R(MN) v London Borough of Hackney [2013] EWHC 1205

CONTEXT: In our last issue, we considered the judgment in KA v Essex City Council, in which it was held that, in order to avoid a breach of their human rights, destitute families with no recourse to public funds must be provided with support and accommodation pending the setting of removal directions. In MN, the Court considered a case with identical facts to those in KA but reached the opposite conclusion, sparing little criticism for the judgment in KA.

FACTS: The claimant family in MN had no recourse to public funds, no outstanding application for leave to remain, and were waiting for removal directions. They presented to the authority as destitute and seeking support under s.17 of the Children Act 1989. The LA took the view that the parents were withholding information about their finances and support network and that in the circumstances it could not decide whether the family were in fact in need. It therefore offered no support. It also carried out a human rights assessment and decided that, even if the family were destitute, the withholding of support would not in any event have breached the family’s human rights. The claimants challenged the LA’s refusal to provide accommodation and support.

DECISION: The Court held that an LA must take reasonable steps to assess whether a family is in need but if, having done so, the applicant’s failure to disclose meant that the local authority was still unable to decide whether an applicant was in need, no duties would arise under the CA 1989. As no duty to provide support had arisen, there was no question of “withholding” that support and whether it would breach the family’s human rights to do so. The judge nonetheless went on to consider, obiter, whether the LA’s human rights assessment was flawed.

Two of the obiter findings are of particular relevance. First, contrary to KA, the Court held that there would be no breach of a family’s human rights where a family with no outstanding application for leave to remain was not supported pre-removal directions. It very heavily criticised the judgment in KA, describing it as a “remarkable conclusion” which placed too onerous a burden on local authorities and provided a windfall to overstaying families.

Second, the Court held that the LA’s human rights assessment was nevertheless flawed because it failed to take sufficient account of the children’s social and cultural ties to the UK. A child who had spent most of her developmental years in the UK was likely to have strong social and cultural ties to it. These might be outweighed in an appropriate case, but the LA did not go far enough when it decided that because children generally manage moves to a foreign country well, the claimants’ human rights would not be breached by returning to their country of origin.

ANALYSIS: MN deals with the difficult question of how an LA is to discharge its duties under s.17 CA 1989 in circumstances where the LA believes the applicant is holding back information about their means. The judge’s finding that no duties arise under CA 1989 unless the LA is provided with sufficient evidence of destitution would appear to place the onus on applicants to demonstrate that they are in need. If right, that would make it considerably more difficult for applicants to access support under the Act. The Claimants in MN have applied for permission to appeal on this ground.

The judgment is also helpful for its comments on the LA’s human rights assessment, which stress the importance of the social and cultural – as well as familial – ties of those who have grown up in the UK.

Finally, the judgment endeavours to set out a stepby- step guide on the complex interaction between the provision of support under CA 1989 and the prohibition on such support for illegal overstayers, which should serve as a blueprint in similar types of decisions.