Kebede & Anor, R (on the application of) v Newcastle City Council

For a former relevant child, section 23C(4)(b) of the Children Act 1989 imposes a duty to provide assistance under section 24B(2) to the extent that welfare and educational or training needs require it. A grant for education or training expenses includes tuition fees and is not confined to ancillary costs. The local authority must make an objective assessment, taking account of relevant circumstances including immigration status and whether the proposed course can be completed. Its own financial resources are not a relevant factor under this duty. Separate higher-education payments do not determine entitlement to the grant. A refusal based on the wrong construction of the statutory duty or on resource considerations must be quashed and reconsidered.

The respondents were brothers who had been accommodated by Newcastle City Council under the Children Act 1989 and became former relevant children on reaching 18. They sought grants towards university fees because their immigration status made them ineligible for central government fee funding. Newcastle refused, arguing that section 24B(2) covered only incidental educational expenses and that its limited resources were relevant.

The Administrative Court quashed the refusal in [2013] EWHC 355 (Admin). Newcastle appealed. The central issues were the meaning of education or training expenses, the relevance of local authority resources, and the effect of immigration status and separate higher-education payments on the statutory assessment.

The appeal was dismissed unanimously. Sir Stanley Burnton gave the judgment, with Lord Justice Laws and Lord Justice McCombe agreeing. The refusal was quashed and Newcastle was required to make a fresh decision according to law.

1. Scope of the duty. Section 23C(4) of the Children Act 1989 converts the otherwise discretionary assistance under section 24B(2) into a duty towards a former relevant child, to the extent that the child’s welfare and educational or training needs require it. The phrase covering expenses connected with education or training includes tuition fees. The word “his” does not require the education to have been secured already, and “connected with” does not restrict the provision to ancillary expenses such as books and stationery.
2. Resources. Newcastle could not rely on the approach in R v Gloucestershire County Council, ex p Barry [1997] AC 584. That case concerned a different statutory provision and context, in which cost and local authority finances could inform assessment of need. The criterion prescribed by section 23C(4)(b) leaves no room for the authority’s own resources.
3. Assessment. Whether and to what extent assistance is required is an objective question for the local authority, subject to conventional judicial review principles and informed by the former relevant child’s input. Immigration status is relevant. Educational need must be assessed in its educational context, including whether the proposed course can realistically be completed.
4. Separate payments and final order. Payment under section 23C(5A) involves a different test and does not determine entitlement under section 23C(4). Newcastle had not yet decided whether, or to what extent, the respondents’ welfare and educational needs required grants. A fresh decision was therefore necessary.

1. Court of Appeal (Civil Division), [2013] EWCA Civ 960: appeal dismissed; the refusal was quashed and a fresh decision was required.
2. High Court of Justice, Queen’s Bench Division, Administrative Court, [2013] EWHC 355 (Admin): quashed Newcastle’s refusal to make grants towards the respondents’ university fees.