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

The claimant (a British child) challenged payments made by Birmingham Children’s Trust under its former NRPF policy, arguing that payment of a weekly subsistence rate equivalent to the Home Office asylum-support level (£196.24) to a foreign-national carer with no-recourse-to-public-funds (NRPF) unlawfully discriminated under Article 14 ECHR read with the Human Rights Act 1998. The court analysed the interaction of four statutory regimes (mainstream welfare exclusions, the Asylum Support regime, Part III Children Act 1989 s.17 and Schedule 3 of the Nationality, Immigration and Asylum Act 2002) and identified distinct statutory categories of support for NRPF families.

The judge held that the authority had assessed the children’s needs under s.17 CA as extending beyond statutorily-prescribed asylum 'essential living needs' and that paying the asylum-support equivalent effectively levelled-down the family to a lower statutory category without adequate justification. The court concluded Article 14 discrimination of the 'Thlimmenos' type was made out and that the defendant had not shown objective and reasonable justification for the similar treatment. Relevant statutory provisions considered included s.17 CA, Sch.3 NIAA and the Asylum Support Regulations.

This judicial-review claim was brought on behalf of a seven-year-old British child (anonymised) against Birmingham Children’s Trust. The child’s Jamaican grandmother (EFG) came to the UK on a visitor visa with an NRPF condition to care for the children after their mother became terminally ill and died. EFG applied for and received cash payments under the Trust’s NRPF policy between February and August 2021 at a rate that, after settlement of an initial challenge, was treated as parity with the Home Office asylum support weekly figure of £196.24. The family’s social-work assessment under s.17 Children Act 1989 recorded needs beyond mere subsistence and included an objective to secure EFG’s means to support the family without reliance on charity.

(i) Nature of the claim / relief sought: The claim asserted that the Trust’s provision of subsistence at the asylum-support equivalent for the period 17 February to 17 August 2021 unlawfully discriminated in breach of Article 14 ECHR read with the Human Rights Act 1998. The claimant sought declarations and relief in respect of that period; a remedy was to follow only if liability was established.

(ii) Issues framed by the court: The court framed three alternative comparative questions for Article 14 analysis: (a) comparison of British and non-British children each cared for by an NRPF foreign carer with leave; (b) comparison of British children cared for by NRPF adults with asylum-seeking children cared for by NRPF adults (i.e. nationality via immigration status); and (c) comparison between children cared for by foreign adult carers with the right to be in the UK and children cared for by foreign carers without the right to be in the UK (i.e. the carer’s immigration status). The judge also analysed how the Asylum Support statutory scheme, s.17 CA and Schedule 3 NIAA interact to create different statutory categories of support, and asked whether any differential or similar treatment could be justified.

(iii) Court’s reasoning: The court (HHJ Tindal) examined the statutory frameworks in detail and identified five broad statutory categories of NRPF-related support. It found that the family’s January 2021 s.17 assessment established needs going beyond asylum 'essential living needs' and that the Trust nevertheless paid a weekly rate equivalent to asylum support (initially below that rate and later back-dated/up-rated). The judge accepted that asylum support is a statutory, subsistence-limited scheme but emphasised that s.17 CA is focused on safeguarding and promoting child welfare and may encompass welfare needs beyond subsistence. The court held that Schedule 3 NIAA contains a specific exception permitting exercise of listed powers only 'to the extent that' necessary to avoid an ECHR breach; that exception operates as a cap for categories of ineligible adults. The Trust treated the child’s family in effect the same as those in a different statutory category with an ECHR-related cap, without adequate justificatory evidence. On justification, a 'manifestly without reasonable foundation' assessment (in light of Strasbourg and domestic authority) was applied and the judge found the Trust offered no adequate reasons; the similarity in treatment was not justified. The Article 14 claim succeeded and, after submissions on remedy, the parties reached an agreed pecuniary settlement which the court approved.

Claim succeeded. The court held that payments of £196.24 per week to the claimant’s carer for the period in issue were discriminatory in breach of Article 14 ECHR read with the HRA because (i) the family had been assessed under s.17 Children Act 1989 as having welfare needs beyond statutorily-defined asylum 'essential living needs', (ii) the payments effectively treated them the same as families in different statutory categories who were subject to a Schedule 3 NIAA 'ECHR breach' cap, and (iii) the defendant provided no objective and reasonable justification for that similar treatment. The judge therefore allowed the claim and approved the parties’ later agreed settlement on remedy.