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R (MN, KN) v LB Hackney: Drawing adverse inferences as to need, and doubting KA) v Essex County Council

Introduction
On 10th May 2013 the Administrative Court (Leggatt J) gave judgment in R (MN, KN) v LB Hackney [2013] EWHC 1205 (Admin). The case will be of particular interest to those following the debate surrounding the extent of a local authority's duties to provide s. 17 Children Act 1989 assistance to a destitute person present illegally in the UK.

The Claimants, two children aged 3 and 13, challenged Hackney's refusal to provide s. 17 assistance. The family were Jamaican nationals present illegally in the UK and threatened with homelessness. Hackney carried out a s. 17 assessment, and an assessment of whether there would be a breach of Arts. 3 and 8 ECHR if support were refused.[1] Hackney were not satisfied that the family were destitute and therefore 'in need'. They also concluded that there would, in any event, be no breach of Arts. 3 and 8 ECHR if s. 17 assistance were not provided.

Hackney's approach to the question whether the Claimants were 'in need'
The Court dismissed the Claimants' main challenge to the manner in which Hackney had concluded that they were not 'in need'. Because Hackney had not positively decided that the Claimants were 'in need', there was no power under s. 17 to provide assistance to them: [41-42]. Hackney's inability to make a positive finding as to destitution arose from the failure of the Claimants' parents to provide information and not from any failure as to the enquiries made: [44]. It had not been irrational to conclude that the Claimants were not in need. These were matters of fact and judgement and Hackney had been entitled to draw adverse inferences: [45].

The Court therefore held that Hackney had lawfully refused to provide support under s. 17 and thus dispensed with the main ground of challenge.

The remainder of the grounds
Leggatt J gave his views on the Claimants' other grounds since he had heard full argument, although it was not necessary to do so to dispose of the claim. The other grounds related to Hackney's decision that the family could return to Jamaica without compromising their Art. 8 rights.

Of most interest to practitioners will be the Court's treatment of the recent case of R (KA) v Essex City Council [2013] EWHC 43.

It will be recalled that in Birmingham City Council v Clue [2011] 1 WLR 99 the Court of Appeal held that where a destitute claimant was unlawfully present in the UK but had an outstanding application for leave to remain on Convention grounds, it would be unlawful for a local authority to refuse to provide assistance if as a result the claimant would have to leave the UK; unless the application for leave to remain was obviously hopeless or abusive.

In KA the Administrative Court extended that principle, holding that it would be unlawful for a local authority to refuse assistance where the claimant had been refused leave to remain in the UK; and where although removal directions had not yet been made, there would be an arguable Art. 8 case on appeal against any such directions. The Court held that it would be unlawful to refuse to provide assistance until removal directions had been issued and the claimant had had the opportunity to appeal against them.

In KN and MN, Leggatt J took the view that the Court in KA had extended the principle set out in Clue too far. The practical effect of KA is to place persons illegally present in the UK in a better position than those who live here lawfully, including British citizens. The Court had gone wrong in "treating a right which would arise in hypothetical circumstances as if it were an existing right which entitles the holder to be provided with financial support now": [80-81]. Leggatt J noted that KA is currently being appealed to the Court of Appeal, but until it was upheld he felt "unable to follow it": [83].

This will be a welcome development for local authorities and those advising them. It can take many years for the Secretary of State to issue removal directions following a refusal of an application for leave to remain, and if KA remains good law then local authorities are potentially responsible for providing assistance to people without recourse to public funds until such time as the Home Office processes their removal. The Court of Appeal heard KA on 26th June 2013, and the local authority continued to be represented by Bryan McGuire of Cornerstone Barristers. Watch this space for further developments!

Of further interest amongst the other grounds, the Court gave a salutary reminder to local authorities to ensure that when they are considering the impact on Art. 8 rights they do not overlook the 'private life' element. Hackney had not properly considered the impact of removal on the social and cultural ties which the children enjoyed, nor the availability in Jamaica of sufficient services to meet MN's particular need (autism spectrum disorder). Leggatt J confirmed that he would have held the decision to be unlawful on this basis, had he not concluded that here was in any event no power to provide assistance under s. 17: [101].

[1] In M v Islington LBC[2005] 1 WLR 884 the Court confirmed that assistance may only be provided to children in need who are present in breach of immigration laws if, and to the extent, necessary to avoid a breach of Convention rights.