21.72R (VC) v Newcastle CC [2011] EWHC 2673 (Admin), (2012) 15 CCLR 194
It had not lawful to decline to provide support to a destitute child, and the child’s family, under section 17 of the Children Act 1989, on the basis that support might be available under section 4 of the Immigration and Asylum Act 1999
Facts: Newcastle terminated provision of support for a destitute family from abroad, under section 17 of the Children Act 1989, on the basis that support was available under section 4 of the Immigration and Asylum Act 1999.
Judgment: the Divisional Court (Munby LJ and Langstaff J) held that Newcastle had acted unlawfully in that, once a child has been assessed as being in need by reason of destitution, for the purposes of section 17 of the Children Act 1989, a local authority will only be justified in declining to provide support, if the Secretary of State is willing or required to provide support under section 4 of the Immigration and Asylum Act 1999 and if such support would meet the child’s needs, which is unlikely to be case, given that section 4 is aimed at meeting basic subsistence needs whereas section 17 is aimed at safeguarding and promoting the child’s welfare:
86. There are, in my judgment, a number of what Ms Rhee calls key legislative indicators which together point to the conclusion to which I have come, that, in contrast to section 17, section 4 is a residuary power and that the mere fact that support is or may be available under section 4 does not of itself exonerate a local authority from what would otherwise be its powers and duties under section 17.
87. First, there is the contrast not merely between the level of support available under section 17 and section 4 but also between the very different purposes of the two statutory schemes. Ms Rhee accurately describes section 4 as providing ‘an austere regime, effectively of last resort, which is made available to failed asylum-seekers to provide a minimum level of humanitarian support’. Section 17 in contrast is capable of providing a significantly more advantageous source of support, its purpose being to promote the welfare and best interests of children in need. As she says, section 4 support is intended to provide the minimum support necessary to avoid breach of a person’s Convention rights; section 17 support is to be provided by reference to the assessed needs of the child. In short, as she puts it, section 4 and section 17 establish two discrete regimes established for different purposes.
88. Second, there is the striking fact that, in contrast to the position under section 95, Parliament has not excluded families who are or may be eligible for support under section 4 from local authority support under section 17.
89. Third, there is the careful exclusion of children from the ambit of the provisions in Schedule 3 to the 2002 Act removing various asylum-seekers or failed asylum-seekers from eligibility for support under section 17. As Ms Rhee says, this is of central importance, being a clear legislative indication that even children of failed asylum-seekers should be entitled to access section 17 support. Accordingly, as she points out, any exclusion from section 17 support for the dependent children of failed asylum-seekers must, if it exists, be found elsewhere. Yet, as we have seen, in contrast to the position of dependent children of asylum-seekers, there is no such exclusion in place in respect of dependent children of failed asylum-seekers. If a child is being provided with support under section 95, the legislative scheme gives priority to the provision of section 95 support over section 17 support: section 122(3) and (5). Not so in relation to support under section 4. So, it is to be inferred that the legislative intent is that where section 4 and section 17 are both theoretically engaged, the more advantageous support regime under section 17 is to apply.