High Court rules on the applicability of s. 17(3) Children Act 1989 in overstayer family’s challenge against the LB Bexley. Azeem Suterwalla acted for the Claimants

12 May 2020

In a judgment handed down on 7 May 2020 (R (OA and others) v LB Bexley [2020] EWHC 1107 (Admin)), the High Court (Mr Sam Grodzinski QC sitting as a Deputy High Court Judge), dismissed a claim for judicial review brought by an impoverished family of overstayers, who sought to challenge a refusal by the London Borough of Bexley to increase subsistence support to them.

The Claimants were a family of three. The 1st Claimant was the mother of the 2nd Claimant, who was her 16-year-old son. The 3rd Claimant was her 19-year-old son – the 2nd Claimant’s older brother. The Claimants were Nigerian nationals. None of them had immigration leave in the UK. They were, therefore, excluded from mainstream benefits by virtue of Schedule 3 of the Nationality, Immigration and Asylum Act 2002 – i.e. they had no recourse to public funds (“NRPF”).

During 2019, the Claimants became homeless and destitute. Recognising this, Bexley assessed the 2nd Claimant as a child in need. It provided accommodation and support to the 2nd Claimant and, as his mother and care giver, the 1st Claimant, including accommodation in a two-bedroom property, and financial support to purchase food and other essential items. However, whilst Bexley allowed the 3rd Claimant to live with his mother and younger brother, it took the view that it could not provide additional support, to take account of the 3rd Claimant presence, under s. 17 of the Children Act 1989. This led to Bexley providing financial support limited to £307.56 per month, based on standard rates, which was intended to provide for the essential needs of a lone parent and one child. Bexley accepted that this amount was never intended to take account of the food-related needs of the 3rd Claimant. This situation led to the 1st Claimant, as a mother of two sons, splitting the family’s food allowance, which would be sufficient to feed only two people, between the three of them, with the result that all of the Claimants were going hungry.

The Claimants asked Bexley to increase subsistence support. They argued that Bexley was able to do so under s. 17(3) Children Act 1989. Bexley’s position was that it had no power under s. 17(3) to provide additional subsistence support, because to do so would circumvent the restrictions imposed on persons such as the 3rd Claimant (adults with no immigration status) by Schedule 3 NIAA. The Defendant argued that on a proper construction of s. 17(3) it could only be applied to a parent and/or a carer of a child, and not to any another family member of a child in need.

The Deputy Judge rejected Bexley’s arguments as to the interpretation of s. 17(3). He held that the power could be exercised in respect of any family member, including the 3rd Claimant, and was not limited to a parent or a carer. However, the Deputy Judge decided that all of the 2nd Claimant’s needs could be met, and were being met, by the 1st Claimant. In these circumstances, Bexley was bound to conclude that it had no power under s. 17 of the Act to provide financial support for the 3rd Claimant, in order to meet the welfare needs of the 2nd Claimant. The claim for judicial review was therefore dismissed.

Azeem Suterwalla acted for the Claimants, instructed by Olivia Halse of Matthew Gold & Company