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

Under Children Act 1989 sections 23C(4)(b) and 24B(2), assistance for a former relevant child may include university tuition fees. The statutory phrase “expenses connected with education” includes tuition fees. The duty is limited by the extent to which welfare and educational or training needs require assistance, but it is not merely discretionary because the authority has scarce resources or the child has discretionary leave to remain. Educational needs must be assessed contextually and individually. A decision based on the mistaken view that tuition fees fall outside the statutory language, or that the authority has only a discretion, is unlawful and must be quashed.

Two Ethiopian brothers, former relevant children for whom Newcastle City Council was the last responsible authority, sought judicial review of the Council’s refusal to fund or lend money for their university tuition fees. They were ineligible for student support under the Education (Student Support) Regulations 2011 because they had discretionary leave to remain, and were classified as overseas students under the Education (Fees and Awards) (England) Regulations 2007.

The Council treated “expenses connected with education” as excluding tuition fees and regarded its obligation as discretionary. The central issues were whether the duty under sections 23C and 24B of the Children Act 1989 could extend to tuition fees, and how educational need and Council resources affected that duty.

1. Application allowed. The Council’s decision of 28 August 2012 was quashed. A fresh decision was required in accordance with the judgment. No mandatory order requiring payment of the full fees was made.
2. Section 23C(4)(b) required the Council to give a former relevant child assistance of the kind referred to in section 24B(2), to the extent that welfare and educational or training needs required it. A grant to meet expenses connected with education could include tuition fees. Tuition was inseparably connected with education, and tuition fees were expenses connected with education in ordinary language.
3. The Council had treated the statutory obligation as a discretionary power and had proceeded on the mistaken view that tuition fees were outside section 24B(2). That was an error of law. The court could not be confident that the misunderstanding had not influenced the refusal.
4. Educational need had to be assessed contextually. The local authority would initially determine the extent of need, in a manner comparable to a parent, but could not avoid its duty by adopting an assessment that failed to reflect the individual’s circumstances.
5. The judge distinguished R v Gloucestershire County Council ex parte Barry [1997] 2 All ER 1 and treated the present duty as analogous to the immediate obligation concerning suitable education discussed in R v East Sussex ex parte Tandy [1998] 2 All ER 769. Scarce resources, recovery risks and discretionary immigration status did not displace the statutory duty.
6. The Council was required to reconsider the claimants’ educational needs and what the statutory duty demanded. The pathway-plan issues were not determined in detail. Costs were awarded to the claimants, subject to detailed assessment if not agreed.