Council policy on supporting families with no recourse to public funds "unlawful"

A London borough’s policy on supporting families with no recourse to public funds was unlawful, a High Court judge has ruled.

Three children, who are Nigerian nationals, brought a claim for judicial review against Newham Council over the level of financial assistance it provided under s. 17 of the Children Act 1989.

The assistance (£50 a week) was to meet the subsistence needs which the children and their mother had (as they were destitute) while the Home Secretary considered whether or not they and their mother should be granted leave to remain in this country.

The claimants and their mother were subsequently granted leave to remain here by the Secretary of State on 20 January 2014. Accordingly they were eligible for assistance with their housing, and to the benefits, that others in this country normally are.

Newham also acknowledged in its skeleton argument that it made three errors when dealing with the claimants’ case and offered to reconsider the adequacy of payments made to them and whether to backdate any additional sum which they should have received.

The council proposed to do this in accordance with its Policy and practice guidance in respect of those with no recourse to public funds ('the NRPF Policy').

The claimants argued however that any decision made in accordance with the NRPF Policy would be unlawful.

John Howell QC, sitting as a Deputy of the High Court, found in favour of the claimants, ruling that the rates – derived from child benefits – were flawed.

He said: “…No reasonable authority could have based its assessment of what was appropriate to meet the subsistence needs of a destitute child on the amounts payable in respect of child benefit. Indeed [counsel for the authority] did not seek to defend such an approach.”

John Howell QC found that Newham’s explanation how the standard payment rates were derived provided no rational basis for the amounts chosen.

The judge concluded: “[It]t would be unlawful for the council to apply its NRPF Policy as it stands, or to treat the standard rates of payment which it contains as appropriate to meet the normal subsistence needs of a family, in any reconsideration of the claimants’ case without first reconsidering what standard rates would provide an appropriate level of financial support to meet the normal subsistence needs of destitute families.”

Noel Arnold of Coram Children’s Legal Centre instructed Garden Court Chambers’ Shu Shin Luh.