SO, R (on the application of) v London Borough of Barking and Dagenham

“Other assistance” under section 23C(4)(c) of the Children Act 1989 includes the provision of accommodation. A local authority must therefore provide that assistance to a former relevant child to the extent that the child’s welfare requires it.

The more specific powers concerning accommodation near employment, education or training do not exclude this wider welfare safety net. Support under sections 95 and 4 of the Immigration and Asylum Act 1999 is residual. A local authority may not refuse or defer accommodation under section 23C(4)(c) by relying on the possibility that NASS may provide it.

The appellant was a former looked-after child who had claimed asylum. The local authority had accommodated and supported him after his assumed eighteenth birthday, but decided to terminate that support. It relied on the prospect of support from the National Asylum Support Service.

Calvert-Smith J dismissed the judicial-review claim in [2010] EWHC 634 (Admin). He held that section 23C(4)(c) of the Children Act 1989 conferred no power to provide accommodation. He also indicated that the authority could take prospective NASS support into account when assessing welfare need.

The appeal was determined on agreed assumptions about the appellant’s immigration status, age and education. The central issues were whether section 23C(4)(c) includes accommodation, and whether possible NASS support may be considered when deciding whether welfare requires local-authority accommodation.

1. Appeal allowed. Section 23C(4)(c) of the Children Act 1989 empowers, and where welfare requires obliges, a local authority to provide accommodation as “other assistance” to a former relevant child.

2. The wording in section 23C(5), allowing that assistance to be given in kind or exceptionally in cash, was materially the same as wording previously construed as including accommodation. The court treated Attorney General ex rel. Tilley v Wandsworth LBC [1981] 1 WLR 854 and R v Tower Hamlets LBC, ex parte Monaf (1988) 20 HLR 529 as decisive interpretative context. The specific assistance available under sections 23C(4)(a) and (b) was not redundant if paragraph (c) included accommodation: those provisions permit account to be taken of proximity to employment, education or training, and of educational or training needs, beyond what welfare alone requires.

3. Support under section 95, and correspondingly section 4, of the Immigration and Asylum Act 1999 is residual. Applying the reasoning in R (Westminster City Council) v NASS [2002] 1 WLR 2956, the court held that NASS support cannot be available where the person is entitled to accommodation under another statutory provision. The local authority could not therefore take the mere possibility of NASS support into account when deciding whether the former relevant child’s welfare required accommodation under section 23C(4)(c).

4. The claim was remitted to the Administrative Court to determine the appellant’s age. The court’s answers did not themselves determine his factual eligibility for support.

• Court of Appeal (Civil Division). Allowed the appeal on both grounds and remitted the claim to the Administrative Court to determine the appellant’s age.
• High Court of Justice, Queen’s Bench Division (Administrative Court). Calvert-Smith J dismissed the judicial-review claim, holding that section 23C(4)(c) of the Children Act 1989 conferred no power to provide accommodation: [2010] EWHC 634 (Admin) .