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London borough defends legal challenge to level of support provided to family with child in need and older sibling

The London Borough of Bexley was entitled to decide not to pay to feed the older brother of a child in need who lived in the same home.

That decision came from Sam Grodzinski QC, sitting as a deputy High Court judge, in a judicial review brought by the boys’ mother – named as ‘claimant 1 (C1) – of the extent of Bexley’s duties under section 17 of the Children Act 1989.

The family are Nigerian nationals with no recourse to public funds but ‘claimant 2 (C2)’ aged 16 was accepted as a child in need by Bexley while ‘claimant 3’, aged 19, was not.

Bexley allowed C3 to live in home it provided to the other two and paid £307.56 per month to cater for the essential needs of a lone parent and one child.

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C1 therefore split this money between all three residents with the result, she claimed, that all went hungry.

She argued that Bexley had not made proper inquiries into how much food could be bought on the monthly allowance to arrive at a rational conclusion that additional financial support was unnecessary.

C1 also said Bexley had misdirected itself by concluding that its duties under the Act did not extend to providing support for C3.

The third ground argued was that Bexley had unlawfully failed to consider whether providing additional support to C3 would safeguard or promote the welfare of C2.

Giving judgment in OA & Ors, R (On the Application Of) v London Borough of Bexley [2020] EWHC 1107, Judge Grodzinski said that while s17 was not limited to a parent or a carer, but could be applied to any family member looking after a child in need, C2’s needs were met by C1.

While C3 might assist with C2’s welfare Bexley was bound to conclude that it had no power under s17 of the Act to provide financial support for him.

The judge said: “As to the position of C3…I do not consider that just because he was not C2's parent, he was necessarily excluded from the persons who could be given support under s17.

“Nonetheless, in my judgment [Bexley] could only lawfully provide support to C3 if it considered this was necessary to meet C2's welfare needs.”

He said that assessment reports and witness statements made it clear that C2’s essential welfare needs could be met by his mother and supporting C3 financially was not necessary to this.

“This was a rational [decision], and was reached after a ‘sufficiently diligent enquiry’”, the judge said.

Mark Smulian

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