Social Welfare Update: Children Act 1989 s17 - flawed assessment of destitution

Tuesday 28 May 2019

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AA was a Nigerian national without leave to remain in the UK. She had entered the UK in 2009 on a student visa and subsequently overstayed. JA and GA (aged 11 and 7 respectively) were her children. EF (aged 13) was her niece, for whom she was the full-time carer.

In 2013 AA applied for leave to remain outside of the Immigration Rules. During this time she worked – under the mistaken apprehension that she was permitted to work until her appeal rights were exhausted – and was able to support the household from her earnings. This changed in around August 2015 when she was informed that she was not able to work lawfully in the UK. As a result she approached Bexley LBC for support.

Bexley accommodated and supported AA and her household under Children Act 1989 s17 until September 2017. At that juncture a series of further assessments and a fraud investigation were undertaken culminating in a decision, in June 2018, that the household was not destitute and that, as a consequence, the children were not ‘in need’ for the purposes of s17. The underlying conclusion was that AA had been living a lifestyle beyond that which was affordable on the subsistence provided by Bexley and that she had been concealing her resources.

Judicial review proceedings were instituted challenging this decision. David Casement QC sitting as a Deputy High Court Judge allowed the claim. In relation to accommodation, no real consideration had been given as to how AA would accommodate the household if support were terminated, in light of the fact that they would not have the right to rent under Immigration Act 2014. It was possible that EF could be granted permission to rent. But that issue had not been considered. In relation to the household’s financial position, Bexley had wrongly taken into account the fact that AA had certain high value items (such as a television and an iPad) without establishing when these items had been acquired. If they had been acquired – as AA contended – during the period she had been working and had funds, then they could not properly be regarded as evidence that she had not subsequently become destitute. The inconsistencies in AA’s evidence and the failure to fully address all of Bexley’s concerns did not provide a reasonable basis from which to infer she was not destitute. The evidence did not support a conclusion that she had alternative sources of funds or support.

Read the full judgment here: R (JA, GA, and EF (by their mother/aunt and litigation friend AA) v Bexley LBC [2019] EWHC 130 (Admin), 1 February 2019

Connor Johnston is a member of the Garden Court Chambers Community Care team.

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