Mensah v Salford City Council

A local authority may use subsistence figures fixed under another statutory scheme as a benchmark when deciding the financial assistance required under section 17 of the Children Act 1989 for destitute children and their families. That approach is lawful where the authority independently addresses the children’s assessed needs, provides accommodation and basic subsistence, and retains flexibility to provide additional assistance where necessary. The court reviews legality, not the appropriate level of payment. An authority’s mistaken view of a family’s derivative right to reside will not invalidate the policy or decision unless it materially affects the assistance provided.

These conjoined judicial review claims challenged Salford City Council’s policy for supporting destitute families unable to claim social security or housing benefits because of their immigration status. The Council provided accommodation, paid rent and household charges, and used the amount available to failed asylum-seekers under section 4 of the Immigration and Asylum Act 1999 as the basic subsistence figure, subject to additional assistance where assessed needs required it.

The claimants argued that this confused the purposes of section 17 of the Children Act 1989 and section 4 of the 1999 Act, and that the Council had failed to recognise their derivative rights of residence as primary carers of British children. The issues were whether the policy was irrational or used the statutory power for an improper purpose, and whether any error concerning residence rights materially affected the decisions.

1. The claims were dismissed. The Council’s policy was lawful.
2. Section 17 of the Children Act 1989 requires the authority to safeguard and promote the welfare of children in need, but leaves the authority to determine the appropriate level and form of assistance. The court reviews legality and does not substitute its own assessment of the amount required.
3. There was nothing inherently unlawful in using subsistence figures fixed by another public body as a benchmark for avoiding destitution. The Council had not adopted section 4 of the Immigration and Asylum Act 1999 as the statutory basis or purpose of its assistance. It had used the figure as a reference point in making its own assessment under section 17.
4. The policy was lawful because it provided accommodation and basic subsistence, allowed additional support where further needs were identified, and operated in practice to provide clothing, school items and assistance for needs beyond destitution. The fact that section 4 support was austere or potentially short-term did not make the benchmark irrational.
5. R (VC) v Newcastle City Council [2012] P.T.S.R. 546 was distinguishable. It concerned terminating section 17 support because section 4 support might be available. The present policy continued to provide section 17 assistance and merely used section 4 figures to calculate a basic level.
6. The Council had initially failed to appreciate that the claimants had derivative rights to reside under regulation 15A of the Immigration and Asylum (European Economic Area) Regulations 2006. That error did not materially affect the decisions, because the level of support was adopted as a policy choice to avoid destitution and breaches of Convention rights, rather than because the Council considered itself legally barred from providing more.