OA, R (on the application of) v London Borough of Camden & Anor

In public decision-making affecting vulnerable children, fairness generally requires the decision-maker to put adverse matters to the person affected before relying on them. This is especially important where the concerns amount to allegations of dishonesty or deliberate misinformation. A local authority must also genuinely consider material fresh evidence raised before its decision is finalised. At the permission stage, an arguable right of residence under the Immigration (European Economic Area) Regulations 2016, or an arguable derivative right connected with a pending nationality application, may materially affect whether support is excluded under Schedule 3 to the Nationality, Immigration and Asylum Act 2002. A local authority should not precipitately terminate support where the relevant application is not hopeless or doomed to failure.

OA, a four-month-old child, applied for judicial review of Camden’s decision concerning accommodation and support under section 17 of the Children Act 1989. Camden concluded that OA and his mother were not destitute because they could rely on an existing support network. It also stated that, even if they were destitute, Schedule 3 to the Nationality, Immigration and Asylum Act 2002 prohibited support.

The claimant challenged the decision on procedural fairness, failure genuinely to reconsider the assessment in light of fresh evidence, and the allegedly unreasonable 14-day period for leaving accommodation. The central issue at the renewed permission hearing was whether those grounds were arguable.

1. Outcome. Permission was granted on grounds 1 and 2 and refused on ground 3. Standard directions were ordered.
2. Procedural fairness. The court accepted the principle stated in R (on the application of O) v London Borough of Lambeth [2016] EWHC 397 (Admin): although the assessment of need is for the local authority, the court must ensure that the decision is based on sufficiently diligent enquiry and is properly reasoned. Fairness requires concerns about the disappearance of support, and adverse inferences drawn from them, to be put to the applicant before the decision.
3. That requirement was plainly engaged where Camden’s non-standard chronology alleged inconsistencies amounting to deliberate misinformation. The letter of 25 June was a decision, notwithstanding the stated willingness to reconsider. The claimant therefore had an arguable case that the adverse inferences should have been put to her before the decision was made.
4. Reconsideration. It was arguable that Camden acted irrationally or unfairly by failing to address the evidence that OA’s father had applied for Finnish citizenship. The authority had promised to consider the representations, but its final response did not address the potential consequences of OA acquiring EU citizenship.
5. Residence and exclusion from support. It was arguable that OA had a right to reside under regulations 7(1)(b) and 14(2) of the Immigration (European Economic Area) Regulations 2016, without an additional requirement that he accompany or join his father to form a family unit. It was also arguable that OA’s mother might have a derivative right of residence.
6. By analogy with Birmingham City Council v Clue [2010] EWCA Civ 460, and having regard to KA v Essex County Council [2013] 1 WLR 1163, the local authority should arguably stay its hand while the nationality application remained outstanding, unless it was hopeless or doomed to fail.
7. The challenge to the 14-day notice period was not arguable on the facts presented.