Kebede, R (on the application of) v Newcastle City Council

THE DEPUTY JUDGE: This is an application for judicial review made by two brothers, Yonas Kebede and Abiy Kebede, who are aged 21 and 19 respectively. Yonas Kebede was born on 1 November 1991 and Abiy Kebede was born on 17 May 1993. They are Ethiopian nationals, having been born in Ethiopia to Ethiopian parents. However, they have been in this country since September 2004. They appear to have been abandoned by their relatives so that in about August 2007 they came to be looked after by Newcastle City Council. That council is the defendant in these proceedings.

The brothers, who I am told do not have passports of any sort, have had their asylum claims refused, but each has discretionary leave to remain in the United Kingdom until the end of November 2014.

Each of the brothers would like to go to university in this country, but each in that respect has a problem, namely the payment of the fees required by universities. It is, of course, well known that tuition fees are payable and that many undergraduates in the United Kingdom pay such fees through student loans. The relevant regulations are the Education (Student Support) Regulations 2011, SI/2011/1986. These were made under section 22 of the Teaching and Higher Education Act 1998. However, it must immediately be noted that as they, the claimants, are not British subjects or citizens, and have but discretionary leave to remain in the United Kingdom, they are ineligible for the student support (ie loans for tuition fees) provided by the 2011 Regulations. Furthermore, the brothers are in fact to be classified as overseas students by virtue of the Education (Fees and Awards) (England) Regulations 2007, SI/2007/779.

The Children Act 1989 recognises that when someone reaches the age of majority (ie becomes 18) he does not necessarily leave behind all the problems which may loosely be described as growing up. Accordingly, by section 23C of the Children Act 1989, continuing functions are provided in respect of former relevant children. A former relevant child is a person as defined by section 23C(1) of the Children Act 1989, and is either a relevant child or someone who was being looked after. A relevant child is someone who was an eligible child and is aged 16 or 17. An eligible child is someone who has been looked after for 13 weeks beginning with the age of 14.

There is no dispute but that, for the purposes of the Act, each of the brothers is a former relevant child in relation to whom Newcastle were the last responsible authority. Such being the case, it is, in consequence of section 23C(4) of the 1989 Act, the duty of Newcastle City Council to give each of the brothers:

On the face of it, the duties owed to former relevant children could last forever. However, by section 23C(6) the duties set out in section 23C(2), (3) and (4) subsist, subject to a proviso, until the former relevant child in question attains the age of 21. The proviso, given by section 23C(7), is that if that former relevant child's pathway plan sets out a programme of education or training which extends beyond his 21st birthday, then the duty in section 21C(4)(b) subsists, so long as the former relevant child continues to pursue that programme and the duties in section 23C(2) and (3) subsist concurrently with that duty.

The assistance mentioned by reference to section 24B in section 23C(4)(a) and (b) is, in respect of (a), a contribution of expenses incurred by the former relevant child in living near the place where he is, or will be, employed or seeking employment; and, in respect of (b), a contribution to expenses incurred in living near the place where he is, or will be, receiving education or training or making a grant to enable him to meet expenses connected with his education or training.

The case for the claimants is that Newcastle City Council have unlawfully failed fully to consider their ability to fund the claimant's tuition fees at the respective universities which the brothers wish to attend and that there is, in fact, a duty to provide assistance. A mandatory order is sought requiring Newcastle City Council to provide the claimants with financial support, either by way of grant or loan, to cover their tuition fees.

The position taken by Newcastle City Council is a denial that they are under any duty to pay tuition fees for the claimant's chosen courses, or lend them money for that purpose.

I do not understand Newcastle City Council, whose case has been presented by Mr Harrop-Griffiths, to say that Newcastle City Council are not statutorily (in one way or another) empowered to pay such fees or give a loan for the fees to be paid. They say, assuming they had a discretion, that they exercised it lawfully and rationally.

The principal focus of the argument was about the meaning of section 23C of the Children Act 1989 in combination with section 24B. I use the phrase "in combination" because section 23C, as stated above, expressly refers to section 24B(2). This means that, for the purposes of this case, the relevant statutory language provided it as the duty of Newcastle City Council to give the brothers assistance to the extent their welfare and their educational needs required it by making a grant to enable them to meet expenses connected with their education.

Mr Harrop-Griffiths, for Newcastle City Council, says that meeting expenses connected with education does not, as a matter of statutory construction of section 24B(2), embrace tuition fees. I find that a very difficult argument to accept. The material words are not defined in the Act and it is not suggested that they are terms of art bearing particular meanings. They are ordinary English words, which need, in context, to be construed. If, in ordinary parlance, I say that I am meeting the expenses of, say, a relative in connection with education, it would, I suggest, be a surprise to anyone listening to learn that my apparent generosity had nothing to do with the cost of tuition. The argument is that expenses connected with someone's education presupposes that such a person is in education, and that therefore tuition fees had either been met or are not, as a matter of language, part of the expenses connected with education, which education (by definition) is in place.

I consider such an argument as put on behalf of the City Council cannot be accepted. First, a principal expense associated with education is the cost of tuition. There is an inseparable connection between tuition and education. I appreciate there are well known instances of the autodidact, but this does not undermine the inseparability of the connection. Second, as a matter of ordinary, natural language, tuition fees are expenses connected with education. Third, the argument falls into difficulties as soon as it is questioned. Why might a text book recommended by a tutor be an expense connected with education, but not the expense associated with the tutor? Is extra tuition an expense connected with education? If so, why not tuition? These questions all reveal that the argument cannot, to my mind, succeed.

Accordingly it follows it was the duty of Newcastle City Council to give assistance by making a grant to enable the brothers to meet expenses connected with their education to the extent that their educational needs required it.

It is now necessary to explain what happened. The claim form, issued on 11 September 2012, identifies the challenged decision as that taken by the Newcastle City Council on 8 August 2012. On that date the City Council wrote to NYAS recording that the brothers were ineligible for support under the Education (Student Support) Regulations 2011 and that Newcastle understood the issue to be whether the Council had to pay tuition fees, which could be as much as £30,000 per annum each.

The letter continued by referring to section 23CA of the Children Act 1989. However, it was subsequently made explicit, as it was made explicit to me, that the present situation does not concern section 23CA but rather section 23C to which I have earlier referred.

In a letter dated 28 August 2012, Newcastle City Council noted that reliance was placed on section 23C rather than section 23CA. It is this letter of 28 August 2012 which reveals the thinking of the City Council and can, in effect, be taken as the decision letter. I do not consider any point arises in consequence of the fact that the claim form refers to the letter of 8 August.

The letter of 28 August repeats a point made in the letter of 8 August, namely that the statutory phrase "expenses connected with education" did not cover tuition fees. I have already indicated that I consider that point to be wrong.

The letter went on to say that the City Council had no reason to disbelieve the account as to the immigration position or the position concerning tuition fees. However, the letter continued, even though the fees were less than once thought, being £7,500 per annum for Yonas Kebede and £10,000 per annum for Abiy Kebede, Newcastle were not minded to pay them even by way of loans. First, the point was repeated as to the (erroneous) construction of the phrase expenses connected with education. Second, even if, it was said, the phrase did cover such fees, the authority did not consider it to be an appropriate use of their scarce resources to act as a surrogate loan company when Parliament had decided people with the claimants' immigration status should no longer have access to such assistance. This I understand to be a reference to the relevant regulations having been amended so that those with discretionary leave to remain could not secure loans. In addition, it was said that there was considerable risk attached to the enforcement of any loan that might be made.

The letter continued by saying:

This letter, from which I have quoted, refers to pathway plans. Miss Shazia Akhtar, who presented the case on behalf of the claimants, kindly gave me a document called Details of Remedy. It sets out the remedies sought in these proceedings. The first, third and seventh items refer to pathway plans and seek, amongst other things, declaratory relief that the City Council acted unlawfully in failing to undertake a review of the claimants' pathway plans under section 23C(3)(b) of the Children Act 1989 and regulation 7 of the Care Leavers (England) Regulations 2010, SI 2010/2571.

However, I do not consider that I need to consider the pathway plans in any form of detail. First, Mr Harrop-Griffiths made plain on behalf of the City Council that reviews were being undertaken. Although a delay has occurred owing to an accident, I do not consider I should lightly place on one side what I am told on behalf of Newcastle City Council. Second, in any event Miss Akhtar made it plain that we would not be here, in other words that these proceedings would not have occurred, if the only question related to the pathway plans. It is perfectly plain that the point in this case relates to the payment of tuition fees and questions about pathway plans can properly be said to be by the by.

Accordingly, I return to the question of a grant in relation to expenses incurred in connection with education. Newcastle City Council say they had the power to make such a grant. However, it has been seen that the statutory language is couched in terms of duty. The City Council plainly considered it a discretionary power and proceeded on that basis. It appears to me that, subject to matters I come to mention, that by itself is sufficient to vitiate the decision because Newcastle City Council plainly misunderstood, on my analysis, both that they had a duty and that the assistance was capable of embracing tuition fees. This is a classic error of law in the sense of the decision-maker misunderstanding the law. I appreciate the City Council said that even if the phrase did cover such fees they would not pay them for the reasons which they gave. However, I do not consider that I could be confident that the misapprehension as to the law did not influence the decision.

However, the question of statutory construction does not end with that point. The duty to give assistance is to the extent that (in this case) the brothers' educational or training needs require such assistance.

How and by whom, it may be asked, are these needs to be assessed? Can a potential recipient of a grant maintain (in the United Kingdom) that his particular education needs demand a particular course which can only be provided at great expense at (say) an American university in California?

Further, to what extent do the resources, or more likely the lack of resources, on the part of the City Council affect the operation of the duty? Further, the question arises as to whether it is possible to say that Parliament cannot have intended section 23C to oblige local authorities such as Newcastle to support by way of tuition fees or grants for education young people in the position of the claimants, ie those who are not British subjects and who have only discretionary leave to be in this country.

The immediately relevant statutory sequence proceeds as follows. The Teaching and Higher Education Act 1998 enables, by section 22, regulations to be made authorising the Secretary of State to make grants or loans to eligible students. Sections 23C and 24B of the Children Act 1989 were inserted into that Act by the Children (Leaving Care) Act 2000. The Education (Student Support) Regulations 2011 superseded the Education (Student Support) Regulations 2009. Those Regulations, in accordance with the 1998 Act, make provision as to who was, pursuant to the 2009 Regulations, an eligible student, or is now an eligible student under the 2011 Regulations. Under the 2009 Regulations, a person with discretionary leave to remain would fall into the category of eligibility. However, under the 2011 Regulations such a person does not. The relevant explanatory memorandum indicates that the restriction was to manage resources on the student support budget.

I cannot derive from this sequence the proposition that Parliament cannot have intended the words of section 23C (in conjunction with section 24B) to embrace the possibility of a local authority (such as Newcastle) helping prospective students such as the claimants. The relevant legislation was enacted after the Teaching and Higher Education Act 1998, and yet still allowed for the possibility on its language of such assistance. It seems to me more probable that the Children (Leaving Care) Act 2000 was seen as a safety net, rather than as having an effect other than the ordinary meaning of the words.

It is not strictly necessary to consider who it is who determines educational needs. I need say no more than this: it seems to me that the determination of educational needs must be contextual. The context in a broad sense is England. I put it that way because there was some discussion during argument of the student who considered himself to have educational needs which warranted his attendance at an American university in, say, California. The duty which exists is on the local authority, and at least in the first instance it will be for the local authority to reach a view, rather as a parent might, as to the extent of the educational needs. However, a local authority cannot avoid its duty by determination as to educational needs that does not reflect the position of the individual in question.

The letter of 28 August explicitly referred to, and relied upon, the resources (or rather the limited resources) of the City Council. It is, of course, well known that local authorities, who have an enormous range of tasks to perform, are under financial pressure. The same will hold true of Newcastle City Council. However, the relevant legislation is couched in express terms. It maintains that there is a duty to give assistance of the kind stated in the Act.

My attention was drawn to R v Gloucestershire County Council ex parte Barry [1997] 2 All ER 1 and to R v East Sussex ex parte Tandy [1998] 2 All ER 769. Both are decisions of the House of Lords. The earlier case Barry was a case about services for sick and disabled persons and how such needs should be assessed. Need for a particular type or level of service could not be decided in a vacuum from which all considerations of cost were expelled. Tandy concerned an obligation to make arrangements under section 298 of the Education Act 1993 to provide suitable education. I interpose to say that there is here an obligation to give assistance of a particular kind.

Lord Browne-Wilkinson gave the leading speech in Tandy, and said that the statutory provision in Barry was a strange one. He went on to say:

Lord Browne-Wilkinson went on to say that the position in the present case (that is to say in Tandy) was quite different:

That language, as used by Lord Browne-Wilkinson, seems very pertinent in this case. It seems to me clear on the statutory language that there was a duty of a character falling within (if a choice has to be made) Tandy rather than Barry.

I should add that both parties referred to a document Planning Transition to Adulthood for Care Leavers, Guidance. I do not recite these observations or the guidance, because first, as it seemed to me, it was only of limited or marginal assistance, and second, the real issue is the construction of the legislative words in respect of which I find in context the words themselves the surest guide.

I should add that Mr Harrop-Griffiths referred to the fact that a loan might prove difficult to recover, and that it was unknown whether discretionary leave to remain might not be renewed. It seems to me that these are factors which may well be highly relevant if the City Council were exercising a power rather than fulfilling a duty. As it is, the legislative language is couched expressly in terms of duty. In such a circumstances, the fact that there is discretionary leave to remain does not bear upon the immediate operation of that duty.

It follows from all that I have said that the decision of 28 August cannot stand. The decision it expresses must be set aside. In the remedy document to which I have referred, Miss Akhtar seeks a declaration to the effect that the words in section 23C(4)(b) of the Children Act, "it is the duty of the local authority to give a former relevant child assistance of the kind referred to in section 24B(2) to the extent that his welfare and educational or training needs requires it," permit the defendant authority to make a contribution, including a 100 per cent contribution, to the claimants' tuition fees for their chosen undergraduate degree course. Such appears to be the case, but I do not consider that a declaration is actually necessary. I have in this judgment effectively said that the statutory words mean what they say and no further declaration appears, to my mind, to be necessary.

Miss Akhtar also asks for a mandatory order that the defendant provides the claimant with financial support to cover the entire amount of the claimants' respective tuition fees for their chosen undergraduate courses. She adds to that in the alternative an order that the defendant reconsiders its position in the light of declarations made by the court.

It seems to me that I ought not to make a mandatory order of the character that I have just read out. The position in respect of the claimants is not immutable, by which I mean that the operation of the relevant statutory provisions needs properly to be considered by the local authority in the light of the present facts and this judgment. It appears to me that the proper order is to set aside the decision and, in so doing, to produce a circumstance where the City Council have to consider within, I emphasise, a comparatively short timescale the educational needs of the claimants and what the duty cast on the City Council as identified in this judgment demands.

I have already indicated that I do not propose unnecessarily to take up time considering the points about pathway plans. This is principally because, as was made plain to me by Mr Harrop-Griffiths, Newcastle City Council is, in any event, keeping that matter under review.

It follows that, having dealt with what is, in fact, the principal matter (namely the question of the tuition fees), that I should allow this application for judicial review. That is what I do. I quash the decision of 28 August 2012. The quashing order is to be taken as requiring a fresh decision to be made in the light of this judgment.

MR GLENISTER: My Lord, I was aware previously that (Inaudible) the judgment would be handed down and submissions were to be made in writing. I am happy for that to be maintained.

THE DEPUTY JUDGE: What I indicated, because I was alive to the fact that Miss Akhtar could not be here this morning, and what I indicated was that if any matter of controversy arose that I would permit further submissions to be made in writing. But I have not yet been able to identify whether any matters of controversy arise. As far as the question of costs is concerned, first, do you have an application to make in relation to that?

MR GLENISTER: Initially I was under the impression that that was to be dealt with in writing. However, the application would be the defendant pays the claimants costs, if not agreed to be subject to detailed assessment.

THE DEPUTY JUDGE: Let us see whether Mr Harrop-Griffiths says that that is a controversial matter and then we can go on from there.

MR HARROP-GRIFFITHS: I do not see how that can be controversial.

THE DEPUTY JUDGE: I rather thought that controversy could be avoided. So the application will be allowed. There will be an order for costs in favour of your clients. Costs to be assessed if not agreed.

MR GLENISTER: I am satisfied with that.

THE DEPUTY JUDGE: Is there anything else that you need in connection with costs?

MR GLENISTER: That deals with costs, my Lord.

THE DEPUTY JUDGE: Very well. I suspect from what I have said that there is no other matter which would require further submissions, because the effect of what I have said is that the relevant decision has been quashed, it will be set aside, and it will go back for consideration by the Newcastle City Council in accordance with the judgment which I have given.

Mr Harrop-Griffiths, is there anything else of controversy?

MR HARROP-GRIFFITHS: There may be, in the sense of the question of an appeal. Clearly I do not have my clients here with me, and they may well want to consider what your Lordship has said with a view to considering whether to make an application before your Lordship first for permission to appeal, which in due course no doubt would be controversial.

THE DEPUTY JUDGE: I think, if I can proceed in this way, if you do not mind my saying so, Mr Harrop-Griffiths, that one can cut through this to a certain extent. I can readily see from the point of view of a local authority such as Newcastle City Council that the matter is of some significance. I do not have information as to the number of people involved across the country and I could not pretend to and I should not begin to guess how many people there might be in a similar position to your clients.

There are, of course, two bases upon which you can seek permission to appeal: first, that I thought there was a reasonable prospect on appeal, and second that there was some other compelling reason for the appeal. As far as the first is concerned, what I would propose to do, unless you take violent exception to this course, is to proceed upon the basis that your clients do now, so to speak, ask you to ask me for that permission.

As far as the first aspect is concerned, do I think that there is a reasonable prospect on appeal, the answer to that question is that, having given the judgment that I did and reached a clear view about the statutory provision, I would not accept an application on that basis. On the second point, is there some other compelling reason for an appeal, I do not take the view that there is some other compelling reason for the appeal because the situation is one whereby, as I say, I do not know and I cannot guess and should not speculate about quantum in terms of numbers of people across the body of local authorities in England and Wales. So accordingly, I am not going to grant permission on that base either.

All I would say about that, of course, is that it is open to your clients to renew before a single Lord Justice of Appeal, and that if that was going to be done - plainly it would be a matter for you in consideration with your clients - it may well be that anybody would be assisted on that second matter by having some idea of the scale of the issue.

So that is how I would propose to treat that in an effort to avoid further ancillary action in relation to this matter.

MR HARROP-GRIFFITHS: I am not going to say anything in answer to that. So far as the form of the order otherwise is concerned, within a certain period of time or short period of time, I think your Lordship said, I do not know if that is a matter that can be dealt with today.

THE DEPUTY JUDGE: I did not want to specify a period of time in which you have to reconsider it, because I do not think it would be right for me to do that because your clients are going to have to consult with the claimants about the present circumstances as they obtain. Because, although matters have come on relatively quickly, I do not know and I do not think I should assume that every last matter of educational need has remained the same today as it was earlier. So that is why I say that has to be done. Plainly it has to be done sensibly relatively quickly, because of course time marches on as far as their academic careers are concerned. But I do not want to put a time on that, so the formal order will be that it will be quashed, the decision.

MR HARROP-GRIFFITHS: Well, I do not think there is anything else.

THE DEPUTY JUDGE: Very well. I suspect, therefore, that that means that there are no controversial matters to be dealt with and that questions of leave to appeal can be dealt with elsewhere in so far as that is necessary to be done.

I should add that I received an email which contained some details of the related case bearing upon the -- I did not actually look at the material at all for two reasons. The first was I was not sure whether it had been, so to speak, a joint exercise, and second, it did not appear to me, in the light of the argument that I had heard and in the light of my further consideration of the matter when I was preparing my judgment, that it was going to advantage me to do so. So for the avoidance of doubt, I indicate that was the position.

MR HARROP-GRIFFITHS: Well, as your Lordship may recall, it was my learned friend who asked for those to be put in, and I did agree, once I had seen the documents, to that, and it is a shame (Inaudible) in the event your Lordship would have looked at it anyway, but it should have been explained that it was agreed.

THE DEPUTY JUDGE: Well, I suspected that that probably would be so, because it would be unusual for something to come to me, so to speak, unilaterally. But, as I say, perhaps I did not look hard enough at it to see whether it was something which had come jointly. But in any event, I reached the view that it was not going to assist me because I was concerned with this point of statutory construction which was highlighted in both of your skeleton arguments.

MR HARROP-GRIFFITHS: Yes.

THE DEPUTY JUDGE: Thank you very much. Is there anything else?

MR HARROP-GRIFFITHS: No, my Lord.