is granted. The decision is therefore quashed.”
The judge said it was open to Bexley to conduct a further section 17 assessment taking into account the further evidence that had been filed in these proceedings and any other relevant matters.
“AA is under an obligation to comply fully with the reasonable requests of the defendant to enable that section 17 assessment to be carried out including visiting the claimants' home,” he added.
The Youth Legal and Resource Centre, which acted for the claimants, tweeted: “Brilliant win for our clients: NRPF mother being unfairly discredited by the LA alleging w/o proper evidence she had a luxurious lifestyle so the children were not destitute, not in need and support was to be withdrawn. Not now.”