The appeal before the Court arose out of judicial review proceedings brought by C, in her own capacity and as litigation friend for her children, T, M and U, against several decisions taken by the London Borough of Southwark (“Southwark”) to grant the family varying levels of financial support pursuant to section 17 of the Children Act 1989 (“the 1989 Act”). The grounds of appeal changed considerably between the High Court and Court of Appeal, such that by the latter’s hearing they were limited to the following issues:
- Whether Southwark had an unlawful policy or practice of setting financial support granted pursuant to section 17 of the 1989 Act at the level of child benefit, in circumstances where the applicants otherwise had no right of recourse to public funds;
- Whether Southwark had an unlawful policy or practice of setting financial support granted pursuant to section 17 of the 1989 Act at the level of payments which would have been made to asylum seekers or failed asylum seekers under section 4 and 95 of the Immigration and Asylum Act 1999 (“the 1999 Act”), in circumstances where the applicants otherwise had no right of recourse to public funds; and
- Whether Southwark had breached the Article 8 ECHR rights of C, T, M and U by providing them with financial support at a level less than what which they knew was necessary to prevent breach, and whether the appellants were entitled to damages in respect of this breach.
The Court dismissed the appeal on all grounds. Though Southwark had, on its own case, had regard to the levels of child benefit and support provided under the 1999 Act in determining the levels of support to be granted to the appellants and other applicants under section 17 of the 1989 Act [§5], this was not (in this case) improper or unlawful. In particular:
- The Secretary of State’s statutory guidance permitted “appropriately phrased internal guidance or cross-checking” of levels of financial support granted under section 17 with those of other statutory schemes, such “cross-checking” had to be consistent with the terms of the guidance and the otherwise fact-sensitive nature of section 17 assessments [§20];
- The local authority had in this case applied a “bespoke” approach to the section 17 assessments and had sought to provide a “detailed, case sensitive assessment of the needs of the children”, determining the levels of support to be provided by reference to figures C had provided rather than with reference to some “notional average child’s requirements” [§25];
- There was a “difference of substance” between an appropriate and lawful cross check and an unlawful inflexible fixing of rates. Given the quality of these “bespoke” assessments, the Court could not conclude that the financial support payments made to the appellants were made by reference to an irrational or inflexible rate [§27]
In the Court’s view, internal guidance consistent with the Secretary of State’s statutory guidance which did not suggest nor endorse of a policy or practice of fixing financial support by reference to support available under other statutory schemes or for other purposes, would be permissible [§20]. It would be “difficult” for a local authority to demonstrate it had properly undertaken any section 17 assessment if it adopted a practice or any internal guidance which “described as its starting point” either the child benefit or the 1999 Act rates. The starting point for any assessment had to be an analysis of the proper evidential factors and any “cross checking” undertaken should not constrain the decision maker’s obligation to have regard to the impact on the applicant child’s welfare and the proportionality of their decision [§21].
The judgment is available here.