BCD (by his Litigation Friend EFG), R (on the application of) v Birmingham Children’s Trust

A local authority supporting children in need under Children Act 1989, section 17 must assess the individual child’s welfare needs. It should not treat an Asylum Support subsistence rate as the finishing point where section 17 support is governed by a different statutory purpose.

For Article 14 purposes, British nationality, the child’s right of abode, and the carer’s immigration status may constitute relevant statuses. Treating children whose support is not subject to an ECHR-breach cap in the same way as children in a more restricted statutory category may amount to Thlimmenos discrimination. Administrative convenience, generalised practicality and avoidance of misconceived discrimination claims did not justify the treatment in this case.

The claimant, a British child, challenged Birmingham Children’s Trust’s payment of £196.24 per week under its former no-recourse-to-public-funds policy during February to August 2021. The payment was made to his Jamaican grandmother, who cared for him and his siblings after their mother’s death and was lawfully in the United Kingdom, although subject to a no-recourse condition.

The claim was limited to an Article 14 challenge, read with Article 8 and, in relation to the carer, Article 1 of Protocol 1. The claimant argued that the payment unlawfully treated him in the same way as children in asylum-seeking families, children of carers unlawfully present, and children cared for by adults in different immigration-status categories.

1. Claim allowed. The payment of £196.24 per week was discriminatory contrary to Article 14 ECHR, read principally with Article 8. The parties subsequently settled quantum at £10,000, which the court approved.
2. Section 17 of the Children Act 1989 is a target duty. It does not create an individually enforceable duty to meet every assessed need. However, the authority must make an individual assessment directed to safeguarding and promoting the child’s welfare. Section 17 support has no necessary link with Asylum Support and must not be constrained by another statutory scheme’s subsistence standard.
3. Asylum Support under sections 95, 96 and 122 of the Immigration and Asylum Act 1999 is directed to accommodation and essential living needs at a subsistence level. Section 17 support may extend to assessed welfare needs beyond that standard, including needs addressed through Schedule 2 to the Children Act 1989.
4. Schedule 3, paragraph 3 of the Nationality, Immigration and Asylum Act 2002 limits support to an ineligible person to the extent necessary to avoid an ECHR breach. It is therefore distinct from the unrestricted section 17 category applicable to a person lawfully present and not within Schedule 3. The claimant’s grandmother was lawfully present throughout because her Zambrano rights arose automatically when her other leave ended.
5. The claimant’s three comparisons disclosed relevant and significant differences. British children have a permanent right of abode; their support needs may be longer-term; and their circumstances differ from children in asylum-seeking families. A child cared for by a person lawfully present is also in a different statutory category from a child whose carer is subject to the Schedule 3 ECHR-breach cap.
6. The Trust’s use of the Asylum Support rate ignored its own assessment that the family needed financial means to support the family, pay bills and buy food. The rate did not meet even the children’s essential living needs without charitable assistance. The asserted justifications of convenience, practicality and equality were either not rationally connected to the treatment, or could have been achieved by less intrusive means, and did not outweigh the serious impact on the children.
7. The court also upheld the pure nationality argument. The Trust had given no evidence that it had considered the claimant’s British nationality or the associated welfare impact, as required when assessing his needs. The claim succeeded on all three bases.