O, R (on the application of) v Barking and Dagenham Lbc

The leaving-care provisions do not confer a general power or duty on a local authority to provide accommodation to a former relevant child under section 23C(4)(c) of the Children Act 1989. The statutory scheme is directed to maintaining contact, providing advice and support, and assisting with employment, education or training. Accommodation may be provided in the specific circumstances identified by the legislation, including accommodation in a community home under section 20(5). Where accommodation is instead potentially available through asylum-support arrangements, the statutory schemes allocate responsibility according to the claimant’s circumstances. The reasoning in R (Westminster City Council) v NASS and R (AW) v Croydon Borough Council concerning infirm destitute persons does not require the same result for a former relevant child.

The claimant was a 19-year-old Eritrean asylum seeker who had been accommodated by the defendant under the leaving-care provisions after reaching 18. After his original asylum appeal rights were exhausted, he made fresh representations to the Secretary of State. The defendant decided to withdraw accommodation, considering that support could be sought from NASS under section 4 of the Immigration and Asylum Act 1999.

The claimant sought judicial review, arguing that section 23C(4)(c) of the Children Act 1989 authorised accommodation and that the defendant could not rely on possible NASS support. The court also considered, but did not decide, whether he remained an asylum seeker or was a failed asylum seeker.

1. Permission and disposition. Permission to apply for judicial review was granted. The claim was dismissed. The defendant was awarded costs subject to section 11 of the Access to Justice Act 1999, with detailed assessment of the claimant’s costs. Permission to appeal was granted because the issues were important and arguable.
2. Scope of section 23C. The leaving-care provisions are intended to help former relevant children move towards independence by maintaining contact, appointing a personal adviser, reviewing a pathway plan and providing assistance connected with employment, education or training. Sections 23C(4)(a) and (b), section 24B and the surrounding statutory provisions indicate that accommodation is limited to the circumstances specifically described there. Section 23C(4)(c), which requires other assistance to the extent that the child’s welfare requires it, does not include a general power to provide accommodation. Section 20(5) provides a separate power to accommodate young people in a community home.
3. Interaction with NASS support. The court treated the reasoning in R (Westminster City Council) v NASS and R (AW) v Croydon Borough Council as addressing a different class, namely infirm destitute persons. Those decisions established mutually exclusive schemes for allocating responsibility between local authorities and the Secretary of State. They did not place former relevant children within the same category as infirm destitute persons. Accordingly, even if the construction of section 23C(4)(c) were wrong, the defendant could rely on the likelihood of NASS provision at least until the outcome of an application for NASS support was known.
4. The questions whether the claimant was an asylum seeker or failed asylum seeker, and whether the decision concerning his fresh representations breached his human rights, were not determined. The latter ground had been conceded by the defendant.

First-instance judicial review proceedings. The judgment records earlier interim-relief proceedings and a consent order requiring an expedited rolled-up hearing, but no prior determination on the merits.