Family with no recourse to public funds wins judicial review battle with council

Milton Keynes Council failed to properly consider an application for help with housing by a family without recourse to public funds.

In U and U, R (on the application of) v Milton Keynes Council [2017] EWHC 3050 Judge Markus QC, ruled in favour of BU and her children aged seven and eight.

BU and her children are Nigerian and entered the UK as visitors. Their leave to remain has expired and they consequently have no recourse to public funds and no right to work.

Milton Keynes made an assessment of needs under section 17 of the Children Act 1989 and decided that the children were not in need, the family was not destitute and therefore it would not provide accommodation.

BU told the council she and the children had stayed with various friends and family, who had helped with food and clothing and she had earned money braiding hair.

The children’s father had provided past financial support, and BU had significant sums in her bank account and had failed to disclose that she planned to marry a Romanian national.

The judge said the case boiled down to two grounds, that a duty to reassess was triggered by the provision of new information in May 2017 and again in July and August 2017, and that once the family had exhausted all possibility of accommodation with other individuals, Milton Keynes’ reliance on BU's ability to pay for accommodation without taking into account the provisions of the Immigration Act 2014 was unlawful.

This act prevents those without leave to remain from entering into a residential tenancy.

“I am satisfied that, in failing to take into account the possible impact of section 20 of the Immigration Act, the defendant failed to take into account a relevant factor,” the judge said.

Were the family to occupy a hotel room this “would not start off as residential but that it might acquire that character over time, in my judgment the defendant's decision cannot be supported on the basis that BU could have obtained hotel accommodation for a short period without the agreement falling within the provisions of the Act”.

Had the council decided the family could avoid destitution by occupying hotel accommodation in a series of short-term stays, it “would raise questions about the suitability of such an arrangement for the children and therefore whether it could properly be relied on as a way of avoiding them becoming children in need”.

“That was a material consideration which the local authority should have addressed before concluding that BU and the claimants could avoid homelessness by staying in hotel accommodation. It did not do so.”

Mark Smulian