Ed Mitchell considers the "leaving care gap" that unaccompanied
asylum-seeking children may find themselves falling into
What is the issue:
Leaving care services for former asylum-seeking children
What is the case:
H & Others v Wandsworth LBC & Others
What was the case about?
The case was about identifying the power under which unaccompanied
asylum-seeking children (UASC) are accommodated.
But what was the real issue?
The real
issue was access to leaving care services, the gateway to which is
"looked after" status for at least 13 weeks as a 16- or 17-year
-old. The claimants in this case argued that they were "looked
after" because they were accommodated under section 20 of the
Children Act 1989 (CA 89). Section 20 sets out cases in which local
authorities must accommodate children in need for example where
accommodation is required because the child's previous carer is
prevented from providing care.
What is beneficial about leaving care
services?
Upon reaching adulthood, a former UASC who
is entitled to such services, and whose asylum claim is unresolved,
ought not to be "dispersed" away from London. In addition, better
support can be expected under the leaving care route than is
available generally to asylum seekers.
How did the case arise?
The three
claimants arrived in the UK aged 16. Two had no contacts in the UK
and were provided with accommodation by London authorities, but it
was merely a room in a shared house. The case of the third was
slightly different. She had friends in London who rented private
accommodation. Her authority provided her with financial assistance
(a deposit) so that she could also rent a room (using housing
benefit) with her friends.
The local authorities argued that the claimants had not been
accommodated under Section 20. They argued that they had merely
received a service under Section 17 (the general duty to safeguard
and promote welfare of children in need) and, as a result, did not
qualify for leaving care services. A judicial review claim was
made.
What did the Court decide?
The High Court
held that the first two claimants were accommodated under Section
20, despite the accommodation being very basic. This duty to
accommodate was triggered because they were children in need whose
usual carers were no longer able to care for them. They had been
provided with accommodation and so it must have been provided under
Section 20. The result was that they had been "looked after" and,
as a result, could access leaving care services.
The third claimant, however, was less fortunate. The Court held
that she had not been provided with accommodation under Section 20
and, as a result, had not been looked after. She had merely been
assisted to obtain her own accommodation. This meant she did not
qualify for leaving care services.
Does this mean all UASCs will be entitled to leaving
care services?
No, it is not that straightforward. As
the third case shows, a person merely provided with Section 17
assistance in finding accommodation cannot qualify for leaving care
services. It is also theoretically possible that a UASC could
refuse Section 20 accommodation and instead seek Section 17 help
although this would be unwise and UASCs should be advised that
generally it is better to receive Section 20 accommodation.
Is there a danger that some UASCs will be tricked into
accepting Section 17 accommodation?
Of course there
is a danger of that happening but, under the law, it should not. A
decision to provide accommodation (or accommodation-related
services) under Section 17, rather than Section 20, should be
needs-led rather than led by a desire to avoid the costs of
providing leaving care services in the future.
Read the full case report
Ed Mitchell is a solicitor, editor of
Social Care Law
Today, and
Community Care's legal expert