26 January 2023 - In a significant and comprehensive judgment handed down on 26 January, the High Court in Birmingham held that Central England Law Centre’s client, BCD (a child), was discriminated against by Birmingham Children’s Trust (“Birmingham”) in the way it provided him and his family with support under section 17 of the Children Act 1989 (“s17 support”) contrary to Article 14 of the European Convention on Human Rights (“ECHR”). Birmingham could not objectively justify failing to give the Claimant preferential treatment compared to other children from whom he was significantly and relevantly different (known as Thlimmenos-type discrimination).

The Court decided that it is unlawful for a local authority to pay children cared for by foreign national adults with the right to be in the UK the same level of support as children cared for by foreign national adults without the right to be in the UK. This case raises important legal issues about how local authorities should meet the needs of children and families with No Recourse to Public Funds ("NRPF"). 

In this judgment, the Court: 

1. Interprets Schedule 3 to the Nationality Immigration and Asylum Act 2002 (“Sch. 3”) and how this provision creates an ‘ECHR breach cap’ for certain groups [see para 107];
2. Explains that some groups with no recourse to public funds are not caught by the ECHR breach cap [see discussion from para 95 onwards and 115];
3. Explains that the ECHR breach cap limits support to a ‘subsistence standard’ and that this means at least asylum support levels [see paras 70 & 71];
4. Where the ECHR breach cap does not apply – such as to children like BCD - then a ‘welfare standard’ of support applies and the rate of support must promote the child’s welfare. This is liable to be much higher than asylum support rates. Indeed, in BCD’s case it was the same as a fostering allowance of £510/week [see para 100];
5. Suggests that Birmingham should review its NRPF policy in light of R(CB) v SSHD [2022] EWHC 3329 (Admin), as they “may wish to take into account the dramatic rise in the cost of living during 2022 and indeed the mandated rise in the Asylum Support rate to £45 pw” [see para 195];
6. Makes observations on how Birmingham might continue to provide s17 support to NRPF families whilst avoiding further breaches of Article 14 ECHR [see paras 195 to 200];
7. Approves the damages settlement of £10,000 for the breach of BCD’s Article 14 rights.

BCD’s mother died on 29 November 2020, when BCD was 5 years old. His grandmother, who became his litigation friend in this case and is known as EFG, had only arrived in the UK from Jamaica 5 weeks previously in order to look after her daughter, BCD and his two older siblings during this illness. EFG was unaware of the seriousness of her daughter’s illness before her arrival and after the tragic death of her daughter had to immediately work out how she would care for her three grandchildren knowing that her visitor visa did not allow access to public funds. 

Despite social work involvement during this time, Birmingham refused to undertake a s17 assessment until, after a miserable Christmas and New Year period living on food parcels arranged by the children’s school, EFG approached local immigration advice agency ASIRT who were able to secure payment for the family from Birmingham under their old NRPF policy from February 2021. This policy dated back to 2016 and, despite legal challenges to its adequacy, had not been reviewed or updated until the law centre began the legal proceedings that eventually led to this judgment. In response to the application for judicial review, Birmingham introduced a new NRPF policy on 1 November 2021 that immediately increased the level of financial support set out in the old policy by about 30% to £196 per week. An equivalent increase was made to all other NRPF families in Birmingham being supported under the policy. 

The introduction of the new policy did not however deal with the discrimination that is at the heart of this litigation. EFG was eventually provided with support in line with Birmingham’s Our Family and Friends (“OFF”) policy on the basis that she has parental responsibility for the children, confirmed in an interim order of the Family Court in August 2021. The OFF policy payment is based on fostering allowance and, in EFG’s circumstances, amounted to £510 per week from August 2021 although in a case beset by delay and inaction, the payment (backdated to August) was not made to EFG until 31 December 2021. The claim focused on Birmingham’s payment of cash support between February and August 2021. 

To comply with the law, local authorities should ensure the following: 

1. They must recognise that the “ECHR breach cap” does not apply to everyone with no recourse to public funds;
2. Uncapped families must be supported to the welfare standard. This will require an assessment of their needs. It is likely to require support at fostering/welfare benefits levels. It will almost certainly not be met through asylum support levels of payments, because asylum support rates make no allowance for books, toys or recreational activities;
3. Capped families must be supported, at the very least, at the asylum support rate. But local authorities will also need to undertake Human Rights Assessments of children and provide a standard of support to avoid a breach of Article 8 rights. When referring to asylum support rates, local authorities must have regard to R(CB) v SSHD [2022] EWHC 3329 (Admin) and the dramatic rise in the cost of living during 2022.

Read the judgement in full here.

Thank you to BCD and EFG for their bravery and determination to stick with us throughout the litigation. And thank you to ASIRT for getting this case started in the first place.