Judge orders city council to undertake needs assessment again in ‘no recourse to public funds’ case

The High Court has quashed an assessment made by Coventry City Council in a 'no recourse to public funds' case and ordered the authority to re-take the decision taking into account why the children concerned were held not have any unmet welfare needs given the updated evidence involved.

His Honour Judge Tindal, sitting as a judge of the High Court, heard the case brought by child LR by her mother and litigation friend LC.

HHJ Tindal explained the case concerned “some of the poorest families in our community”, who had no access to the mainstream benefits and housing systems due to their restricted immigration status.

The case examined several legal aspects including: statutory interpretation, the inter-relationship between statutory schemes, the lawfulness of a local authority's policy of support to affected families and the lawfulness of an assessment of need in one individual family's case.

“But hopefully I will not lose sight of the human aspect of life for all families in this difficult position,” the judge added.

LR is aged 15 and part of a family originally from Nigeria that stayed in the UK after their leave to remain expired.

LC separated from her husband in 2023 due to domestic abuse and applied to the Home Office for leave to remain in November 2023, which is still not determined.

The family has received accommodation, bus passes and cash from Coventry, now at £196.72 per week for the four members.

When LC first applied, Coventry initially placed her and the three children in emergency accommodation in a hotel and provided the family with £135 per week and travel vouchers to and from school.

In January 2024, LR’s solicitors wrote to Coventry seeking higher payments, pointing out that £135 was well below the revised Asylum Support figure of £49.18 per person per week, which would give the £196.72 figure.

HHJ Tindal said: “Bizarrely, this prompted a re-assessment by the [council] that actually reduced the family's payments to £117 a week…as the new asylum support rates had not been adopted as a 'subsistence baseline' by the defendant.

“Understandably on 26 January 2024, the claimant's solicitors sent a letter before claim relying on R(BCD) to say the asylum support was a 'baseline' yet the £117 a week fell well below it, inconsistently with R(BCD).” Coventry then increased the payment to £196.72 per week.

The judge said the challenged April 2024 assessment by Coventry of the family’s needs had proceeded on the basis that it was thought not possible to increase financial support to provide for more children's activities, as the family were receiving their 'legal requirement' of asylum support rates as set in the support rates page.

This was “a misdirection of law given R(C) in precisely the way [LR’s] Ground 3 contends..,” HHJ Tindal said.

On the irrationality claim, he said: “The conclusion of the assessment not to make any additional provision was irrational on two different bases.

“I so decide even reminding myself of the very high bar for irrationality challenges and the relevance of: the defendant's position (and overspend) it is entitled to take into account; its constitutional and institutional competence and expertise in such assessments…”

He said a finding in the assessment that “the children's emotional health is not significantly impacted by their lack of access to materials, finances and experiences that some of their peers may have" was irrationally inconsistent with its other findings that: “the children do not get to routinely engage in lots of wider activities which appears to be the family's main worry" and: "It is clear that the family's lack of finances does impact on their quality of life however this is not to a level that is of a safeguarding concern."

HHJ Tindal said: “Nor can this inconsistency be dismissed by suggesting these were just 'wishes and feelings' rather than 'needs' within s.17 ChA.”

An assessment must have 'due regard' under s.11 CA 2004 to the need to safeguard and actively promote welfare of children 'in need' under s.17 ChA.

“The current assessment in this respect has not done so,” the judge said. “Even if it was not 'necessary' to increase financial assistance…there was no consideration of necessary additional direct provision to the children, for example the claimant's English lessons (clearly more than a 'wish' in the context of a child studying GCSEs, especially given it was only £5 an hour; or singing lessons.”

HHJ Tindal said Coventry’s assessment must be quashed and undertaken again.

“I emphasise that nothing I say should influence the outcome, only the process to ensure it is lawful,” he said.

”It will not necessarily be unlawful for the defendant to reach the conclusion that the current level of provision is lawful, but in doing so, it will need to explain why the children do not have any unmet welfare needs given the updated evidence, or why it is unnecessary to meet them through additional direct provision; and either why that is consistent with its duties to have due regard to the need not just to ensure safeguarding but to promote welfare under s.17 ChA and s.11 ChA 2004.”

He said Coventry should pay 66% of LR’s costs as she had not succeeded on some key arguments.

Mark Smulian