C, T, M and U, R (on the application of) v London Borough of Southwark

Financial support under section 17 of the Children Act 1989 must be determined through an individual, evidence-based assessment of the child’s needs. Rates payable under other statutory schemes have no necessary connection with that assessment and must not be used as an inflexible starting point or benchmark.

A local authority may use external rates as a rational cross-check, provided they do not constrain its social work judgment. The authority may consider its resources, provision from other sources and the needs of other children. Judicial review examines the adequacy and lawfulness of the assessment; the court does not substitute its own view of the child’s needs.

A mother and her dependent children had no recourse to public funds. The London Borough of Southwark provided accommodation, cash payments, payment of utilities and other assistance following repeated assessments under section 17 of the Children Act 1989.

The Administrative Court dismissed their claims for judicial review and damages in [2014] EWHC 3983 (Admin). The family appealed, contending that Southwark had unlawfully fixed financial support by reference to child benefit or the support payable under sections 4 and 95 of the Immigration and Asylum Act 1999. They also alleged a breach of article 8 of the Convention.

The central issues were whether Southwark had fettered its discretion through an unlawful policy or practice and whether its support breached the appellants’ article 8 rights.

1. The appeal was dismissed unanimously. The two ancillary applications, concerning additional evidence and an additional ground of appeal, were allowed.

2. Section 17 of the Children Act 1989 imposes a target duty and confers a discretion to meet an individual child’s assessed needs. The authority may consider its resources, other provision available to the child and the needs of other children. A reviewing court examines whether adequate information was gathered and whether due regard was paid to the child’s best interests. It must not substitute its own assessment.

3. An assessment must comply with applicable statutory guidance, absent admissible grounds and good reason for departure. It must address the relevant assessment framework and demonstrate proper consideration of the effect of the decision upon the individual child’s welfare. That effect must be proportionate when balanced against other legitimate considerations.

4. There is no necessary link between support under section 17 and rates fixed under other statutory schemes. The purposes of child benefit and sections 4 and 95 of the Immigration and Asylum Act 1999 differ from the safeguarding and welfare purpose of section 17. An authority would be likely to fetter its discretion irrationally if it adopted such rates as an inflexible starting point or benchmark. A rational cross-check is permissible if it does not constrain the individual assessment.

5. Southwark had undertaken repeated, detailed and case-sensitive assessments. The resulting package included accommodation, cash and benefits in kind, and the children’s needs were met. The evidence did not establish that Southwark had fixed payments by reference to child benefit or immigration support rates. Any correlation was insufficient to establish an inflexible policy or practice.

6. The support did not breach article 8. In the alternative, even an arguable immediate and direct link between requested assistance and private life remained subject to the fair balance between individual and community interests and the state’s margin of appreciation. The decisions were well within that margin.

1. Court of Appeal (Civil Division): In [2016] EWCA Civ 707, allowed the ancillary applications but unanimously dismissed the appeal.
2. Administrative Court: In [2014] EWHC 3983 (Admin), dismissed the claims for judicial review and damages.