In R (MK) v London Borough of Barking and Dagenham  EWHC 3486 (Admin) (13 November 2013) the claimant – who was illegally in the UK – said that, at the time she brought her claim, she was destitute and homeless.
She also said that her circumstances were such that her Article 3 and Article 8 rights under the European Convention on Human Rights were either being breached or were imminently to be breached. The local authority did not challenge that factual situation.
The claimant contended that the council was aware of her circumstances and was the immediate cause of her being homeless in that, while it had already accommodated other members of her family (her two cousins and her aunt), it had refused to allow her to share the accommodation provided to her relatives.
The claimant argued that Barking and Dagenham was obliged to act so as to avoid a breach of her Convention rights. She said the council had the power to act to avoid a breach of her rights either by:
- Making use of s. 17(3) of the Children Act 1989 (coupled with s. 17(6); or by
- Using its power under s. 1 of the Localism Act 2011 (containing the general power of competence).
Barking and Dagenham countered that s. 17(3) could not and should not be used to avoid the impact of statutory provisions preventing the claimant, who had no right to remain in the UK, from accessing most benefits.
It also said that the section was designed to benefit children and not a member of their family and the purported use of the section was ultra vires the authority.
The council added that the Localism Act could not be used to avoid the prohibitions on other means of relief that might otherwise be offered to the claimant were it not for her immigration status.
Ruling in favour of Barking and Dagenham, HHJ Bidder QC said: “In my judgment, section 17(3) was not intended by Parliament to allow a local authority’s children’s services department to bypass a clear statutory scheme intended to exclude a claimant such as this from a whole range of benefits including accommodation and support.”
The judge said s. 17(3) gave a “clear indication” of the purposes for which the powers in that part of the Children Act should be exercised. “To utilise the section 17(3) power either to house the claimant separately or even to accommodate her by granting her a licence to live at the flat in which her aunt and her cousins are housed would, in my judgment, be using the power for a collateral and improper purpose. I agree that to use the section in this way would be ultra vires the authority.”
HHJ Bidder QC concluded that where, as in this case, the beneficiary of the exercise of the power was the claimant and not the two children (the cousins), and where the reasonable conclusion of the authority was that it was unnecessary to promote the welfare of the children that the claimant should be accommodated, the provision of accommodation was not ‘with a view’ to safeguarding or promoting the welfare of those children in need.
The judge said s. 1 of the Localism Act – which says that “a local authority has power to do anything that individuals generally may do” (subject to s. 2 restrictions) – added nothing to s. 17(3) of the Children Act. “The wider answer is that an individual is not able to provide part III Children Act services nor part VII Housing Act services nor public money which comprise the services and things which the claimant is, in fact, seeking. Those functions may only be exercised by a local authority.”
He added: “Section 1 of the Localism Act is an enabling section, which for example, gives a local authority the power to enter into contracts or leases. It was not intended by Parliament as a means of overriding a clear statutory scheme prohibiting the provision of benefits of all kinds to those unlawfully in the UK.”
HHJ Bidder QC said a power was given to the Secretary of State under s. 4 of the Immigration and Asylum Act 1999 to provide or arrange for the provision of facilities for the accommodation of persons, like the claimant, temporarily admitted to the UK. “In other words, the statutory scheme gives the ‘safety net’ power to accommodate to central rather than local government.”
The judge concluded that there was no free standing power vested in the council to accommodate the claimant nor was it permited to exercise its s. 17 Children Act or s. 1 Localism Act powers to assist the claimant.
Kelvin Rutledge QC of Cornerstone Barristers appeared for the London Borough of Barking and Dagenham.