Coming to an accommodation

RCJ portrait 146x219The High Court recently considered the extent of care leavers’ entitlement to the costs of term-time accommodation. Sally Gore reviews its ruling.

In R (on the application of Piwandi Sabiri) v London Borough of Croydon [2012] EWHC 1236 (Admin), the claimant, an Iranian Kurd, was a failed asylum-seeker who consequently was prevented from working in the UK. He had been a child who was looked after by the defendant local authority until he reached the age of 18. Thereafter, he had benefited from support as a ‘former relevant child’ under s.23C, Children Act 1989 until he reached the age of 21 in December 2011.

A dispute arose between the claimant and the defendant as to the continuing provision of accommodation and assistance. As a preliminary issue in the judicial review proceedings, the Court was asked to determine whether the assistance referred to in s.23C(4)(b), Children Act 1989 could include assistance with the costs of accommodation.

Section 23C(4) reads:

It is the duty of the local authority to give a former relevant child –

(a) assistance of the kind referred to in section 24B(1), to the extent that his welfare requires it;

(b) assistance of the kind referred to in section 24B(2), to the extent that his welfare and his educational or training needs require it;

(c) other assistance, to the extent that his welfare requires it.

The ‘assistance of the kind referred to in section 24B(2)’ is:

(a) contributing to expenses incurred by the person in question in living near the place where he is, or will be, receiving education or training;

(b) making a grant to enable him to meet expenses connected with his education or training.

The key provision was therefore s.24B(2)(a), and the correct interpretation of ‘expenses incurred by … living near the place where he is, or will be, receiving education or training’. The question was whether this was sufficiently broad to cover assistance by way of a financial contribution by the local authority towards the costs of accommodation in connection with the receipt of education. The claimant asserted that this provision permitted the local authority to pay 100% of the costs of accommodation and accommodation-related expenses.

In fact, the question relates only to the costs of term-time accommodation because s.25B(5) imposes a duty to provide accommodation during a vacation:

(5) Where the local authority are satisfied that a person to whom subsection (3) applies who is in full-time further or higher education needs accommodation during a vacation because his term-time accommodation is not available to him then, they shall give him assistance by –

(a) providing him with suitable accommodation during the vacation; or

(b) paying him enough to enable him to secure such accommodation himself.

In this case, the claimant conceded that the difference between s.24B(5) and s.23C(4)(b) meant that it would be too great a strain of the wording in s.23C(4)(b) to argue that this placed a local authority under a duty to provide term-time accommodation. He justified the more onerous duty in s.24B(5) by contending that it may be more difficult for the individual concerned to secure vacation accommodation, hence the duty on the local authority to provide accommodation if the term-time accommodation were not available. He argued for a purposive approach to the interpretation of this subsection, and pointed out that the basic objective of the legislation was to provide the sort of assistance to qualifying individuals that a parent might provide in other circumstances. A parent would be the primary source of funding of the costs of accommodation for most students in further and higher education.

The defendant preferred a more narrow interpretation of the subsection. The local authority relied in particular on the submission that the costs of accommodation connected with education were likely to be met from other sources. In addition, counsel for the defendant drew the court’s attention to the distinction between the express duties to provide accommodation to children found elsewhere in Part III, Children Act, and the absence of any such express provision in this subsection.

Charles George QC, sitting as a Deputy High Court Judge, found that there was no need for a purposive approach to the interpretation of this subsection. On a simple reading, there was nothing to restrict the phrase ‘expenses connected with his education or training’ to expenses not including expenses relating to accommodation.

Discussion

Section 23C(4)(b) imposes a mandatory duty (as opposed to a discretionary power) to provide ‘assistance of the kind referred to in section 24B(2)’ to qualifying persons. This does not, as the claimant in this case conceded, amount to a mandatory duty to provide term-time accommodation to such individuals. The duty is therefore to contribute to expenses incurred by the qualifying person in living near to their place of education. It is limited by the words in s.23C(4)(b) ‘to the extent that his welfare and his educational or training needs require it’. This can, in light of the decision in this case, include the costs of accommodation.

Considering the purpose of the amendments to the Children Act made firstly by the Children (Leaving Care) Act 2000 and more recently by the Children and Young Persons Act 2008, this would appear to be an appropriate conclusion. These purposes are summed up by Baroness Hale in R(G) v Southwark London Borough Council [2009] UKHL 26 at para. 32: “[T]he whole purpose of the leaving care provisions was to ensure that older children who were without family support were given just the sort of help with moving into independent living that children normally expect from their families."

This rationale is also summed up in a 2006 Green Paper: Care Matters: Transforming the Lives of Children and Young People in Care: “For most young people the idea of being left unsupported at that age would be alien. They have a sense of security and know that their parents will always be there for them. Few young people ever really ‘leave’ the care of their parents. They may leave home, and on average do so at the age of 24, but they know that their families are only ever a phone call away and stand ready to offer financial support and advice, or a place to stay if they need it”.[1]

A young person who is not a care-leaver but who is in higher education will, in most cases, have recourse to their parents’ home and, for many, financial support from their family. The reality for many is that they are also reliant on student loans, bursaries and, provided they are not prevented from working in the UK, income from part-time employment.

Perhaps, therefore, to require local authorities to ‘provide’ accommodation during term-time for care-leavers in further or higher accommodation would be a disproportionate burden. Imposing a duty, on the other hand, to ‘contribute’ towards expenses, including accommodation, reflects the fact that a student who is a care-leaver will also be entitled to the same alternative sources of income that most other students have access to. The wording of s.23C(4)(b) and s.24B(2)(b) allows local authorities to take into account these other sources of income in accordance with the student’s individual circumstances, whilst the mandatory nature of the duty and the inclusion of accommodation costs within that duty if necessary ensures, so far as it is possible, that care-leavers are not left in a disadvantageous position.

This analysis is supported by the most recent statutory guidance in this area: “Local authorities should make sure that they have policies and processes in place to support every care leaver undertaking apprenticeships, traineeships, vocational courses or employment. These policies will need to take into account the universal financial support that the young person will receive and allow for the local authority to assess whether the young person requires any additional financial contribution fro the authority, so that they can benefit fully from taking part in a broad range of training opportunities or employment”.[2]

Furthermore, it would be odd if there were a duty to contribute to other costs associated with living near to a place of education but not to contribute to the costs of the accommodation itself, particularly considering the purpose behind this legislation.

There is, on the other hand, a duty to provide vacation accommodation to qualifying care-leavers who pursue further or higher education. This too may be seen as placing students who have been looked after in a position as close to that of their peers as possible, given that the vast majority of students will return to accommodation provided by their families during vacations.

Sally Gore is a barrister at 14 Gray's Inn Square. She is the author of The Children Act 1989: Local authority support for Children and Families, which is published by Jordan Publishing. She also writes a blog on adult care issues: www.silentwitnesses.wordpress.com.


[1] Cm 6932 (2006) at para. 7.2.

[2] Planning Transition to Adulthood for Care Leavers, (DfE, October 2010), para. 5.4.