An unseemly turf war fought in a monstrous labyrinth

Posted on 23rd Apr 2012 in Case Comment

After the many children in need cases reported in recent years, including the trilogy of cases in last month’s PTSR, one might have thought that the courts had drawn the legal frontiers sufficiently clearly to eliminate funding disputes between public authorities as to which of them should bear the responsibility for funding accommodation and support costs of children in need.

However, R (VC) v Newcastle City Council [2012] PTSR 546 raises and resolves yet another issue, this time concerning the relationship between section 17 of the Children Act 1989 and section 4 of the Immigration and Asylum Act 1999. The question for the determination of the Queen’s Bench Divisional Court (Munby LJ and Langstaff J) , sitting in Newcastle-upon-Tyne, was as to “which public authority must take responsibility for providing accommodation and support to children in need within migrant families who are not entitled to support under section 95 of the 1999 Act.”

Was the local authority entitled to terminate its support (here accommodation) provided to families under section 17 of the 1989 Act on the basis that families could access such support through the national government under section 4 of the 1999 Act? Counsel complained “with every justification” that “the interaction between ‘social services legislation’ and ‘asylum support legislation’ has created a monstrous labyrinth.”

After a necessarily lengthy exposition of the relevant statutory provisions, the court referred, inter alia, to the obiter dicta of Tomlinson LJ in R (O) v Barking and Dagenham London Borough Council [2011] PTSR 549, para 40 that the powers under section 4 of the 1999 Act, like section 95, “are residual and cannot be exercised if the asylum seeker … is entitled to accommodation under some other provision”. That case was, of course concerned with a different question: namely, the relationship between a local authority’s duty under section 23C(4)(c) and the power of the Secretary of State under section 95 of the 1999 Act.

The court emphasised that the local authority had been providing section 17 support on the basis that the children in question were in need. It asked whether the mere fact that support under section 4 of the 1999 Act was, or might be, available meant that without further reassessment it was open to the local authority to say that a child who was previously in need was now, ipso facto, no longer in need.

Their Lordships concluded that there were a number of legislative indicators, including the very different statutory purposes of the two statutory schemes, that pointed to the conclusion that, in contrast to section 17, section 4 was a residuary power and that the mere fact that support was or might be available under section 4 did not of itself exonerate a local authority from what would otherwise be its powers and duties under section 17: para 87.

The court observed that, in practical terms, a local authority faced with a child assessed as being in need was very unlikely in the general run of such cases to be able to justify non-intervention by reliance upon section 4: para 92. Equally, a local authority supporting a child who was assessed as being in need was very unlikely in the general run of such cases to be able to justify the discontinuance of such support by reliance on section 4: para 94.

Allowing the claims, the court concluded that the local authority had wholly failed to demonstrate that any support potentially available under section 4 would be adequate to meet the children’s assessed needs: para 95. The court refrained from determining two further questions which did not directly arise on the facts. They were, at para 71: (i) whether a local authority approached by a migrant family seeking accommodation and support had to provide such support to comply with its obligations under domestic and Human Rights Convention law, and could not avoid the duty by reference to the potential availability of section 4 support; and (ii) whether the Secretary of State was entitled to refuse to provide section 4 support on the basis that the applicant family were not “destitute”, being entitled to support from a local authority under section 17.

It would therefore seem that there will be yet more examples of the “inverted and unseemly turf war between local and national government”, described by Baroness Hale of Richmond in R (M) v Slough Borough Council [2008] 1 WLR 1808, para 28 and referred to by Laws LJ in another case reported in the April issue of PTSR, R (L) v Westminster City Council (Medical Foundation for the Care of Victims of Torture intervening) [2012] PTSR 574.

The Public and Third Sector Law Reports, Part 4: providing the best coverage of charity and public law cases.