NASS support irrelevant when councils consider accommodation, says Court of Appeal
A local authority is not entitled, when considering whether to provide accommodation for young asylum seekers leaving care at the age of 18, to take into account the possibility of support from the National Asylum Support Service, the Court of Appeal has ruled.
The case of SO, R (on the application of) v London Borough of Barking and Dagenham [2010] EWCA Civ 1011 involved the accommodation needs of an asylum seeker from Eritrea who was leaving care.
The local authority had formally terminated its support for SO in October 2009 on two grounds: first that further representations to the Home Secretary in pursuance of asylum were manifestly unfounded; and second that he was eligible for support from NASS under s.4 of the Immigration and Asylum Act 1999. The council did not raise the question of its power under s.23C of the Children Act 1989.
The appellant then challenged Barking and Dagenham’s decision. In the High Court, Calvert Smith J dismissed the claim for judicial review. He also agreed with the council that s.23C(4)(c) of the 1989 Act did not give it a power to provide accommodation.
Giving the lead judgement in the Court of Appeal, Lord Justice Tomlinson bemoaned the “impenetrable nature of the legislation” which was “far from clear”. However, he said that local authorities do indeed have a power under s.23C(4)(c).
The judge added that since the powers given to the Secretary of State under s.95 (and s.4) of the Immigration and Asylum Act are residual and cannot be exercised if the asylum seeker (or failed asylum seeker) is entitled to accommodation under some other provision, a local authority cannot take into account the possibility of support from NASS.
Lord Justice Tomlinson praised Barking and Dagenham for continuing to provide accommodation and a subsistence allowance to the applicant throughout the litigation.
The Court of Appeal ruling was welcomed by The Children's Society, which intervened in the case and argued that the provision of accommodation was intended as a crucial safety net to protect the welfare of young people leaving care.
The Society said children's rights campaigners had become increasingly worried about the plight of some care leavers, particularly in the light of many local authorities' planned spending cuts.
Bob Reitemeier, Chief Executive of The Children’s Society, said: "The Court of Appeal ruling has clarified the law and this will be especially important not just to the young people it directly affects but to all those working in children’s rights. It will help ensure that consistent decisions can be made concerning those young care leavers who are unable to secure suitable accommodation through the normal housing routes."
