THE KING (on the application of CVN) v LONDON BOROUGH OF CROYDON

Where a former relevant child remains in education beyond the age of 21, accommodation and subsistence assistance may be necessary to meet both welfare and educational needs. A person’s immigration status may make that person prima facie ineligible for support, but the exception in Schedule 3 paragraph 3 of the Nationality, Immigration and Asylum Act 2002 applies to all Convention rights defined by section 1 of the Human Rights Act 1998.

That power may therefore be exercised to prevent destitution causing a breach of article 3 where the destitution is connected with continuing education. Withdrawal of accommodation which materially prevents effective access to education may also be disproportionate under article 2 of Protocol No 1. A decision-maker must address those issues expressly and lawfully.

The claimant was an unaccompanied asylum-seeking child from Albania who became a former relevant child and received accommodation and leaving-care support from the defendant local authority. After his asylum appeal rights were exhausted, the authority decided that he was ineligible for support because of his immigration status, while stating that support would continue only so far as necessary to avoid a breach of Convention rights.

The claimant challenged that decision by judicial review. The defendant ultimately relied on the alleged limits of the statutory power and on proportionality under article 2 of Protocol No 1. The central questions were whether Schedule 3 paragraph 3 permitted support to prevent an article 3 breach connected with education, and whether withdrawal of support would disproportionately interfere with the claimant’s right to effective access to education.

1. Statutory power. Sections 23C(4)(b) and 24B(2) of the Children Act 1989 required consideration of accommodation and associated expenses where welfare and educational needs required them. Section 23C(7) permitted the educational duty to continue beyond the claimant’s twenty-first birthday while he pursued the programme in his pathway plan.
2. Convention rights. Schedule 3 paragraph 3 of the Nationality, Immigration and Asylum Act 2002, read with section 113 of that Act and section 1 of the Human Rights Act 1998, referred to all the listed Convention rights, including article 3. There was no statutory basis for confining the exception to the originating educational purpose or to article 2 of Protocol No 1 alone. The inclusion of welfare in section 23C(4)(b) supported that conclusion. The reasoning in [2012] EWHC 1236 (Admin) was persuasive, and [2002] UKHL 38 provided an analogous illustration of the distinction between purely destitution-based support and support serving an additional statutory purpose.
3. Article 3. If withdrawal of accommodation would leave the claimant destitute and materially jeopardise his ability to continue education, the power in Schedule 3 paragraph 3 was exercisable to prevent an article 3 breach connected with his educational needs. The authority had failed to consider that issue. The error was fundamental and required the decision to be quashed.
4. Article 2 of Protocol No 1. The right concerned fair, equal, meaningful and effective access to existing educational facilities. Applying the four-stage proportionality test in [2013] UKSC 39, protection of ratepayers’ funds was a sufficiently important objective and withdrawal was rationally connected to it. However, the authority had supplied no meaningful evidence of competing demands or undertaken a balancing exercise. The severe effect of destitution on effective education outweighed the asserted financial objective. The interference was disproportionate.
5. Relief. Section 31(2A) of the Senior Courts Act 1981 did not prevent relief because it was not highly likely that the outcome would have been substantially the same. The impugned decision was quashed. A declaration was granted that the defendant had to continue paying for accommodation and subsistence support under section 23C(4)(b) of the Children Act 1989 to prevent an article 3 breach and support continuing education.

Permission to apply for judicial review was granted after renewal before a Deputy High Court Judge. The substantive claim was then determined at first instance by the High Court (Administrative Court). There was no appeal decision stated in the judgment.