Local Authorities:
Overview of Duties owed to Children
Page 3
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David Vavrecka March 2005-All rights
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28.
In the case of R (Mohammed) & Others v
Birmingham City Council (Administrative
Court: May 30, 2002) Moses J considered that
if the LA could make proper provision to
meet the needs of the family as a whole
under section 17 then there was no
requirement to consider separately any duty
to the mother as an individual under section
21 of the 1948 Act. The court stated that
the needs of the mothers were “inextricably
linked with the best interests of their
children.” (para.40) This case decided that
the policy of offering return fares to
families (following the discharge of the LA
obligations to make enquiries about whether
the families’ needs would be met in the
country to which they were to be returned)
and interim support until that time and in
the event of refusal to offer accommodation
to the children under section 20 of the
Children Act was a balanced and flexible
policy. In that case the judge decided that
the offer to house only the children under
section 20 did not in itself breach Article
8(1) ECHR.
Financial help
29.
In discharging its general duty in
section 17, or the more specific duties (sch
2, Pt 1) the local authority may give
assistance in kind, or in exceptional
circumstances in cash[9]
either unconditionally or on terms involving
some repayment, after having had regard to
the parents and child’s means. This might
be used to assist a family in obtaining
housing.[10]
A decision to make financial provision is at
the discretion of the local authority[11]
30.
The local authority may exercise
its section 17 powers to assist return
abroad, where this will best safeguard and
promote the child’s welfare[12]
31.
In the event that such families from
overseas (not asylum seekers) to whom
assistance to return home is offered, which
they refuse, local authorities remain under
a continuing duty under section 17 to
promote the upbringing of the children, and
the local authority cannot simply withdraw
assistance[13]
Particular groups: special considerations
Families with children who “overstay” in the
UK and declare a special need
32.
Local authority duty depends firstly on
the classification of the “overstayer”.
Persons who over stay in the UK are
unlawfully here, however they may have
refugee status in another country or may be
EEA nationals. If they do not fall within
either of these categories and are
unlawfully in the country then the LA may
still owe them a duty if they have a
dependant child under the 2002 Regulations
and under section 17 of the Children Act. If
the LA duty to the whole family can be
addressed under section 17 then it will not
be necessary to refer to the LA duty under
section 21 of the 1948 Act ( which the case
law suggests also applies to overstayers as
long as they are not able bodied but are in
need.)
33.
The 2002 Act suggests this will now only
be the case if failure to provide facilities
will breach the rights of the individual
under the ECHR or if the support is for a
child. Both exceptions will arguably apply
in this case.
34.
Under Income Support (General)
Regulations 1987 (SI 1987/1967) Regulation
21(3) and Schedule 7; Illegal entrants and
overstayers are denied income support.
Asylum and Immigration Act 1996
35.
Removed altogether the right to income
support and to housing under the
homelessness legislation from asylum seekers
who did no claim asylum at the port or
airport at entry. Therefore section 21(1) of
the National Assistance Act 1948 applies to
asylum seekers (it does not apply if
services are available under other
legislation).. Benefits denied to asylum
seekers whose applications had been refused
and were pursuing an appeal.
36. ‘The
Withholding and Withdrawal of Support
(Travel Assistance and Temporary
Accommodation) Regulations 2002’ Refugees
and EEA Nationals: LA has power to make
arrangements for a person, with either
refugee status abroad or an EEA national, to
leave the UK to travel to the relevant EEA
State. (Section 2(1) of ‘The Withholding and
Withdrawal of Support (Travel Assistance and
Temporary Accommodation) Regulations 2002’.)
With regards this group of persons where a
person fails to co-operate with the travel
arrangements then the duty of the LA is
extinguished except and only if the failure
to travel was either due to the applicant or
a member of his family group being medically
unfit to travel or they were prevented from
travel by a failure in the transport service
despite taking all reasonable steps to
travel as arranged. For either or both
exceptions to apply the applicant must have
taken all reasonable steps to travel as
arranged by the LA and has taken all
reasonable steps to provide explanations and
evidence of the failure to travel. (Section
6.)
37.
Other Categories:
38.
There is a second duty under the 2002
Regulations if a person has with them a
dependant child, in those cases the LA has
the power to:(i) to make accommodation
arrangements for a person for whom travel
arrangements have been made until the time
of travel (Section 2(2).(ii) to make
accommodation arrangements for a person
unlawfully in the UK as long as they are
co-operating with measures to remove them
(Section 2(3).) Arrangements under either (i)
or (ii) may include arrangements for the
dependant child.
39.
However the guidance to the Regulations
suggests that temporary accommodation
pending departure would preferably last no
longer than 10 days. The case of R (M) v
Islington London Borough Council [2003] EWHC
1388, suggests that it would seldom be
lawful for the LA to provide accommodation
for unlawful persons under s.3(3) on an
indefinite basis, even when the criteria
were fulfilled, particularly when there was
no reason to believe that removal would be
issued in the near future
