Support for NRPF families

The Court of Appeal has considered a number of issues around families designated as having no right of recourse to public funds but still supported under section 17 of the Children Act. Jonathan Auburn reports.

Where a family is designated as having no right of recourse to public funds (“NRPF”) but is still supported under the Children Act section 17, what type of accommodation and what rates of support must the local authority provide as a minimum to comply with section 17? And when will any failure to provide appropriate support give rise to a breach of Article 8 sounding in damages? Those were the issues the Court of Appeal addressed this week in R (C, T, M and U) v London Borough of Southwark [2016] EWCA Civ 707.

The issues arise because there is an exception to the NRPF rules where people are prohibited from being provided with mainstream housing and welfare benefits and the ineligible person is a child, or where support under section 17 is necessary to prevent a breach of Convention rights. Where the local authority provides such support, it does so pursuant to its powers as a children’s services authority, and not as a housing authority.

The Southwark case concerned a mother and her three children who were Nigerian nationals, had been refused leave to remain in the UK, and were now NRPF. Southwark carried out numerous assessments of need under the Children Act 1989 s.17, as well as assessments of the level of financial support which they had.

During this process it provided accommodation and support through payment of utility bills, and payments for school transport and clothing.

The claimants / appellants claimed that Southwark had determined its form of accommodation and rates of subsistence support by reference to the level of child benefit payments and the level of payment made by the Secretary of State for support pursuant to section 4 and 95 of the Immigration and Asylum Act 1999, whereas they said the level of support should have purely flowed from the section 17 assessments of need. The claimants alleged that Southwark had applied an unlawful policy of inflexibly fixing the level of support payments by reference to those other statutory regimes. They further alleged that in doing so Southwark had fettered the discretion which it was required to exercise. Southwark admitted that it had had regard to the rates used in these other systems, but stated that its assessments and decision-making were focussed on the individuals involved and it had not fettered its discretion.

The judicial review claim failed in the Administrative Court, though it appears to have been cast very differently in that court, and then reformulated for the Court of Appeal.

The Court of Appeal dismissed the appeal. Ryder LJ noted that the case-law established that section 17 did not create a specific duty owed to an individual child, but rather was a target duty which created a discretion to make a decision to meet a child's assessed need. A local authority acting in such a situation pursuant to section 17 was acting under its powers as a children's services authority, not as a social services authority performing functions relating to homelessness, and not as a housing authority.

He further held that it was appropriate to follow the generic assessment framework laid down by central government guidance for section 17 assessments. Local authorities should consider all appropriate evidential factors, and any cross-checking against rates used in other statutory schemes must not constrain the obligation to have regard to the impact on the child's welfare and the proportionality of that impact.

Ryder LJ rejected the charge that rates had been applied by inflexible and impermissible reliance on the rates used in other statutory schemes. He held that the assessments had been detailed and considered, and the evidence showed that Southwark had approached the matter flexibly.

It is notable that Ryder LJ held at para 30 stated that it would have been unlawful for the local authority to have benchmarked its rates of support by reference to another statutory scheme. However he held that on the facts of the instant case this had not been done.

While it was not relevant given the above findings, the Court also held that the Article 8 claim would not have been upheld. A failure to provide services in accordance with an assessment of need could potentially give rise to a breach of Article 8, but only where there was an immediate and direct link between the measures requested and the individual’s private life. In this case Southwark’s decisions were well within the margin of appreciation that the State enjoyed.

Comment

The case provides essential guidance on the approach to determining support to be provided in exercise of section 17 Children Act powers. The rates used in other schemes, such as central government asylum and hard cases support, and welfare benefits, can be used as a cross-check, but not as a starting point or benchmark. Flexibility and the exercise of discretion are obviously key.

Importantly, the Court recognised that the extent of any services and subsistence payments made under section 17 must reflect the child’s needs and those of the family with which they live. That is rather different to the more generic approach taken by central government to welfare benefits, and to asylum and hard cases support.

Southwark’s approach was lawful because it had conducted a bespoke assessment relating to that child / family (in fact a number of detailed assessments). Therefore the fact that the rates of support it chose happened to align with levels of support used in other statutory schemes was coincidental, and did not suggest the inflexible use of those other rates.

Jonathan Auburn is a barrister at 11KBW, specialising in public law, local government, community care and related areas. He can be contacted  This email address is being protected from spambots. You need JavaScript enabled to view it. or Twitter @jonauburn11kbw.