The duty to give former looked after children assistance with education

August 4th, 2013 by Rachel Kamm

I posted back in February about the High Court’s decision in R (Kebede) v Newcastle City Council [2013] EWHC 355 (Admin) that local authorities have a duty (and not a discretion) to make a grant in relation to educational expenses and that this could include a grant for tuition fees.

The two claimant brothers were former relevant children for the purposes of sections 23B and 23C of the Children Act 1989. They wanted to go to university, but were ineligible for student loans because they were not British citizens (although they had discretionary leave to remain in the UK). They asked the local authority to assist under section 23C of the Children Act 1989, which included provision that the local authority had a duty to give them assistance by making a grant to enable them to meet expenses connected to their education, to the extent that their educational needs required it.

The local authority refused to assist the brothers, arguing that it had a discretion to assist but that, in any event, it only had a power to assist with expenses connected with education and this did not include a student loan. These arguments were rejected by the High Court. The Court of Appeal has dismissed Newcastle City Council’s appeal against that decision: [2013] EWCA 960 Civ.

The Court of Appeal was quick to reject the argument that section 23C required the prospective student to have secured the provision of education, if necessary by payment of the tuition fees, before there was any duty for the local authority to make a grant. The Court also rejected the Council’s argument that tuition fees were not expenses connected to education. Finally, the Court considered the Council’s submission that it was entitled to take restrictions on its resources into account when deciding whether or not to make a grant (relying on Barry [1997] AC 604). The Court distinguished the duty in section 23C form that in Barry and found that resources are not relevant:

The present issue arises under a different statute. Moreover, Parliament has prescribed what is to be taken into account in assessing need and the duty to make provision. The assistance is to be given “to the extent that [the former relevant child’s] welfare and his educational or training needs require it”. This leaves no room for a consideration of the resources of the local authority. 

Newcastle City Council must now make a fresh decision on whether or to what extent the brothers” welfare and educational needs require the making of grants under section 23 C(4).

Update: On a related note, the High Court has held that a former relevant child is one who actually received specified children’s services whilst under the age of 18. It is not sufficient  that the local authority should have provided those services to the child, but failed to do so: R (GE (Eritrea)) v SSHD and Bedford Borough Council [2013] EWHC 2186 (Admin). This situation can arise where an asylum-seeking child is (mistakenly) treated as an adult by the local authority and Home Office. If the asylum seeker reaches the age of 18 and the Courts subsequently find that they were a child at the material time who should have received services from the local authority, they do not  thereby become a former relevant child. Paul Greatorex of 11KBW represented Bedford Borough Council.

Rachel Kamm, 11KBW

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