In a judgement handed down in the case of PO v London Borough of Newham  EWHC 2561 Admin on 28th July 2014 the High Court held that the London Borough of Newham’s policy on supporting families with no recourse to public funds to be “unlawful.”
PO v London Borough of Newham  EWHC 2561 Admin- IN THE HIGH COURT OF JUSTICE- QUEEN'S BENCH DIVISION- ADMINISTRATIVE COURT- 28/07/2014
Acess to the full judgement can be accessed by clicking here.
This claim was for judicial review brought by three children, who are Nigerian nationals, about the level of financial assistance provided to them by the London Borough of Newham, under section 17 of the Children Act 1989 to meet the subsistence needs while the Secretary of State for the Home Department was considering whether or not they and their mother should be granted leave to remain in this country.
The London Borough of Newham provided a family of 4 with £50 subsistence support per week to meet their day to day essential living needs. The Council also provided accommodation to the family. The Council failed to disclose the basis upon which the subsistence support provided to the family had been assessed as being adequate prior to the issue of judicial review proceedings. It was only after the issue of proceedings that the Council disclosed a copy of the No Recourse to Public Funds Policy (NRPF) approved on or before 31 October 2013.
The Council in its acknowledgment of service acknowledged that it made three errors when dealing with the Claimants’ case and it has offered to reconsider the adequacy of payments made to them and whether to backdate any additional sum which they should have received. The Council proposed to do this in accordance with its “Policy and practice guidance in respect of those with no recourse to public funds” (“the NRPF Policy”).
The Claimants contended, however, that any decision made in accordance with the NRPF Policy would be unlawful.
The Council’s NRPF policy states that it aims to provide “the framework upon which assessments of eligibility and need should take place so as to allow correct, robust and legally sound decisions to be made in relation to what support is provided on a case by case basis” (1) for those who have no recourse to public funds or are destitute.
Under the NRPF policy, social workers are required to consider whether a child is in need; whether any adult qualifies for social services and whether the family is destitute. It provides that, when interviewing children and parents, social workers should explore as fully as possible with them any existing sources of help and support in the community and from voluntary groups, social networks etc(2).
Where alternative support and schemes are available, the Council’s expectation is that such support will be accessed, unless there are good reasons why this should not be done in a particular case (3). The Policy also states that, where the adult does not qualify for support in their own right but the child is eligible for support, then, in consideration of the child’s right to respect for his private and family life under article 8 of the European Convention on Human Rights, the Council will provide support in a way designed to enable the family to stay together should this be considered in the child’s best interests. Accommodating children away from their parents will only be considered where there are significant safeguarding concerns (4).
Stated on the judgement handed down from the case, on behalf of the Claimants, “Ms Luh submitted that the NRPF Policy was unlawful given that it had never been published, but it was otherwise unlawful in any event.” She submitted that “it made the standard rates of subsistence an inflexible starting point and end point in the assessment of what was required; that the policy fettered the local authority’s discretion by reference to rates unrelated to children’s needs; that their basis in child benefit rates was arbitrary, since child benefit was not intended to meet subsistence needs, and not transparent, since it was unclear how the standard payment rates of subsistence were derived from them; that what needs the payments were intended to meet was likewise not transparent; and that the rates were too low to be sufficient.”
Ms Luh further submitted that “For a family of four (such as the claimants’) the weekly payment prescribed is £42 (although they had received £50 per week). That, she submitted, fell far below any acceptable comparable standard. They were far below the appropriate yardstick of “mainstream benefits” (namely income support, child tax credits and child benefit) which, so she submitted, would have afforded this family, had they been eligible, £235.91 per week for their support (after meeting utility bills and travel costs).” This submitted Ms Luh, “would leave the children in absolute child poverty (as measured under the Child Poverty Act 2010).”
On behalf of the Council, Mr McGuire submitted that it was not “appropriate to compare the standard rates of payment for subsistence needs in the Policy with national schemes of support that had been formulated for purposes not necessarily identical to the Council’s and that took no account of local conditions, prices or services available from the local authority and others.”
Mr McGuire also accepted that “child benefit was not intended to meet the subsistence needs of a child and that to use it as a measure of what a child might require to meet such needs would be wrong.” He nonetheless submitted that, when properly construed, the NRPF Policy was a lawful means of determining what payments should be made to meet the subsistence needs of a family who were destitute and otherwise eligible for support under it.
John Howell QC held that ”In my judgment it would be unlawful for the Council to apply its NRPF Policy as it stands, or to treat the standard rates of payment which it contains as appropriate to meet the normal subsistence needs of a family, in any reconsideration of the Claimants’ case without first reconsidering what standard rates would provide an appropriate level of financial support to meet the normal subsistence needs of destitute families. “
This judgement is reflective of the arbitrary approaches taken by Councils in determining levels of subsistence support to children in need under section 17 Children Act 1989. The amount of support provided to a child in need and his/her family must be sufficient to meet essential needs and must not leave the child in poverty as measured by the Child Poverty Act 2010. Comparable mainstream benefits can serve as a useful yardstick in addressing this.
Ravinder Brar, Solicitor within the Community Care Department at Duncan Lewis added;
“This judgement is a step forward in highlighting and addressing the issue of levels of subsistence support provided to families with No Recourse to Public Funds as unlike standard rates for statutory benefits and NASS support, amount of support provided by social services often falls short to meet essential living needs, leaving children in already difficult circumstances in extreme poverty".
Ravinder regularly acts for children and families in No Recourse to Public Funds judicial review cases and can be contacted for further advice on families affected by Newham’s NRPF Policy. She is also happy to discuss similar cases for families in other authorities.
(1)[1.1] and [1.4] of the NRPF Policy.
(2) see paragraph [5.1.4] of the NRPF Policy.
(3) see paragraph [2.2] of the NRPF Policy.
(4) [3.2.4] of the NRPF Policy.