Apologies if you get this more than once.
Could I please alert you to an article on our website and the judgment in BCD v Birmingham Children’s Trust  EWHC 137 (Admin) handed down last week.
In a significant and comprehensive judgment handed down on 26 January, the High Court in Birmingham held that Central England Law Centre’s client, BCD (a child), was discriminated against by Birmingham Children’s Trust in the way it provided him and his family with support under section 17 of the Children Act 1989 contrary to Article 14 of the European Convention on Human Rights. Birmingham could not objectively justify failing to give the Claimant preferential treatment compared to other children from whom he was significantly and relevantly different (known as Thlimmenos-type discrimination).
The Court decided that it is unlawful for a local authority to pay children cared for by foreign national adults with the right to be in the UK the same level of support as children cared for by foreign national adults without the right to be in the UK. This case raises important legal issues about how local authorities should meet the needs of children and families with No Recourse to Public Funds.
Central to the Court’s reasoning was its interpretation of Sch. 3 NIAA2002 and that this provision creates an ‘ECHR breach cap’ for certain groups which limits support to a ‘subsistence standard’ and that this means at least asylum support levels. Where the ECHR breach cap does not apply (such as to children like BCD) then a ‘welfare standard’ of support applies and the rate of support must promote the child’s welfare. This is liable to be much higher than asylum support rates. Indeed, in BCD’s case it was the same as a fostering allowance of £510/week.
To comply with the law, local authorities should ensure the following:
- They must recognise that the “ECHR breach cap” does not apply to everyone with no recourse to public funds;
- Uncapped families must be supported to the welfare standard. This will require an assessment of their needs. It is likely to require support at fostering/welfare benefits levels. It will almost certainly not be met through asylum support levels of payments, because asylum support rates make no allowance for books, toys or recreational activities;
- Capped families must be supported, at the very least, at the asylum support rate. But local authorities will also need to undertake Human Rights Assessments of children and provide a standard of support to avoid a breach of Article 8 rights. When referring to asylum support rates, local authorities must have regard to R(CB) v SSHD  EWHC 3329 (Admin) and the dramatic rise in the cost of living during 2022.
Michael Bates Solicitor
Head of Public Law
DL: 01212276544 E: firstname.lastname@example.org