R (Kebede) v Newcastle City Council[2013] EWHC 355 (Admin)

The claimants were brothers from Ethiopia who had been abandoned by their family and looked after by the local authority. They both had discretionary leave to remain until November 2014 but their applications for asylum had been refused. It was accepted that the brothers were former relevant children. Both wanted to attend university but could not afford the tuition fees.

Sections 23C and 24B CA 1989 impose a duty on local authorities to give former relevant children assistance to the extent their welfare and their educational needs required it by making a grant to enable them to meet expenses connected with their education. The Court held that expenses connected with education included university tuition fees. The facts that a loan may be difficult to recover, or that the boys’ leave to remain might terminate partway through their course without being renewed, were held to be irrelevant to the compliance with a duty, as compared with exercise of a power.

The decision as to the extent to which educational needs required assistance was for the local authority, rather as it would be for a parent. The decision must be taken in context. Unless called for on the facts of an individual case, that would generally exclude unusually expensive forms of university tuition such as study abroad.

Finally, it was held that the local authority’s resources could not be taken into account in determining the provision to be made, although why that should be the case received a less than full analysis.

The Court declined to make a mandatory order requiring the authority to pay the claimants’ tuition fees, but instead remitted the question to the local authority to decide the extent to which the claimants’ educational needs required the payment of tuition fees.