PO & Ors, R (On the Application Of) v Council of the London Borough of Newham

A local authority may adopt standard rates for subsistence support under section 17 of the Children Act 1989, provided the policy allows departure in exceptional circumstances and the rates are lawfully determined. The authority must assess what level of services is appropriate to children’s needs and cannot rely on an arbitrary or unexplained starting point. Child benefit is not designed to meet children’s subsistence needs and cannot rationally be used alone to determine such rates. A review mechanism for exceptional cases does not cure an unlawfully determined standard rate. A policy affecting applicants must also be made available so that relevant representations can be made.

Three Nigerian children, whose mother had no recourse to public funds, challenged the Council’s financial support under section 17 of the Children Act 1989. The Council had provided accommodation and weekly subsistence payments while the family’s immigration position was considered. After the family obtained leave to remain, the Council accepted that errors had been made and offered to reconsider the payments under its unpublished NRPF Policy.

The remaining issue was whether any reconsideration applying that policy would be unlawful. The challenge concerned the policy’s publication, its standard subsistence rates, the derivation of those rates from child benefit, and the scope of its provisions for exceptional circumstances and internal review.

1. The claim succeeded in substance. It would be unlawful to apply the Council’s NRPF Policy as it stood, or to treat its standard rates as appropriate for normal subsistence needs, without first reconsidering those rates.
2. Section 17(1) of the Children Act 1989 imposes a general duty to provide services appropriate to the needs of children in need. The Council must assess those needs lawfully. Its decision may be challenged on traditional Wednesbury grounds or for incompatibility with Convention or EU rights, but the court cannot substitute its own assessment of the appropriate cash amount.
3. There was nothing unlawful in principle in using standard rates. Such rates promote consistency and administrative practicality, provided the policy permits departures in exceptional circumstances. The starting point must itself be properly evaluated.
4. The standard rates were irrationally determined. Child benefit is not intended to meet a child’s subsistence needs by itself. The Council gave no rational explanation for deriving its rates from child benefit, for reducing the amounts for children, or for the different treatment of adults, further children and lone-parent families. The comparison with asylum-support rates demonstrated the fundamental weakness of that approach.
5. The policy’s internal-review provision did not save it. Properly construed, the review considered whether exceptional circumstances justified additional support in accordance with the policy; it was not an unrestricted reconsideration untrammelled by the defective standard rates.
6. The policy’s failure to publish it was unlawful because affected individuals have a correlative right to know the policy under which their cases will be considered. The particular claimants could nevertheless make representations because they had obtained the policy through disclosure.