VC & Ors, R (on the application of) v Newcastle City Council

Support under section 4 of the Immigration and Asylum Act 1999 is residual to the local authority’s functions under section 17 of the Children Act 1989. Its possible availability does not, without more, relieve a local authority of responsibility for a child assessed as being in need.

A local authority may withhold or discontinue section 17 support by reference to section 4 only if it establishes both that the Secretary of State can and will provide the section 4 support, or can be compelled to do so, and that such support will meet the child’s assessed needs. The distinct purposes and levels of the two regimes, and Parliament’s omission of an equivalent to the section 95 exclusion, make that difficult in the ordinary case.

These were judicial-review test cases concerning asylum-seeking families supported by Newcastle City Council under section 17 of the Children Act 1989. The council proposed to end that support and require the families to seek accommodation and subsistence under section 4 of the Immigration and Asylum Act 1999.

VC’s case ultimately did not raise the intended issue. Her fresh asylum claim had been made after the birth of a child, so that she remained eligible for section 95 support and the council lacked power to provide section 17 accommodation and essential living needs. K was a failed asylum seeker whose children had been assessed as being in need, whose application for section 4 support had been refused, and whose section 17 support was threatened.

The central issue was whether possible section 4 support entitled the council to terminate section 17 support for children in need.

1. K’s claim succeeded. The council had not demonstrated that any support potentially available under section 4 of the Immigration and Asylum Act 1999 would meet the assessed needs of K’s children. VC’s claim could not have succeeded because she was, during the relevant period, eligible for section 95 support and section 122 prevented the council from providing the relevant section 17 assistance.

2. Section 17 of the Children Act 1989 requires a local authority to assess a child’s need for its services. It does not create an absolute duty to provide every assessed service. Whether a child is in need is initially for the authority, subject to judicial review on ordinary public-law grounds. A child’s needs may be met by another provider, but the authority must establish that the provider is actually able and willing to provide the relevant services, or can be compelled to do so.

3. The regimes under section 17 and section 4 have different purposes. Section 4 is an austere, minimum and residual humanitarian regime for failed asylum seekers. Section 17 support is directed to the welfare and assessed needs of children. Parliament expressly gives section 95 support priority over section 17 support, but enacted no comparable exclusion where section 4 may be available.

4. Accordingly, a local authority cannot justify refusing or ending assessed section 17 support merely because section 4 support may be available. It must show both that the Secretary of State is actually able and willing, or compellable, to provide it, and that the support will meet the child’s assessed needs. The council’s general review did not supply the required child-specific justification, and it wholly failed on adequacy.

5. The court did not determine the wider hypothetical questions concerning the Secretary of State’s ability to reject a new section 4 application because of possible section 17 support, or the claimants’ Convention-rights arguments. Counsel were invited to draft appropriate declarations.

This was a first-instance judicial-review decision. Permission was granted in VC’s claim on 25 January 2011. During the hearing, the court permitted K to commence and pursue a claim on agreed facts because K’s case raised the material issue.