Appeal rights exhausted care leavers and human rights assessments

A local authority recently conceded that Children Act 1989 duties take precedence over residual and discretionary Immigration Act 1999 powers. Amanda Weston KC and Maria Moodie explain why.

In TT v London Borough of Croydon (CO/1516/2022) we recently achieved an important concession and agreement from the local authority (London Borough of Croydon) as to the correct and lawful approach to assessing ongoing care-leaver duties owed under the Children Act 1989 (‘CA 1989’) to a Former Relevant Child who has become Appeal Rights Exhausted.

The outcome of this case has wider relevance to the lawful conduct of Human Rights Assessments when a Local Authority seeks to rely on potential support available from the Home Office pursuant to s.4 Immigration and Asylum Act 1999 (‘IAA 1999’) to conclude that termination of the support it is providing under the CA 1989 will not result in a breach of the young person’s Convention rights.

The case involved an unaccompanied minor who was accommodated and looked after by the Local Authority firstly as a ‘Looked after Child’ and latterly as a ‘Former Relevant Child’. At the point of becoming Appeal Rights Exhausted, HTT was 21 years old, engaged in education, and in receipt of accommodation and support from the Local Authority pursuant to s.23C CA 1989.

Pursuant to Schedule 3 Nationality, Immigration and Asylum 2002 (‘NIAA 2022’), HTT fell to be excluded from accessing s.23C CA 1989 support unless termination of such support would breach his Convention rights.

The Local Authority undertook a “Human Rights Assessment” and concluded that termination of CA 1989 support was permissible and would not breach HTT’s Convention rights under Articles 3 or 8 ECHR as he could potentially access alternative accommodation and support from the Home Office pursuant to s.4 IAA 1999.

HTT challenged the Local Authority’s misapplication of the law and relied on the proposition that duties owed to support a failed asylum-seeking Former Relevant Child pursuant to s.23C CA 1989 take precedence over any potential power of the Home Office to accommodate and support, the latter of which is both discretionary and residual to the Children Act 1989.

The claim, which was settled by consent, resulted in the Local Authority accepting that it cannot, as a matter of law, take the potential availability of s.4 IAA 1999 Home Office accommodation and support into account to conclude that termination of care-leaver support, provided pursuant to s.23C Children Act 1989, is permissible and will not breach a young person’s Convention rights.

This case and the concessions achieved clarified the uncertainty in law arising from R (O) v Barking and Dagenham London Borough Council (The Children’s Society intervening) [2010] EWCA Civ 1101, a case which primarily focussed on the hierarchy between s.95 IAA 1989 and s.23C CA 1989 and was decided on a different factual basis.

The outcome of this claim has wider relevance to the lawful conduct of Human Rights Assessments by Local Authority social workers when a care leaver becomes Appeal Rights Exhausted. Copies of the signed and sealed consent order and underlying statement of facts can be shared, should they be of use in other cases raising a similar issue of law.

Amanda Weston KC and Maria Moodie are barristers at Garden Court Chambers. They appeared for the claimant, HTT, instructed by Verity Cannell of Bindmans LLP.