Jonathan Auburn and Benjamin Tankel review three recent cases relating to the duty of local authorities to provide for families with no recourse to public funds.
This article covers three recent cases – R (KA) v Essex CC; R (EAT) v LB Newham; and R (ES) v LB Barking and Dagenham.
The background to the first two cases is R (Clue) v Birmingham CC  1 WLR 99, in which it was held that a local authority may not refuse to provide support and accommodation to an individual with no recourse to public funds who has an outstanding application for leave to remain based on human rights grounds that was not obviously hopeless or abusive.
This already imposes upon local authorities significant responsibilities in respect of families who would not otherwise be entitled to support and whose application for leave to remain might take many months or even years to be determined.
R (KA) v Essex CC  EWHC 43 (Admin)
Clue did not expressly apply to that relatively large number of cases in which individuals have no outstanding application for leave to remain, but where removal directions have not yet been set. Individuals in such cases who choose to remain in the UK often remain in a state of limbo in that they have a putative right to appeal against removal directions when made, but have no presently existing rights of appeal. This can last for several years during which time individuals would often go without local authority support. However, in R (KA) v Essex CC, the Administrative Court extended the principle in Clue to individuals in precisely this situation, where their putative right of appeal against removal directions would be on human rights grounds.
These cases seem often to involve families with children who were either born in the UK or who have spent many years here. The claim for support is usually under s. 17 CA 1989, and the immigration case is usually based on the children’s Art 8 rights to remain in the country. Where the child has been in the UK for longer than seven years, the immigration case is usually strong, and it becomes easier to demonstrate that the application for leave to remain is not hopeless or abusive.
R (KA) has proved controversial because it requires local authorities to provide support and accommodation to a much larger range of individuals than previously caught by Clue. It can take many years for removal directions to be set and KA therefore leaves local authorities rather at the mercy of the UKBA and its very large backlog. The defendant local authority in KA has recently been granted leave to appeal to the Court of Appeal but, in the meantime, it seems that KA remains good law.
R (EAT) v LB Newham  EWHC 344 (Admin)
This case represents a local authority’s ingenious attempt to avoid the burdensome consequences of Clue. The claimant was a three-year old Ugandan national with sickle-cell anaemia. Her mother’s application for leave to remain in the UK contended that the claimant might not survive if returned to Uganda but, crucially, did not claim that the medical risk to her daughter if returned to Uganda established a claim for asylum under Article 3 ECHR.
The UKBA, rejecting the mother’s application, said that its decision would not breach the Art 3 rights of the claimant or her mother. Based on the UKBA’s decision letter, Newham decided to treat the claimant’s mother as an asylum seeker and contended that it was thereby prohibited from providing support by s 122(5) of the Immigration and Asylum Act 1999.
The debate turned on whether the claimant’s mother had “made a claim for asylum” under Part VI, IAA 1999. The Court held that the focus of a local authority’s consideration must be on what was asserted by the relevant application. Where the local authority obtains the relevant application, it must consider that application before reaching its decision as to support. In the present case, there had been no express or implied claim based on Art 3, even though the application had been drafted by experienced immigration solicitors. Even the UKBA’s letter did not state that there had been a claim for breach of Art 3 as distinct from stating that her claim had been considered under Art 3. Rather, the consideration of Art 3 by the UKBA reflects a comprehensive "belt and braces" approach to the rejection of the ILR application. The local authority had had no reasonable grounds for concluding that the claimant’s mother had made a claim for asylum.
Local authorities remain prohibited by s. 122(5) IAA 1999 from supporting asylum seekers. Moreover, they must continue carefully to assess applications for leave to remain to determine whether they include a ground based on Art 3 ECHR. However, EAT establishes that local authorities must not be unduly misled by the fact that the UKBA, as it often does, considers applications for leave to remain on Art 3 grounds that have not in fact been advanced by the applicant themselves.
R (ES) v LB Barking and Dagenham  EWHC 691 (Admin)
The third in this trio of cases also concerns a family with no recourse to public funds seeking support under s.17 CA 1989. At the time of the core assessment in this case, the claimant mother and her two-year old son were accommodated and the child was held not to be in need. They became homeless around a month later, and the LA decided to wait and see whether accommodation would be provided by SSHD under s. 4 of NASS 1999, during which time the family sofa-surfed. Later, when s. 4 accommodation was provided, the LA held that as the only need that had arisen since its core assessment was for accommodation, and as that was now being provided by SSHD, there was no need to reassess.
Two interesting points arise. First, prior to the grant of s. 4 accommodation, and in light of impending or actual homelessness, it was unreasonable for the defendant to “wait and see” what SSHD would decide. The LA should at least have taken steps to assess what accommodation would or could be secured and to what extent it would provide adequate accommodation in the context of the conclusions as to need contained in the original assessment. Second, applying R (VC) v Newcastle City Council  PTSR 546, the court could not rule out the possibility that, had an assessment been carried out, it would have concluded that a child provided with the limited accommodation usually available under s. 4 NASS 1999 was a child in need.
Although the judge cautioned that this case turned on its own facts, it seems likely that in many cases where a child is assessed not to be in need but subsequently becomes homeless, the LA may have a duty to carry out a reassessment or, at the very least, an updated assessment, even where (as here) the child is not actually forced to sleep on the streets.