CONTEXT: In R (Kebede) v Newcastle CC [2013] EWCA Civ 960, the Court of Appeal held (i) that an LA could in principle be required to pay the university tuition fees of a former relevant child; but (ii) that the former relevant child’s immigration status was a relevant factor in deciding whether that child had an educational need for a place on a university course. The judgment is significant as, especially with the advent of top-up fees, funding a person’s university tuition can prove to be very expensive.
R (Nfuni) v Solihull MBC [2013] EWHC 3155 (Admin)
FACTS: The claimant was a former relevant child with a series of failed asylum applications. Her “pathway plan” set out an educational programme which included a degree course in midwifery. The claimant duly made UCAS applications for such courses, but as a result of her precarious immigration status was unable to obtain a place. Instead, she obtained a place on a foundation course in Early Years education. The LA revised its pathway plan in light of these new circumstances. Taking account of her immigration status, it decided that the claimant did not have an educational need to embark upon a course which she may not be able to complete. The claimant challenged the LA’s conclusion.
JUDGMENT: The judge noted that the council’s role was that of responsible parent and that, as such, it could not be taken to have given a carte blanche approval for the claimant to follow any course that she might be able to obtain without reviewing for itself what the benefits of that course might be. Thus from the moment the claimant failed to obtain a place on the course identified in her pathway plan, the educational programme set out in that plan and the council’s leaving care duties came to an end.
Even if that conclusion was wrong, and the LA was required to consider the alternative course on which the claimant had obtained a place, it fell to the LA to consider whether the new proposed course satisfied an educational need. In doing so, it was required to take account of all the circumstances, including the claimant’s immigration status (applying Kebede). The LA’s weighting of these circumstances was only subject to review on ordinary public law grounds. In the present case, its decision could not be said to be Wednesbury unreasonable.
COMMENT: A number of interesting points emerge. First, the case provides general guidance to LAs in the event that a former relevant child subject to a pathway plan does not obtain a place on the course set out in the pathway plan for whatever reason. There is no reason why the conclusion in this case – namely that the pathway plan comes to an end and the LA’s duties cease – should be restricted to cases where a former relevant child has failed to obtain a place on their chosen course as a result of their immigration status. It should apply with equal force to the case where a child does not, for example, obtain the requisite entrance grades.
Second, the claimant attempted to argue that the LA should not have taken account of her immigration status in the way that it had in circumstances where her asylum application was said by her lawyers to have a reasonable prospect of succeeding. The judge rejected this argument, observing that the LA’s conclusion as to the weight to be attached to the claimant’s immigration status could only be subject to Wendesbury review. Given that the claimant’s asylum application had already been rejected more than once, the LA’s conclusion that the claimant may not be able to complete the course could not be said to be unreasonable.
Third, the judge took the opportunity to consider the meaning of “educational programme” within Part III of the CA 1989. He declined to give any precise definition of the term, but held that it required something more than the mere recording of a child’s wishes and aspirations, but something less than the identification of a specific course. Within the intervening range, the more general or conditional the terms in which any educational possibilities were expressed, the less likely it was that they could properly be described as a programme.
