CYK, R (on the application of) v Kent County Council

Whether asylum support may be taken into account when a local authority exercises its power under Children Act 1989, section 24A(5), depends on the particular circumstances. A potential deadlock exists between the local authority’s functions and the Secretary of State’s asylum-support functions. The local authority must disregard actual or anticipated asylum support where, ignoring it, the circumstances require the local authority to exercise its section 24A(5) power. Otherwise, it may have regard to asylum support. The Secretary of State may likewise take account of section 24A(5) support only where the local authority is able and willing, or can be compelled, to provide adequate accommodation and necessary financial assistance. The court departed in this respect from R (AAM) v Bromley London Borough Council.

These conjoined judicial review claims concerned two asylum-seeking care leavers supported, or formerly supported, under section 95 of the Immigration and Asylum Act 1999. Each challenged Kent County Council’s approach under section 24A(5) of the Children Act 1989, relying on the judge’s earlier decision in R (AAM) v Bromley London Borough Council. The Council argued that AAM was wrongly decided and that asylum support could be considered. The central question was whether the Council could take account of actual or potential asylum support when deciding whether to provide accommodation or financial assistance to an asylum-seeking qualifying young person.

1. Claims and approach. The claims were heard together. The court entertained CYK’s otherwise academic claim because an additional argument required consideration. The statutory functions of the Secretary of State and local authority had to be considered in parallel, rather than according to which body the young person approached first.
2. Potential deadlock. A potential deadlock arises because each body may, in principle, take account of support which the other body could provide. The possibility is not removed by regulation 6(4) of the Asylum Support Regulations 2000.
3. Relevant considerations. It was unnecessary to decide whether the strict test of necessary implication governs the identification of irrelevant considerations. Either approach requires consideration of the coherence of the overall statutory scheme and avoidance of absurdity.
4. Regulation 6(4). Following R (O) v Haringey London Borough Council, regulation 6(4) requires the Secretary of State to consider local-authority support only where the authority is under a statutory duty to provide it, or where the particular facts require it to exercise an otherwise discretionary power. Whether that condition is satisfied depends on the case.
5. Section 24A(5). Resources may be a permissible consideration under the discretionary section 24A(5) power, but only where it is rational to take them into account. It is not invariably lawful to give resources overriding weight, and whether the power must be exercised depends on the particular circumstances.
6. Residuality. The asylum-support scheme is residual in the specific sense explained in R (Westminster City Council) v National Asylum Support Service and O v Barking and Dagenham London Borough Council only where regulation 6(4) applies. The broader comparative approach in R (VC) v Newcastle City Council does not make section 95 dominant in every case. Where section 95 is not residual, section 24A(5) is the residual provision and the Council may have regard to asylum support.
7. Application and departure from AAM. The court held that the local authority may not take account of asylum support where, ignoring that support, it would be required to exercise section 24A(5). In other cases it may do so. The court departed from AAM to that extent, while retaining the broad shape of its analysis.
8. Secretary of State’s position and consequential matters. The Secretary of State may take account of section 24A(5) support only where the local authority is actually able and willing, or can be compelled, to provide it and the support would meet the young person’s accommodation and essential living needs. Consequential matters were adjourned for a further hearing.

First-instance judicial review claims. No earlier appellate decision in the present litigation is stated. The judgment reconsidered the judge’s earlier decision in R (AAM) v Bromley London Borough Council, reported at [2025] EWHC 1565 (Admin).