Southwark’s approach to accommodation and financial support of a migrant family pursuant to section 17 Children Act 1989 was not unlawful

Monday 25 July 2016

R. (on the application of C, T, M and U) v Southwark LBC & Coram Children’s Legal Centre (Intervening) [2016] EWCA Civ 707, 12 July 2016. In dismissing the appeal, the Court of Appeal accepted that Southwark was not operating an irrational or inflexible policy relating to section 17 support for migrant families.

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R (on the application of C, T, M and U) v Southwark LBC & Coram Children’s Legal Centre (Intervening) [2016] EWCA Civ 707, 12 July 2016

The Court of Appeal dismissed the appellants’ appeal against the dismissal of their claim for judicial review that sought to challenge Southwark’s provision of inadequate section 17 CA 1989 accommodation and financial support. Shu Shin Luh of Garden Court Chambers acted for the intervener, Coram Children's Legal Centre.

Factual background

This case involved a Nigerian mother and her four (later five) children. The mother is a visa overstayer whose application for leave to remain was refused (an appeal was pursued). The family have no recourse to public funds. Faced with eviction and homelessness due to rent arrears, the family approached Southwark for assistance. A number of assessments of the children were undertaken.

Southwark provided emergency interim accommodation when the family were evicted from their home. The family were initially accommodated in B&B accommodation and various other temporary properties before agreeing to relocate to Rochdale.

Southwark initially provided weekly subsistence in the sum of £47.10, but over time this fluctuated from £86.00, £60.50, £50.70, £140 to £216.92 per week.

The family pursued a claim for judicial review challenging the inadequacy of the accommodation and subsistence provided.

Southwark defended its decision and stated that at all times the subsistence was allocated according to the specific needs of the family. Southwark denied that a ‘one size fits all’ approach was taken or that subsistence was set at child benefit or s.4 IAA 1999 rates.

Bobbie Cheema QC sitting as a Deputy High Court Judge refused to grant the remedies sought and dismissed the family’s claim. It was accepted that Southwark had provided a detailed, case-sensitive assessment of the needs of the children under its s.17 duty which was regularly reviewed and had met the family’s needs.

Challenge on appeal

On appeal, the family sought to argue the following three grounds;

  1. Southwark had operated an unlawful policy or practice of setting financial support to those seeking assistance under section 17 at the level of child benefit.
  2. When applying R (PO & Ors) v Newham London Borough Council [2014] EWHC 2561 (Admin), Southwark had operated an unlawful policy or practice of setting financial support under section 17 at the level of payments to asylum seekers or failed asylum seekers under sections 4 and 95 IAA 1999
  3. Southwark had breached the family’s Article 8 because it provided them with financial support at a level less than that which it knew was necessary to prevent breach.

Court of Appeal’s judgement

In dismissing the appeal, the Court of Appeal accepted that Southwark was not operating an irrational or inflexible policy relating to section 17 support for migrant families. It was accepted that Southwark had properly undertaken bespoke assessments of the family, had provided support in excess of child benefit and s.4 rates for most of the period and had increased support at various intervals.

The Court did however make a number of helpful comments at paragraphs 21 – 23, 30 and 44 that make clear that if any local authority were to operate an inflexible policy or strict support bench-marking that constrained them from making decisions based on individual need, as is required by s.17, this would be unlawful. It was reiterated that section 17 requires an exercise of social work judgment based on the analysis of information derived from an assessment.

The full judgment can be found here.

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