Ghulam & Ors, R (on the application of) v Secretary of State for the Home Department & Anor

These three conjoined claims for judicial review all challenge decisions by the Secretary of State setting the level of weekly support payments to asylum seekers pursuant to sections 95 to 98 of the Immigration and Asylum Act 1999 (“the 1999 Act”). The impugned decisions all follow the decision of Popplewell J in R (Refugee Action) v SSHD [2014] EWHC 1033 (Admin). In that case, which forms an important part of the background to the present case and which will need to be looked at in some detail hereafter, the Court quashed the decision of the Secretary of State in June 2013 that the weekly support payments for the 2013/2014 year should remain frozen at the rate of £36.62 per week, which had applied since 2011.

The decisions currently impugned are:

In broad summary, what is alleged by the claimants is that the Secretary of State:

Permission to apply for judicial review was granted in Ghulam on 9 out of 11 grounds by Holman J at an oral permission hearing on 10 February 2015, following refusal on paper by Blake J. One of the grounds on which permission was refused by Holman J was discrimination. Permission to apply for judicial review in K was granted by Cheema-Grubb J on 6 January 2016, who also ordered that the case be heard with Ghulam. YT and RG was ordered to be heard on a rolled-up basis with the other two cases by me at a Case Management Conference on 15 March 2016. Permission for the Equality and Human Rights Commission (“EHRC”) to intervene in K was granted by Soole J on 12 May 2016.

At the outset of the present hearing, in an application supported by the EHRC, Mr Martin Westgate QC on behalf of YT and RG applied to amend the grounds raised by them to add further grounds of challenge: (i) to add to the existing claim for breach of the PSED a further “protected characteristic” under section 149 of the Equality Act 2010 of sex to the existing one of disability and (ii) to challenge the entire system of exceptional support under section 96(2) of the 1999 Act. This application was resisted by Mr Clive Sheldon QC on behalf of the Secretary of State. I allowed permission in respect of the additional argument under section 149, but on the basis that the Secretary of State should be at liberty to put in further evidence which was done by way of Mr Bentley’s sixth witness statement dated 7 July 2016. I refused permission in respect of any attempt to launch a systemic attack on the Secretary of State’s approach to section 96(2).

Popplewell J undertook a detailed analysis of the history of asylum support in the Refugee Action judgment which I do not propose to repeat here. For present purposes, the points to be highlighted are as follows. Asylum support is limited to those who are destitute, defined by section 95 of the 1999 Act as those who do not have any adequate accommodation or means of obtaining it and those who cannot meet their essential living needs. When an asylum seeker applies for support, and a decision is made to grant such support, accommodation is provided, at no cost to the asylum seeker, under section 96(1)(a) of the 1999 Act. Utility bills and council tax are met by the accommodation provider. The accommodation includes basic furniture and household equipment (cooker, fridge, washing machine, cooking utensils, crockery and cutlery). Cots and high chairs are provided for young children and sterilising equipment for babies under twelve months.

In addition, the asylum seeker receives a weekly cash payment under section 96(1)(b) of the 1999 Act to meet essential living needs such as food and clothing for him or herself and dependants, as set by the relevant Regulations and it is those weekly cash payments which are the subject of the present challenges. However, it is important to note at the outset that this is not the only means by which the UK discharges its obligations to asylum seekers. In addition to the accommodation support provided in kind and the weekly cash payments, asylum seekers have free access to the NHS. They obtain free prescriptions, dental care, eye tests and glasses. They are reimbursed reasonable costs of travel to and from hospital for scheduled appointments. They benefit from free access to libraries.

Child dependants of asylum seekers are also entitled to free state education for those aged between 5 and 18, free early years childcare of at least 15 hours a week for 38 weeks of the year for children aged between 2 and 5, free school meals in term time and free transport to and from school up to the age of 16, where the school is outside the statutory walking distance or in certain other circumstances. They may also benefit from discretionary schemes run by local authorities in certain areas such as free or concessionary travel on public transport and grants for the purchase of school uniforms.

The relevant provisions of the 1999 Act are as follows:

“94(1) In this Part:

“asylum-seeker” means a person who is not under 18 and has made a claim for asylum which has been recorded by the Secretary of State but which has not been determined;

“claim for asylum” means a claim that it would be contrary to the United Kingdom’s obligations under the Refugee Convention, or under Article 3 of the Human Rights Convention, for the claimant to be removed from, or required to leave, the United Kingdom;

(5)

If an asylum-seeker’s household includes a child who is under 18 and a dependant of his, he is to be treated (for the purposes of this Part) as continuing to be an asylum-seeker while—

(a)the child is under 18; and

(b)he and the child remain in the United Kingdom.

"95.(1) The Secretary of State may provide, or arrange for the provision of, support for—

(a)

asylum-seekers, or

(b)

dependants of asylum-seekers,

who appear to the Secretary of State to be destitute or to be likely to become destitute within [14 days]

……..

(3)

For the purposes of this section, a person is destitute if—

(a)

he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or

(b)

he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs.

(4)

If a person has dependants, subsection (3) is to be read as if the references to him were references to him and his dependants taken together.

……

(7)

In determining, for the purposes of this section, whether a person's other essential living needs are met, the Secretary of State—

(b)

may not have regard to such matters as may be prescribed for the purposes of this paragraph.

(8)

The Secretary of State may by regulations provide that items or expenses of such a description as may be prescribed are, or are not, to be treated as being an essential living need of a person for the purposes of this Part.

96(1) Support may be provided under section 95—

(a)

by providing accommodation appearing to the Secretary of State to be adequate for the needs of the supported person and his dependants (if any);

(b)

by providing what appear to the Secretary of State to be essential living needs of the supported person and his dependants (if any);

(c)

to enable the supported person (if he is the asylum-seeker) to meet what appear to the Secretary of State to be expenses (other than legal expenses or other expenses of a prescribed description) incurred in connection with his claim for asylum;

(d)

to enable the asylum-seeker and his dependants to attend bail proceedings in connection with his detention under any provision of the Immigration Acts; or

(e)

to enable the asylum-seeker and his dependants to attend bail proceedings in connection with the detention of a dependant of his under any such provision.

(2)

If the Secretary of State considers that the circumstances of a particular case are exceptional, he may provide support under section 95 in such other ways as he considers necessary to enable the supported person and his dependants (if any) to be supported.

97(4) When exercising his power under section 95 to provide essential living needs, the Secretary of State—

(b)

may not have regard to such other matters as may be prescribed for the purposes of this paragraph.

122.

(1) In this section "eligible person" means a person who appears to the Secretary of State to be a person for whom support may be provided under section 95.

(2)

Subsections (3) and (4) apply if an application for support under section 95 has been made by an eligible person whose household includes a dependant under the age of 18 ("the child").

(3)

If it appears to the Secretary of State that adequate accommodation is not being provided for the child, he must exercise his powers under section 95 by offering, and if his offer is accepted by providing or arranging for the provision of, adequate accommodation for the child as part of the eligible person's household.

(4)

If it appears to the Secretary of State that essential living needs of the child are not being met, he must exercise his powers under section 95 by offering, and if his offer is accepted by providing or arranging for the provision of, essential living needs for the child as part of the eligible person's household.

(5)

No local authority may provide assistance under any of the child welfare provisions in respect of a dependant under the age of 18, or any member of his family, at any time when--

(a)

the Secretary of State is complying with this section in relation to him; or

(b)

there are reasonable grounds for believing that-

(i)

the person concerned is a person for whom support may be provided under section 95; and

(ii)

the Secretary of State would be required to comply with this section if that person had made an application under section 95.

(6)

"Assistance" means the provision of accommodation or of any essential living needs.

(7)

"The child welfare provisions" means-

(a)

section 17 of the Children Act 1989 (local authority support for children and their families)…."

Although section 122 imposed a duty on the Secretary of State to provide support where a destitute asylum seeker's household included a child who did not have adequate accommodation or the means of meeting his essential living needs, section 95 of the 1999 Act as originally enacted gave the Secretary of State power to provide support to adult destitute asylum seekers, but imposed no duty to do so. However, following Council Directive 2003/9/EC (“the Reception Directive”) which laid down minimum standards for the reception of asylum seekers, the UK came under an obligation to provide a minimum level of support to all asylum seekers and their dependent children. It gave effect to that obligation in part by converting the power into a duty under section 95 by Regulation 5 of the Asylum Seekers (Reception Conditions) Regulations 2005 (“the 2005 Regulations”).

The Reception Directive sets out requirements laying down the minimum content of the essential living needs criterion under the 1999 Act. It provides, inter alia, as follows:

"Whereas:

(1)

A common policy on asylum, including a Common European Asylum System, is a constituent part of the European Union's objective of progressively establishing an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Community.

………

(4)

The establishment of minimum standards for the reception of asylum seekers is a further step towards a European asylum policy.

(5)

This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, this Directive seeks to ensure full respect for human dignity and to promote the application of Articles 1 and 18 of the said Charter.

……..

(7)

Minimum standards for the reception of asylum seekers that will normally suffice to ensure them a dignified standard of living and comparable living conditions in all Member States should be laid down.

……..

(9)

Reception of groups with special needs should be specifically designed to meet those needs.

……..

(12)

The possibility of abuse of the reception system should be restricted by laying down cases for the reduction or withdrawal of reception conditions for asylum seekers.

……..

(15)

It is in the very nature of minimum standards that Member States have the power to introduce or maintain more favourable provisions for third-country nationals and stateless persons who ask for international protection from a Member State.

….

Article 1

Purpose

The purpose of this Directive is to lay down minimum standards for the reception of asylum seekers in Member States.

Article 2

Definitions

(j)

‘material reception conditions’ shall mean the reception conditions that include housing, food and clothing, provided in kind, or as financial allowances or in vouchers, and a daily expenses allowance;

Article 13

General rules on material reception conditions and health care

1.

Member States shall ensure that material reception conditions are available to applicants when they make their application for asylum.

2.

Member States shall make provisions on material reception conditions to ensure a standard of living adequate for the health of applicants and capable of ensuring their subsistence. Member States shall ensure that that standard of living is met in the specific situation of persons who have special needs, in accordance with Article 17, as well as in relation to the situation of persons who are in detention.

Article 14

Modalities for material reception conditions

1.

Where housing is provided in kind, it should take one or a combination of the following forms:

(a)

premises used for the purpose of housing applicants during the examination of an application for asylum lodged at the border;

(b)

accommodation centres which guarantee an adequate standard of living;

(c)

private houses, flats, hotels or other premises adapted for housing applicants.

2.

Member States shall ensure that applicants provided with the housing referred to in paragraph 1(a), (b) and (c) are assured:

(a)

protection of their family life;

(b)

the possibility of communicating with relatives, legal advisers and representatives of the United Nations High Commissioner for Refugees (UNHCR) and non-Governmental organisations (NGOs) recognised by Member States.

Article 17

General principle

1.

Member States shall take into account the specific situation of vulnerable persons such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, in the national legislation implementing the provisions of Chapter II relating to material reception conditions and health care.

2.

Paragraph 1 shall apply only to persons found to have special needs after an individual evaluation of their situation.

Article 18

Minors

1.

The best interests of the child shall be a primary consideration for Member States when implementing the provisions of this Directive that involve minors.

Article 24

Staff and Resources

2.

Member States shall allocate the necessary resources in connection with the national provisions enacted to implement this Directive.”

Article 1 of the Charter of Fundamental Rights of the European Union (2000/C 364/01) (“the Charter”) provides that: "Human dignity is inviolable. It must be respected and protected." Article 18 requires that the right to asylum be guaranteed in accordance with the Geneva Convention. Article 21 prohibits discrimination on the grounds of, inter alia, sex, race, colour, ethnic origin or age.

Section 149 of the Equality Act 2010 sets out the Public Sector Equality Duty as follows:

"149 (1) A public authority must, in the exercise of its functions, have due regard to the need to-

(a)

eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b)

advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c)

foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

(2)

A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).

(3)

Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to-

(a)

remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

(b)

take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;

(c)

encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.

……………

(7)

The relevant protected characteristics are-

age;

disability;

gender reassignment;

pregnancy and maternity;

race;

religion or belief

sex;

sexual orientation."

Section 55 of the Borders Citizenship and Immigration Act 2009 ("the 2009 Act") imposes a duty on the Secretary of State in relation to the welfare of children as follows:

“55 (1) The Secretary of State must make arrangements for ensuring that—

(a)

the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and

(b)

any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.

(2)

The functions referred to in subsection (1) are—

(a)

any function of the Secretary of State in relation to immigration, asylum or nationality…”

Statutory Guidance to the UK Border Agency on making arrangements to safeguard and promote the welfare of children headed “Every Child Matters: Change for Children” was issued under section 55 of the 2009 Act in November 2009. The Ministerial Foreword states that: “It is the duty of Government and of society as a whole to keep children safe”. Of particular relevance are the following provisions of Every Child Matters:

1.3

The duty [under section 55 of the 2009 Act] does not give the UK Border Agency any new functions, nor does it override its existing functions. It does require the Agency to carry out its existing functions in a way that takes into account the need to safeguard and promote the welfare of children.

1.4.

Safeguarding and promoting the welfare of children is defined in the guidance to section 11 of the 2004 Act (section 28 in Wales) and in Working Together to Safeguard Children as:

• protecting children from maltreatment;

• preventing impairment of children’s health or development (where health means ‘physical or mental health’ and development means ‘physical, intellectual, emotional, social or behavioural development’);

• ensuring that children are growing up in circumstances consistent with the provision of safe and effective care; and

• undertaking that role so as to enable those children to have optimum life chances and to enter adulthood successfully.

1.6

Each agency will have different contributions to make towards safeguarding and promoting the welfare of children depending on the functions for which they have responsibility. For example, the main contribution of some services might be to identify and act on their concerns about the welfare of children with whom they come into contact, perhaps during or following completion of a common assessment while others might be more involved in supporting a child once concerns have been identified. The UK Border Agency is among the former.

1.15.

The following principles underpin work with children and their families to safeguard and promote the welfare of children. They are relevant to varying degrees depending on the functions and level of involvement of the particular agency and the individual practitioner concerned. The UK Border Agency should seek to reflect them as appropriate.

1.16.

Work with children and families should be:

• child centred;

• rooted in child development;

• supporting the achievement of the best possible outcomes for children and improving their wellbeing;

• holistic in approach;

• ensuring equality of opportunity;

• involve children and families, taking their wishes and feelings into account;

• building on strengths as well as identifying and addressing difficulties;

• multi and inter-agency in its approach;

• a continuing process, not an event;

• designed to identify and provide the services required, and monitor the impact their provision has on a child’s developmental progress;

• informed by evidence.

1.17.

Some of these apply to specialised professional work, whilst others relate to more general work that can affect children.

Ensuring equality of opportunity

a.

Equality of opportunity means that all children have the opportunity to achieve the best possible development. Some children may have been deprived of opportunities and assistance in early life and will, as a result, require services to meet their health and educational needs, to promote their immediate welfare so that they can achieve their potential into adulthood.

2.3

Within this legislative and policy framework, section 55 of the 2009 Act requires the Secretary of State to make arrangements to ensure that immigration, asylum, nationality and customs functions are exercised having regard to the need to safeguard and promote the welfare of children in the United Kingdom. The functions of the Director of Border Revenue must also be exercised having regard to the need to safeguard and promote the welfare of children in the United Kingdom. The duty does not create any new functions, nor does it over-ride any existing functions, rather it requires them to be carried out in a way that takes into account the need to safeguard and promote the welfare of children.

2.4

The UK Border Agency’s main contributions to safeguarding and promoting the welfare of children include:

• Ensuring good treatment and good interactions with children throughout the immigration and customs process.

2.5.

Other parts of the UK Border Agency’s contribution include:

• Exercising vigilance when dealing with children with whom staff come into contact and identifying children who may be at risk of harm.

2.6

The UK Border Agency acknowledges the status and importance of the following: the European Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the EU Reception Conditions Directive, the Council of Europe Convention on Action Against Trafficking in Human Beings, and the UN Convention on the Rights of the Child. The UK Border Agency must fulfil the requirements of these instruments in relation to children whilst exercising its functions as expressed in UK domestic legislation and policies.

2.7.

The UK Border Agency must also act according to the following principles:

• Every child matters even if they are someone subject to immigration control.

• In accordance with the UN Convention on the Rights of the Child the best interests of the child will be a primary consideration (although not necessarily the only consideration) when making decisions affecting children.”

The weekly payments under section 96(1)(b) of the 1999 Act are set by the Asylum Support Regulations 2000 (“the 2000 Regulations”). Regulation 9 of the 2000 Regulations prescribes matters to which the Secretary of State may not have regard in determining a person’s “essential living needs”:

“9.

Essential living needs

(1)

The matter mentioned in paragraph (2) is prescribed for the purposes of subsection (7)(b) of section 95 of the Act as a matter to which the Secretary of State may not have regard in determining for the purposes of that section whether a person’s essential living needs (other than accommodation) are met.

(2)

That matter is his personal preference as to clothing (but this shall not be taken to prevent the Secretary of State from taking into account his individual circumstances as regards clothing).

(3)

None of the items and expenses mentioned in paragraph (4) is to be treated as being an essential living need of a person for the purposes of Part VI of the Act.

(4)

Those items and expenses are–

(a)

the cost of faxes;

(b)

computers and the cost of computer facilities;

(c)

the cost of photocopying;

(d)

travel expenses, except the expense mentioned in paragraph (5);

(e)

toys and other recreational items;

(f)

entertainment expenses.

(5)

The expense excepted from paragraph (4)(d) is the expense of an initial journey from a place in the United Kingdom to accommodation provided by way of asylum support or (where accommodation is not so provided) to an address in the United Kingdom which has been notified to the Secretary of State as the address where the person intends to live.

(6)

Paragraph (3) shall not be taken to affect the question whether any item or expense not mentioned in paragraph (4) or (5) is, or is not, an essential living need…”

Regulation 10(2) of the 2000 Regulations as amended from time to time has set out the amount of weekly support to be provided in respect of the essential living needs of a person. The rates originally set out were fixed at 70% of the Income Support rates for adults and 100% of the Income Support rates for children. As Popplewell J explained at [17(1)] of the Refugee Action judgment:

“The justification for setting the adult rates at 70% of Income Support was that (1) asylum seekers were provided with furnished and equipped accommodation with all utility bills paid and (2) asylum support was intended to be a measure of last resort provided on a short-term basis. This involved adopting two different rates for single adults, one for those aged 18 to 24 and a higher rate for those aged 25 and over, because such a differentiation was (and still is) drawn in Income Support rates.”

Until 2008, increases to the rates under Regulation 10(2) were made annually broadly in line with increases to Income Support, save in the case of 16-17 year olds. However, in 2008 the link with Income Support was broken and from 2009 a single rate for all single adults was introduced. The amounts were increased by the Consumer Price Index (“CPI”) rate of inflation for 2010/11 and 2011/12. No increase was made for 2012/13 or 2013/14. Accordingly, the decision was made to maintain the single adult rate at £36.62 per week. It was that decision which was the subject of the challenge in Refugee Action.

Following that judgment the Secretary of State arrived at the 2014 Decision, the effect of which was to maintain the level of support for single adults at £36.62 per week, albeit that it is said on behalf of the Secretary of State that a different methodology was employed, which addressed the criticisms made by Popplewell J in his judgment. I will examine the decision and the methodology in detail later in this judgment, but for the present it is to be noted that, until 6 April 2015, Regulation 10(2) thus provided as follows:

“(2)

As a general rule, asylum support in respect of the essential living needs of that person may be expected to be provided weekly in the form of cash, equal to the amount shown in the second column of the following Table opposite the entry in the first column which for the time being describes that person.

Table

Qualifying couple	£72.52
Lone parent aged 18 or over	£43.94
Single person aged 25 or over (where the decision to grant support was made prior to 5th October 2009 and the person reached age 25 prior to that date)	£42.62
Any other single person aged 18 or over	£36.62
Person aged at least 16 but under 18 (except a member of a qualifying couple)	£39.80
Person aged under 16	£52.96

As noted at [2(2)] above, with effect from 6 April 2015, the Asylum Support (Amendment) (No. 2) Regulations 2015 amended the table under Regulation 10(2) to increase the rate payable in relation to “Any other single person aged 18 or over” to £36.95. Thereafter, the Secretary of State arrived at the 2015 Decision. Again that Decision and the methodology used will be looked at in detail later in this judgment, but for the present it is to be noted that, with effect from 10 August 2015, the Asylum Support (Amendment) (No. 3) Regulations 2015 amended Regulation 10(2) so that it now provides:

“(2)

As a general rule, asylum support in respect of the essential living needs of that person may be expected to be provided weekly in the form of a cash payment of £36.95.”

As Popplewell J noted in [15] of his judgment, in addition to the Regulation 10(2) payments, additional weekly cash payments are made to pregnant women and children under 3 by Regulation 10A added by amendment in 2003 which provides:

“10A Additional support for pregnant women and children under 3

(1)

In addition to the cash support which the Secretary of State may be expected to provide weekly as described in regulation 10(2), in the case of any pregnant woman or child aged under 3 for whom the Secretary of State has decided asylum support should be provided, there shall, as a general rule, be added to the cash support for any week the amount shown in the second column of the following table opposite the entry in the first column which for the time being describes that person.

TABLE
Pregnant woman	£3.00
Child aged under 1	£5.00
Child aged at least 1 and under 3	£3.00”

Those supplementary payments have not been increased since their introduction in 2003.

The claimants rely upon a number of international conventions which they contend impose duties upon the Secretary of State. The provisions which are relevant to the issues before the court are set out hereafter.

The second and third claimants, K, YT and RG rely upon the European Convention on Human Rights set out in the Schedule to the Human Rights Act 1998 and contend that the Secretary of State was in breach of Articles 8 and/or 14 which provide:

“Article 8

Right to respect for private and family life

1 Everyone has the right to respect for his private and family life, his home and his correspondence.

2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 14

Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Those claimants also rely upon the United Nations Convention on the Rights of the Child (“UNCRC”) which provides, inter alia, as follows:

“Article 2

1.

States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

Article 3

1.

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Article 22

1.

States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.

Article 24

1.

States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.

Article 26

1.

States Parties shall recognize for every child the right to benefit from social security, including social insurance, and shall take the necessary measures to achieve the full realization of this right in accordance with their national law.

Article 27

1.

States Parties recognize the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development.

Article 31

1.

States Parties recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts.

2.

States Parties shall respect and promote the right of the child to participate fully in cultural and artistic life and shall encourage the provision of appropriate and equal opportunities for cultural, artistic, recreational and leisure activity.”

Mr Stephen Knafler QC for the second claimant also relied upon General Comment No. 14 (2013) on the UNCRC by the Committee on the rights of children, concerning the right of the child to have his or her best interests taken as a primary consideration. This provides, inter alia, as follows:

“I Introduction

A The best interests of the child: a right, a principle and a rule of procedure

4 The concept of the child's best interests is aimed at ensuring both the full and effective enjoyment of all the rights recognized in the Convention and the holistic development of the child.

6 The Committee underlines that the child's best interests is a threefold concept:

(a)

A substantive right: The right of the child to have his or her best interests assessed and taken as a primary consideration when different interests are being considered in order to reach a decision on the issue at stake, and the guarantee that this right will be implemented whenever a decision is to be made concerning a child, a group of identified or unidentified children or children in general. Article 3, paragraph 1, creates an intrinsic obligation for States, is directly applicable (self-executing) and can be invoked before a court.

(b)

A fundamental, interpretative legal principle: If a legal provision is open to more than one interpretation, the interpretation which most effectively serves the child’s best interests should be chosen. The rights enshrined in the Convention and its Optional Protocols provide the framework for interpretation.

(c)

A rule of procedure: Whenever a decision is to be made that will affect a specific child, an identified group of children or children in general, the decision-making process must include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned. Assessing and determining the best interests of the child require procedural guarantees. Furthermore, the justification of a decision must show that the right has been explicitly taken into account. In this regard, States parties shall explain how the right has been respected in the decision, that is, what has been considered to be in the child’s best interests; what criteria it is based on; and how the child’s interests have been weighed against other considerations, be they broad issues of policy or individual cases.

IV. Legal analysis and links with the general principles of the Convention

A. Legal analysis of article 3, paragraph 1

1.

“In all actions concerning children”

(b)

“concerning”

19 The legal duty applies to all decisions and actions that directly or indirectly affect children. Thus, the term “concerning” refers first of all, to measures and decisions directly concerning a child, children as a group or children in general, and secondly, to other measures that have an effect on an individual child, children as a group or children in general, even if they are not the direct targets of the measure.

20 Indeed, all actions taken by a State affect children in one way or another. This does not mean that every action taken by the State needs to incorporate a full and formal process of assessing and determining the best interests of the child. However, where a decision will have a major impact on a child or children, a greater level of protection and detailed procedures to consider their best interests is appropriate.

2.

“By public or private social welfare institutions, courts of law, administrative authorities or legislative bodies”

(d)

“legislative bodies”

31.

The extension of States parties’ obligation to their “legislative bodies” shows clearly that article 3, paragraph 1, relates to children in general, not only to children as individuals. The adoption of any law or regulation as well as collective agreements – such as bilateral or multilateral trade or peace treaties which affect children – should be governed by the best interests of the child. The right of the child to have his or her best interests assessed and taken as a primary consideration should be explicitly included in all relevant legislation, not only in laws that specifically concern children. This obligation extends also to the approval of budgets, the preparation and development of which require the adoption of a best-interests-of-the-child perspective for it to be child-rights sensitive.

V. Implementation: assessing and determining the child’s best interests

B. Procedural safeguards to guarantee the implementation of the child’s best interests

(h)

Child-rights impact assessment (CRIA)

99.

As mentioned above, the adoption of all measures of implementation should also follow a procedure that ensures that the child’s best interests are a primary consideration. The child-rights impact assessment (CRIA) can predict the impact of any proposed policy, legislation, regulation, budget or other administrative decision which affect children and the enjoyment of their rights and should complement ongoing monitoring and evaluation of the impact of measures on children’s rights. CRIA needs to be built into Government processes at all levels and as early as possible in the development of policy and other general measures in order to ensure good governance for children’s rights. Different methodologies and practices may be developed when undertaking CRIA. At a minimum, they must use the Convention and its Optional Protocols as a framework, in particular ensuring that the assessments are underpinned by the general principles and have special regard for the differentiated impact of the measure(s) under consideration on children. The impact assessment itself could be based on input from children, civil society and experts, as well as from relevant Government departments, academic research and experiences documented in the country or elsewhere. The analysis should result in recommendations for amendments, alternatives and improvements and be made publicly available.”

The third claimants rely upon the United Nations Convention on the Rights of Persons with Disabilities (“UNCRPD”), which provides, inter alia:

“Preamble

The States Parties to the present Convention,

(j)

Recognizing the need to promote and protect the human rights of all persons with disabilities, including those who require more intensive support,

(o)

Considering that persons with disabilities should have the opportunity to be actively involved in decision-making processes about policies and programmes, including those directly concerning them,

(r)

Recognizing that children with disabilities should have full enjoyment of all human rights and fundamental freedoms on an equal basis with other children, and recalling obligations to that end undertaken by States Parties to the Convention on the Rights of the Child,

Have agreed as follows:

Article 2 - Definitions

"Discrimination on the basis of disability" means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation;

Article 4 - General obligations

1.

States Parties undertake to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, States Parties undertake:

(e)

To take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise;

(h)

To provide accessible information to persons with disabilities about mobility aids, devices and assistive technologies, including new technologies, as well as other forms of assistance, support services and facilities;

Article 5 - Equality and non-discrimination

3.

In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.

Article 7 - Children with disabilities

1.

States Parties shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children.

2. In all actions concerning children with disabilities, the best interests of the child shall be a primary consideration.”

The first claimant, Ms Ghulam, is an Egyptian national now aged 29. She is single and able-bodied, with no dependants. She entered the United Kingdom on a student visa in January 2011. She subsequently applied for asylum on 24 January 2013. Her asylum claim was refused in January 2015 and she has recently successfully appealed against that decision. She is housed in accommodation in Leicester. She has produced three witness statements, to the third of which she exhibited a copy of 7 weeks from a diary she kept, setting out what she had spent over that period, which was on average £47.93 per week, with a view to demonstrating that the weekly cash payments under Regulation 10(2) were insufficient to maintain her essential living needs, including a balanced diet. She says that most of the time she is hungry and cold, living day by day, depressed and anxious and living in a state of uncertainty.

The second claimant, K is a national of Burundi, now aged 32. She arrived in the United Kingdom in May 2006 and immediately applied for asylum, which was refused in September 2009. She made a fresh claim in 2011 which is still pending reconsideration by the Secretary of State. She has been on asylum support since November 2011, housed in accommodation in Birmingham. She is an able-bodied single mother with three children under the age of 16, now aged 11, 4 and almost 2. She has produced two witness statements and exhibited “spend diaries” for a 9 day period undertaken as part of a local research project.

On the basis of her evidence, Mr Knafler QC submits as follows in his skeleton argument:

“The impacts on the claimant and her children of the 25% reduction in their weekly income are stark [in other words the effect of the 2015 Decision]. The claimant struggles on a daily basis, and often fails, to feed and clothe her children properly, to keep them clean, healthy and looking presentable, and to provide them with basic school uniform and equipment. She cannot afford any toys or pleasurable pastimes for them without either missing meals herself or endangering the family’s nutrition yet further.

Her 4-year old daughter has developed anaemia through poor diet; the claimant, who has depression and Hepatitis C, has developed various vitamin deficiencies and seen a significant deterioration to her mental health since the reduction. The claimant’s 10-year old son has PTSD and suffers panic attacks as a result of abuse by his father, but the claimant cannot afford the confidence-building activities for him as recommended by CAMHS or other “normal” activities.

The picture is of children whose emotional and social development, and even their physical health, is being affected by their level of poverty, with their mother’s resilience ebbing dangerously low.”

YT and her daughter RG are nationals of Ethiopia. YT is now 50 and her daughter turned 18 on 19 August 2016, shortly after the hearing in this case. YT is able-bodied but RG is disabled, with Down’s syndrome, epilepsy, severe learning difficulties and physical disabilities. She does not walk or talk and is wheelchair bound. They came to the United Kingdom in 2011 and YT claimed asylum in December 2011. Her application was refused and she exhausted her appeal rights in September 2014. She lodged further submissions but those were rejected on 10 March 2016. The family have been provided with accommodation latterly in Wythenshawe, Manchester and have continued to receive asylum support, notwithstanding that YT is now a failed asylum seeker because of the effect of section 94(5) of the 1999 Act set out at [9] above. However, on behalf of the Secretary of State, Mr Clive Sheldon QC submits that YT would cease to be eligible to asylum support now that RG has turned 18. I have subsequently been informed by counsel for the Secretary of State that support for the third claimants under section 95 of the 1999 Act ended on 11 September 2016.

Before RG turned 16 in August 2014, YT was in receipt of cash support under Regulation 10(2) of £96.90 per week for herself and RG. Thereafter this reduced to £83.74 per week as a result of the reduction in rate for 16-17 year olds in the Regulation then in force (in relation to which Popplewell J held at [155]-[157] of Refugee Action that the Secretary of State had misdirected herself). With the coming into effect of the Asylum Support (Amendment) (No. 3) Regulations 2015 in August 2015, this has reduced further to £73.90 per week. YT was notified of the change by mailshot letter dated 15 July 2015, but complains that she was not informed of the availability of additional exceptional relief under section 96(2) of the 1999 Act.

In their pre-action protocol letter sent in December 2015, the third claimants’ solicitors informed the Secretary of State that due to the reduction in the allowance, they were encountering difficulties in meeting their needs, specifically travel costs for YT to travel to collect her allowance from the Post Office and the increased cost of toiletries and household cleaning due to RG’s disability. The issue of travel costs was addressed by switching the designated Post Office to one which is a five minute walk from their house. Furthermore, from February 2016, YT has been provided with increased support under section 96(2) for toiletries, cleaning products and non-prescription medication of £2.97 per week.

In a second witness statement served in May 2016, YT says that she has insufficient funds to purchase items such as clothing, toiletries and cleaning, although she accepts that she is able to meet her and RG’s needs in respect of communications and food within the figures for those items included within the £36.95 figure. In relation to insufficiency of funds in other respects, the Secretary of State’s position is that the Home Office is willing to provide additional payments under section 96(2) of the 1999 Act for any such exceptional need where the need and the cost of addressing it is properly evidenced.

The judgment of Popplewell J in Refugee Action is an important part of the background to the decisions challenged in the present case. Furthermore, although Mr Knafler QC for K and Mr Westgate QC for YT and RG were critical of various aspects of the judgment, I consider that I should follow and apply it, unless I conclude that it is wrong in any particular respect, which I do not.

There are a number of the findings and conclusions reached by Popplewell J which are particularly relevant to the present case. First and foremost, there is his conclusion that, whilst the minimum standard for which provision is required by the Reception Directive is not for the subjective judgment of the Secretary of State but is an objective standard, subject to that minimum required by the Directive, it is a matter for the judgment of the Secretary of State what is necessary to meet “essential living needs” for the purposes of section 95 of the 1999 Act. The learned judge dealt with this at [85]-[91] of his judgment:

“85…The Marleasing principle requires national legislation to be interpreted in a manner which is consistent with and gives effect to EU Directives. The content of the duty imposed upon the Secretary of State, by a combination of section 95 of the 1999 Act and Regulation 5 of the AS Regulations 2005, is informed by the European law obligations imposed by the Reception Directive. Provision for essential living needs must therefore be interpreted as including, as a minimum, provision of the minimum reception conditions required by the Directive. The minimum standard of living for which provision is required by the Directive is not a matter for the Secretary of State's subjective judgment but an objective standard. To this extent it is not open to her to treat essential living needs as having a lesser content than the objective minimum required by the Directive. Section 95 and 96 must be interpreted in such a way as to place such a view outside the range of reasonable judgments in order to be compatible with and give effect to the Reception Directive. If the Secretary of State were to make a judgment which treated essential living needs as something less than the minimum standard of living required by the Directive, it would be both irrational and unlawful.

86 In C-179/11CIMADE and another v Ministre de l'Interieur, de l'Outre-mer, des Collectivites Territoriales et de l'Immigration[2013] 1 WLR 333, the Court of Justice observed at [42] that:

"The provisions of Directive 2003/9 must also be interpreted in the light of the general scheme and purpose of the Directive and, in accordance with recital (5) in the Preamble to the Directive, while respecting the fundamental rights and observing the principles recognised in particular by the Charter. According to that recital, the Directive aims in particular to ensure full respect for human dignity and to promote the application of Articles 1 and 18 of the Charter."

87 Thus the Reception Directive requires that:

(1)

asylum support be set at a level which promotes, protects and ensures full respect for human dignity, so as to ensure a dignified standard of living: Recitals (5) and (7) and Article 1 of the Charter;

(2)

asylum support be set at a level which seeks to promote the right to asylum of those who are refugees within the meaning of the Geneva Convention: Recital (5) and Article 18 of the Charter;

(3)

asylum support be provided which is adequate to ensure asylum seekers can maintain an adequate standard of health and meet their subsistence needs: Article 13.1 of the Directive; and

(4)

the special needs of vulnerable people are provided for so as to meet this minimum standard of living: Article 13.2 and Article 17 of the Directive.

88 These requirements of the Directive contain the minimum content of the essential living needs criterion under the 1999 Act. The Secretary of State must make provision under s.95 and 96 which is sufficient to meet this minimum standard of living, if and to the extent that such provision is not otherwise being made by another organ of the State. In assessing whether the levels of asylum support allow asylum seekers to maintain this standard of living, the length of time which they spend on asylum support, and the uncertainty of that period, is potentially relevant. It is one thing to spend a short period coping with severe poverty, another to have to cope with it for an uncertain period of years. But that is not a material distinction in the context of the current delays in the determination of asylum claims in the UK, averaging almost 18 months and running into years in a significant number of cases.

89 For similar reasons, the prescribed items enumerated in Regulation 9 of the AS Regulations 2000 fall to be construed against the minimum content of the obligation under the Reception Directive, and the language read down in a way which makes them compatible with the minimum standard of living required by the Directive.

90 Although that is the minimum content of the statutory obligation under the 1999 Act, it is not necessarily the full extent of the obligation. As Recital (15) of the Directive recognises, it is open to Member States to provide for a more generous level of support to asylum seekers. In that respect the wording of the 1999 Act makes clear that the Secretary of State may make provision for what appear to her to be the essential living needs of asylum seekers. Subject to the minimum required by the Directive, it is a matter for her decision what needs are properly to be regarded as essential living needs. She may decide that some particular needs are essential living needs although they would not be necessary to ensure a dignified standard of living or meet subsistence needs. What is "essential" is a criterion on which views may differ widely. The concept of "needs" is also inherently imprecise, as Lord Nicholls observed in R (G) v Barnet LBC[2004] 2 AC 208 at [30] in the context of the duty to provide for children's needs under section 17 of the Children Act 1989. As Lord Hoffmann observed in Westminster v NASS at [20]: "Need is relative, not absolute. Benefits which in prosperous Britain are regarded as sufficient only to sustain the bare necessities of life would provide many migrants with a standard of living enjoyed by few in the misery of their home countries."

91 An assessment of what is essential and the extent to which something is a need involves a value judgement. The function of making that value judgement is conferred by Parliament on the elected government, in the person of the Secretary of State. Subject to compliance with the minimum content required by the Directive, her judgment on whether goods or facilities constitute a need which is essential is only open to review on the high threshold of Wednesbury unreasonableness or other established public law grounds.”

I entirely agree with that reasoning, from which it follows that, provided that the objective minimum standard set by the Reception Directive has been met, it is for the Secretary of State to determine what is necessary to meet “essential living needs” and her judgment in that respect is only open to review by the Court if it is Wednesbury unreasonable. As Popplewell J said at the outset of his judgment at [3]:

“It is worth emphasising at the outset that the question is not what the Court considers to be the appropriate amount to meet the essential living needs of asylum seekers. That judgment does not lie with the unelected judges, but is vested by Parliament in the elected government of the day. The latter's decision can only be challenged on well recognised public law principles.”

That limitation on the scope of interference by the Court in what is essentially a matter for the executive is of critical significance in considering the present challenges to the Decisions, particularly the challenge in Ghulam which is also adopted by K and YT/RG. To the extent that the expert evidence for the claimants from Mr Peter Aspinall and Ms Zoe Charlesworth (which I look at in more detail later in the judgment) expresses opinions as to the level at which the weekly payments should be set, I consider it should be approached with caution, precisely because it is not for the court to set the appropriate rate of weekly payment.

The next conclusion which Popplewell J reached, which is relevant to the present cases, is his conclusion that the Secretary of State was entitled to regard section 96(1)(b) support as being support for the able bodied destitute and their able-bodied dependants. The learned judge considered the position of adults and children separately in a detailed and careful analysis. In relation to adults, this analysis is at [45] to [63] of the judgment. In [63], he concludes:

“My conclusion, therefore, is that so far as adults are concerned, the Secretary of State is entitled to treat the s. 96(1)(b) cash support as aimed at the able bodied destitute in the way she did. There has not been identified any class of infirm adult asylum seeker whose additional non accommodation related essential living needs could not reasonably be expected to be met by local authorities and whose relevant circumstances would be normal for the group as a whole.”

Popplewell J then dealt with the position of children at [64]-[82] of the judgment, concluding at [82]:

“Accordingly there is no evidential basis on the current generic challenge for concluding that there are infirm children of asylum seekers whose additional non accommodation related essential living needs are not being met by local authorities and whose circumstances are not to be categorised as exceptional. It follows that the Secretary of State is not required to include them within the normal cohort of asylum seekers and their dependants at which the s. 96(1)(b) cash support is aimed.”

There was evidence in Refugee Action from Mr Simon Bentley, who is in the Asylum and Family Policy Unit of the Home Office with responsibility for policy in relation to support arrangements for asylum seekers, as to the methodology employed in arriving at the level of weekly payment impugned in that case. Mr Bentley has also produced a number of witness statements in the present cases answering the claimants’ allegations and criticism. In his witness statement in Refugee Action, as Popplewell J recorded in [93] of his judgment, he set out the matters which had been taken into account in assessing “essential living needs”: (i) sufficient food to keep those on support in health and to avoid illness or malnourishment; (ii) for those in receipt of asylum support for any length of time, the provision of suitable clothing to avoid any danger of illness; (iii) essential toiletries; (iv) the means to travel to appointments where they are out of reach; (v) some means of communication with emergency services; (vi) access to education for children as well as a contribution to wider socialisation costs to promote their development.

In applying the minimum standard required by the Reception Directive, the learned judge concluded that the Secretary of State should also have treated as “essential living needs”: (i) essential household goods such as washing powder, cleaning materials and disinfectant (at [98-100] of the judgment); (ii) nappies, formula milk and other special requirements of new mothers, babies and very young children (at [101]); (iii) non-prescription medication (at [103]); and “some opportunity to maintain interpersonal relationships and a minimum level of participation in social, cultural and religious life” (at [115-116]).

He also considered that the Secretary of State needed to consider whether there was also a need to make provision for: (i) travel to attend appointments with legal advisers that were not covered by legal aid (at [104(4)]); (ii) the costs of any telephone communication in order to pursue an asylum claim (at [110]); and (iii) writing materials for communication and for the education of children (at [111]).

In a section of the judgment starting at [122] Popplewell J dealt with the issue of erosion of rates of asylum support since 2007. In his witness statement Mr Bentley had said that, since 2007, the increase in rates under section 95 for adults and children had been 11.5%, a point made by the Secretary of State in a letter to the Deputy Prime Minister in June 2013 (“Over the last 5 years, rates of asylum support have risen by 11.5% almost the same as private sector wages”). As the learned judge pointed out at [124] and [125], that was derived from a comparison between the current rate for adults and the rate for 18-24 year olds in 2007. This was erroneous and misleading and, as the learned judge said, when the correct comparison was made with the 25 plus rate in 2007, the 2013 adult rate had decreased in absolute terms by 11% since 2007. Accordingly at [127], he said:

“The Secretary of State has in this respect relied upon a "fact" which is misconceived, and which is of sufficient potential significance to have influenced the outcome. That is itself sufficient to vitiate the decision.”

In the light of some of the arguments addressed to the court in the present cases by the claimants, it is important to note that it was not the erosion of rates over time per se that vitiated the decision, but the fact that the Secretary of State had proceeded on the erroneous basis that the rates had increased over the relevant period, when in fact they had decreased. There was no necessary error in setting rates at a lower level than previously, since the latitude afforded to the Secretary of State was such that there was a range within which both figures might fall. However, given that the earlier figure was regarded as a bare minimum to avoid destitution, a reduction in rates would require justification by a careful investigation if it was to be rational. The learned judge expressed this conclusion in [130], an important paragraph in his judgment:

“It must be remembered that the Secretary of State's evidence was that in previous years the levels had been set at the minimum required to meet essential living needs. Moreover s.95 contains the relevant power as well as the duty. The Secretary of State has power under section 95 to meet only what he or she considers to be essential living needs; any more would be ultra vires. As a matter of logic there is no necessary error in rates being set at what is lower, in real terms, than what was previously regarded as necessary to meet essential needs, because the latitude afforded to the Secretary of State in this value judgment means there is a range within which both figures might fall. But I accept the Claimant's argument that the significant reduction in real terms from what was previously regarded as the bare minimum level necessary to avoid destitution requires justification by a careful investigation if it is to be defended as rational.”

The learned judge concluded at [138] that the Secretary of State had failed to take account of the erosion of rates in real terms, which was a significant factor which she had been bound to take into account in reaching her decision. Mr Bentley’s evidence was that inflationary considerations were taken into account but that, in effect, essential items were not subject to the same inflationary increases as non-essential items. The learned judge rejected that approach in [140]:

“This approach does not sit very happily with the decision of the Defendant to use CPI as the measure by which to increase rates in 2008/9, 2009/10 and 2010/11. It is in any event flawed. Essential items are subject to inflationary increases just as non-essential items are. There is no logical basis for assuming the inflation rate is lower for essential items. The evidence of Mr Hirsch suggests the contrary. Moreover, the rational response to the fact that there may be different rates of inflation for essential items and non-essential items is to seek to identify what the relevant inflationary rate is, not to assume that it is nil. Nor is there any relevance or logical force in the suggestion that measures of inflation do not reflect an ability to make economies: asylum seekers only have their essential needs provided for, from which they are not in a position to economise.”

The Secretary of State had relied upon Income Support rates as justifying the level of asylum support rates. Mr Bentley had given two reasons for the level of asylum support being lower. First, that asylum support is intended to be temporary, but as the learned judge pointed out at [141], the average period for which asylum support was required was 18 months, so that it was: “not ‘temporary’ in a sense which justifies any meaningful distinction from the position of those on Income Support”. The second reason was that, unlike those on Income Support, asylum seekers did not have to pay for, furnish and equip their accommodation or pay for utilities. The learned judge said of this second reason:

“That is an important distinction, which was the basis for setting asylum at 70% of the rate for Income Support for adults before the rates became decoupled in 2009. But it affords no rational explanation for the increasing gap between asylum support rates and Income Support rates caused by freezing the former whilst increasing the latter. Accordingly a comparison with Income Support rates is not supportive of a freeze in asylum support rates for either of the two reasons identified.”

He went on to say at [142]:

“In saying this I should not be understood as suggesting that asylum support rates must be tied to Income Support rates, as the Claimant and other organisations have been seeking to persuade the Government should happen since the decoupling of rates in 2009. There is a different legal criterion for each of the two types of support. Income Support may legitimately provide for a higher standard of living than essential living needs. Income Support can also take into account factors relevant to those who have an established right to remain in the country such as integration, whether by employment or otherwise. But this is not the basis identified in paragraph 51 of Mr Bentley's witness statement for why asylum rates should fall further behind Income Support rates, although the decision letter to the Deputy Prime Minister does refer to "the different statutory framework" (in the context of s4 and s95 rates). The critical point is that if Income Support rates were to provide any useful assistance in setting asylum rates, which the Secretary of State must have thought they did by taking them into account, it was necessary to apply some rational criteria to quantify and justify the discrepancy between the two. Otherwise they could do no more than identify a ceiling for asylum support rates, and could not assist in identifying the correct level below that ceiling at which to fix the rates.”

The Secretary of State had also taken into account ONS (Office of National Statistics) survey data about average household spending, particularly the expenditure for the lowest 10% of households in the country. It is important to note that, although the claimant in that case was critical of the use of such ONS data (as indeed are the claimants in the present cases), the learned judge clearly considered that it was legitimate to use the data, although he considered that there were flaws in the way the Secretary of State had treated the data, which he identified at [143] and [144] of the judgment. As the learned judge said:

“Mr Sheldon QC was concerned to emphasise that the ONS data had not been treated as determinative, but merely as one of a number of comparators. That is so, but it appears to have been treated as an important one. It is therefore of importance that the data should have been extracted and applied accurately and without relevant omission.”

The overall conclusion of Popplewell J at [150] in relation to the point he had made at [130] was that the information used by the Secretary of State to set the rate was insufficient to reach a rational decision to freeze rates. At [151] he concluded:

“It is not for the Claimant, or me, to set out the exact parameters of the inquiry and investigation which would be sufficient. What the Claimant has established is that the Secretary of State has failed to take reasonable steps to gather sufficient information to enable her to make a rational judgment in setting the asylum support rates for 2013/2014.”

He then went on to consider the justification advanced by the Secretary of State for paying a lower amount to 16-17 year olds. The first reason was that they were “transitioning into adulthood”. Popplewell J was clearly not impressed with that point and said at [156]:

“The Secretary of State must have regard to her duties under s. 55 to safeguard and promote the welfare of all children, which applies as much to 16 and 17 year olds as to under 16s. She may legitimately take into account respects in which older children have different needs from younger children. But the mere fact that they are closer to becoming adults than other children cannot form a rational ground for paying them less than other children, and is inconsistent with the Secretary of State's section 55 duty.”

He concluded at [157] that the other two reasons advanced by the Secretary of State for distinguishing 16-17 year olds involved errors of law.

Finally, Popplewell J decided at [159]-[162] that in the light of his other conclusions, it was unnecessary to resolve the claim in relation to the alleged failure to comply with the PSED.

In his first witness statement dated 3 July 2015, Mr Bentley explains how, following the Refugee Action judgment, the Secretary of State reviewed the setting of the rates of asylum support and the methodology used in the light of the criticisms made by Popplewell J. At [26], he says:

“In the light of that judgment, the Secretary of State decided to undertake a thoroughgoing review of asylum support rates and to devise a new methodology for determining the appropriate rate. In particular, the Secretary of State considered that it would be appropriate to undertake more detailed research and analysis of the likely weekly expenditure needed by an able-bodied asylum seeker to meet each of the various needs identified as ‘essential’ by Popplewell J.”

He goes on to explain how, as previously, the starting point was the ONS data for the lowest 10% of the population:

“First, it was decided to examine survey data published by the Office of National Statistics (ONS) relating to household expenditure of the lowest 10% income group among the UK population, as it was considered that this remained the best available indicator of the likely amount of money needed to meet most of the various needs identified as essential. This data is taken from the annual Living Costs and Food Survey.”

Mr Bentley then explains that the survey data is in relation to a household, one person living alone or a group of people sharing cooking facilities and living/dining room. Everyone in the household over 16 is interviewed and asked to keep a diary of expenditure. The survey is continuous, with interviews throughout the year to ensure seasonal effects are covered.

He says that they were aware that the way in which the ONS data had been used previously was criticised by Popplewell J but considered that the criticisms could be addressed by (i) verifying from other sources that the level of ONS expenditure on a particular item reflected the actual cost of meeting the particular need and (ii) making adjustments to the spending levels to reflect the particular circumstances of asylum seekers.

The data used in the 2014 review was taken from the Living Costs and Food Survey published on 5 December 2013 using data from the 2012 calendar year, which was the most up-to-date ONS data at the time of the review. Mr Bentley then explains how the figures in the ONS survey were for a household of 1.3 people so that he and his staff recalculated the figures, for example for food and non-alcoholic drink, to arrive at a figure for a single person. To confirm whether this was appropriate, they looked at the ONS data for a single adult, which was in fact for the lowest 20% of the population rather than the lowest 10%. The ONS data was not in fact used for all the categories, but for clothing and footwear, travel and communications, the weekly figures arrived at by the Secretary of State were rather based on the review team’s own market research. He then explains how, in the light of Popplewell J’s criticism of the Secretary of State’s approach to inflationary increases, the figures arrived at were adjusted to take account of inflation since the ONS data was collected by applying the general 2.52% CPI increase for 2013 and a further 1.76% general CPI rate for 2014.

In relation to food and drink, he explains that they did not in fact look more closely at individual items in the ONS survey to exclude items which could be considered non-essential, such as chocolate, sweets and ice cream. However, with other categories where ONS data was used (toiletries, healthcare, household cleaning) they only selected the items in the category which they considered essential. The ONS figure for food and non-alcoholic drink adjusted to reflect a single person, not a 1.3 person household was £22.38 per week. They made an upwards adjustment of £1.50 per week to reflect the cost of one takeaway meal a week, as the ONS survey recorded those separately, arriving at a figure of £23.88 per week.

Mr Bentley also describes how, in relation to food and non-alcoholic drink, they had considered it appropriate to verify whether the ONS data for the poorest 10% of households was in fact sufficient to meet essential nutritional needs. The verification took two forms: (i) an article published by the BBC in April 2013 by Tom Sanders, professor of nutrition at King’s College, London which found that with careful planning, cooking skills and the right utensils, an adult could achieve a healthy balanced diet on as little as £12 per week; and (ii) a member of the review team who produced a shopping list and meal plan to show that she regularly fed herself healthily on about £15 per week.

In relation to clothing and footwear, the review team noted that Popplewell J had considered that the ONS data was for people already resident in the United Kingdom with a significant wardrobe and that the figure only represented routine replacement. Accordingly, the review team did not use the ONS data, but conducted research to assess the cost of buying a basic wardrobe of three sets of clothing (one on, one clean and one in the wash) so that asylum seekers were adequately clothed to ensure good health. Mr Bentley sets out the details of this research which took an average of three retailers on the internet (Tesco, Asda and Matalan) and arrived at an annual figure for men of £120.50 and for women of £130.75. To provide some margin, they took the women’s figure, which equated with a weekly amount of £2.51.

Mr Bentley explains that this was less than the figure in the ONS 2012 data, but they still decided to use their own figure, since the ONS data simply reflected the annual spend of the lowest 10% of households, rather than reflecting expenditure on “essential living needs”. He also explains that shortly after the review was completed, in September and October 2014, they carried out further research of in-store clothing prices from Primark, which in fact gave lower annual figures of £115.50 for men and £112.50 for women. He says that items such as nightwear, gloves, scarves and hats were not included when the research was undertaken, because they were not seen as essential, but their research showed that a reasonable margin of £30-40 per annum had been built in which could be used for such additional clothing.

In relation to toiletries, non-prescription medicines and household cleaning items, it was considered that the ONS data reflected particular needs. That data gave an annual cost of £132.60 per annum. Comparison with the costs of such items at Boots, Superdrug and cheap supermarkets gave a figure of some £81.50 for men and £84.50 for women from which Mr Bentley concluded that the annual figure of £132.60 should be more than enough to cover essential needs, providing some leeway or margin within the overall asylum support payment.

In relation to travel, maintenance of interpersonal relationships and a minimum level of participation in social, cultural and religious life and travel to see legal advisers, Mr Bentley states at [65] of his first statement:

“It was not considered that all of the activities associated with the maintenance of interpersonal relationships and a minimum level of participation in social, cultural and religious life, would necessarily incur an expense. Asylum seekers are invariably accommodated in urban centres where churches, mosques and other religious establishments are within walking distance. Also, many recreational and cultural activities in these areas are free (for example community centres and museums). The persons therefore generally have the opportunity to maintain interpersonal relationships and a level of participation in social, cultural and religious life without spending money, subject to occasional travel costs and communications costs.”

He goes on to describe the research carried out by the review team of facilities and travel costs in six different areas where asylum seekers are accommodated. Glasgow was chosen as one of top five dispersal areas, then Coventry, Wigan, Newcastle, Doncaster and Bristol. The results in relation to community, religious and leisure facilities were such that the team considered it reasonable to assume that, for the most part, able-bodied asylum seekers could access such facilities on foot without incurring travel expenses. Nonetheless they made some allowance for travel expenses. The 2012 ONS data for the poorest 10% of the population indicated that they spent an average of £2.62 per week on travel by rail or bus. The team considered it reasonable for asylum seekers to use a combination of walking and short journeys on public transport, but considered £3 per week a fairer allowance. As Mr Bentley explains, in most areas surveyed, this would cover a return bus fare, but by an oversight, Coventry and Wigan were not entered into the research grid. Return bus fares there were more than £3, £3.10 and £4 respectively, but the team still considered it reasonable to set the allowance at £3 per week, in part because they considered an asylum seeker would not necessarily need to make a bus journey at all or, at least, not every week. They also took account of the margins built in to the overall rate in relation to food, clothing and toiletries.

As I noted at [42] above, Popplewell J had indicated that the Secretary of State should give consideration to whether some allowance should be made for the cost of travel to meet legal advisers for the purposes of pursuing an asylum claim, to the extent that was not met by legal aid. Mr Bentley states that checks with the Legal Aid Agency confirmed that travel to meetings with advisers were generally covered by legal aid and that to the extent that progress updates were not covered by legal aid, this was because they could generally be dealt with by telephone.

So far as communication for the purposes of maintaining communication with legal advisers and to enable the maintenance of interpersonal relationships and a minimum level of participation in social, cultural and religious life is concerned, Mr Bentley referred at [75] to the requirement of the minimum standard under the Directive:

“The “essential need” in this instance is having the “possibility of accessing the means to communicate” (Article 14(2)(b) of the Directive). There are various ways of doing so, including by telephone (local, international, mobile, landline or SMS), Internet (free access to the internet is available at libraries enabling email, Skype, etc), or by post or fax. The ONS data showed that the lowest 10% of the UK population spend an average of £3.92 per week on communications, but the data gave little information on how this could be used to meet the needs set out above. It was thus decided to base the proportion of the allowance for communication on our own research.”

The research concluded that the weekly cost of a mobile telephone bill and writing materials was £2.41 but this figure was increased to £3 per week giving nearly £0.60 per week to allow budgeting for international calls which would not need to be made every week and for occasional postage.

The final overall weekly adjusted figure was £36.45, slightly less than the 2013/2014 figure of £36.62, so the decision was taken to leave the rate at the earlier figure.

Mr Bentley then states that before the Secretary of State took the decision, a full PSED assessment of the proposed rate was carried out, which he exhibits to his statement. However, as Mr Sheldon QC points out, there is no criticism by the claimants of that PSED assessment.

The decision taken to set the rate for 2014 at £36.62 was communicated to the National Asylum Stakeholder Forum (“NASF”) by a letter of 11 August 2014. That letter set out the background and then, in the section headed “Approach to the Review” said this:

“The review has focussed on the cash required to cover the needs of the normal able bodied, recognising that separate assistance is available from local authorities for the disabled and that section 96(2) of the 1999 Act allows assistance to be provided in other ways for exceptional cases (e.g. through maternity grants for pregnant asylum seekers).

The review has also taken account of the views of stakeholders, most particularly submissions from the “Still Human Still Here” (SHSH) group. Although we have not agreed with the SHSH that the level of cash provided is too low, we are grateful for the constructive dialogue, which we hope to continue when reviewing cash payment levels in future years.

There is no perfect way of assessing what level of payment meets essential living needs or any direct domestic or international comparator. Income Support, or similar DWP benefit levels, are not subject to the same statutory test (essential living needs), so have limited value as a comparator.

The nearest comparator is survey data published by the Office of National Statistics (ONS) relating to household expenditure of the lowest 10% income group among the UK population. The way that ONS data was used in previous review was criticised by the High Court. We have addressed the points raised by the Court by:

● Verifying from other sources that the levels of ONS expenditure on the particular item reflect the actual cost of meeting the particular need; and

● Making such adjustments as appear necessary to the spending levels in order to reflect the particular circumstances of asylum seekers.”

The letter goes on to set out in relation to adult asylum seekers a summary of the methodology adopted in assessing the figures for each item, as described above, deriving from Mr Bentley’s statement. The letter also set out the ONS figures (adjusted down from 1.3 to 1) and the Secretary of State’s adjusted figures for each item in tabular form. The letter then deals separately with cases of families with child dependants, but no complaint is made about the treatment of children in the 2014 Decision.

In his first witness statement, Mr Bentley goes on to describe how a further review of the rates took place in early 2015, using the same methodology but more recent data. The 2013 ONS data used was published on 2 December 2014. In relation to food and drink, the adjusted data for a household of one gave a figure of £23.46 per week, which, as before, was adjusted upwards by £1.50 to £24.96 to reflect the cost of a takeaway. The figures for toiletries, non-prescription medicines and household cleaning were amended to reflect the 2013 ONS data. The review team did not consider it necessary to change any of the other items on which they had conducted their own research, as the research had been conducted in June/July 2014 and, although not all of it was rechecked in 2015, additional research had been undertaken in September/October 2014 to underpin the research on clothing, as set out above. Further detail in relation to the 2015 review is set out below in the context of children. Inflation was taken into account through application of the general CPI rate, 1.55% as at November 2014. The result of this review so far as single adult asylum seekers were concerned was that the rate was increased from £36.62 per week to £36.95 per week. This decision was communicated to members of NASF in a letter of 8 April 2015.

The most significant aspect of the 2015 review however concerned the assessment of the effect of economies of scale on rates for households of more than one and the extent to which it was assessed that the rates paid for child dependants which were £52.96 per week under the 2014 Decision were excessive. That assessment is dealt with in detail in Mr Bentley’s third witness statement, to which I refer below. On 12 March 2015 the Secretary of State laid before Parliament the Asylum Support (Amendment) Regulations 2015, which would have increased the rate payable to a single adult asylum seeker and reduced the rates for dependent children to the same rate. Those Regulations were, however, subsequently revoked and replaced on 27 March 2015, before they came into effect, by the Asylum Support (Amendment) (No. 2) Regulations 2015. These gave effect to an increased rate of £36.95 for single adult asylum seekers from 6 April 2015, but reverted to the original higher rates for children.

The letter of 8 April 2015 explained that this decision had been made not to proceed with the planned changes and that further consideration would be given after the General Election as to whether the changes or any others should be made. The letter did however set out what had emerged from the review:

“Asylum seekers with dependants (family groups)

Our review recognised that the needs of children are not always identical to adults and that is possible to envisage some circumstances where meeting the particular need requires greater expenditure of cash than would be required for an adult (e.g. because children need to replace clothes more often as they are growing). Equally, however, some needs essential for adults (e.g. the need to keep in contact with legal advisors or communicate with friends and families overseas) do not apply at all to their children.

More importantly, any extra needs particularly to children are comfortably offset by the economies available to a larger household. The ONS data (2012 and 2013) confirms that expenditure on food and other items reduces considerably per head in multi-person households.

The United Kingdom’s approach to supporting asylum seeking families is, in fact, different to the approach of other EU states which support large numbers of destitute asylum seekers. Sweden, Germany and France, for example, all use payments systems that take into account the economies of scale available to multi-person households.

Taking all of these factors into consideration the review found that the existing payment levels are more than sufficient to meet the essential living needs (the legal test) of all family groups. It will be for a new Government to decide what action, if any, should be taken on the back of that analysis.”

As already noted, details of the review are set out in Mr Bentley’s third witness statement. He says that the 2014 review had in fact concluded that the payments provided to families exceeded what was required to meet their essential living needs because the payments of £52.96 per week for child dependants took no account of the economies of scale available to the household as a whole.

He then describes how the issue had been examined at the time of the 2015 review:

The 2015 review of the cash payments paid to asylum seekers (“the 2015 Review”) looked at the matter afresh. It was noted that the availability of economies of scale, meaning that multi-person households do not require the same level of income per head to meet their needs as a single person, is widely recognised. The principle of “equivalisation” which enables incomes to be adjusted for household size and composition to put them on a comparable basis, accepts “economies of scale” as a basic precept. For example, a note by the Organisation for Economic Co-operation and Development (OECD) on Equivalence scales…begins with the following:

‘The needs of a household grow with each additional member but – due to economies of scale in consumption – not in a proportional way. Needs for housing space, electricity, etc. will not be three times as high for a household with three members than for a single person.’

I should further also mention that the 2015 Review noted that the UK’s approach to supporting asylum-seeking families is different to the approach used in other EU states that support large numbers of destitute asylum seekers. Many EU Member States provide support in different ways, for example – accommodation and other assistance (including food) is often provided in kind. This factor, together with currency fluctuations, makes direct comparison between the systems used in different EU countries difficult. Nonetheless, it was clear that the payment systems in Germany, Sweden, and France (three countries with the largest intakes of asylum seekers that provide some support through cash) are based in part on the principle that less money per person is needed to cover the needs of multi-person households.”

Mr Bentley then describes how the latest ONS data published on 2 December 2014 confirmed that expenditure per person declined in multi-person households. He then sets out detailed data in support of that proposition which it is not necessary to set out here, save to note that the ONS data for the bottom 20% of income group showed that for a single parent and children (household size 2.4) expenditure on food and drink was £16.92 per person and for two parents and children (household size 3.5) it was £20.06, in each case less than the £23.46 for expenditure by a single person in the bottom 10% income group. In summary, he concludes that the data shows expenditure by all income groups on expenditure items in the survey declined considerably per person in multi-person households, including specific expenditure on food.

He then goes on to consider the specific needs of children. At [32] he says:

“The 2015 Review recognised that the needs of children are not always identical to those of adults and that it is possible to envisage some circumstances where meeting their particular needs requires greater expenditure of cash than would be required for an adult. As an example, it was recognised that children may, in some circumstances, need to replace clothes more often as they are growing. Equally, however, some needs already identified as essential for adults either do not apply at all in relation to their children or do not involve any additional financial expenditure, for example the need to keep in contact with legal advisors.

He proceeds to deal with each item of expenditure in relation to children. He says that the review team considered the extent to which the nutritional needs of children differ from those of adults. In particular they considered the report of the Scientific Advisory Committee on Nutrition (“SACN”) of 2011. He summarises the results of that report and notes its conclusion that children aged under 10 require less calorific intake than older groups and, in general, females of all ages require less calorific intake than males, but otherwise there was no appreciable difference in the recommended levels based on age. He also says that the review team considered the latest National Diet and Nutrition Survey (“NDNS”) published in 2014 because it gave details of actual calorific intake. That showed broadly that calorific intake by children is less than by adults.

Mr Bentley describes how, in a further attempt to identify the level of cash needed by families to cover their and their children’s dietary needs, a member of staff provided her monthly shopping list and menu plan for herself, her partner and one school age child. This showed that, on average, about £45 per week was being spent or about £15 per person, which provided some confirmation of the review team’s analysis that it was not necessary to spend £24.96 per person per week on a family’s dietary needs.

In relation to clothing and footwear, Mr Bentley refers to the research at the time of the 2014 review, which arrived at a weekly cost for adult asylum seekers of £2.51. He says that the research was updated in June/July 2015 and it was found that the cost of purchasing the relevant items had reduced to £2.14 per week. The research undertaken had not looked specifically at children’s clothing, but it was assumed by the review team that the cost would be the same or very similar to that for an adult. The only factor that could make it more expensive was the probability that some children would need to replace clothes more frequently, although no assessment was made of how frequently, partly because no source of information was identified. The review team considered that, given the economies of scale available to families with children, particularly in relation to the cost of food, any additional clothing needs could be met within the total cash envelope provided to families.

In relation to toiletries, non-prescription medicines and household cleaning items, Mr Bentley refers to the research at the time of the 2014 review which gave a weekly cost for these items of £2.55 and to the fact that in the 2015 review, the weekly amount provided for was £2.92. He also referred to the fact (as recorded at [61] above) that these necessities could actually be acquired for between £82 and £86 annually, 65% of the funding provided in the 2014 review and 57% of that provided in the 2015 review, which emerged from Home Office research in June 2015. The research had not considered the specific needs of children in relation to these necessities, but it was considered the need associated with each item was the same or very similar to adults, namely to maintain personal hygiene, keep the house clean and buy medicines for minor ailments. Furthermore, some of the items such as those to keep the household clean, polishes and detergents, would only need to be purchased once and so are subject to economies of scale.

In relation to travel, the 2015 review concluded that £3 per week was still a reasonable sum to cover the assessed essential needs of a single adult. This followed updated research on travel costs in the 14 towns and cities in 6 areas of the United Kingdom where just under 50% of all supported asylum seekers were living. The research showed that, in all places, children under 5 travel free on buses and concessions are invariably available for those aged 6 to 16, either in the form of free travel or reduced fares. Accordingly, it was not considered that any more than £3 per week was necessary to meet any extra need to travel where there was a child in the household. As Mr Bentley points out, the provision of £3 per person per week would enable an adult to make a second journey where there is a child under 5.

He also states that the research showed that where walking to school is not an option, travel by bus is provided free. He sets out the detail of the circumstances where this would occur when a child is entitled to free school meals, as those supported under section 95 of the 1999 Act are.

In relation to communications, Mr Bentley says that the research done for the 2015 review confirmed that £3 a week was sufficient to cover activities relating to the essential need of an asylum seeker to communicate with others. The review team took the view that some of the identified needs for an adult did not apply to children, for example the need to communicate with legal advisers dealing with their parents’ immigration affairs.

Mr Bentley deals further with the communication needs of children at [72] and [73] of his third witness statement.

“…It was further considered that the cost of meeting other communication needs, linked in particular to maintaining interpersonal relationships and the general development needs of children were unlikely to be higher than the costs to adult asylum seekers of meeting their communication needs.

73.

Indeed, it was considered likely that there would be little, if any extra cost to meeting the specific communication needs of children, especially young children, as they would share the same means of communicating that incur a cost (e.g. mobile phones) as their parents. It was accept that older children were more likely to require their own means of communication, but the cost would be the same as it would be for their parents.”

Later in the third witness statement, Mr Bentley addresses the consideration given by the Secretary of State to section 55 of the 2009 Act, Every Child Matters and the UNCRC. He refers specifically to the definition of safeguarding and promoting the welfare of children now set out in paragraph 1.4 of Every Child Matters, quoted above and the consideration given to the various factors and to the UNCRC:

“128.

The 2015 review of the case provided to asylum seekers with children took careful account of these factors. Nothing in the review affected in any way the core support framework relating to asylum seekers with children, in particular the availability of accommodation, access to free healthcare and free schooling. The review was solely concerned with the level of cash needed to cover the ordinary everyday essential living needs of children (and their parents) that were not covered through other aspects of the support framework (and excluding any additional assistance that might need to be provided exceptionally because of the particular circumstances of the individual).

129.

In carrying out the 2015 review, the objective was to ensure that sufficient cash was provided to the household as a whole, taking account of the assessed essential needs of the parents and their children (which differ from the their parents to some degree as I have discussed above) and the costs for meeting those needs. In general terms, the review found some needs easier to define and easier to cost than others (for example, those relating to maintaining a healthy diet and an adequate wardrobe of clothes). The package of support available, both before and after the changes to the payment rates, ensures that the children of destitute asylum seekers are provided with stable and safe accommodation and with adequate provision for their ordinary everyday essential needs. I do not consider that the reduction in the amount of cash provided to the parents therefore has an adverse effect on their safety or the quality of the care they receive from their parents or their general health.

130.

The team conducting the 2015 review found it more difficult to identify needs relating (in the broadest sense) to the intellectual, emotional, social and behavioural development of children and to put a cash value on the cost of meeting such need. At various parts of her report, Ms Charlesworth indicates that a definition of what is required for the (non-physical) health and development of a child involves a subjective assessment and I agree. Careful regard was nonetheless given to these issues, within the context of consideration of needs relating to travel and communications, both of which addressed social, cultural and educational development factors and their associated costs (as I have set out above).

131.

In respect to the UN Convention on the Rights of the Child (UNCRC), the review was conducted on the basis of the need to provide levels of support adequate to cover “essential living needs” (the test in domestic legislation) and the minimum standards provided for in the EU Reception Directive, supplemented by the valuable guidance provided by the Court’s judgment in the Refugee Action case. It was considered that applying that guidance would ensure that the approach would be compatible with the UNCRC.”

Mr Bentley goes on to describe how a PSED assessment was prepared and seen by the Immigration Minister when making the decision to change the rates and before the decision was implemented. He refers to the general point raised by the third claimants that this assessment failed to consider the impact on disabled children. He says at [132]: “The general approach to the review was to consider the level of cash needed to meet the needs of the able-bodied, in recognition that additional needs, arising from a disability could be met separately”. He then gives the example of one of the ways of meeting such needs being through additional payments under section 96(2) of the 1999 Act, which is how additional support is being provided to the third claimants.

The 2015 decision was promulgated by a letter to the members of the NASF of 16 July 2015. Having explained the background to the 2014 review and set out in tabular form the items comprised in the weekly payment of £36.95, the letter explained the decision to introduce a single rate of £36.95 for every supported person, in these terms:

“Asylum seekers with dependants (Family Groups)

Our review recognised that the needs of children are not always identical to adults and that is possible to envisage some circumstances where meeting the particular need requires greater expenditure of cash than would be required for an adult (e.g. because children need to replace clothes more often as they are growing). Equally, however, some needs essential for adults (e.g. the need to keep in contact with legal advisors or communicate with friends and families overseas) do not apply at all to their children.

More importantly, any extra needs particular to children are comfortably offset by the economies available to a larger household. The ONS data (2012 and 2013) confirms that expenditure on food and other items reduces considerably per head in multi person households.

The United Kingdom’s previous approach to supporting asylum seeking families was, in fact, different to the approach of other EU states which support large numbers of destitute asylum seekers. Sweden, Germany and France, for example, all use payments systems that take into account the economies of scale available to multi-person households.

Taking all of these factors into consideration the review found that the existing payment levels to all families exceed the amounts necessary to cover their essential living needs. In light of these findings the Government has decided they should be reduced.

A payment system that provides a single payment rate of £36.95 for every supported person simplifies the support system and ensures all families, no matter their size and composition, receive sufficient cash to cover their essential needs.”

The Policy Equality Statement (“PES”) accompanying the 2015 review provided, inter alia, as follows:

“Age

The needs of children are not identical to adults and they may in some instances require extra expenditure on certain items. Children, for example, may need to replace clothes more often as they are growing. Babies also require nappies and formula milk, if they are not breastfed.

But equally, some needs essential for adult asylum seekers (e.g. the need to keep in contact with legal advisors) do not apply to their children. Also, children do not in general consume more food than adults.

Overall, the evidence considered shows that any extra needs specific to children are offset by the economies available to a larger household. This is supported by analysis on the ONS data available which shows that expenditure on the relevant essential items by family groups (of all sizes) is considerably lower than the cash payments currently made available to asylum seeking families.

For those reasons, the review has shown that the current rates exceed what is necessary to meet the essential living needs of asylum seekers with children and there is scope to reduce the payment levels provided to them. There are many ways to do this, but the option selected is to simply provide a sum of £36.95 per week for every supported person (whether as an asylum seeker of as a dependant of an asylum seeker). Our review methodology (described above) has shown that the resulting payment rates, which continue to depend on the size of the household, will be sufficient to meet the needs of all persons of all ages.

There are no plans to change the arrangements set out above in respect of the extra payments made for children aged 3 years and under.

Disability

The review, as with the 2014 review, has focussed on the needs of the able-bodied. Those with a disability or care need may receive additional support from local authorities (under the National Assistance Act 1984 or the Children Act 1989) or, in some cases, to be catered for by adaptations to their accommodation. These arrangements are subject to separate policy considerations and outside the scope of this review.

Sex / Gender

The essential needs of asylum seekers are unlikely to vary significantly for reasons related to their gender. In assessing the amount of money needed to cover clothing needs the evidence suggests that female garment items are slightly more costly than male items. The cost of female garments has therefore [been] used to assess the level of expenditure needed for essential clothing.

Separate provision is available to accommodate persons in same sex housing where they have been victims of sexual violence or Domestic Abuse.”

The first claimant produced three reports from Mr Peter Aspinall of the School of Social Policy, Sociology and Social Research at the University of Kent. The essential thrust of his first report is that the Secretary of State has failed in the 2014 and 2015 Decisions to take account of the erosion in the rate of asylum support in real terms year on year since 2007, a significant factor which Popplewell J had said she was bound to take into account.

Mr Aspinall looks at the CPI detailed index for food which has increased by 22.9% between 2008 and 2014 whereas the weekly payment to asylum seekers had only gone up by 4.2% over that period. Part of his thesis is that the overall CPI index (which the Secretary of State had used to allow for inflation) produces a lower inflation rate than the index for food and drink. He refers extensively to a 2014 report by Abi Adams and Peter Levell for the Institute of Fiscal Studies which finds that low income households are hit harder by changes in the cost of living and inflation than households at the top and middle of income distribution. He contends that taking proper account of CPI specific rates of inflation, the weekly payment should be £46.98.

He is critical of the fact that, in relation to some items included in the overall weekly payment, the Secretary of State has used ONS data but in others not, preferring internal Home Office methodologies, which he contends arrive at lower figures. For example he contends that the 2013 ONS data for clothing and footwear would give a weekly figure of £5.15, not the £2.51 used by the Secretary of State. He sets out a table comparing the rates used for each item by the Secretary of State with the rates using 2013 ONS data and then allows for CPI specific rates of inflation for 2014 to arrive at an overall weekly figure of £44.79 as against the rate in the 2015 Decision of £36.95.

He contends that Mr Bentley’s approach takes no account of the inability of asylum seekers to shop for the optimal basket of food and non-alcoholic drink with factors such as mental and physical health, ability to understand English and the fact that traditional diets may affect purchasing behaviour being ignored.

He refers to a recent analysis of destitution by academics from Heriot Watt University with funding from the Joseph Rowntree Foundation (“JRF”) suggesting that the minimal sum needed for a single adult to avoid destitution (adjusted to take account of the categories of need assessed by the Secretary of State) is £47.89.

As Mr Bentley points out in his second witness statement, so far as the challenge to the 2014 Decision is concerned, some of the material relied upon by Mr Aspinall was not available at the time of the 2014 review, so the Secretary of State can hardly be criticised for not using it. Specifically the 2013 ONS Data was not published until 2 December 2014, the Adams and Levell report was only published on the internet in November 2014 and the JRF report on destitution was not published until March 2015.

In relation to Mr Aspinall’s central point about erosion of rates, Mr Bentley says in his second witness statement that Mr Aspinall appears to have failed to appreciate that, following the Refugee Action judgment, the Home Office had adopted a completely different method for determining the rate from that used in previous years, so that Mr Aspinall’s comments on the relationship between the rate set for 2014 and the previous rates did not appear to Mr Bentley to be of assistance to the court. He takes particular exception to the suggestion in Mr Aspinall’s report that the Secretary of State was deliberately seeking to constrain the weekly rate to around £37, whatever the wider evidence base might suggest. Mr Bentley says that, in the light of Popplewell J’s judgment, the Secretary of State has endeavoured to develop a new, robust, evidence-based methodology for setting the asylum support rates.

Mr Bentley says that the idea of using different CPI indices for different categories of spending appears to be a relatively novel one, pointing out that Adams and Levell in 2014 confirm that taking the common CPI index is the standard approach. He says that he sees force in the argument and that the Secretary of State would consider making this adjustment when the rates are next reviewed. Mr Bentley then sets out an analysis of what difference taking specific indices would have made in both the 2014 review and the 2015 review and demonstrates that, in fact, it would have produced a lower overall level of inflation to be taken into account, because certain specific indices had remained the same or the CPI rate had reduced in 2014. Specifically, the CPI rate for food and non-alcoholic drink to be applied at November 2014 had reduced by 1.7%. In fact some hint of this was provided in Mr Aspinall’s table showing how he calculated his £44.79, which showed a reduction in the specific rate of inflation for food and non-alcoholic drink in 2014 of 0.2%.

In relation to Mr Aspinall’s criticism of the Secretary of State for using ONS data selectively, Mr Bentley points out that Popplewell J had said at [150] of his judgment that the data should not be used as a “definitive benchmark” and that the Secretary of State had not used ONS data in relation to clothing, toiletries, medicines and household items, because the data covered all household spending not just “essential living needs” to which section 96(1)(b) support is directed and thus included items which were not essential, for example in the case of toiletries, “hairdressing and beauty treatment”.

In relation to the JRF report on destitution, Mr Bentley points out that it does not relate to the task facing the Home Office of identifying “essential living needs” and no more, but seems to be based for the most part on asking people what they think they need rather than attempting an assessment. It also includes heating and lighting which are included within the accommodation provided free of charge to asylum seekers.

In his addendum report dated 10 March 2016, Mr Aspinall is highly critical of Mr Bentley, in relation to the latter’s position that the erosion of rates from 2007 to 2013 was not relevant, given the adoption of the different methodology in the 2014 review. Mr Aspinall expresses himself in intemperate terms which cast some doubt over his objectivity, but in any event, his continued emphasis on the erosion of rates in the past is misconceived, for reasons I discuss in more detail in the relevant Analysis and Conclusions section of the judgment below.

Mr Aspinall is also critical of what he describes as the “mix and match” methodology with only limited use of ONS data and of the sense check employed by the review team of Professor Sanders’ BBC article and the shopping list of the member of the review team. He states that there is a case for the rates being set in a transparent way by an independent panel of scientific experts, based on robust survey evidence and official statistics and properly adjusted for erosion in real terms through the use of CPI specific indices.

In relation to specific items, such as toiletries, Mr Aspinall is of the opinion that hair products, cosmetics and related electrical appliances are essential items. Mr Bentley disagrees in his third witness statement and points out that to the extent that household goods are essential, the need is met through the way in which accommodation is provided to asylum seekers, fully equipped with appropriate household equipment.

Mr Aspinall produced a yet further report dated 14 June 2016, in which he continues his theme about erosion of rates by pointing out that, in the period 2007 to 2014, food price inflation was at around 30%, substantially higher than the overall CPI index used by the Secretary of State.

The second claimant relies upon an expert report from Ms Zoe Charlesworth of the Welfare Reform Club. She criticises the use of the “pick and mix” methodology which she contends appears to be designed to meet a target amount, rather than assess actual need, in which case determination of the support rate for children would not meet the requirements of section 17 of the Children Act and the duty to “evaluate what is reasonably necessary for a child’s health and development.” It seems to me that since, as Ms Charlesworth fairly accepts, she is neither an expert in child development or health nor in the legal obligations resting on the Secretary of State and she has drafted her first report by reference to the test under section 17 of the Children Act 1989, that Mr Sheldon QC is right that the court should attach little weight to her evidence. Indeed, in one respect, in relation to travel, she appears to have completely failed to take account of the fact that under the 1999 Act and the 2000 Regulations, travel is excluded from essential living needs except for certain limited purposes.

She criticises the Secretary of State’s analysis that savings can be made in multi-person households through economies of scale. She says that the ONS data for food and drink which provides the bulk of the support is already based on the average expenditure of multi-person households, including those with children, so that the rate derived from the data already encompasses any savings from the lower calorific requirement of children. She considers it unreasonable to assume that additional savings can be made. Other items, such as shoes and clothes, will only be of use to an individual of a specific size, shape or gender. There has been no consideration of wear and tear, children’s growth or increased consumption by or for children of certain items such as toiletries and cleaning products. She considers that, if a single rate for children is to be used it must be at a level to meet the basic needs of a child requiring the highest level of expenditure, otherwise the needs of such children are not met.

She says that the methodology employed, particularly in relation to travel, does not take account of the dispersal of asylum seekers since 2011, being moved from urban areas to areas where housing contractors identify appropriate housing stock in rural or semi-rural areas with no shops, surgeries, libraries or other facilities in walking distance. That and other factors have an impact on the need for transportation to prevent social exclusion and support the health and development of children. The methodology does not take account of items that are child-specific such as the internet, recreation, books and stationery. Appearance, hygiene and material possessions need to be sufficient to ensure that they support the development of the child’s self-esteem and independence.

Her report sets out an illustrative rate for children of £66.21 per week. That includes £18 for travel. This is derived from a weekly figure of £24 per week on the basis of data that the lowest socio-economic group in the population make an average of eight trips per week by car or public transport and then making a 25% reduction to reflect the availability of free fares or fare subsidies. As stated, this analysis appears to overlook that, under the 1999 Act and the 2000 Regulations, travel is excluded from essential living needs except for certain limited purposes.

In his third witness statement, Mr Bentley takes issue with this assumption that, because the general population on low incomes make an average of eight trips a week, children of asylum seekers need to make the same number of trips to meet their essential living needs. He says that the need of a child of an asylum seeker is similar as regards travel to that of an adult asylum seeker, although he accepts that travel to play with friends or for other social activities may generally be necessary as part of the emotional development of children. However, he does not consider that travel for those purposes would usually need to incur a cost and, in any event, the availability of concessionary fares would mean the cost of any necessary journeys would be lower than for an adult.

Mr Bentley also takes issue with Ms Charlesworth’s point about dispersal of asylum seekers. He says that, whilst it is true that since 2010 the Home Office accommodation contracts have been with private providers, not local authorities, that has not materially affected the areas where asylum seekers are housed.

Ms Charlesworth had made points about the need of a child to communicate with peers and to access the internet for study purposes. However, as Mr Bentley notes, she does accept that such access could be via mobile phones, on which deals can be obtained without credit checks at about £12 per month. As Mr Bentley says, the Home Office research had shown deals regularly available for less. In any event, Ms Charlesworth’s figure for communications is £4.07 per week as against the Secretary of State’s figure of £3 per week. She arrived at that figure by adding £1.07 to cover the cost of an internet subscription fee. Mr Bentley counters that, since access to the internet is included in the mobile phone deals encompassed within the £3 per week and internet access is available free at libraries, he does not consider anything additional above the £3 is necessary.

Mr Bentley then deals with books, stationery and recreation. He notes that there is allowance within the overall envelope for stationery and pens (somewhat archaically he refers to slate and chalk for younger children). Whilst it was accepted that children would need access to books as part of their general development, the review team had not considered it necessary to include a cash provision to cover the cost of purchase, because access to libraries is free. He states that the review team was also aware that Regulation 9(4) of the 2000 Regulations states that toys and other recreational items, as well as entertainment expenses, are not regarded as essential and that, in the Refugee Action judgment, Popplewell J did not find this exclusion incompatible with the Reception Directive.

Ms Charlesworth had allowed £1.69 for books and £6.03 for recreation (comprising elements for toys, sport etc. and £4.88 “pocket money”). Mr Bentley accepts that some of these activities are necessary for a child’s health, emotional wellbeing and development and in general terms may be relevant to their need to maintain interpersonal relationships and a minimum level of participation in social, cultural and religious life. However, he considers that the circumstances in which pursuit of these activities will necessarily incur a cost will be rare. There is free access to books at libraries and many recreational activities do not incur any cost. In relation to pocket money, he says it is common knowledge that many low income families do not provide this to their children, so it cannot be regarded as an essential need.

Ms Charlesworth produced a supplementary report dated 9 May 2016 by way of response to Mr Bentley’s third witness statement. She reiterates her point that although she accepts that multi-person households can make savings through economies of scale, the ONS data from which the Home Office has derived the majority of its rates is already from multi-person households and thus includes economies of scale. To suggest further savings would be “double-counting”. She suggests that any savings in the cost of food for younger children is being double-counted, since the figure used by the Home Office represents expenditure by both adults and children in the first place.

Ms Charlesworth also makes the point that many children of asylum seekers will be in a household no larger than two persons, so that economies of scale rising in line with the number of people in the household are not relevant to them. She suggests that it makes common sense to assume only a two person household. To be adequate the rate should take account of the needs of all children not just the “average” child. Her position is that the approach adopted by the Home Office is such that, even in the case of the able-bodied family, the rate will be inadequate for some households.

In relation to clothing, she says economies of scale cannot apply as they do elsewhere because children cannot share clothing where provision is only made for the bare minimum for each of them. Whilst in the longer term, handing down of clothes might be possible, by definition asylum support allowances are only intended to provide for children in the shorter term, as Mr Bentley is at pains to point out. As with the overall rate, her position is that to be adequate, the allowance for clothes has to be adequate for all families.

Ms Charlesworth is also critical of the travel allowance on the basis that it assumes all children in all areas have access to facilities: that they live in areas with concessionary transport, with libraries in walking distance which contain free internet facilities and books in a language understandable by the child and with free recreational activities accessible. She says this will not be the case for a significant number, perhaps the majority of households and to be adequate the rate has to be adequate for all.

Ms Charlesworth is also critical of Mr Bentley’s position that hair products, cosmetics and associated electrical appliances such as hair dryers are not essential items, suggesting that this is viewing needs from the perspective of a male adult rather than a female child, particularly a teenager for whom a minimal level of such items is necessary to support self-esteem and acceptance by peers. In relation to communication, she says that she can find no evidence that libraries all contain free Wi-Fi readily available without booking and that, given the recent level of library closures, this should not be assumed. She considers the rate is inadequate if it does not enable the purchase of some items of play, toys or access to recreation.

In his fourth witness statement dated 1 June 2016, Mr Bentley refutes the suggestion by Ms Charlesworth that the Home Office was double-counting. He points out that, in his first witness statement, reference was made to 2012 ONS data for the lowest 20% income group, which was data for non-retired single person households, showing expenditure on food and non-alcoholic drink of £24.90 per week, only £2.52 more than the sum the Home Office set aside in the 2014 review for food and non-alcoholic drink. Likewise he had referred to 2013 ONS data for non-retired single person households in the lowest 20% income group which gave a figure of £25.80, only £2.34 more than the amount for food and drink set aside by the Home Office in the 2015 review. The figures from the ONS data include some non-essential items, as well as spending by a marginally more affluent cohort than the lowest 10%. As Mr Bentley says, since the figures are for non-retired single person households, there are no economies of scale inherent in those figures. In those circumstances, he does not accept that there is any material double-counting as Ms Charlesworth suggests. He also makes the point that, unlike in other EU countries, the Home Office has not adopted a diminishing amount for additional members of a household.

Mr Bentley identifies the point at issue as whether the flat rate of £36.95 (with some additions for infants and children under 3 not relevant to the present challenges) is generally capable of meeting the normal essential living needs of all persons in an average household of any size or composition. He considers that it does, subject to the proviso that there are likely to be some households which require additional payments because one or more individuals within the household have exceptional needs, but that situation can be addressed by additional payments under section 96(2) of the 1999 Act.

In relation to Ms Charlesworth’s point about cosmetics and hair products being essential items, Mr Bentley says at [17]:

“The self-esteem of children is obviously important, but parents on low incomes are capable of helping their children to present a physical appearance and dress sense that they are comfortable with and that does not require spending significant money, if any. No doubt that sometimes requires the management of their children’s expectations, but this is a predicament likely to be common to all families on low incomes. Again, in these proceedings the issue is the essential living needs of children (as judged by the Secretary of State) and the floor set by the EU Reception Directive.”

Mr Manjit Singh Gill QC submitted that it was remarkable that, notwithstanding the criticisms levelled against the methodology employed by the Secretary of State in 2013 by Popplewell J in the Refugee Action judgment, the Secretary of State was still employing a methodology which in substance was no different, to arrive at what was in effect the same rate of asylum support. The Secretary of State had no intention of increasing the rate in any meaningful way and in those circumstances, the Court should step in. He submitted that the analysis of Popplewell J, that whilst the issue whether the Secretary of State had complied with the minimum standard under the Reception Directive was an objective question for the court, subject to compliance with that minimum standard, it was for the Secretary of State, not the court, to determine what are “essential living needs” ([90-91] of the judgment), was too restrictive an approach.

In support of his submissions, Mr Gill QC relied upon the decision of the Court of Justice of the European Union (“CJEU”) in C-79/13 Federaal agentschap voor de opvang van asielzoekers-v- Selver Saciri dated 27 February 2014, but not drawn to the attention of Popplewell J before he handed down his judgment on 9 April 2014. In that case, the CJEU considered the minimum standard under the Reception Directive. The Court referred in particular to Article 13 and recital (7) in the preamble, saying at [36-40]:

“36 With regard, secondly, to the amount of the financial allowances granted, it is apparent from the second subparagraph of Article 13(5) of Directive 2003/9 that, where Member States provide material reception conditions in the form of financial allowances or vouchers, the amount thereof is to be determined in accordance with the principles set out in that article.

37      In that regard, it follows from Article 13(2) of that directive that the amount of the financial aid granted must be sufficient to ensure a standard of living adequate for the health of applicants and capable of ensuring their subsistence.

38      Furthermore, it must be noted that, under Article 2(j) of Directive 2003/9, ‘material reception conditions’ is to be understood as meaning the reception conditions that include housing, food and clothing, provided in kind, or as financial allowances or in vouchers, and a daily expenses allowance.

39      Moreover, it is apparent from recital 7 in the preamble to that directive that the directive seeks to lay down minimum standards for the reception of asylum seekers that will normally suffice to ensure them a dignified standard of living and comparable living conditions in all Member States.

40 It follows therefrom that, although the amount of the financial aid granted is to be determined by each Member State, it must be sufficient to ensure a dignified standard of living and adequate for the health of applicants and capable of ensuring their subsistence.”

One of the questions for the CJEU was whether, where accommodation facilities for asylum seekers were overloaded, one effect of the Reception Directive was to preclude the member state from referring asylum seekers to bodies within the general public assistance system. The CJEU answered that question in the negative, saying at [49] and [50]:

“49 Given that the Member States have a certain margin of discretion as regards the methods by which they provide the material reception conditions, they may thus make payment of the financial allowances using the bodies which form part of the general public assistance system as intermediary, provided that those bodies ensure that the minimum standards laid down in that directive as regards the asylum seekers are met.

50   In that regard, it must be pointed out that it is for the Member States to ensure that those bodies meet the minimum standards for the reception of asylum seekers, saturation of the reception networks not being a justification for any derogation from meeting those standards.”

Mr Gill QC submitted that this was the only area where the Secretary of State had a margin of discretion, as regards the methods by which material reception conditions were provided, but that, where those conditions were in the form of financial allowances, [36] of the judgment demonstrated that the Secretary of State had to ensure a dignified standard of living and had no margin of judgment or discretion. No question arose here of the sort of margin of discretion afforded to the individual state under the ECHR, that the court would not interfere with the approach of the Government unless it was manifestly without reasonable foundation. The decision of the Supreme Court in R (Lumsdon) v Legal Services Board [2015] UKSC 41; [2015] 3 WLR 121 demonstrated that, where the issue was whether a national measure complied with a EU directive, the EU principle of proportionality, not that of the ECHR applied (see [26] and [29]). Mr Gill QC submitted that, to the extent that proportionality arose at all, the court should take a strict and narrow approach, given that minimum standards were involved.

Mr Gill QC was particularly critical of the failure of the Secretary of State to take account of the erosion of the rates and the effect of inflation in the period from 2007 onwards, particularly in relation to food and drink. He submitted that, on the basis that the previous rate had been set at a minimum level over a number of years and not increased to a rate which properly took account of high food prices year on year, the approach adopted in 2014 of taking ONS data from 2012 and only looking at increases in respect of food for two years thereafter, did not achieve the correct minimum level. If the Secretary of State did not make an adjustment going back a number of years, the effect was created that the asylum support rate would buy less than in 2007/2008. In other words, the Secretary of State had still failed to address the criticism made in [130] of Popplewell J’s judgment.

Mr Gill QC submitted that nothing less than the highest standards of fairness and best practice would suffice, given that the issue was what was the minimum required to maintain a dignified standard of living. The Secretary of State had come nowhere near those standards. In setting the rate in the 2014 and 2015 reviews, the Secretary of State had failed to carry out a proper enquiry in order to make a properly informed decision as to what the rate should be to meet essential living needs. Mr Gill QC submitted that the Government had refused to commission independent expert evidence which would withstand proper academic scrutiny, whether from the Home Office sponsored Migration Advisory Committee or anyone else. He relied upon the criticisms made by Mr Aspinall of Mr Bentley’s approach and submitted that, if the Home Office had obtained such expert evidence, they would have arrived at a decision no different from that at which Mr Aspinall had arrived. In support of the first claimant’s case, Mr Gill QC produced a Note at the end of the hearing setting out a number of respects in which, over the last fifteen years or so, the Government itself has required public policy making to be achieved by reference to the best available research and evidence.

In criticising the Secretary of State’s methodology in the 2014 and 2015 reviews and in particular the “pick and mix” or “mix and match” approach, Mr Gill QC obviously placed considerable reliance on the expert evidence of Mr Aspinall and Ms Charlesworth in support of his case that the methodology was flawed, unreasonable and irrational. I do not propose to repeat the section of the judgment set out above which deals with the expert evidence but, in summary, Mr Gill QC’s criticisms were as follows: (i) reliance on ONS data for the lowest 10% of income groups failed to recognise that that group had options available to them in managing their expenditure and choosing what to spend on which were not available to asylum seekers; (ii) the mix and match approach is not consistent and there was no logic or coherence to adopting ONS data for certain items but not for others; (iii) having adopted that approach to arrive at a figure, the Secretary of State had not sought to verify it by reference to proper rigorous scientific evidence which has been subject to peer reviews.

Whilst Mr Gill QC accepted Popplewell J’s determination that there was no necessary reason to tie asylum support rates to rates for Income Support, he submitted that Income Support remained a relevant indicator of the adequacy of asylum support rates. He submitted that, if those rates fell increasingly and substantially below Income Support rates, as they had done and were continuing to do, the asylum support rates were harder to justify and the court should look with greater scrutiny at the reasons given by the Secretary of State for increasing the gap.

The starting point of the submissions of Mr Clive Sheldon QC on behalf of the Secretary of State was the analysis adopted by Popplewell J in [85] to [91] of his judgment. It is for the court to determine whether the rate set has achieved the objective minimum standard required by the Reception Directive. There was nothing in the CJEU jurisprudence or in the Directive itself which defined what should be the content of the minimum standard, but, if that minimum standard has been achieved, it is a matter of judgment for the Secretary of State what goods or facilities constitute an essential need. Her judgment is only open to review and the court should defer to it, unless her approach was flawed, illogical or in breach of some other public law principle (see [91] of the Refugee Action judgment). It was not for the court to determine the appropriate rate.

Mr Sheldon QC submitted that what was clear was that there was no requirement of equivalence with the living standards of nationals or with social security benefits provided to such nationals. At [142] of his judgment, Popplewell J had said that there was no need for asylum support rates to be tied to Income Support, but that, if Income Support rates were taken into account, there had to be some rational criteria to justify the discrepancy between the two.

Provided the objective minimum standard was achieved, the Secretary of State was entitled to take into account wider considerations such as finite financial resources and the policy of not encouraging economic migration, which were matters which justified the difference between the rate of Income Support and the asylum support rate. Mr Sheldon QC also submitted, specifically by reference to what Popplewell J had said at [96] about clothing, that provided the minimum standard required by the Directive was achieved, essential living needs were set at a relatively low threshold.

Mr Sheldon QC emphasised that the learned judge had not said that ONS data should not be used, but had expressed criticisms about the way in which it had been used in setting the rate in 2013. He submitted that the criticisms made had been addressed by the way in which the Home Office had used the data in the 2014 and 2015 reviews. He then made detailed submissions about the methodology used for each of the items which I will deal with when I come to make my findings about the detail of the methodology.

In relation to the first claimant’s allegations of irrationality and incompatibility with EU law, Mr Sheldon QC refuted the suggestion that there had been a failure on the part of the Secretary of State to make a proper enquiry. The duty on the Secretary of State was identified by Popplewell J in Refugee Action at [120]:

“The Secretary of State was under a duty to carry out an inquiry which was sufficient to enable her to make an informed and rational judgment of how much was necessary to meet the essential living needs of asylum seekers. This reflects the second element of Lord Diplock's formulation in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1975] AC 1014, 1065B:

‘Or, put more compendiously, the question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?’”

Mr Sheldon QC submitted that the Secretary of State had engaged in such an enquiry, through use of the ONS data where appropriate (which had an element of expert analysis to it) and market research, with the sense checking carried out. She had adopted a sensible approach where there was no obvious answer, and the fact that there might be other ways of answering the question did not mean that the methodology used was inappropriate.

He pointed out that it was a central theme of the first claimant’s challenge that the Secretary of State had failed in the 2014 decision to take account of inflation since 2007 and hence of erosion of the rate over the period since 2007. However, Mr Sheldon QC submitted that this contention was based on two misconceptions. First, that the Secretary of State had employed essentially the same methodology in the 2014 review as in the setting of the 2013 rates, whereas, Mr Sheldon QC submitted, the Secretary of State had sought, by reference to each of the essential living needs identified by Popplewell J to address the costs of each in 2014 by reference to the best evidence available, starting from scratch, which had not been done previously. In those circumstances, it was not necessary to consider inflation since 2007 (other than to a limited extent from 2012 to 2014 because the latest ONS data was for the 2012 calendar year) or to compare the rate with that in previous years.

Second, the first claimant wrongly interpreted Refugee Action as requiring the Secretary of State to go back to 2007 and consider inflation since then. In fact, whilst Popplewell J had criticised the Secretary of State for not having appropriate regard to erosion of rates in the past, that was in the context of his finding that there had been an error by the Secretary of State in proceeding on the basis that there had been an increase in rates. The learned judge did not require regard to erosion in the future, if the rate was set following a careful investigation. The first claimant had misinterpreted [130] of the judgment.

Mr Sheldon QC submitted that the first claimant’s submission that the Secretary of State is required to justify the difference between asylum support rates and Income Support rates was simply wrong. Popplewell J had correctly held that asylum support rates did not need to be tied to Income Support rates, but the point he was making in [142] quoted at [47] above, was that in setting the 2013 rates, the Secretary of State appeared to have taken Income Support rates into account, whilst not providing sufficient reasons to justify the difference between the two. However, in making the 2014 Decision, the Secretary of State had not sought to make any comparison with Income Support rates at all.

As I already made clear at [36] above, I am quite satisfied that the legal analysis of Popplewell J in [85]-[91] of his judgment in Refugee Action is entirely correct. In other words, the question whether the Secretary of State has complied with the minimum standard under the Reception Directive is an objective one to be determined by the court. The Secretary of State must make provision under sections 95 and 96 of the 1999 Act which ensures full respect for human dignity and a dignified standard of living, maintains an adequate standard of health and meets the subsistence needs of the asylum seeker. There is no margin of judgment or discretion available to the Secretary of State in considering whether that objective standard has been achieved. That is the point which is being made by the CJEU in Saciri.

However, as Recital (15) to the preamble to the Reception Directive recognises, it is open to member states to provide for a more generous level of support and in that context the 1999 Act provides that the Secretary of State may make provision for “essential living needs” of asylum seekers. I agree with Popplewell J that subject to the minimum standard required by the Reception Directive being achieved, it is a matter for the judgment of the Secretary of State what needs are to be regarded as “essential living needs”. She may decide that a particular need is an essential living need, even though it would not be necessary to ensure a dignified standard of living. Provided that the minimum objective standard required by the Directive has been achieved, the judgment of the Secretary of State as to what needs constitute essential living needs is only open to review on well-established public law grounds, such as if the decision made is irrational or Wednesbury unreasonable. Nothing in Saciri touches on what member states are entitled to do beyond the minimum standard required by the Directive. The decision is concerned only with the minimum standard. Likewise, in my judgment, once the minimum standard is achieved, the EU law principle of proportionality does not come into play. The analysis in Lumsdon is of no relevance.

As Mr Sheldon QC rightly points out, there is no guidance from the Reception Directive itself or from the CJEU jurisprudence as to what is necessary to achieve the minimum standard, so that the court has to make its own assessment. In making that assessment as to whether the system of asylum support achieves that minimum objective standard, it seems to me important to look at the system as a whole, not at the weekly payments under section 96(1)(b) of the 1999 Act in isolation. The weekly payments are only one part of the overall support provided to asylum seekers, which, as noted at [6] and [7] above, includes free accommodation with furniture and household equipment and utility bills and council tax paid for, free access to the NHS, free prescriptions, eye tests, glasses and dental care and free state education for those aged between 5 and 18. Any assessment of whether the system of support is ensuring a dignified standard of living and an adequate standard of health has to take those matters into account.

It is striking that, although the claimants all assert that the asylum support rate of £36.62 in 2014 or £36.95 in 2015 fails to comply with the minimum standard under the Directive of ensuring a dignified standard of living and an adequate standard of health, there is no evidence from the general cohort of able-bodied asylum seekers that they cannot maintain a dignified standard of living on the basis of the overall support they are receiving. The individual claimants have produced some evidence in relation to their own positions. The first claimant originally said in her first statement that the asylum support rate was “barely enough to survive on” and that she had to go without essential toiletries and meals and struggled to maintain contact with her solicitors, but at that stage provided no details of her diet. In her third statement she provided a diary for seven weeks of her food purchases and concluded that her average spend in the period was £47.93 a week. I have already referred to her evidence on this at [27] above.

The second claimant also produced a “spend diary” for a nine-day period as referred to at [28] above. Her total expenditure was £258.86, in fact in excess of the asylum support allowance for the period, so that, as Mr Bentley says in his third witness statement, she must have used funds carried over from previous weeks. He also makes the point that some of the purchases were one-off ones which would not need to be repeated for some time and that, in respect of items she says she was unable to afford, there is insufficient information to make a meaningful judgment.

In relation to the third claimants, I have already set out the position at [32] and [33] above. It is not asserted by them that they cannot afford food, but they have raised respects in which RG’s disability means extra expenditure is incurred, such as for toiletries and cleaning products. The Secretary of State has indicated a willingness to fund exceptional needs by additional payments under section 96(2) of the 1999 Act provided the needs and their cost are properly evidenced and has provided an extra £2.97 per week since February 2016.

I agree with Mr Sheldon QC that this evidence from the claimants is not compelling evidence that the rates were set too low in 2014 or 2015. In order to establish if the amount paid is insufficient, it would be necessary to establish exactly what it was spent on over some considerable period of time, whereas the spend diaries are for only short periods of time and thus provide little assistance, since some purchases will obviously last some time. The spend diaries also include items which the Secretary of State legitimately regards as non-essential. Furthermore, there is no objective medical evidence that any health problems have been caused to these claimants or their dependants (where relevant) through a deficiency in diet caused by insufficient funds.

For these reasons and for the reasons set out in more detail below in relation to the individual “essential living needs” to which the Secretary of State had regard, I am satisfied that the overall system of support (that is the weekly payments taken with the other support provided referred to in paragraph 140 above and further provision for exceptional needs under section 96(2) where appropriate) does ensure a dignified standard of living and adequate standard of health and thus complies with the minimum standard under the Reception Directive.

The fact that additional payments for exceptional needs are available under section 96(2) as part of the overall system of support also demonstrates that the rate of weekly support for essential living needs under section 96(1)(b) need only be set at a level which ensures (taken with the other support available such as free accommodation) a dignified standard of living for the general cohort of asylum seekers. It is not necessary that the level be one which caters for the individual essential living needs of each and every asylum seeker and his or her dependants, and to the extent that Ms Charlesworth suggests in her evidence that the rate should take account of the needs of all children dependants, not just those of the “average” child (and therefore by necessary parity of reasoning, the needs of all adult asylum seekers), her approach is misconceived. If she were right, the rate would have to be set artificially high to cater for every eventuality and section 96(2) would serve little purpose.

Before dealing with the specific points about the individual items, I propose to address the more generalised criticisms levelled against the approach of the Secretary of State by Mr Gill QC and by the first claimant’s expert Mr Aspinall, beginning with the suggestion that the Secretary of State simply employed the same methodology in the 2014 and 2015 reviews as she had in setting the 2013 rates. Having considered Mr Bentley’s evidence about the approach adopted to the 2014 review (and therefore by definition the 2015 review), which I have already referred to and will refer to again in considering the treatment of the individual items, I am satisfied that the Secretary of State did not apply essentially the same methodology, but started from scratch in considering each of the items. In that context, it is worth noting that, as Mr Sheldon QC says in a footnote in his Skeleton, it was the claimants in Refugee Action who adopted the approach of assessing the cost of meeting particular categories of need, an approach which Popplewell J adopted. In the 2014 review, the Secretary of State adopted that approach in the light of the judgment, which she had not previously done, further demonstration that her methodology in 2014 and 2015 was a new one.

It was also suggested on behalf of the first claimant (somewhat inconsistently with the case just referred to, that the Secretary of State had employed the same methodology) that the Secretary of State had in effect manipulated the methodology in order to “reverse-engineer” the same rate as in 2013, notwithstanding the criticisms made by Popplewell J. That is of course a serious allegation, in effect of bad faith on the part of the Secretary of State and her civil servants. Having considered carefully the evidence of Mr Bentley about the methodology adopted, I am quite satisfied that there is nothing in this point. If Mr Bentley and his staff made errors in their approach, they were genuine and inadvertent, not deliberate.

I agree with Mr Sheldon QC that it is this misconception that the methodology has not changed or has been manipulated which has led to the continuing obsession of the first claimant’s legal representatives and expert with erosion of rates since 2007. However, once it is recognised that the exercise in 2014 was one of assessing the cost at that time of the various items comprised within essential living needs, then what those items might have cost in previous years is of no relevance, save possibly to the limited extent that evidence about previous year’s costs or rates might suggest that the 2013 data used was flawed or inaccurate in some way. There is no such suggestion in this case.

Both Mr Gill QC and Mr Aspinall seem to me to have misinterpreted what Popplewell J was saying in the passage in his judgment dealing with erosion of rates at [122] to [131] of his judgment. As I have already pointed out at [44] above, he was not saying that the fact that there had been an erosion of rates over the years per se vitiated the decision in 2013, but that the Secretary of State had proceeded on the erroneous assumption that rates had increased when they had in fact decreased. The point the judge made in [130] was that there would be no necessary error in setting the rates at a lower level, in real terms, than in previous years, because of the possible range of figures given the discretion available to the Secretary of State. However, if there was such a reduction or erosion, it would require justification by careful investigation.

Thus it follows that if the court is satisfied, as I am, that the rates set for 2014 and 2015 were arrived at after careful consideration and meet the minimum standard required by the Directive, the fact that the rate arrived at is the same as or less in real terms than the rate in previous years does not mean that the Decisions under challenge are disproportionate or Wednesbury unreasonableor irrational. The reduction in the rate can be explained by a number of factors such as the realisation that, when economies of scale were taken into account, the previous rate may have been too high or the fact that, contrary to Mr Aspinall’s evidence, the price of food came down between 2013 and 2015.

Related to his point about erosion of rates was the submission by Mr Gill QC recorded at [125] above and apparently derived from Mr Aspinall’s expert opinion, that the approach adopted in 2014 of taking ONS data from 2012 and only looking at increases in respect of food for two years thereafter by reference to rates of inflation did not achieve the correct minimum level. Mr Gill QC submitted that the Secretary of State was obliged to make an adjustment to reflect erosion of rates and inflation going back to 2007, failing which the rate would still be at too low a level. Although this point was advanced with verve and passion by Mr Gill QC, it lacked any coherence. If, as was the case, in the 2014 and 2015 reviews, the Secretary of State was either using 2012 or 2013 ONS data, with an uplift for inflation since the date the data was collected or up to date data from Home Office researches, that represents the best evidence of what items cost in 2014 or 2015. There is simply no requirement to go back to previous data in earlier years or make the kind of adjustment contended for by Mr Gill QC, since the data relied upon reflected actual cost in 2014 and 2015. To make the adjustment he advocated would lead to a series of inflated and artificially high costs.

As with the criticism of the Secretary of State for failing to take account of the erosion of rates, so with the criticism made by Mr Gill QC and Mr Aspinall of the use by the Secretary of State of the general rate of inflation in the CPI, not specific rates relating to particular items. It would appear that the latter approach is a relatively new one and use of the general index would be regarded as the usual approach, making it difficult to criticise the Secretary of State for adopting the usual approach. However, in any event, Mr Bentley’s evidence demonstrates that adoption of specific CPI indices for specific items would have led to a lower figure for inflation overall, so that this is a non-point.

Turning to the individual items within the weekly payment, in relation to food and non-alcoholic drink, Mr Bentley explains in his evidence (as set out at [56] to [58] above) how in the 2014 review, the Home Office took the figure in the ONS 2012 data (then the most up-to-date) for the lowest 10% income group, £29.10, adjusted that figure to correspond to a single person, rather than the weighted average in the data of 1.3 per household, and then adjusted it upwards to reflect £1.50 per week for a takeaway meal, arriving at a figure of £23.88 per week. Mr Bentley also explains how they did not exclude from the ONS data for food and drink certain items which would not be regarded as “essential” such as chocolate, sweets and ice cream.

The Home office verified whether the ONS data for the lowest 10% income group was sufficient to meet essential nutritional needs by reference to Professor Sanders’ article and the meal plan of the member of the team as set out in [58] above. The figure adopted by the Home Office was in fact higher than either of the figures arrived at by Professor Sanders or the member of the review team. Although Mr Gill QC and Mr Aspinall were critical of the use of this data to “sense-check” the figure arrived at of £23.88 per week and of the failure of the Home Office to commission independent scientific research, Mr Gill QC did not cite any authority for the proposition that the Secretary of State was under some sort of heightened obligation beyond the duty of inquiry identified by Popplewell J at [120] of his judgment.

Mr Bentley also explained in his first witness statement how they had also checked their figure against the data in the 2012 ONS survey for one adult non-retired households in the lowest 20% income group (separate data not being available for the lowest 10%) which showed expenditure on food and drink as £24.90, £2.52 more per week than the figure used by the Home Office before the upward adjustment for the cost of a takeaway. However, as Mr Bentley points out, that sum derives from the lowest 20% not 10% income group and so people who are marginally more affluent, and includes items that would not be regarded as essential. Accordingly, in my judgment, that data provided additional confirmation that the figure used by the Secretary of State was an appropriate one.

Much was made by Mr Gill QC of a supposed difference between those in the lowest 10% income group and asylum seekers on the basis that the former are more likely to be able to make lifestyle and shopping choices, enabling them to shop for food more cheaply than asylum seekers who would be unfamiliar with the cheapest local food shops, a point made by Mr Aspinall as referred to at [93] above. I was unimpressed with this point which was not supported by any evidence. Looking at the matter in the round, it seems to me that asylum seekers are just as likely to be able to find cheaper food sources as anyone else in the poorest proportion of the population. It is also worth repeating that, apart from the first and second claimants’ food diaries for short periods of time, there is a complete lack of any evidence that the general cohort of asylum seekers has any difficulty in providing a healthy diet from the weekly payment.

In relation to clothing and footwear, in direct response to the criticism of Popplewell J that the ONS data was for people already resident in the United Kingdom, the Home Office in the 2014 review conducted their own research as described at [59] above. Mr Aspinall was highly critical of this “mix and match” approach, but in my judgment the criticism was unwarranted. Given the criticism by Popplewell J, I consider the Home office was quite right to conduct its own research with established internet retailers. Mr Aspinall again criticises the Home Office for using a figure which was lower than the ONS data would have given, but I accept Mr Bentley’s explanation that they decided to use their own lower figure because the ONS data reflected the annual spend on clothing by the lowest 10% income group, not any sort of assessment of “essential living needs”.

In this context, it is important to have in mind what Popplewell J said was required in terms of clothing and footwear to meet “essential living needs” in [96] of the Refugee Action judgment:

“The Claimant submits that the Secretary of State's view that the need is only for such clothing as will "avoid danger of illness" misunderstands the essential purpose of clothing which is to keep a person warm, dry, decently covered and clean, and that such an error is bound to lead to an underestimate of the essential clothing need. This may be an unduly semantic criticism of what was intended as a reference to clothing to keep a person clean and warm enough. But even taken on its own terms, I am unable to accept the Claimant's argument. Here, as elsewhere, there are value judgements at play, for example in the adjective "warm". If a person's clothing is sufficient to keep him warm enough to avoid any danger of illness, it may legitimately be considered as meeting the essential need in that respect, even if it leaves the person at times colder than the majority of us would choose for comfort. If the clothing is sufficient to avoid any danger of illness, its deficiencies, as to warmth or hygiene, are no more than a matter of comfort rather than health, and harsh though it might appear to some, perhaps to most, it is within the legitimate range of views of the Secretary of State to treat that as falling outside the concept of essential needs. Ms Rose QC submitted that being clothed to a standard which left the person cold or their clothes dirty was inconsistent with the Reception Directive requiring as a minimum a dignified standard of living. But "cold" and "dirty" are relative terms. Mr Sheldon QC accepted that washing powder was an essential living need, so that a minimum standard of cleanliness is catered for. If there is no risk of danger to health, a person who is cold and whose clothes are not pristine is not in my view being denied a standard of living in breach of Article 1 of the Charter. Whether they have a need for greater warmth and cleanliness which is essential is a matter within the value judgment to be made by the Secretary of State, not the Court.”

That analysis, with which I agree, shows that “essential living needs” are concerned with a low threshold, in effect of subsistence, so comparisons made by Mr Aspinall with the annual spend of the lowest 10% income group are misplaced. The accuracy of the actual research conducted by the Home Office is not questioned by the claimants and is borne out by the further research after the 2014 review and for the purposes of the 2015 review referred to at [60] and [80] above.

In relation to toiletries, non-prescription medicines and household cleaning items, the ONS data was checked against costs from Boots, Superdrug and cheap supermarkets as explained at [61] and, in the case of the 2015 review, [81] above. Those costs revealed that the relevant items could be purchased for 65% of the ONS amount in the case of the 2014 review and 57% of the ONS amount in the case of the 2015 review. Mr Bentley concluded that the ONS figure would provide more than enough to cover essential needs and would provide some margin within the overall envelope of the asylum support payment.

Both Mr Aspinall and Ms Charlesworth (albeit the latter in the context of teenage children) consider that hair products, cosmetics and related electrical appliances such as hairdryers are essential living needs as well. However, in my judgment the relatively low threshold provided by the Directive does not require such items to be available as essential living needs and I agree with the analysis put forward by Mr Bentley in [17] of his fourth witness statement quoted at [120] above.

In relation to travel, maintenance of interpersonal relationships and a minimum level of participation in social, cultural and religious life, I have described at [62] to [64] and [82] above the analysis and research undertaken by the Home Office in the 2014 and 2015 reviews in arriving at the £3 per week allowed. Mr Gill QC was critical of this submitting that data from towns and cities in six areas where only 50% of asylum seekers were placed was not good enough and there were too many assumptions, such as that a bus journey would only be required every two weeks. In my judgment, that criticism is misplaced. No evidence was put forward on behalf of the claimants that the costs of these items cannot be met by the general cohort of asylum seekers from the weekly payment. Where someone has exceptional travel costs, those can be catered for by additional payments under section 96(2) of the 1999 Act.

Furthermore, it must be borne in mind that only certain travel costs can constitute “essential living needs” under the 1999 Act and the 2000 Regulations. Regulation 9(4)(d) of the 2000 Regulations precludes travel expenses as an essential living need, save for the initial journey to accommodation. In Refugee Action at [104(4)] Popplewell J expressed the view that this exclusion was not inconsistent with Article 14 of the Reception Directive. The contrary has not been argued in the present case. As Popplewell J also noted at [104], costs of travel for secondary health care and education are generally provided by local authorities and there is a statutory power to pay for certain travel expenses connected with the asylum process under section 96(1)(c)-(e) and section 103(9) of the 1999 Act.

In Refugee Action, at [104] Popplewell J held that certain other categories of travel were not essential living needs, specifically travel to and from the shops or the doctor and travel to appointments with Freedom from Torture, although the latter would fall for consideration as an exceptional case under section 96(2). He did not reach a concluded view about the costs of travel to attend appointments with legal advisers in so far as not covered by legal aid, which would fall for reconsideration by the Secretary of State. At [116] he held that insofar as travel might be necessary for a minimum level of maintenance of interpersonal relationships and participation in social and cultural life, that involved a value judgment which was for the Secretary of State.

In relation to the cost of communications, I have described at [65] to [66] and [84] above the analysis and research undertaken by the Home Office in the 2014 and 2015 reviews in arriving at the £3 per week involved. It is difficult to see that this can be subject to serious criticism. In the context of children’s needs, Ms Charlesworth assessed communications at £4.07 per week as set out at [110] above. However, that included £1.07 for the cost of an internet subscription fee and, as Mr Bentley correctly pointed out, access to the internet is included in mobile phone deals encompassed within the £3 per week. In my judgment, the £3 per week is an appropriate allowance.

In conclusion in relation to the individual items and the methodology adopted by the Secretary of State, I do not consider that Mr Gill QC’s criticism that the mix and match approach is not consistent and there was no logic or coherence to adopting ONS data for certain items but not for others, is made out. On the contrary, I consider that, where the Home Office did not use the ONS data, their reasons for not doing so were rational and sensible.

Although Mr Gill QC also sought to criticise the Secretary of State because the analysis undertaken by the Home Office had not been verified by reference to proper rigorous scientific evidence which had been subject to peer reviews, I do not consider there is any warrant for such a strict approach. Having considered carefully the evidence of Mr Bentley about the 2014 and 2015 reviews, I am satisfied that the Secretary of State did carry out an inquiry in both years which was sufficient to enable her to make an informed and rational judgment of how much was necessary to meet the essential living needs of asylum seekers. Accordingly, she complied with the duty of inquiry set out at [120] of Refugee Action. It follows that, so far as adult able-bodied asylum seekers are concerned, neither the 2014 Decision nor the 2015 Decision is irrational or Wednesbury unreasonable. In the circumstances, it is not for the court to interfere with the rates set.

In so far as Mr Gill QC still seeks to draw a comparison with Income Support rates, by submitting that the court should require the Secretary of State to give reasons for the increasing gap between those rates and asylum support rates and scrutinise those reasons carefully, that submission is misconceived. The time has come to lay any continuing reliance on a comparison with Income Support rates to rest. In assessing the asylum support rates in the 2014 and 2015 Decisions, the Secretary of State has made no comparison at all with Income Support rates but has set the rate by reference to the statutory test of “essential living needs”, the requirements of the Reception Directive and the judgment in Refugee Action. Income Support, set under a completely different statutory regime, is wholly irrelevant.

It was submitted on behalf of the first claimant that the rate was set so low that it was offensive to common law because Parliament cannot have intended section 95 of the 1999 Act to impose an “intolerable burden” on her, pressuring her to abandon her asylum claim and thereby impinging on her procedural rights under Article 18 of the Reception Directive. I agree with Mr Sheldon QC that the court should treat this kind of assertion with scant regard. There is simply no evidence that this claimant is going to abandon her claim, let alone that asylum seekers generally are not coming to the UK or are leaving the country and abandoning asylum claims because the asylum support rates are set too low.

For all those reasons, I consider that the first claimant’s claim must be dismissed.

At the heart of the submissions by Mr Stephen Knafler QC on behalf of the second claimant is the proposition that the law prohibits discrimination against children on account of their parents’ immigration status. The submissions made by Mr Knafler QC on the issue of discrimination were ably supported by Ms Gallagher on behalf of the EHRC as intervener, although I will not record her submissions separately save to the extent that they added new points to the submissions on behalf of the second or third claimants.

It is effectively admitted by the Secretary of State that the children of asylum seekers are treated differently from those of people on Income Support. Mr Knafler QC submits that the difference is a significant one: since the 2015 decision, the flat rate paid weekly as asylum support in respect of a child dependent is £36.95 as against £66.90 as Income Support for a child. Mr Knafler QC submits that this difference cannot be justified and there is unlawful discrimination, which is prohibited under EU law (Article 21 of the Charter) and under domestic law read compatibly with Articles 8 and 14 of the ECHR (whether section 55 of the 2009 Act, Every Child Matters or Articles 2 and 3 of the UNCRC).

Mr Knafler QC submits that, in considering whether children who are reliant on income support are an appropriate comparator with those whose parents are asylum seekers, the correct legal test is that adopted in the Strasbourg jurisprudence as endorsed by the House of Lords in AL (Serbia) v SSHD [2008] UKHL 42; [2008] 1 WLR 1434 at [24] per Baroness Hale of Richmond:

“It will be noted, however, that the classic Strasbourg statements of the law do not place any emphasis on the identification of an exact comparator. They ask whether "differences in otherwise similar situations justify a different treatment."”

Applying that test, Mr Knafler QC submits that the children of asylum seekers and those whose parents are on income support are in “otherwise similar situations”. They are both groups of children who share the common characteristic that they are dependent on their parents who cannot provide for them without state help. He also submits that all national and international law insists that children are of equal value irrespective of their immigration status. Accordingly, he submits that the Secretary of State cannot contend that these children are not proper comparators by reason of their different immigration status, relying upon Bah v United Kingdom (2012) 54 EHRR 21. Mr Knafler QC submits that the reliance of Mr Sheldon QC upon the decision of the Court of Appeal in Blakesley v Secretary of State for Work and Pensions [2015] EWCA Civ 141; [2015] 1 WLR 3150 (as to which see further below) is misplaced. He submits that Blakesley is distinguishable, not least because the Court of Appeal was dealing with the case of an adult refugee and was not considering the case of children.

Mr Knafler QC submits that there can be no justification for the difference in treatment and that the Secretary of State’s attempted justification essentially replicates her grounds for asserting that the children of asylum seekers cannot properly be compared with children on Income Support. He submits that the Reception Directive neither requires nor authorises provision for asylum seeking children to be less than for other children. He accepts that a difference between Income Support and asylum support is that those on asylum support do not have to pay for utilities, which may justify a different level of payment but not of the magnitude here.

There is also a difference of principle between Mr Knafler QC and Ms Gallagher on the one hand and Mr Sheldon QC on the other as to the correct legal test to be applied when considering whether there is a justification for what would otherwise be discrimination under Article 14 of the ECHR or Article 21 of the Charter. Mr Sheldon QC submits that the test is whether the difference in treatment is “manifestly without reasonable foundation” relying upon the decision of the Supreme Court in Humphreys v Revenue and Customs Commissioners [2012] UKSC 18; [2012] 1 WLR 1545 that, in the context of the payment of state benefits, the test for whether a difference of treatment which amounted to sex discrimination in the enjoyment of rights under the ECHR could be justified was whether it was manifestly without reasonable foundation: see per Baroness Hale of Richmond JSC at [15]-[19].

Both Mr Knafler QC and Ms Gallagher submit that this is wrong. Mr Knafler QC submits that the test for justification applicable here is one in EU law requiring the court to undertake an intense standard of proportionality review even in the welfare context. He relies, inter alia, on Lumsdon. He also submits that, even under Article 14 of the ECHR, where the discrimination concerns children, the court will consider discrimination by reference to the UNCRC, citing Lord Wilson in Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47; [2015] 1 WLR 3250 at [43]-[44]. The UNCRCrequires careful justification for discrimination against children, if it is permitted at all, so the manifestly without reasonable foundation test should not apply. He accepted however that the test does apply in the case of adults, and no case had addressed whether it applied in the case of children, the point effectively being left open in R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16; [2015] 1 WLR 1449, the benefits cap case, by Baroness Hale of Richmond JSC at [218] and Lord Kerr JSC at [268].

Ms Gallagher submits that, under Article 14 of the ECHR, there is a fourfold test for justification as set out in a number of decisions of the House of Lords and Supreme Court, most recently in the judgment of Baroness Hale of Richmond JSC in R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57; [2015] 1 WLR 3820 at [33]:

“With those considerations in mind, I turn to the issue of justification. It is now well-established in a series of cases at this level, beginning with Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167, and continuing with R (Aguilar Quila) v Secretary of State for the Home Department (AIRE Centre intervening) [2011] UKSC 45, [2012] 1 AC 621, and Bank Mellat v HM Treasury (No 2) [2013] UKSC 39, [2014] AC 700, that the test for justification is fourfold: (i) does the measure have an legitimate aim sufficient to justify the limitation of a fundamental right; (ii) is the measure rationally connected to that aim; (iii) could a less intrusive measure have been used; and (iv) bearing in mind the severity of the consequences, the importance of the aim and the extent to which the measure will contribute to that aim, has a fair balance been struck between the rights of the individual and the interests of the community?”

Ms Gallagher submits that those four limbs of the test should not be collapsed into a single test nor “manifestly without reasonable foundation” used as a catch-all to replace the four-fold test.

In February and March 2016, a 7-Justice Supreme Court heard the appeal in R (MA) v Secretary of State for Work and Pensions and other cases which considered the question whether “manifestly without reasonable foundation” is the applicable test at all in cases concerned with high level fiscal or social policy and welfare benefits. Judgment is awaited. That case should determine whether the “manifestly without reasonable foundation” test applies in the case of children.

Mr Sheldon QC submits that the discrimination claim is bound to fail for two fundamental reasons. First, he submits that any such claim was bound to fail because the Court of Appeal in Blakesley held that there is no analogy between asylum seekers and citizens in need of social assistance. That case concerned a claimant who had come to the United Kingdom as an asylum seeker and who, after an unsuccessful asylum claim, made a fresh claim which eventually succeeded and she was accorded refugee status and became entitled to Income Support, which she was awarded from when she was accorded refugee status. She appealed against the award, contending that she was entitled to Income Support from the date of her asylum claim. Notwithstanding legislation which came into force in 2007, under which a successful asylum seeker had no entitlement to recover back-payments of Income Support, she contended that she had such an entitlement on various grounds, including relevantly, that the failure to backdate her Income Support constituted discrimination in breach of Article 14 of the ECHR.

Jackson LJ (with whom Kitchin and Floyd LJJ agreed) dismissed that argument on various grounds, two of which are relevant to the present case:

“65 Secondly, there is no analogy between asylum seekers and British citizens in need of social assistance. In the case of asylum seekers it is not known whether they have any entitlement to be in this country. Therefore they all receive support under an asylum support scheme, which complies with the obligations imposed by the Geneva Convention and the Reception Directive. British citizens in need of social assistance are in a different position and they receive mainstream benefits.

66 Thirdly, in this case (as in R (Carson) v Secretary of State for Work and Pensions[2005] UKHL 37; [2006] 1 AC 173) there is an objective justification for the different treatment of the two groups to which the appellant points. The two groups are asylum seekers and British citizens in need of social assistance. Asylum seekers are a large group of people, an unknown proportion of whom have no entitlement to be here. Their entitlement to welfare support derives from international instruments, which do not apply to British citizens. In this sphere it is for the legislature and the executive to determine how national resources should be allocated.”

The second reason why Mr Sheldon QC submitted that the discrimination claim is bound to fail is that the present case is not concerned with discrimination between children in the exercise of ECHR rights, because the right to the relevant benefit is a right of the parent, not the child. In this case, none of the relevant children has any legal right to the benefit, so that the only ECHR rights in play are those of the parent. Any discrimination could only arise between adults. Mr Sheldon QC submitted that that analysis could not be circumvented by seeking to reformulate the allegation of discrimination by reference to the position of dependent children. He relied on the judgments in R (SG) v Secretary of State for Work and Pensions, rejecting any argument that the ECHR rights of women could be informed by the UNCRC because they have children. At [146] Lord Hughes JSC said:

“If the rights in question are the A1P1 property rights of women, and their associated derivative right not to be discriminated against in relation to those rights, it is an impermissible step further to say that there is any interpretation of those rights which article 3 UNCRC can inform. In the case of article 8, the children's interests are part of the substantive right of the parent which is protected, namely respect for her family life. In the case of A1P1 coupled with article 14, the children's interests may well be affected (as here), but they are not part of the woman's substantive right which is protected, namely the right to be free from discrimination in relation to her property. There is no question of interpreting that article 14 right by reference to the children's interests. The protected right to respect for family life under article 8 is entirely different from the protected right to property under A1P1. Nor can the article 8 rights of the child be said to be in need of interpretation when it is clear for the reasons given in all the judgments that they are not infringed. The necessary connection between the ECHR right under consideration and the international instrument is not present. That can be seen by considering the position of the appropriate comparator, namely a lone non-working father with the same children and household outgoings. The interests of the children would be exactly the same in his case, but he would have no article 14 claim to discrimination.”

Mr Sheldon QC relies on similar passages in the judgments of Lord Reed JSC at [89] and Lord Carnwath JSC at [129]-[131], as well as on the judgment of Lord Wilson in Mathieson at [43]:

“The decision of the majority in the SG case was not that international conventions were irrelevant to the interpretation of article 14 but that the UN Convention on the Rights of the Child was irrelevant to the justification of a difference of treatment visited upon women rather than directly upon children: para 89 (Lord Reed), paras 129-131 (Lord Carnwath) and para 146 (Lord Hughes).”

Mr Sheldon QC submitted that there is nothing in the judgment of the European Court of Human Rights in Bah v United Kingdom which is authority for the proposition that the ECHR imposes on State parties an obligation to provide the same level of financial support to asylum seekers and their dependent children as are provided to citizens and those with permanent rights of residence, so that the second claimant’s reliance on it was misconceived. There the claimant, an adult asylum seeker, was arguing that section 185(4) of the Housing Act 1996, under which she was not eligible for housing assistance even though homeless, breached her Article 14 rights. The Court dismissed the claim, holding that it was legitimate to put in place criteria (such as section 185(4) did) according to which a benefit such as social housing can be allocated. At [49]-[50], the Court said:

The Court finds that it is legitimate to put in place criteria according to which a benefit such as social housing can be allocated, when there is insufficient supply available to satisfy demand, so long as such criteria are not arbitrary or discriminatory. As the Court has previously held, any welfare system, to be workable, may have to use broad categorisations to distinguish between different groups in need (see Runkee and White v. the United Kingdom, nos. 42949/98 and 53134/99, § 39, 10 May 2007). The Court also recalls its finding in the case of Anatoliy Ponomaryov and Vitaliy Ponomaryov v. Bulgaria, no. 5335/05, § 54, 21 June 2011 (not yet final), that States may be justified in distinguishing between different categories of aliens resident on its territory and in limiting the access of certain categories of aliens to “resource-hungry public services”. The Court takes the view that social housing is such a public service.

The Court notes that section 185 of the Housing Act 1996 and the Regulations referred to at paragraph 14 above, when read together, set out clearly which classes of persons are eligible for social housing; which classes are eligible for housing assistance if threatened with homelessness; and which classes cannot be considered when determining whether another person has a priority need for housing assistance. The Court further notes that these classes cannot be considered as arbitrary or discriminatory. Those who have a fixed right to be in the United Kingdom, such as refugees or those with permanent, unconditional leave to remain, are entitled both to housing and to housing assistance. Those whose leave to remain in the United Kingdom is conditional on their ability to support themselves without recourse to public funds are not. The Court notes in this regard the applicant’s argument that it is inconsistent that she should be eligible for social housing but not considered to be in priority need should she and her son become homeless. However, there is nothing arbitrary in the denial of priority need to the applicant when it would be based solely on the presence in her household of her son, a person whose leave to enter the United Kingdom, granted only a few months before the applicant’s request for housing assistance, was expressly conditional upon his having no recourse to public funds. By bringing her son into the United Kingdom in full awareness of the condition attached to his leave to enter, the applicant accepted this condition and effectively agreed not to have recourse to public funds in order to support her son. The Court upholds the Government’s argument that it is justifiable to differentiate between those who rely for priority need status on a person who is in the United Kingdom unlawfully or on the condition that they have no recourse to public funds, and those who do not, and finds that the legislation in issue in this case pursued a legitimate aim, namely allocating a scarce resource fairly between different categories of claimants.”

The Court made it quite clear that where general measures of economic or social policy are involved, a wide margin of appreciation will be afforded to the national government and the appropriate test of justification is the “manifestly without reasonable foundation” test. Thus, at [37], the Court said:

“The scope of this margin will vary according to the circumstances, the subject matter and the background (see Carson and Others v. the United Kingdom [GC], no. 42184/05, § 61, 16 March 2010). As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of nationality or sex as compatible with the Convention (see respectively Gaygusuz, cited above, § 42; and Van Raalte v. the Netherlands, 21 February 1997, § 39, Reports of Judgments and Decisions 1997 I). On the other hand, a wide margin is usually allowed to the Contracting State under the Convention when it comes to general measures of economic or social strategy (see, for example, James and Others v. the United Kingdom, 21 February 1986, § 46, Series A no. 98, and National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 23 October 1997, § 80, Reports 1997-VII). Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation” (Stec and Others v. the United Kingdom, [GC],nos. 65731/01 and 65900/01,§ 52, ECHR 2006).”

Mr Sheldon QC submitted that the attempt by Mr Knafler QC and Ms Gallagher to import a more stringent test for justification where children were concerned than “manifestly without reasonable foundation”, by reference to the UNCRC, was misconceived. Although Mr Sheldon QC accepted that the UK Government had ratified the UNCRC in 1992 and section 55 of the 2009 Act was the government’s way of introducing Article 3(1) of the Convention into domestic law, he emphasised that the UNCRC itself was not incorporated into domestic law, as was clear from what Lord Reed JSC said in SG at [82]:

“As an unincorporated international treaty, the UNCRC is not part of the law of the United Kingdom (nor, it is scarcely necessary to add, are the comments upon it of the UN Committee on the Rights of the Child)."The spirit, if not the precise language", of article 3(1) has been translated into our law in particular contexts through section 11(2) of the Children Act 2004 and section 55 of the Citizenship, Borders and Immigration Act 2009: ZH (Tanzania) v Secretary of State for the Home Department[2011] UKSC 4; [2011] 2 AC 166, para 23.”

Mr Sheldon QC went on to submit that the European Court of Human Rights had consistently applied the “manifestly without reasonable foundation” justification test, which was a test of substance pursuant to which the question for the court is whether the legislative measure under consideration is justified as a matter of substantive outcome. There was no procedural obligation imposed by the ECHR as part of the justification test, citing R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100, per Lord Bingham at [27-31] and Lord Hoffmann at [68] and Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19, [2007] 1 WLR 1420, per Lord Hoffmann at [12-15], Lord Rodger at [23-27], Lady Hale at [31] and Lord Mance at [43-45].

Tigere, the case upon which Ms Gallagher had relied, concerned the eligibility for student loans of those granted discretionary leave to remain in the UK. At [27] Baroness Hale had recognised that the European Court of Human Rights applied the “manifestly without reasonable foundation” test in relation to general measures of political, economic or social strategy, but went on to say at [28] that education was rather different. That was the context in which she applied the test at [33] on which Ms Gallagher relied. Mr Sheldon QC submitted that Lord Reed and Lord Sumption JJSC (albeit in a minority in the result in that case) had disapproved that different approach, saying at [77]:

“Lady Hale suggests that in the context of education, the test is not whether the justification for discrimination in the provision of state financial support was "manifestly without foundation" but a different and more exacting test. In our opinion, there is no justification for this critical departure from a test which has been consistently endorsed by the Strasbourg court and at the highest level by the courts of the United Kingdom. There is no principled reason why state benefits in the domain of education should be subject to any different test from equally important state benefits in other domains. The problems associated with the judicial scrutiny of criteria for the award of selective benefits are the same. The "manifestly without foundation" test was adopted in Stec notwithstanding that it was a sex discrimination case, a context in which "very weighty reasons" have always been required: see para 52. It has been applied by the Strasbourg court to discrimination in other contexts, including the provision of housing, affecting the applicant's right under article 8 to respect for her private and family life (Bah v United Kingdom (2012) 24 EHRR 21), and the grant of leave to enter the United Kingdom to the spouses of immigrants, again affecting article 8 rights (Hode and Abdi v United Kingdom (2013) 56 EHRR 27). It was applied by this court to basic subsistence benefits in R (SG and others) v Secretary of State for Work and Pensions[2015] 1 WLR 1449, notwithstanding the indirect effect on the welfare of children of the gender discrimination considered in that case: see paras 81-91. The majority has not advanced a single reason in support of abandoning it in the case of state financial support for education except that the words "manifestly without foundation" do not appear in the judgment of the Strasbourg court in Ponomaryov v Bulgaria(2014) 59 EHRR 20, a case in which the nature of the test was not discussed and does not appear to have been in issue. We will return to Ponomaryov below. For our part, we would accept that the more fundamental the right which is affected by discrimination in the provision of financial support, the readier a court may be to find that the reasons for discrimination are "manifestly without foundation". But to discard the test would go well beyond anything that the Strasbourg jurisprudence requires.”

Mr Sheldon QC submitted that the European Court of Human Rights had never overridden or diluted the manifestly without reasonable foundation justification test by reference to the procedural or substantive contents of some other unincorporated international Treaty. This was for two fundamental reasons: (a) doing so would effectively override the broad margin of judgment that must be afforded to Parliament and the executive in questions of social policy and public expenditure, and (b) such an approach would effectively amend the text of the ECHR by ‘reading in’ the provisions of other, different, international Treaties, extending far beyond the legitimate use of such materials pursuant to Article 31 of the Vienna Convention.

If the question of justification arose at all (and the primary position of the Secretary of State was that it did not, because in the light of Blakesley no issue of discrimination arose) then, applying the “manifestly without reasonable foundation” test, Mr Sheldon QC submitted that the 2015 Decision was justified. The Secretary of State had a legitimate purpose in making the Decision, not to encourage economic migration by setting levels of support for asylum seekers which were in excess of the UK’s obligations under the Directive or her assessment of “essential living needs”, and not to expend public funds on support which went beyond those obligations. The EHRC expressly accepted that this was a legitimate purpose and Mr Knafler QC accepted that these were powerful factors, at least in the case of adult asylum seekers.

Furthermore, Mr Sheldon QC submitted that the differential between the amount of support provided to a child through Income Support and that provided to a child through asylum support was justified because asylum seekers and their children do not have an established right to remain in the UK. The State funds their subsistence because it is obliged to do so under the Reception Directive, but the level of support is set by the minimum standard under the Directive. Nothing in the Directive required equivalence, either as regards adults or children, with those on benefits who have a right to remain in a member state. He submitted that the Secretary of State was entitled to seek to reduce the rate paid to dependants, where she reasonably considered that it involved payments in excess of that needed to meet the requirements of domestic and EU legislation. Accordingly, any difference in treatment was not “manifestly without reasonable foundation”.

Mr Knafler QC submitted that the legal duty of the Secretary of State in determining the appropriate level of asylum support for children derived from section 55 of the 2009 Act which gave effect to Article 3 of the UNCRC and was thus a duty: (i) to give effect to the substantive principle that the child had a right to have his or her interests assessed and taken as a primary consideration in the decision-making process; (ii) that process must include “an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned” by way of a “child-rights impact assessment”(a reference to General Comment 14 on the UNCRC) and (iii) not to discriminate against asylum seeking children in respect of their needs and welfare in the light of the UNCRC, the Charter and Every Child Matters, which he submitted was a free standing source of legal obligations.

The 2015 Decision and the Asylum Support (Amendment) (No. 3) Regulations 2015 which gave effect to it had cut the rate of weekly support provided to asylum seekers in respect of a dependent child from £52.96 to £36.95, a cut of 30%. Mr Knafler QC accepted that the Secretary of State had had an unenviable task, but submitted that there was a gulf between how she proceeded and what the law required.

He submitted that Every Child Matters was statutory guidance given by the Secretary of State to which the Home Office were bound to have regard under section 55(3). He relied upon the analysis of Wyn Williams J in R(TS) v SSHD [2010] EWHC 2614 (Admin) at [33]-[36]:

33.

As I have said, section 55(3) places a duty upon a decision maker to have regard to the statutory guidance. Paragraph 6 of the Introduction to the guidance [Every Child Matters] is in these terms:-

"6.

This guidance is issued under section 55(3) and section 55(5) which requires any person exercising immigration, asylum, nationality and customs functions to have regard to the guidance given to them for the purpose by the Secretary of State. This means they must take this guidance into account and, if they decide to depart from it, have clear reasons for doing so."

34.

In light of this paragraph it is clear that a decision maker does not need to adhere to the guidance, slavishly, if cogent reasons exist to depart from it. Accordingly, the decision maker may, in an appropriate case, attach less weight to the best interests of the child in question than the guidance suggests is appropriate. He is not bound to regard the best interests of the child as a primary consideration in a particular case. To repeat, however, if a decision maker concludes that the best interests of a child should not be a primary consideration he should explain why.

35.

It is to be noted that the statutory guidance uses the phrase "best interests of the child" when describing what should be taken into account by UKBA. That, of course, is not the phrase used in section 55(1) of the Act. However, the guidance provided at paragraphs 2.6 and 2.7 as set out above appears under the general heading "making arrangements to safeguard and promote welfare in the UK Border Agency". It seems to me, therefore, to be clear that the statutory guidance intends that when a decision maker is having regard to the need to safeguard and promote the welfare of a child he is for all practical purposes also having regard to the best interests of the child.

36.

In summary, the effect of the statutory guidance is that when a decision maker discharges an immigration and /or asylum function he should regard the need to safeguard and promote the welfare of the child in question as a primary consideration unless there are cogent reasons which justify a different approach. Since the decision-maker is duty bound to have regard to the guidance it follows that when discharging his functions under section 55(2) of the Act he should regard the need to safeguard and promote the welfare of the child as a primary consideration unless there are cogent reasons to adopt a different approach.” (emphasis in the original)

Mr Knafler QC submitted that, if the Home Office was departing from the guidance in Every Child Matters, there not only had to be cogent reasons for doing so, but those reasons should be expressed in the decision making process (relying on Baroness Hale of Richmond JSC in Nzolameso v Westminster City Council [2015] UKSC 22; [2015] PTSR 549 at [79]). Neither in the Explanatory Memorandum nor the Policy Equality Statement accompanying the Asylum Support (Amendment) (No. 3) Regulations 2015, nor in Mr Bentley’s evidence served subsequently was there any suggestion that, when they revised the asylum support rate for children the Home Office intended to depart from Every Child Matters, let alone had any cogent reason for doing so.

Accordingly, Mr Knafler QC submitted, the only question was whether they had taken Every Child Matters into account, properly construed its guidance and acted in accordance with it. He drew attention to [2.6] and [2.7] (quoted at [15] above) which referred inter alia to the UNCRC, no doubt because the purpose of section 55 and Every Child Matters is to reflect the UK’s treaty obligations under the UNCRC as was recognised by Baroness Hale of Richmond JSC in ZH (Tanzania) v SSHD [2011] UKSC 4; [2011] 2 AC 166 at [23]:

“[Article 3(1) of the UNCRC] is a binding obligation in international law, and the spirit, if not the precise language, has also been translated into our national law. Section 11 of the Children Act 2004 places a duty upon a wide range of public bodies to carry out their functions having regard to the need to safeguard and promote the welfare of children. The immigration authorities were at first excused from this duty, because the United Kingdom had entered a general reservation to the UNCRC concerning immigration matters. But that reservation was lifted in 2008 and, as a result, section 55 of the Borders, Citizenship and Immigration Act 2009 now provides that, in relation among other things to immigration, asylum or nationality, the Secretary of State must make arrangements for ensuring that those functions "are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom".”

Mr Knafler QC placed particular reliance on the requirements that every child matters even if subject to immigration control and that the best interests of a child be a primary consideration in [2.7] of Every Child Matters and the terms of [1.16], also quoted at [15] above. He submitted that what was required was a careful assessment of what was in the best interests of asylum seeker children, which was child-centred and holistic in its approach and which treated asylum seeker children as being as valuable as other children. He submitted that these paragraphs of Every Child Matters were not even mentioned in the Explanatory Memorandum, the Policy Equality Statement or Mr Bentley’s evidence. There was no indication that these sorts of considerations had been in mind and they seemed to have been completely ignored.

In relation to the factors in 1.4 of Every Child Matters, Mr Knafler QC accepted that the Home Office did not have to state expressly that it had complied with that provision, but submitted that the only evidence that it had done so was what he described as the bare assertion to that effect in Mr Bentley’s third witness statement made some ten months after the 2015 Decision, in the passage I quoted at [86] above. Mr Knafler QC submitted that there were only two possibilities: (i) that they had misconstrued what was required in safeguarding and promoting the welfare of children by concluding that access to universal services (schools, healthcare and libraries) plus payment for essential living needs was sufficient, when far more was required or (ii) that having properly construed the provision, they failed to act in accordance with it without any cogent reason for departing from it. As I pointed out to Mr Knafler QC during the course of argument, of these possibilities, only the first is likely.

He submitted that what Every Child Matters requires is a child-specific holistic assessment which treats the best interests of the child as a primary consideration. One of the most important bullet points in [1.16] was “ensuring equality of opportunity”. The fundamental premise of the Home Office assessment, that all that was required was the bare minimum for subsistence with dignity day to day, was flawed. That premise was alien to what was required under [1.16], the Directive and the Charter which was that the policymakers had to start with what was in the best interests of children.

Although he accepted that Every Child Matters was primarily concerned with the individual child, he submitted that, as a matter of law and of logic, the same process must be equally applicable when the policy affects groups of children, as here. He relied on General Comment 14 on the UNCRC (quoted at [25] above) [6] of which made it clear that the substantive right and rule of procedure apply to children in general and groups of children. This was treated by Lord Carnwath JSC in SG at [105] as the most authoritative guidance available on the effect of Article 3.1 of the UNCRC. Mr Knafler QC also referred to the other passages from the General Comment which I have quoted in [25] above.

Mr Knafler QC submitted that the suggestion that the reduction in the asylum support rate was in the best interests of the children does not withstand scrutiny and should be rejected for similar reasons to those of a majority of the Supreme Court in SG who concluded that the relevant Regulations were not compatible with the obligations of the Secretary of State to treat the best interests of the children as a primary consideration (although the majority of the Supreme Court concluded that the claimants’ appeal failed because, applying the “manifestly without reasonable foundation” test, the discriminatory effect of the Regulations was justified). Mr Knafler QC relied in particular on the judgment of Lord Carnwath JSC (who was in the majority in dismissing the appeal) at [126]-[128]:

“126.

As Mr Drabble QC submitted, the cap was a complete innovation in the combined benefits/tax system, which had always contained a mechanism to adjust for family size. The cap has the effect that for the first time some children will lose these benefits, for reasons which have nothing to do with their own needs, but are related solely to the circumstances of their parents. It is difficult to see how this result can be said to be consistent with the best interests of the children concerned, or in particular with the first and seventh principles in Zoumbas.

127.

Lord Reed has referred to statements made to Parliament in November 2011 that excluding both child benefit and child tax credit would reduce the savings from the scheme by 80-90%, and so emasculate the scheme. It is not clear whether these are up-to-date estimates, or how they relate to the regulations as opposed to the Bill. If correct, they raise the questions why the viability of a scheme, whose avowed purpose is directed at the parents not their children, is so disproportionately dependent on child related benefits. There is nothing in Mr Holmes' evidence which addresses or answers these questions.

128.

Accordingly I remain of the view that the Secretary of State has failed to show how the regulations are compatible with his obligation to treat the best interests of children as a primary consideration.”

Mr Knafler QC also relied upon the judgments of Baroness Hale of Richmond and Lord Kerr JJSC who agreed with Lord Carnwath on this point but were in the minority on the actual result of the case, as they would have allowed the appeal. At [226] Baroness Hale (with whom Lord Kerr agreed at [262]) said:

“The Government's contention was that "the long term shift in welfare culture", or "reversing the impact of benefit dependency on families and children", would be beneficial to children in the longer run. This may well be so, although it is interesting how little prominence was given to this aspect of the matter in the justifications put forward by the Government for their policy. But in any event, this is to misunderstand what article 3(1) of the UNCRC requires. It requires that first consideration be given to the best interests, not only of children in general, but also of the particular child or children directly affected by the decision in question. It cannot possibly be in the best interests of the children affected by the cap to deprive them of the means to provide them with adequate food, clothing, warmth and housing, the basic necessities of life. It is not enough that children in general, now or in the future, may benefit by a shift in welfare culture. Insofar as the Secretary of State relies upon this as an answer to article 3(1), he has misdirected himself.”

Although in Refugee Action at [90] Popplewell J had said that, provided that the minimum standard required by the Reception Directive was reached, the Secretary of State was afforded a degree of flexibility in determining what constituted “essential living needs”, Mr Knafler QC submitted that, when it came to the needs of children, Every Child Matters was a relevant part of the process of determining their essential living needs. Nothing in sections 95 to 97 of the 1999 Act prevented the Secretary of State from giving full effect to section 55 of the 2009 Act and Every Child Matters and treating children differently from adults.

Mr Knafler QC’s overriding submission was that, by only providing to asylum seeker children the same minimum standard of subsistence as provided to adult asylum seekers, the Secretary of State was providing a level of support which was much more basic than that provided to the children of those on Income Support. In those circumstances, the Secretary of State inevitably failed to promote and protect the welfare of asylum support children when compared with the children of those on Income Support. That was a breach of section 55 of the 2009 Act and of Every Child Matters. It was also contrary to Article 18 of the Reception Directive and Article 24 of the Charter which likewise provided that the best interests of the children must be a primary consideration.

He submitted that, if the Secretary of State had adopted the correct approach to children, not that the bare minimum for human dignity was sufficient, but that the best interests of this group of children required that they were treated as of equal value to other children with equal opportunity, specifically to those whose parents were on Income Support, she would have arrived at a different result. The correct approach of starting with what was in the best interests of this group of children would have led to proper provision for their wellbeing, education, health and social development. Equal opportunity with other children required the opportunity to engage in recreational activities, such as football and other outdoor activities. It also required provision of computers, books, toys and games. To the extent that in Refugee Action Popplewell J had said these items exceeded essential living needs, he had been wrong. His analysis had not engaged properly with the requirements of section 55 of the 2009 Act.

Mr Knafler QC was also critical of the approach of the Secretary of State to some of the items which were included in essential living needs in the respects identified by Ms Charlesworth. He was particularly critical of the fact that the review team had not made any separate assessment of the cost of children’s clothing. Given that it was accepted by the Secretary of State that children’s clothing needs are higher than those of adults, because of rapid growth and greater wear and tear and that clothes are not capable of attracting economies of scale in large households, the absence of any research whilst asserting that any additional costs could be off-set by savings elsewhere was simply not good enough.

The Secretary of State appeared to have totally omitted to evaluate school uniform and equipment costs. Although Popplewell J had held at [95] of Refugee Action that school uniform grants were often provided by local authorities and if they were not, the cost could be met as an exceptional need under section 96(2) of the 1999 Act, the Secretary of State had apparently not considered to what extent grants extended to school uniform. It was not an exceptional need but quite the opposite. Mr Knafler QC submitted that the suggestion that any increased cost of children’s clothes could be met from the leeway or margin provided by economies of scale elsewhere should be rejected. The suggestion that there were economies of scale available from savings in food costs was flawed because of the double-counting Ms Charlesworth had identified.

Mr Knafler QC submitted that the assessment of travel costs was flawed, for the same reasons as submitted on behalf of the first claimant and in addition because the Secretary of State had not carried out any evidence based analysis of the number of journeys an asylum seeker with children requires to make for essential travel needs or, critically, any analysis of what increased level of travel is involved where there is a child, for the child or the adult in question.

In relation to toiletries, Mr Knafler QC adopted the opinion of Ms Charlesworth that hair products and cosmetics and related electrical appliances are essential living needs of children. Although Mr Bentley accepted that children’s self-esteem was important, their needs were not assessed and the suggestion that they could be adequately met without any significant outlay was not evidenced and was inconsistent with ONS data. In addition, there had been no consideration of the additional cost of children’s non-prescription medication such as Calpol, plasters, antiseptic or teething gel. It was said by Mr Bentley that GPs and chemists could prescribe certain items free of charge, but there had been no proper assessment of the extent to which this would meet the relevant needs.

The submissions made by Mr Knafler QC were supported by Ms Gallagher on behalf of the EHRC, who also made additional points. She emphasised that the scale of the cut to asylum support for dependants of asylum seekers had led to a widening of the disparity between those on Income Support and those on asylum support, particularly in the case of lone parents. She referred to a number of factors which she submitted were important because they underline the gravity of the changes: (i) an asylum seeker must be destitute which is not a requirement for Income Support; (ii) asylum seekers are excluded from mainstream benefits by section 115 of the 1999 Act whereas in contrast lone parents on Income Support may get other benefits such as child tax credit; (iii) the children of asylum seekers are outside the protection of section 17 of the Children Act 1989 by virtue of section 122 of the 1999 Act; and (iv) asylum seekers are ordinarily prohibited from working.

She also referred to the fact that the cash support provided under section 96(1)(b) was now very close to the cash support provided to failed asylum seekers under section 4 of the 1999 Act where a supported person receives £35.39 per week. This was expressly referred to in the decision letter of 16 July 2015. She referred to the description of section 4 support given by counsel and approved by the Divisional Court in R (VC) v Newcastle City Council [2011] EWHC 2673 (Admin); [2012] 1 FLR 944 at [87] of the judgment of Munby LJ:

“Ms Rhee accurately describes section 4 as providing "an austere regime, effectively of last resort, which is made available to failed asylum seekers to provide a minimum level of humanitarian support". Section 17 [of the Children Act 1989] in contrast is capable of providing a significantly more advantageous source of support, its purpose being to promote the welfare and best interests of children in need. As she says, section 4 support is intended to provide the minimum support necessary to avoid breach of a person's Convention rights; section 17 support is to be provided by reference to the assessed needs of the child. In short, as she puts it, section 4 and section 17 establish two discrete regimes established for different purposes.”

Ms Gallagher submitted that the fact that the flat rates for section 96(1)(b) cash support and section 4 cash support were so close to each other bolstered her submission that the Secretary of State had misdirected herself as to what was in the best interests of children and wrongly imposed a floor which was of a lower standard than required for children.

Given the gravity of the consequences of the cut in rate, she submitted that, whether under domestic law or EU law a very careful inquiry was required into what was in the best interests of the children, what their needs were and what they would cost before any decision was made. Such inquiry as had taken place here was wholly inadequate.

Mr Sheldon QC submitted that, in essence, the case advanced by Mr Knafler QC and Ms Gallagher was that the Secretary of State had erred as a matter of law in not treating the children of asylum seekers in the same way as the children of those on Income Support. However, he emphasised that there was no requirement of equivalence under the Reception Directive (with the exception of education under Article 10 which is addressed by free state education) and no requirement of equality of opportunity, nor was there any evidence that other member states do provide equality of opportunity to the children of asylum seekers.

He also submitted that there was nothing in Article 24 of the Charter or the UNCRC mandating equivalence between the children of asylum seekers and other children. He submitted that any case based on a requirement of equivalence or equality of opportunity had no proper basis. Accordingly, Mr Sheldon QC submitted that the Secretary of state was only concerned with identifying essential living needs and ensuring the minimum standard under the Reception Directive for children in the same way as for adults. There was not some heightened requirement of support for children, nor was some more generous assessment of essential living needs required.

Mr Sheldon QC’s starting point was to look at the 2015 review undertaken by the Home Office, as described in Mr Bentley’s third witness statement, beginning with his evidence about how the review team had assessed that the economies of scale in multi-person households were such that the existing payments to families exceeded what was necessary to meet their essential living needs. I have set out his description of the analysis undertaken at [75] and [76] above. As Mr Sheldon QC said, the principle that there are economies of scale in multi-person households is not challenged. Ms Charlesworth accepts that there will be economies of scale and although she contended that the Home Office had double-counted as set out at [113] above, that is incorrect for the reasons given by Mr Bentley in his fourth statement, set out at [118] above. As Mr Sheldon QC says, what the 2014 ONS data for households in the lowest income groups with two or three children shows is expenditure on food and non-alcoholic drink of about £16 or £17 per person per week.

Mr Bentley’s evidence, as set out in [77] above, was that the 2015 review considered the needs of children and recognised that their needs are not always identical to those of adults. In some instances, additional expenditure is required, for example in more regular replacement of clothes and in others less expenditure would be required, as in the need to see legal advisers. As Mr Sheldon QC said children would not need to see their parents’ legal advisers in the ordinary course and, if they had a need to do so, it could be dealt with as exceptional under section 96(2) of the 1999 Act.

Mr Sheldon QC submitted that what Mr Bentley’s evidence demonstrates is that the review team did then go on to assess each identified need of a child. For example they looked at research into nutritional needs and calorific intake, which showed no great disparity between adults and children. There was then a sense check against the expenditure of a member of staff with a child. I have summarised this evidence at [78] and [79] above. Mr Sheldon QC submitted that the results of this research did not show any great difference from Ms Charlesworth’s evidence, which did not undermine the analysis of the research team.

As set out at [80] above, the review team did not look at children’s clothing separately but made an assessment that, although overall costs might be higher due to the need for replacement more frequently, economies of scale available to families with children, specifically in relation to the cost of food were such as to cover any additional clothing needs of children. As set out in [81] the review team did not look separately at the needs of children with regard to toiletries, non-prescription medicines and household cleaning items, but considered their needs were the same as or very similar to those of adults. Mr Sheldon QC then referred to the assessment by the review team of the travel and communication needs of children (as summarised at [82]-[85] above). He submitted that careful consideration was given to those needs.

A specific point which he addressed was whether a dignified standard of living for a child required a payment to pay for a book, whether this was a fundamental minimum standard. He submitted that it was not. An occasional book could be purchased from a charity shop from within the existing envelope of the weekly payment. He made the point that if provision of books was required by minimum standards of dignity, it would be difficult to assess how many books were required.

Mr Sheldon QC noted that (as recorded at [112] above) Mr Bentley accepted that some of the recreational activities identified by Ms Charlesworth were necessary for a child to maintain interpersonal relationships, but he doubted the extent to which there would be a cost for such activities. Mr Sheldon QC submitted that, under the UNCRC Article 31, which recognised the right of the child to play and recreational activities, as General Comment 17 made clear, the issue was one of access in relation to recreational facilities. There was no obligation to give money in relation to them.

Mr Sheldon QC then referred to Mr Bentley’s evidence (to which I referred in [86] above) that the review team had given careful consideration to what was in the best interests of the children in accordance with section 55 of the 2009 Act, Every Child Matters and the UNCRC. Mr Sheldon QC emphasised the importance of the fact that the review was only concerned with the weekly cash payment and that the other elements of the overall package of support provided to asylum seeker children: accommodation and access to free education and healthcare and other universal services, remained unchanged.

Mr Bentley had said that the review team had taken all the factors in [1.4] of Every Child Matters into account and although Mr Knafler QC had characterised this as an assertion made ten months after the Decision, Mr Sheldon QC pointed out that Mr Knafler QC accepted this evidence and had not suggested that Mr Bentley was not being candid.

Mr Sheldon QC submitted that the whole approach of the review team had been compliant with all the relevant legal regimes. He submitted that the starting point was the Reception Directive and sections 95 and 96 of the 1999 Act. In relation to the question whether (aside of course from the second claimant’s case as to the effect of section 55 of the 2009 Act, Every Child Matters and the UNCRC) the Secretary of State had met the minimum standard under the Directive and met the essential living needs of children, he submitted that the only respect in which it appeared to be contended that the Secretary of State had not met the minimum standard and all essential living needs was in relation to recreation and toys, the complaint referred to in [207] above.

Mr Sheldon QC submitted that, so far as books, games and toys are concerned, this issue had been conclusively determined against the argument now being run by the second claimant, including any suggestion that the exclusion of toys and other recreational items by Regulation 9 of the 2000 Regulations was incompatible with the minimum standard under the Directive, by Popplewell J in Refugee Action, where at [102], under the heading: “Books, games and toys for children” he said:

“Children have access to local authority education, and school transport (except for 16 and 17 year olds whose position I address as a separate category below). All three and four year olds, and from 1 September 2013 two year olds, receive early education arranged by local authorities, usually comprising 15 hours a week for 38 weeks a year. Children have access to parks, playgrounds, libraries and other services offered by local authorities. Ms Rose QC suggested that such access was only possible where they were within walking distance because the level of support made no allowance for transport in this respect. I am not prepared to assume without evidence that such facilities are, other than in exceptional cases, so far away that public transport is essential to access them. I address below the position of vulnerable persons in relation to walking to the GP or the shops, and similar considerations apply here. So far as books, toys and games are concerned I detect no error in the approach of the Secretary of State, who not only takes account of the provision of full time education for those aged 5 and above and early education for 2-4 year olds, and access to libraries and other services offered by local authorities, but also includes within her definition of needs of children "a contribution to wider socialisation costs to promote their development". There is a differential rate for children provided for in Regulation 10, and the evidence on behalf of the Secretary of State is that the proportionate weighting in favour of children is greater in the UK than generally amongst other EU Member States whose structure involves more for adults but less for additional dependent children. The exclusion of toys by Regulation 9 of the AS Regulations 2000 is not incompatible with the minimum content required by the Reception Directive.”

Mr Sheldon QC submitted that the court should follow that approach unless satisfied it was wrong, which it is not. He accepted that no specific figure had been included in the weekly payment for wider socialisation costs, but submitted that this did not mean that there was an error in the application of the minimum standard or in assessing essential living needs under sections 95 and 96 of the 1999 Act. The minimum required, as was recognised by General Comment 17, was giving access to free recreation, which was provided as part of the universal services. Mr Sheldon QC pointed out, in relation to school trips, that schools were prohibited from charging for educational trips.

In relation to the submissions on behalf of the second claimant (supported by the EHRC) that, in effect, Every Child Matters makes all the difference and that the review team must have misconstrued the statutory guidance, Mr Sheldon QC submitted that as a matter of legal principle, the guidance could not override the statute and establish some new statutory duty. Section 55 required the Secretary of State to “make arrangements” for ensuring that her function in relation to asylum was discharged “having regard to the need to safeguard and promote the welfare of children” so that was essentially a procedural requirement. As Mr Knafler QC had accepted, Every Child Matters is primarily concerned with the individual child. The UK Border Agency’s main function to which Every Child Matters is particularly relevant, is interaction with individual children and their families. That was where the welfare, safeguarding and protection of individual children was of particular significance. Every Child Matters was not focusing on the cash support system for the general cohort of asylum seeker children.

As further support for the case that section 55 and Every Child Matters were essentially concerned with procedural requirements, Mr Sheldon QC relied upon the fact that there was nothing in the international conventions or the EU or domestic law which required equivalence or imposed a higher standard for “essential living needs” in relation to children. He urged upon the court the approach of Lord Hughes JSC in SG at [152]:

“Pace Lord Carnwath, I do not take it as read that the Committee [on the Rights of the Child]'s views, although entitled to careful consideration coming from the source that they do, can be regarded as binding upon party States as to the meaning of the treaty to which they agreed. But it is neither necessary nor appropriate to attempt to resolve these issues in this case, especially since we heard no argument upon them. All that needs to be said is that it is clear that the wider the reach of the concept of "decisions concerning" either an individual child or children in general, the less possible it is to impose the best interests of such child or children as a determinative or even priority factor over the frequently complex legal or socio-economic considerations which govern such decisions. The committee's general comment gives some acknowledgement to this problem in, for example, para 20, which recognises that although all State actions may affect children, a full and formal process of assessing their best interests is not called for in every case, and in para 32 where it is stated that the concept of the child's best interests is flexible and adaptable.”

Mr Sheldon QC submitted that, quite apart from Mr Bentley’s evidence that the review team had had regard to the factors in 1.4 of Every Child Matters, the other material demonstrated that the team had complied with and not misconstrued the guidance. The Explanatory Memorandum accompanying the Asylum Support (Amendment) (No. 3) Regulations 2015 provided at 7.8:

“In taking this decision full consideration has been given to the legal duty to have regard to the need to safeguard and promote the welfare of children. The changes involve reductions in cash payments to families, but ensure that sufficient funds continue to be available to enable parents to care for their children safely and effectively and provide for their health and development.”

Mr Sheldon QC submitted that this was the language of section 55 which further demonstrated that the review team did have regard to the section.

He emphasised that neither that section nor Every Child Matters nor the UNCRC imposed some higher minimum standard than the Reception Directive or required the Secretary of State to assess the essential living needs of children by reference to some different criteria to those applicable to adults. Providing asylum seeker children with equality of opportunity with other children was not a requirement under any of the relevant statutes and so could not become a statutory duty by virtue of 1.16 of Every Child Matters and, in any event, there was equality of opportunity in terms of universal services such as healthcare and education.

Mr Sheldon QC submitted that in setting the support rates for 2015 the review team had complied with the guidance given by Popplewell J. Mr Bentley’s evidence was that they had looked at how the needs of the cohort of asylum seeker children could be met from cash support in the light of the free universal services available. He submitted that this was child centric and holistic. Whilst Mr Knafler QC had submitted that there was a gulf between what the team had done and what the law required, he had not said what should have been done.

He emphasised, as he had in the context of the discrimination claim, that the UNCRC is not incorporated into domestic law, although the spirit of Article 3.1 was brought into domestic law by section 55 of the 2009 Act, relying on the passage from the judgment of Lord Reed JSC in SG at [82] quoted at [188] above. Accordingly, he submitted that, since the Secretary of state had complied with section 55, she had complied with Article 3.1 in so far as that was relevant.

In my judgment, whilst it is correct that Blakesley was not concerned with children, the analysis by the Court of Appeal at [65] and [66] of that judgment of the reasons why there is no analogy between asylum seekers and those on benefits with a right to reside and remain in the UK and thus why they are not in “otherwise similar situations”, must logically be equally applicable to the children of asylum seekers and the children of those on Income Support. Like their parents it is not known whether the children of asylum seekers have a right to remain in the UK, whereas the children of those on Income Support do have such a right. Furthermore, however much Mr Knafler QC and Ms Gallagher seek to overlay asylum support for dependent children with rights derived from the UNCRC, it remains the case that any entitlement to asylum support for dependants derives from Regulations passed to comply with the UK’s obligations under the Reception Directive, whereas those with a right to remain here and who need social assistance will receive mainstream benefits for themselves and their children under an entirely separate statutory regime.

In other words, despite the attempt by Mr Knafler QC and Ms Gallagher to distinguish Blakesley on the ground that it was concerned with an adult, not children, it does not seem to me that the ratio of the case can be qualified in that way, because the reasoning is equally applicable to children. Accordingly, on that ground, the discrimination claim must fail, as it did in Blakesley.

In the circumstances, it is not strictly necessary to deal with Mr Sheldon QC’s second fundamental reason why the discrimination claim is bound to fail. However, it seems to me that there is considerable force in his point that the right to the relevant benefit is that of the parent not the child, so that the issue of discrimination could only arise in relation to the difference in treatment between adult asylum seekers and adults on Income Support, in which case any discrimination claim would be bound to fail on the basis of Blakesley.

It also follows that issues of justification and proportionality do not arise at all, but if they did then, in my judgment, this court should apply the “manifestly without reasonable foundation” test essentially for two reasons. First, I agree with Mr Sheldon QC that, in considering discrimination under the ECHR, the European Court of Human Rights has consistently applied that test, a fortiori in cases of socio-economic policy such as the present. That is clear from any number of cases including Bah.

Second, because the UNCRC is not incorporated into domestic law, there is no justification for this court seeking to dilute that test or impose a more stringent one in the case of children, in circumstances where the European Court of Human Rights has not done so. I agree with Mr Sheldon QC’s submission that it would be contrary to fundamental principle for this court, as a court of first instance, to seek to override or depart from the test consistently applied by the European Court of Human Rights and the Supreme Court. To the extent that Mr Knafler QC also relied upon Article 21 of the Charter, I do not consider that this court should be branching out and applying a different test of justification than the “manifestly without reasonable foundation” test. I am also acutely aware that the whole issue of what test should be applied in cases of socio-economic policy is pending before the Supreme Court, making it all the more imperative that this court should not seek to make new law on this issue.

There is nothing in the decision of the European Court of Human Rights in Bah which even begins to support the second claimant’s case that the same level of financial support should be provided to the dependants of asylum seekers as to the children of those on Income Support with a right to remain in the UK. The entitlement of the UK Government to accord different treatment to those with a different immigration status was expressly recognised by the European Court of Human Rights in the subsequent case of Abdi v United Kingdom (2013) 56 EHHR 27 at [51]-[52].

In my judgment, if it were necessary to justify a difference in treatment between asylum seekers and their dependants on the one hand and those on Income Support and their dependants on the other, then the Secretary of State can justify that difference for the two related reasons which Mr Sheldon QC identified. First, there is a legitimate purpose in the setting of the asylum support rates pursuant to the 2015 Decision of discouraging economic migration and ensuring that limited financial resources are not expended on providing asylum support which is in excess of the UK’s obligations under the Reception Directive and what the Secretary of State assesses as “essential living needs” under the 1999 Act. In my judgment, there is no reason why that legitimate purpose should not apply where the position of children is being considered.

Second, the difference in treatment is justified because, in contrast with those on Income Support and their children who have a right to remain in the UK, asylum seekers and their dependants do not have an established right to remain. The level of support which the Secretary of State is required to provide is set by the minimum standard of a dignified standard of living maintaining an adequate standard of health under the Reception Directive. The level of Income Support is set by domestic legislation by reference to different criteria.

Contrary to certain of the submissions addressed to the court on behalf of the second and third claimants, there is nothing in the Reception Directive (notwithstanding the presence of Article 18: Minors) which requires a higher minimum standard as regards children, although of course common sense suggests that the needs of children as regards health and welfare may differ in certain respects from those of adults. Nor is there anything in the Directive which requires equivalence of treatment between asylum seekers and their dependants on the one hand and residents of a member state on welfare benefits and their dependants on the other. If the Directive had intended there to be such an equivalence, it would surely have said so. Although it is not directly relevant, Article 17(5) of the new Reception Directive 2013/33/EU, in relation to which the UK has exercised its right not to opt in, expressly recognises that a member state can grant less favourable treatment to asylum seekers than to nationals and there is nothing in that Directive which suggests that there has to be equivalence between the children of the two groups. I return to this question again below in considering the assessment of essential living needs by the Secretary of State in the 2015 review and whether there was any breach of the statutory duty under section 55 of the 2009 Act.

It follows that the difference in treatment was not manifestly without reasonable foundation but justified. The second claimant’s discrimination claim must fail.

The second claimant’s grounds had originally raised an issue of alleged breach of the PSED on the grounds of age and race. In the Detailed Grounds of Defence at [47], the Secretary of State responded that this challenge was misconceived, inter alia because age and nationality and ethnic origins are excluded as “protected characteristics” for the purposes of section 149 of the Equality Act 2010 by virtue of Schedule 18 of the Act when the Secretary of State is exercising her functions, as here, under the 1999 Act. Mr Knafler QC addressed no separate submissions either in writing or orally in relation to the PSED, so the point appears to have been abandoned, but to the extent that it had not, it is misconceived for the reasons given by the Secretary of State.

In my judgment, there are two significant fallacies in the arguments advanced on behalf of the second claimant and the EHRC. The first is the suggestion that there is some requirement of equivalence or equal treatment between asylum seeker children and the children of those on Income Support. There is not. The Reception Directive contains no such requirement, other than in relation to education where Article 10 provides:

“Member States shall grant to minor children of asylum seekers and to asylum seekers who are minors access to the education system under similar conditions as nationals of the host Member State for so long as an expulsion measure against them or their parents is not actually enforced…”

It is striking that, although Article 18 reflects Article 3(1) of the UNCRC in providing that: “The best interests of the child shall be a primary consideration for Member States when implementing the provisions of this Directive that involve minors” it does not contain an equivalent provision to that in Article 10 providing that what this means is that children of asylum seekers shall be accorded equivalent treatment to the children of nationals. If that had been the intention of the provision, it would surely have said so, in view of the terms of Article 10.

Equally, I agree with Mr Sheldon QC that Article 24 of the Charter, paragraphs 1 and 2 of which mirror Article 3(2) and 3(1) of the UNCRC respectively (so that article 24(2) reflects Article 18 of the Directive), does not require equivalent treatment to be accorded to children of asylum seekers as is accorded to children of nationals.

The second fallacy follows on from the first and is that it appears to be suggested that Section 55 of the 2009 Act, Every Child Matters and the UNCRC somehow require a higher standard of asylum support in respect of children than (i) the minimum standard under the Reception Directive that ensures a dignified standard of living, maintains an adequate standard of health and meets subsistence needs or (ii) the provision for “essential living needs” under section 96(1)(b) of the 1999 Act. That suggestion is not supported by any of the relevant legislation or by the Directive or the UNCRC. In my judgment, the correct analysis is that the requirement to make the best interests of the child a primary consideration arises in the overall context or framework of setting the asylum support rate in respect of dependent children in accordance with the Directive and the 1999 Act. Of course, as I said above in the context of the discrimination claim, it may be that the needs of children as regards health and welfare differ in certain respects from those of adults, but there is no requirement for the imposition of a higher standard of support than the objective minimum under the Reception Directive.

Much was made by both Mr Knafler QC and Ms Gallagher, perhaps understandably, of the fact that the support rate in respect of children fell from £52.96 to £36.95, some 30%, which they submitted in itself could not possibly be in the best interests of the children. I do not accept that this necessarily follows for two reasons. First, on the basis that the original rate was in fact in excess of what was required to comply with the minimum under the Reception Directive and to meet what the Secretary of State reasonably assessed were essential living needs, there is nothing inherently wrong or unfair in the Secretary of State reducing the rate. Indeed, provided the minimum standard had been met, payment in excess of what was required for essential living needs would be ultra vires, as Popplewell J pointed out at [130] of the Refugee Action judgment. I have already held that there is not some heightened minimum standard or heightened interpretation of what essential living needs require in the case of children.

Second, provided that the rate which was then set in respect of children in the Asylum Support (Amendment) (No. 3) Regulations 2015 (i) was set after appropriate consideration of what was in the best interests of the children in accordance with section 55 of the 2009 Act and Every Child Matters (ii) met the minimum standard required by the Reception Directive and (iii) constituted an assessment of the essential living needs of the general cohort of asylum seeker children which was not irrational or Wednesbury unreasonable, the fact that the rate was set at a level below what it had been in previous years does not mean that it is open to challenge.

Thus, the following questions arise: (i) was the original rate in respect of children in 2013 of £52.96 per week in excess of what was required to comply with the minimum under the Reception Directive and to meet what the Secretary of State reasonably assessed were essential living needs; (ii) if it was, was the reduced rate set after appropriate consideration of what was in the best interests of the children in accordance with section 55 of the 2009 Act and Every Child Matters; (iii) did it meet the minimum standard required by the Reception Directive and (iv) was it an assessment of the essential living needs of the general cohort of asylum seeker children which was not irrational or Wednesbury unreasonable?

The first question, whether the original rate of £52.96 per week for dependent children was in excess of what was required to comply with the minimum standard under the Reception Directive and to meet what the Secretary of State reasonably assessed were essential living needs, seems to me to depend to a considerable extent upon the validity of the Home office assessment that there were economies of scale in relation to households with children, of which account had not been taken in setting the rate in 2013.

The evidence about that assessment is set out in detail in Mr Bentley’s first and third witness statements, which I have set out or summarised at [71] to [76] above. It is not disputed on behalf of the second claimant (specifically it is not disputed by Ms Charlesworth) that the larger the household the more economies of scale are available, at least as regards certain items such as food and non-alcoholic drink. Indeed, common sense would suggest that must be correct. What is said by Ms Charlesworth is that the assessment by the Secretary of State is flawed, because the ONS data for the lowest 10% used by the Secretary of State for the majority of its rates was already for multi-person households and therefore already included economies of scale, so that the Secretary of State was, in effect, double counting.

In my judgment, the answer to that criticism is the one given by Mr Bentley in his fourth witness statement as referred to at [118] above, that the review team referred not only to the adjusted figure of £22.38 per week for food and drink derived from the ONS data for the lowest 10% of income groups, but also referred to the data in ONS Table 3.3 which was for single adult non-retired households in the lowest 20% income group. That figure was £24.90 per week, only £2.52 more. The review team considered that it was still appropriate to take their lower figure, because the £24.90 included certain non-essential items of food and drink and was spending by the marginally more affluent. A similar analysis was conducted by reference to the 2013 ONS data for the purposes of the 2015 review in arriving at a food and drink figure per person of £24.96 as compared with £25.80 for single adult non-retired households in the lowest 20% income group.

Ms Charlesworth also suggests that whilst economies of scale will rise in line with the number of people in a household, many children of asylum seekers will be in a household consisting only of two people, him or herself and a lone parent and that, therefore, any assessment of cost should be made on the assumption of a two person household. She does not produce any statistical evidence to support her suggestion that many asylum seeker children will be in a two person household, but, in my judgment, the answer to the point, even if it had any statistical validity, is that the flat rate of £36.95 per person per week includes £24.96 in respect of food and non-alcoholic drink per person. As Mr Bentley says in his fourth witness statement, the Home office has not adopted a diminishing amount for additional members of a household as in some other EU countries, from which it follows that the £24.96 figure is valid for two person households or households with more than two people.

In fact, as Mr Sheldon QC says, what the 2013 ONS data (the latest available at the time of the 2015 review) for households in the lowest 20% income group with two or three children (household sizes 2.4 and 3.6), shows is expenditure on food and non-alcoholic drink of about £16 or £17 per person per week. So far as a single parent and one child are concerned, Mr Bentley referred to the 2013 ONS data which gave weekly expenditure on food and non-alcoholic drink of £40.90, equivalent to £20.45 per person. It follows that, even allowing for Ms Charlesworth’s point about lower economies of scale for a lone parent and one child than for households with more than one child, there is still a saving from the expenditure by one person living alone. The same ONS data gave weekly expenditure for a lone parent and two or more children of £18.06 per person per week.

I consider that, in the circumstances, the assumption in the 2015 review that food and drink per person would be no more than £24.96 per week was reasonable. Of course the validity of that figure in respect of children needed to be checked, but as set out below, that was done by the review team. In the circumstances, the conclusion which the review team had reached in the 2014 review, confirmed by the 2015 review, that the existing payment of £52.96 per week per child exceeded what was required by asylum seekers with children to meet essential living needs, was a reasonable conclusion. Nonetheless, whether the 2015 Decision to reduce the rate for dependent children was not irrational or Wednesbury unreasonable will depend upon the determination of the other questions identified at [252] above.

The second question is whether the reduction in rate was set after appropriate consideration of what was in the best interests of the children in accordance with section 55 of the 2009 Act and Every Child Matters. I have already held that section 55 and Every Child Matters do not require equivalence between asylum seeker children and the children of those on Income Support or some higher standard of asylum support for children than the minimum standard under the Reception Directive or “essential living needs” under section 96(1)(b) of the 1999 Act.

Furthermore, Mr Sheldon QC is clearly right that Every Child Matters, which is statutory guidance in respect of the duty under section 55, cannot impose on the Secretary of State or her staff some broader or more heightened statutory duty than the section itself. Every Child Matters is more concerned with dealings between the Home Office and its agencies (specifically the UK Border Agency) and individual children and is not focusing on the cash support system for the cohort of asylum seeker children. I agree with what Lord Hughes JSC said in SG at [152]:

“…it is clear that the wider the reach of the concept of "decisions concerning" either an individual child or children in general, the less possible it is to impose the best interests of such child or children as a determinative or even priority factor over the frequently complex legal or socio-economic considerations which govern such decisions.”

The evidence of Mr Bentley was that the team conducting the 2015 review did consider the specific needs of children and the factors in 1.4 of Every Child Matters, in accordance with the section 55 duty. I see no reason not to accept that evidence, which is also borne out by the Explanatory Memorandum. Mr Bentley says at [32] of his third witness statement, quoted at [77] above, that they recognised that the needs of children are not always identical to those of adults and that there might be circumstances where meeting their particular needs requires greater expenditure of cash than required for an adult. Mr Bentley then proceeds to deal with each item of expenditure in relation to children.

The first and largest was obviously food and non-alcoholic drink. I have already held that the process by which the review team arrived at a single person figure for food and drink of £24.96 was a reasonable one. Mr Bentley describes as set out at [78] above that the review team had considered the report of the Scientific Advisory Committee on Nutrition (“SACN”) of 2011. He summarises the results of that report and notes its conclusion that children aged under 10 require less calorific intake than older groups and, in general, females of all ages require less calorific intake than males, but otherwise there is no appreciable difference in the recommended levels based on age. Both that scientific research and the National Diet and Nutrition Survey for 2014 (which measured actual calorific intake), to which the team also referred, showed that there was no great disparity between adults and children in terms of nutritional needs or calorific intake.

As set out at [79] above, the review team further attempted to identify the level of cash needed for food and non-alcoholic drink by families to cover their dietary needs by reference to the monthly shopping list and menu plan of a member of the review team with a partner and one school age child. This gave an average of £15 per person per week. Although the claimants and their experts were disparaging of this approach as non-scientific, it seems to me that it does provide an appropriate “sense check”, because in broad terms, it confirms the level of spending for households with 2.4 members in the ONS data for the lowest 20% income group, referred to above.

The figure which was in fact assumed for food and non-alcoholic drink of £24.96 per week was thus one which was higher than the evidence from the ONS data and the review team’s own research. That data and research indicated a figure per person in a multi-person household which varied from £15 or £16 per week to £20.45 per week, however many children were in the household. Furthermore, the figures derived from the ONS data included non-essential items, so that the Secretary of State was justified in considering that spending on essential items would be somewhat lower and that, however many children there were in the household, the assumed figure for essential items of food and non-alcoholic drink of £24.96 included in the overall weekly figure of £36.95 gave a considerable leeway or margin, which would cover other items if they were more expensive.

In relation to clothing and footwear, the research at the time of the 2014 review had arrived at a weekly average cost for an adult asylum seeker of £2.51 and as recorded at [80] above the updated research for the 2015 review shows the same clothing and footwear could be purchased for an average of £2.14 per week, although the figure was left at £2.51. I have already held, (at [158]-[160] above), in the context of the first claimant’s claim, that the approach adopted by the review team is not open to criticism and is in accordance with the analysis of essential living needs as regards clothing set out by Popplewell J at [96].

Again as set out at [80] above Mr Bentley explains that no specific research was undertaken in respect of the cost of children’s clothing and that, although it was recognised that there might be a greater expense because of the need to replace clothes more frequently, it was considered that the economies of scale available elsewhere, particularly in relation to the cost of food, meant that any additional clothing costs for children could be met from within the overall envelope of cash support.

As I have said at [208] above, Mr Knafler QC was highly critical of this approach, submitting that, where clothes were not capable of attracting economies of scale but it was recognised that children’s clothing needs were higher than those of adults, the assumption that additional costs of children’s clothing could be met from savings elsewhere within the overall envelope failed to give sufficient consideration to what was in the best interests of children. Mr Knafler QC was also critical of the fact that the Secretary of State had not apparently evaluated the cost of school uniform and equipment or investigated to what extent school uniform grants were available from local authorities.

In my judgment, despite the fierceness of the criticism, it is not warranted. As Mr Bentley points out in his third witness statement, the evidence of Ms Charlesworth of the cost of children’s clothing gave figures of £2.77 per week for babies, £2.62 per week for young children and £4.82 per week for teenagers. As he says, the approach she has adopted is similar to that of the Home Office and is sensible. What it demonstrates is that the cost of clothing teenagers is some £2.30 per week more than for adults, but that is comfortably covered by the economies of scale, whereas the cost for younger children is only marginally higher than for adults. I consider that his analysis is a reasonable one and a separate assessment of the costs of children’s clothing was not required in the circumstances.

So far as school uniform is concerned, this was addressed by Popplewell J in Refugee Action at [95]:

“School uniform grants are often provided by local authorities but all other clothing for asylum seekers and their dependent children has to be paid for out of the s. 96(1)(b) cash support. To the extent that school uniform is not provided in a particular case, this would fall for consideration as an exceptional case and does not have to be catered for in the general level of support given to all asylum seekers under s. 96(1)(b).”

In the light of that conclusion that the cost of school uniform does not have to be included in the cash support provided under section 96(1)(b), the criticism of the Secretary of State by Mr Knafler QC for failing to take account of those costs or conducting an investigation into which local authorities provide such grants, is completely misplaced. Whilst it is true that the second claimant in her first witness statement says that she paid for the cost of the school uniform of one of her children, she does not state whether she applied for a local authority grant. As Popplewell J said, if one was not available, then she could have made an application under section 96(2).

In relation to toiletries, non-prescription medicines and household cleaning items, as set out in [81] above, Mr Bentley’s evidence was that the weekly amount provided for adults was £2.92 per week, the research undertaken at Boots, Superdrug and cheap supermarkets had shown that the essential items in question could be purchased for at most £86 per annum, equivalent to £1.66 per week. Whilst the specific needs of children had not been considered in the research, it was considered by the review team that the needs in respect of the specific items were the same as or similar to those of adults.

Mr Knafler QC criticised this analysis in the two respects identified at [211] and [212] above: (i) that the Secretary of State should, as Ms Charlesworth contended, have concluded that hair products, cosmetics and related equipment such as hair dryers were essential items, particularly for girls, given the importance of self-esteem, which Mr Bentley recognised; and (ii) that the additional cost of children’s non-prescription medication such as Calpol, plasters and antiseptic were not taken into account.

In relation to the first of those points, I have already indicated that these items are not part of essential living needs, for the reasons given by Mr Bentley in his fourth witness statement as quoted in [120] above. In relation to children’s non-prescription medicines, Mr Bentley’s evidence was that, in the case of those on low incomes, including asylum seekers, these could be obtained on prescription from doctors free or without a prescription free from chemists under the NHS Minor Ailments Service. Mr Knafler QC submitted that there had been no proper assessment of the extent to which this would meet relevant needs. In my judgment, there was no need for any additional assessment beyond that reflected in Mr Bentley’s evidence, that whilst children’s non-prescription medicines might be theoretically more expensive, in fact they could be obtained free by asylum seekers. The second claimant has produced no evidence to challenge that conclusion. Furthermore, given that the figure allowed per week for the essential items overall for adults was considerably more than the actual cost and that, within a family, there would be economies of scale in relation to items such as toiletries and cleaning products, I consider that there is sufficient margin available to cover the cost of children’s non-prescription medication, even if (as to which the claimants have produced no evidence) the items in question could not be obtained free.

I set out at [82] above, Mr Bentley’s evidence that, in relation to the 14 towns and cities reviewed, children under 5 travel free on buses and those from 6 to 16 receive concessions, either free travel or reduced fares, so that the review team decided that the same figure per person of £3 per week for travel was appropriate in the case of children as in the case of adults. Mr Knafler QC was critical of the review team because they had not carried out any evidence based analysis of the number of journeys an asylum seeker with children requires to make for essential travel needs or of the level of travel required by a child or adult where there is a child involved.

In my judgment, that criticism is unwarranted. I consider that Mr Bentley’s response to Ms Charlesworth’s opinion as set out at [108] and [109] above is correct. It is also worth emphasising, as I said at [146] above, that, contrary to Ms Charlesworth’s evidence, the exercise in which the Secretary of State was engaged was the setting of a level of weekly support for essential living needs under section 96(1)(b) which ensures (taken with the other support available such as free accommodation) a dignified standard of living for the general cohort of asylum seekers, whether adults or children. It is not necessary that the level be one which caters for the individual essential living needs of each and every asylum seeker and his or her dependants, since if that were right, section 96(2) would be effectively redundant.

It is striking that, although Ms Charlesworth criticises the review team’s assessment of travel needs, her figure of eight journeys per week is based upon the average number of journeys which the general population choose to make but does not purport to be an assessment of how many journeys per week are essential for either adult or child asylum seekers. There is thus no evidence to challenge the assessment made by Mr Bentley. As I indicated in relation to the first claimants’ claim, Ms Charlesworth’s evidence about travel needs also appears to completely overlook the fact that, save in limited respects, travel costs are excluded under the 1999 Act and the 2000 Regulations. Accordingly, I do not consider her analysis on this point to be of any assistance to the court.

Mr Bentley’s evidence about the availability of free or concessionary travel for children is not challenged. Indeed, Ms Charlesworth’s own figure takes account of such free fares and concessions. In all the circumstances, I consider that the approach of the review team to travel needs, as described by Mr Bentley, was a reasonable one and took proper account of the needs of children.

In relation to communications, the review team considered that the £3 per week allowed to adults would be sufficient to cover the needs of children as well, particularly given that children would rarely need to incur the cost of contacting their parents’ legal advisers in relation to an asylum claim. Although Ms Charlesworth put forward a figure of £4.07 per week, it seems to me that Mr Bentley is right that her addition of £1.07 per week to cover an internet subscription fee overlooks that access to the internet is provided within the mobile phone deals encompassed within the £3 per week.

It follows that, in my judgment, in relation to those items which Popplewell J identified in Refugee Action as items which should be included in essential living needs, the Secretary of State followed the guidance which the learned judge gave and did properly consider how the needs of the general cohort of asylum seeker dependent children could be met from cash support under section 96(1)(b) of the 1999 Act, together with and in the light of the free universal services available to children by way of education, healthcare, libraries, playgrounds parks and other recreational facilities. This was what Mr Bentley said at [129] of his third witness statement which I have already quoted at [86] above, but which merits repetition, since I entirely accept what he says and consider that it demonstrates that the Secretary of State did comply with her statutory duty under section 55 of the 2009 Act:

“The package of support available, both before and after the changes to the payment rates, ensures that the children of destitute asylum seekers are provided with stable and safe accommodation and with adequate provision for their ordinary everyday essential needs. I do not consider that the reduction in the amount of cash provided to the parents therefore has an adverse effect on their safety or the quality of the care they receive from their parents or their general health.”

Once it is recognised that section 55 of the 2009 Act and Every Child Matters do not require some higher minimum standard under the Reception Directive or some broader definition of essential living needs in the case of children than in the case of adults, then it seems to me that the Secretary of State’s approach to the needs of children was sufficiently child-centric and holistic.

In my judgment, contrary to the submissions of Mr Knafler QC and Ms Gallagher, the fact that, in setting the reduced asylum support rate for dependent children, the Secretary of State may have had regard to socio-political issues such as (i) the need to discourage economic migration and (ii) the fact that there are finite financial resources available to the Government, does not mean that she was in breach of her section 55 duty. Whilst, as Article 24 of the Reception Directive makes clear, it is incumbent upon member states to put in place sufficient resources to meet the minimum standard under the Directive, provided that minimum standard is met, nothing in the Directive or in the 1999 Act, or in my judgment in the 2009 Act, precludes the Secretary of State from having regard to those sort of socio-political issues in setting the rate, provided that proper consideration has been given to the needs of the general cohort of asylum seeker dependent children, as I have found was the case.

The third question set out at [252] above is whether the reduced rate set in the Asylum Support (Amendment) (No. 3) Regulations 2015 met the minimum standard required by the Reception Directive. As already noted, that standard requires that the asylum support provided ensures full respect for human dignity and a dignified standard of living, maintains an adequate standard of health and meets the subsistence needs of the asylum seeker. However, as I said at [140] above, there is no guidance from the CJEU as to what is necessary to achieve that minimum standard so that this court has to make its own assessment. Once it is recognised that the Secretary of State was not required to ensure equivalence between asylum seeker children and the children of those on Income Support, that she followed the guidance provided by Popplewell J and, as I have held, that she did give appropriate consideration to what was in the best interests of children, then the scope for any argument on behalf of the second claimant or the EHRC that she failed to achieve the minimum standard (or for that matter, failed properly to assess essential living needs), is strictly limited.

I agree with Mr Sheldon QC that, apart from the criticisms of the approach of the Secretary of State in the context of children to the various items which Popplewell J said should be considered, criticisms which I have rejected, the one respect in which the second claimant contended that the Secretary of State had not achieved the minimum standard concerning recreation and toys. As recorded in [207] above, one particular area to which Mr Knafler QC submitted the Secretary of State should have had regard, if she had adopted the correct child-centric, holistic approach, concerned wellbeing, education, health and social development through recreational activities, books, games and computers.

In my judgment, there are several problems with that submission. First and foremost, as Mr Knafler QC had to recognise, Popplewell J had rejected any such argument in Refugee Action at [102] (which I quoted in full at [223] above) and held that specific provision did not have to be made for books, toys and games for children within the section 96(1)(b) cash payment and that the exclusion of toys and other recreational items in regulation 9 of the 2000 Regulations was not incompatible with the minimum standard under the Reception Directive. Mr Knafler QC submitted that the analysis of Popplewell J had been wrong, because it had not engaged properly with the requirements of section 55 of the 2009 Act. In my judgment, there is nothing in that criticism. The learned judge clearly had the section 55 duty well in mind, not least because he found at [155]-[157] that the decision of the Secretary of State to pay a lower amount to 16 and 17 year olds was contrary to her section 55 duty. I consider that the analysis of Popplewell J is correct.

Second, so far as computers are concerned, they are in any event also excluded by Regulation 9 of the 2000 Regulations from essential living needs. Like Popplewell J in Refugee Action at [102] in relation to toys, I do not consider that exclusion to be incompatible with the minimum standard required by the Reception Directive. Quite apart from that exclusion, it was not necessary to include any additional cost for computers in the weekly payment under section 96(1)(b) because the cost of connection to the internet was included in the mobile phone packages encompassed within the £3 per week figure for communications and, in any event, internet access was available free at public libraries, quite apart from the access which children would have at school. The claimants were disparaging about any reliance on free access to libraries when central and local government cuts meant many had been closed, but their availability remains a relevant consideration as the passage in [102] of Popplewell J’s judgment demonstrates.

Third, I accept Mr Sheldon QC’s submission that, although the Secretary of State did not include any specific figure in the weekly payment under section 96(1)(b) in respect of wider socialisation costs, that was not an error in the application of the minimum standard or in the assessment of essential living needs, since the minimum required as recognised by the Committee on the Rights of the Child was access to free recreation, not payment for it. In any event, in the UK such free access is provided as part of the universal services, including free school trips.

On behalf of the EHRC, Ms Gallagher sought to raise a separate point about the comparison between the cash support under section 96(1)(b) and support for failed asylum seekers under section 4 of the 1999 Act. As Mr Bentley explains in his third witness statement, the overall support provided under section 4 is more limited than is provided to asylum seekers. Accommodation is provided, together with a prepaid debit card (“the Azure Card”) to the value of £35.39 per person per week, for the purchase of food, toiletries and other essential items. Cash support is not available and the Azure Card can only be used in certain retail outlets. Mr Bentley explains that additional support can be applied for through the Immigration and Asylum (Provision of Services or Facilities) Regulations 2007, including for extra travel assistance in the form of tickets.

It is possible to apply for an extra £5 per week to clothe children and although this could mean that a single parent on section 4 support with one child under three would receive £1.88 per week more than a comparable family on asylum support, that apparent anomaly may be explained by the fact that the Azure Card, whilst available at Tesco and Asda, is not available at the cheaper clothing outlets identified in the 2014 and 2015 reviews, Matalan and Primark. In all the circumstances, it does not seem to me that the amount of the section 4 rate demonstrates that the setting of the asylum support rate under section 96(1)(b) was flawed, as Ms Gallagher suggests.

Accordingly, I consider that there is no question of the Secretary of State not having complied with the objective minimum standard required under the Reception Directive in respect of asylum seeker children. The final question to which I referred in [252] above was whether the assessment of the Secretary of State as to the essential living needs of the general cohort of asylum seeker children was irrational or Wednesbury unreasonable. As with the minimum standard under the Reception Directive, once the criticisms of the approach of the Secretary of State in the context of children to the various items which Popplewell J said should be considered are rejected, the only remaining area of criticism is that concerned with recreation and toys etc. which I have also rejected. It follows that the assessment of essential living needs in respect of asylum seeker children under section 96(1)(b) was neither irrational nor Wednesbury unreasonable.

In the light of the sustained criticisms of the Secretary of State’s approach by the claimants and their experts, it is important to emphasise that, provided that the Secretary of State achieved the minimum standard required by the Reception Directive and did not act irrationally or in a manner which was Wednesbury unreasonable, the setting of asylum support rates, including in relation to children, is a matter for the discretion of the Secretary of State, not the court. As Popplewell J rightly concluded, within those parameters, it is for the Secretary of State to set the rate, not the court and, a fortiori, not the experts for the claimants. To the extent that the claimants or the EHRC have concerns about the setting of asylum support rates, save to the limited extent that the court can interfere if the objective minimum standard is not met or the assessment of essential living needs is irrational or Wednesbury unreasonable, it is for Parliament to address those concerns, not unelected judges.

It follows that, despite the cogent and elegant submissions of Mr Knafler QC and Ms Gallagher, I have concluded that the challenge by the second claimant to the 2015 Decision, supported by the EHRC, must fail and her claim be dismissed.

In relation to the third claimants’ application for permission to apply for judicial review and their claim if permission were granted, the main thrust of the submissions of Mr Martin Westgate QC was that, in making the adjustment in the asylum support rate for dependants, the Secretary of State had failed to focus on transitional arrangements, particularly in relation to the disabled child, in order to ensure that needs were met. This was put in a number of ways:

In so far as the second argument about the PSED involved consideration of sex discrimination, the third claimants required permission to amend which was granted at the outset of the hearing. In so far as the third argument went beyond the particular treatment of the third claimants under section 96(2) and involved a challenge to the entire system of exceptional support under the subsection, this did not feature in the third claimants’ additional grounds and also required permission to amend the grounds, which I refused.

It is fair to say that the real focus of Mr Westgate QC’s submissions, certainly by the end of the hearing, was on section 96(2) and the efficacy of the arrangements made by the Secretary of State so far as the third claimants were concerned. It is also fair to say that, so far as disability discrimination is concerned, his submissions really focused on the PSED so that the submissions in relation to disability discrimination under the UNCRPD can be dealt with relatively shortly.

Mr Westgate QC submitted that the UNCRPD has the same status as if it were an EU treaty. Even if not directly enforceable, it should inform the domestic law, which should be interpreted consistently with it. The discrimination claim was really put by Mr Westgate QC on the basis that the reduction in rates was bound to have a discriminatory effect on disabled children and the provisions of the UNCRPD on which he relied (as set out at [26] above, but in particular (o) in the Preamble and Article 4(h)) required the Secretary of State, before making the reduction, to consider and put in place measures which were adequate to achieve an accessible system of support for the disabled child without gaps. He submitted that the asylum support scheme under the Reception Directive and the 1999 Act was designed to meet the essential living needs of all asylum seekers and the needs of disabled people were likely to be greater than those of able-bodied people. He submitted that, if section 96(1)(b) discriminated by only providing for the essential living needs of able-bodied asylum seekers, as Popplewell J had held in Refugee Action, then there had to be an adequate system of cover for the needs of disabled asylum seekers under section 96(2).

These submissions were supported by Ms Gallagher on behalf of the EHRC. She drew attention to the fact that Article 17.1 of the Reception Directive required member states to take account of the specific situation of vulnerable people, including minors and disabled people. However, there had been a wholesale disregard by the Secretary of State of the best interests of such people.

Mr Sheldon QC accepted that the UNCRPD was specified as within the definition of “the EU treaties” for the purpose of section 1(3) of the European Communities Act 1972. This meant that the Convention was only incorporated into domestic law to the extent that the Government acts within the scope of EU law. He accepted that the Secretary of State was acting within the scope of EU law in seeking to identify minimum reception conditions pursuant to the Reception Directive. However, there is no relevant secondary legislation in the present case and the CJEU has determined that the provisions of the UNCPRD are not sufficiently precise, clear and unequivocal to be capable of direct effect in EU law: see C-363/12 Z v A Government Department and The Board of management of a community school (2014) at [89]-[90]; Glatzel v Freistaat Bayern C-356/12 [2014] 3 CMLR 52, at [69]. He submitted that it followed that, for all material purposes, the status of the UNCRPD as a matter of English domestic law is no different from that of the UNCRC.

Mr Sheldon QC submitted that the short answer to the allegation of discrimination on the grounds of disability was that, as Popplewell J had held in Refugee Action, payments under section 96(1)(b) of the 1999 Act are not for disabled people but for the able-bodied. As he had concluded at [82]:

“Accordingly there is no evidential basis on the current generic challenge for concluding that there are infirm children of asylum seekers whose additional non accommodation related essential living needs are not being met by local authorities and whose circumstances are not to be categorised as exceptional. It follows that the Secretary of State is not required to include them within the normal cohort of asylum seekers and their dependants at which the s. 96(1)(b) cash support is aimed.”

Mr Sheldon QC submitted that there was nothing wrong with the analysis of Popplewell J and this court should follow it. The understanding of the Home Office is that respite care is provided to disabled asylum seeker children under section 2 of the Chronically Sick and Disabled Persons Act 1970 (as Popplewell J had held at [79]), including practical assistance in the home, radio and television, recreational facilities and travel, so that all practical matters which may apply to a disabled child will be available under section 2. To the extent that they were not, application could be made for exceptional support under section 96(2) of the 1999 Act.

All parties relied upon the statement of the principles pursuant to which the PSED operates, set out in the judgment of McCombe J in Bracking v SSWP [2013] EWCA Civ 1293; [2014] EqLR 60 at [26]:

“(1)

As stated by Arden LJ in R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213, [2006] EWCA Civ 1293 at [274], equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation.

(2)

An important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements: R (BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWHC 199 (QB) (Stanley Burnton J (as he then was)).

(3)

The relevant duty is upon the Minister or other decision maker personally. What matters is what he or she took into account and what he or she knew. Thus, the Minister or decision maker cannot be taken to know what his or her officials know or what may have been in the minds of officials in proffering their advice: R (National Association of Health Stores) v Department of Health [2005] EWCA Civ 154 at [26-27] per Sedley LJ.

(4)

A Minister must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a ‘rear guard action’, following a concluded decision: per Moses LJ, sitting as a Judge of the Administrative Court, in Kaur & Shah v LB Ealing [2008] EWHC 2062 (Admin) at [23-24].

(5)

These and other points were reviewed by Aikens LJ, giving the judgment of the Divisional Court, in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), as follows:

i)

The public authority decision maker must be aware of the duty to have ‘due regard’ to the relevant matters;

ii)

The duty must be fulfilled before and at the time when a particular policy is being considered;

iii)

The duty must be ‘exercised in substance, with rigour, and with an open mind’. It is not a question of ‘ticking boxes’; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument;

iv)

The duty is non-delegable; and

v)

is a continuing one.

vi)

It is good practice for a decision maker to keep records demonstrating consideration of the duty.

(6)

‘[G]eneral regard to issues of equality is not the same as having specific regard, by way of conscious approach to the statutory criteria.’ (per Davis J (as he then was) in R (Meany) v Harlow DC [2009] EWHC 559 (Admin) at [84], approved in this court in R (Bailey) v Brent LBC [2011] EWCA Civ 1586 at [74-75].)

(7)

Officials reporting to or advising Ministers/other public authority decision makers, on matters material to the discharge of the duty, must not merely tell the Minister/decision maker what he/she wants to hear but they have to be ‘rigorous in both enquiring and reporting to them’: R (Domb) v Hammersmith & Fulham LBC [2009] EWCA Civ 941 at [79] per Sedley LJ.

(8)

Finally, and with respect, it is I think, helpful to recall passages from the judgment of my Lord, Elias LJ, in R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin) (Divisional Court) as follows:

(i)

At paragraphs [77-78]

‘[77] Contrary to a submission advanced by Ms Mountfield, I do not accept that this means that it is for the court to determine whether appropriate weight has been given to the duty. Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then as Dyson LJ in Baker (para [34]) made clear, it is for the decision maker to decide how much weight should be given to the various factors informing the decision.

[78] The concept of 'due regard' requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors. If Ms Mountfield's submissions on this point were correct, it would allow unelected judges to review on substantive merits grounds almost all aspects of public decision making.

(ii)

At paragraphs [89-90]

[89] It is also alleged that the PSED in this case involves a duty of inquiry. The submission is that the combination of the principles in Secretary of State for Education and Science vTameside Metropolitan Borough Council [1977] AC 1014 and the duty of due regard under the statute requires public authorities to be properly informed before taking a decision. If the relevant material is not available, there will be a duty to acquire it and this will frequently mean than some further consultation with appropriate groups is required. Ms Mountfield referred to the following passage from the judgment of Aikens LJ in Brown (para [85]):

'….the public authority concerned will, in our view, have to have due regard to the need to take steps to gather relevant information in order that it can properly take steps to take into account disabled persons' disabilities in the context of the particular function under consideration.'”

Mr Westgate QC placed particular emphasis on principle (4), the need for advance consideration of the adverse effect of measures and what steps can be taken to mitigate them. There needed to be rigorous consideration of the potential impact and information should be gathered if the minister did not have it. He referred to the subsequent decision of the Court of Appeal in R (MA) v Secretary of State for Work and Pensions [2014] EWCA Civ 13; [2014] PTSR 584, where Lord Dyson MR said at [91]:

“I agree that it is insufficient for the decision-maker to have a vague awareness of his legal duties. He must have a focused awareness of each of the section 149 duties and (in a disability case) their potential impact on the relevant group of disabled persons. In some cases, there will be no practical difference between what is required to discharge the various duties even though the duties are expressed in conceptually distinct terms. It will depend on the circumstances.”

Mr Westgate QC pointed out that 92% of single parents were women, so that they were disproportionately likely to be affected by changes to the children’s rate. This was something of which Mr Bentley was aware as he admitted in [136] of his third witness statement. Mr Westgate QC pointed out that there was no consideration of this impact in the Policy Equality Statement or the Explanatory Memorandum. There had been no focused investigation of the effect of the changes in rate on a single parent, or any consideration of what measures in mitigation would be appropriate.

He was equally critical of the limited consideration of the position of disabled people in the Policy Equality Statement as set out at [89] above. The Home Office had only focused on the able-bodied. Mr Westgate QC submitted that people with a disability have essential living needs which are greater. They find it difficult to cope on a small budget and the reduction in rate had taken away any leeway available to them, so that disabled people were adversely affected by the reduction in rate. The need pursuant to the PSED to consider the impact on disabled people could not be removed by saying the reduction only affected the able-bodied. Despite what Popplewell J had said in Refugee Action,he submitted that the PSED required the Secretary of State to consider the whole cohort of asylum seekers who included the disabled, who might fall into what Laws LJ had described as “the undistributed middle” in L v Westminster [2012] PTSR 574 at [35] and [36].

In relation to disabled children, there was a manifest adverse impact on them of the reduction in the dependant rate. To the extent that the response of the Secretary of State was that their needs could be addressed by an application under section 96(2) of the 1999 Act, there should have been a detailed enquiry as to (i) who was affected by the reduction; (ii) the scale of the impact and (iii) what could be done to mitigate the impact. There had been no proper and general policy in relation to section 96(2), no publicity or published criteria. He submitted that, if, as had occurred, the Secretary of State cut the relevant support rate by 25% for people operating on a tight margin, additional needs would not be met from any buffer or margin, so that the Secretary of State should have addressed the resultant gap through the PSED before any reduction took place.

Although Mr Westgate QC accepted that the PSED is concerned with process rather than outcome and the court can only interfere with a substantive decision in fulfilment of the PSED on Wednesbury unreasonable grounds, he submitted that, if the Secretary of State had properly considered the impact of the proposed reduction on disabled people and single mothers, she could not rationally have failed to put in place some transitional arrangements to minimise the impact. Furthermore it was not in the best interests of disabled children to reduce the benefits available without addressing their position. The only rational outcome of a proper consideration of the PSED would have been to take steps to put transitional arrangements in place.

Ms Gallagher also submitted that there had been a failure by the Secretary of State to comply with the PSED. Her written submissions focused only on the protected characteristic of sex. She emphasised the heavy burden on the Secretary of State in discharging the PSED and ensuring that there is evidence available to demonstrate such discharge, citing McCombe LJ in Bracking at [60]. In also emphasising the need to guard against unconscious disadvantage, she cited [61] of that judgment, where McCombe LJ said:

“It is for this reason that advance consideration has to be given to these issues and they have to be an integral part of the mechanisms of government, to paraphrase slightly the words of Arden LJ in the Elias case. There is a need for a "conscious approach" and the duty must be exercised "in substance, with rigour and with an open mind" (per Aikens LJ in Brown). In the absence of evidence of a "structured attempt to focus upon the details of equality issues" (per my Lord, Elias LJ in Hurley and Moore) a decision maker is likely to be in difficulties if his or her subsequent decision is challenged.”

She referred to the legislative history of what is now section 149 of the Equality Act 2010, starting with section 71 of the Race Relations Act 1976 and the Race Relations (Amendment) Act 2000 considered by Moses LJ (sitting as a Judge of the Administrative Court) in R (Kaur) v London Borough of Ealing [2008] EWHC 2062 (Admin) where at [15] he said:

“The two-fold obligation to eliminate discrimination and positively to advance equality was imposed by the Race Relations (Amendment) Act 2000. It followed the Stephen Lawrence Inquiry Report (Cm 4262-1) of February 1999. It was intended to enact a major change from the previous statutory provisions contained in the old Section 71. Those old provisions were perceived as lacking content as to steps organisations such as local authorities were required to take to comply. In addition, they were difficult to enforce. The new duty to have regard to the twin needs of elimination of discrimination and to promote equal opportunity and good relations for all is described within Schedule 1A to the 1976 Act (as amended) as a general duty imposed on the bodies specified in that Schedule.”

The 2010 Act bolstered those provisions with a view to focusing proper attention on the protected characteristics, which for present purposes were sex and disability. Ms Gallagher submitted that this Act involved a shift from the restitutionary to the proactive, referring to the Technical Guidance on the Public Sector Equality Duty produced by the EHRC. Section 149(1)(a) and (b) require a public authority to have due regard to both the need to eliminate discrimination and the need to advance equality of opportunity between persons who share a relevant protected characteristic. The latter requirement went beyond the need to avoid formal discrimination as Dyson LJ had emphasised in Baker v Secretary of State for Communities and Local Government [2008] EWCA Civ 141; [2009] PTSR 809 (a case under section 71 of the 1976 Act) at [30]:

“First, the duty is imposed on a large range of public authorities. This demonstrates its importance as a national tool for securing race equality in the broadest sense. Secondly, promotion of equality of opportunity (and indeed good relations) will be assisted by, but is not the same thing as, the elimination of racial discrimination. Mr Drabble emphasised that his case on behalf of the appellants was not based on an allegation of racial discrimination. Thirdly, the promotion of equality of opportunity is concerned with issues of substantive equality and requires a more penetrating consideration than merely asking whether there has been a breach of the principle of non-discrimination. Fourthly, the duty is to have due regard to the need to promote equality of opportunity (and good relations) between the racial group whose case is under consideration and any other racial groups. The reference to any other racial groups may be no more than a reference to the general settled community. Fifthly, the equality of opportunity is of opportunity in all areas of life in which the person or persons under consideration are, or may not be, at a disadvantage by reason of membership of a particular racial group. In practice, this is likely to include disadvantage in the fields of education, housing, healthcare and other social needs.”

Ms Gallagher submitted that the impact of the reduction in asylum support on single parents, who are overwhelmingly women and thus on their dependent children, required the most rigorous of scrutiny against the gender equality objectives contained within the PSED. When considering the duties under section 149(3)(a) (having “due regard… to the need to remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic”) and section 149(3)(b) (having “due regard… to the need to take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it”), in respect of gender the decision-maker had to have regard to all women, including single parents, by analogy with Moses LJ in Kaur at [27] and [45]-[46] and Hickinbottom J in R (Winder) v Sandwell MBC [2014] EWHC 2617 (Admin); [2015] PTSR 34 at [94]-[95].

Ms Gallagher submitted by reference to the principles derived from Bracking that the court’s role was to decide if due consideration had been given to the impact of reducing the dependant support rate to the flat rate of £36.95 per week on single women parents, which required a conscientious and properly informed approach to the duties under section 149(1) and a most rigorous scrutiny. She submitted that the evidence from the Secretary of State came nowhere near complying with that rigorous high standard. The Policy Equality Statement had referred only to a minor point about female clothing and the sixth witness statement of Mr Bentley had referred to consideration of the effect of the reduction on female lone parents, but Ms Gallagher submitted that witness statement demonstrated an abject failure to address the duties under section 149(1).

She was particularly critical of [8] and [9] of that statement, which said:

“8.

I have noted that YT and RG give some examples of what they consider to be failures to address the differential impact on females of the reduction of the cash allowances (in the context of a proposed sex discrimination claim that I understand that they are no longer pursuing). At paragraph 4.2.4 of their skeleton argument they make a general point that single parent households are generally unable to share childcare responsibilities. This is true, but I do not consider that the problem is exacerbated by the reduction in their cash allowances. Apart from in very unusual cases, asylum seekers are not allowed to work and thus have little need to arrange for childcare services, particularly given that there is access to free nursery placements from the age of 2 years (in England) and 3 years elsewhere. To the extent that they need to take their children with them when they leave the house, it is unlikely that there is an additional cost in doing so. We ensured that the same level of cash was made available to cover the transport costs of children when a journey on foot is not possible and concessionary fares for children are also available.

9.

I accept the general point made at paragraph 4.2.4 of the skeleton argument about economies of scale, in the sense that the larger the household the more economies are available. But, it is the size of the household, not the gender of the parent, that generates the economies. For example, a single parent household with four children may be able to benefit from more economies of scale than a two parent household with one child.”

Ms Gallagher submitted that the Secretary of State was not comparing like with like. The reduction in the support rate was clearly more likely to disadvantage the single woman parent with four children as compared with a household of two parents with four children. She submitted that these paragraphs indicated how flawed the analysis was. There was no proper underpinning evidence to support the case that the reduction in rate caused no problem in cash terms or did not have a deleterious impact in terms of socialisation. The reasoning was poor and thin.

Mr Sheldon QC did not take issue with the applicable principles, save in one respect, which was that the Court of Appeal had repeatedly made clear that a realistic and proportionate approach is applied to evidencing compliance with the PSED: see e.g. R (Bailey) v Brent LBC [2011] EWCA Civ 1586, [2012] BLGR 530, per Davis LJ at [102]; R (Hurley) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin), [2012] HRLR 13, per Elias LJ at [87]; R (Zacchaeus 2000 Trust) v Secretary of State for Work and Pensions [2013] EWCA Civ 1202, [2013] PTSR 1427, per Sullivan LJ at [60] and [64]; R (Unison) v Lord Chancellor [2015] EWCA Civ 935, [2016] ICR 1 per Underhill LJ at [116]. The Court of Appeal has emphasised that the court must not be drawn into attempting to micro-manage the exercise: see for example R (Greenwich Community Law Centre) v London Borough of Greenwich [2012] EWCA Civ 496, per Elias at LJ [30]. In R (Domb) v London Borough of Hammersmith [2009] EWCA Civ 941, [2009] BLGR 843, Rix LJ at [72] said that that the relevant issue was whether, in deciding what information to gather, the public authority had acted in a way that was “unreasonable or perverse”.

Mr Sheldon QC submitted that what mattered is whether due regard had been given to the essential points which arose. He referred to a further passage in the judgment of Elias LJ in the Divisional Court in R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin), the case from which McCombe LJ had cited extensively at [26(6)] of Bracking. At [87], Elias LJ said:

“Moreover, in my view it is quite hopeless to say that the duty has not been complied with because it is possible to point to one or other piece of evidence which might be considered relevant which was not specifically identified in the EIA. I suspect that virtually every decision could be challenged on that basis. (In fact the IA did in terms refer to the need to provide grants to low income households to mitigate risk aversion. In addition Mr Williams dealt with this in his witness statement and pointed out that there was no robust evidence that this affected their behaviour.) In this context I respectfully endorse certain observations of Davis LJ in the Bailey case when he said, in connection with a decision to close certain public libraries (para 102):

‘Councils cannot be expected …to apply, indeed they are to be discouraged from applying, the degree of forensic analysis for the purpose of an EIA and of consideration of their duties under s.149 which a QC might deploy in court.’”

So far as disability is concerned, Mr Sheldon QC pointed out that this had been dealt with in the Policy Equality Statement in the passage quoted at [89] above, where, in line with what Popplewell J had held at [82] of Refugee Action, it was stated that the review had focused on the needs of the able-bodied and that those with a disability received additional support from local authorities. The third claimants had adduced no evidence that this was not generally the case or that there should have been any concern and in those circumstances, the Home Office should not be criticised for not turning their mind to something which was not a concern. Obviously “due regard” might require more if there were any such evidence, but there was not. RG herself is receiving support from the local authority.

Mr Sheldon QC submitted that there was no evidential basis for concluding that the needs of disabled children will become exceptional because of the reduction in rate. The Secretary of State could not have had foresight into something which was not an obvious problem at the time. In so far as individual asylum seeker disabled children were saying that they needed some extra support, that would be dealt with under section 96(2) but anticipation of that occurring was not what “due regard” requires. He submitted that this all fed into the section 96(2) challenge by the third claimants.

The second alleged breach of the PSED concerned sex, specifically the gender of lone women parents. This had been raised for the first time at the outset of this hearing, almost a year after the 2015 Decision. Mr Sheldon QC submitted that, if there had been a problem with “due regard” in that respect, it would have been identified earlier. It had not been because there was no basis for this challenge. What was being argued was that lone parents were being affected because of their dependants and that they needed more money for their children, but this was a parasitic claim. The issue here was the needs of children, which had been dealt with in great detail in the Policy Equality Statement, again as quoted in [89] above. The Secretary of State had looked at the needs of children and determined that they did not need more and therefore, by definition, lone parents did not need more. Mr Sheldon QC submitted that the point was without any merit, but even if it were, given the delay in raising the point, the court should either refuse permission or refuse substantive relief.

Mr Westgate QC submitted that if, as Mr Bentley said in his evidence, the Home Office was dealing with any disabled needs under section 96(2) of the 1999 Act, it was incumbent upon them to ensure that they had set up an adequate system to deal with exceptional needs before the reduction in the support rate took effect. As already recorded, he submitted that this was the only rational outcome of a proper application of the PSED.

He submitted that the Home Office was under a duty to take steps to publicise section 96(2) under the rule of law pursuant to which there was a need for transparency recognised by Lord Dyson JSC in Lumba v SSHD [2011] UKSC 12; [2012] AC 245 at [34]-[36]. He submitted that, where the executive had a discretionary power, it must formulate and publicise a policy describing how the power was to be exercised. At present there was no public policy publicised.

In relation to the individual assessment process so far as the third claimants are concerned, Mr Westgate QC submitted that three points of principle arose in relation to section 96(2): (i) the Secretary of State insisted that exceptional need would only be considered where the need and the cost of it were properly evidenced. This was unrealistic and it was the duty of the Secretary of State to assess need; (ii) the argument for the Secretary of State apparently proceeded on the basis that the exceptional needs of RG would be met out of the standard budget because of the leeway in the food budget provided by economies of scale which meant that the room for manoeuvre was reduced; (iii) there had been a failure by the Secretary of State to consider whether RG needed toys and games for stimulation.

Mr Sheldon QC submitted that to the extent that the third claimants were still engaged in what might be described as a systemic attack on the approach of the Secretary of State to section 96(2) (notwithstanding that permission had not been given by the court at the outset of the hearing), the argument was not that the current system was flawed, but that the availability of additional support should have been better publicised in July 2015. He submitted that given that the Home Office was now consulting with various stakeholders, the argument was academic. In any event, the argument was also way out of time.

However, if the court were to entertain the argument at all, it was factually incorrect. At [26]-[30] of his sixth witness statement, Mr Bentley explained in detail the extent to which the Home Office had liaised with the NASF and other voluntary groups in publicising the availability of additional support and had asked the organisations to copy section 96(2) applications to the review team, whose assessment was that caseworkers were receiving 20-30 claims under section 96(2) per month. Mr Bentley also pointed out that, when the changes to the rates were made, asylum seekers were written to more than three weeks before the changes took effect. There was also a free telephone line set up to provide assistance from Migrant Help, a member of the NASF which was contracted to the Home Office. In the circumstances, Mr Sheldon QC submitted that the availability of the additional support regime was well-known and there was simply no evidence of widespread gaps in support. If there had been, one would have expected the NASF to raise the issue.

Lumba was a completely different case concerning an unpublished policy of blanket detention of convicted persons. The Government was applying a secret policy directly contrary to its published policy which it was conceded was unlawful. That was the context of what Lord Dyson JSC had said. He was not suggesting that every public body had to publish its policy in relation to every statutory duty, but dealing with the very specific circumstances of the particular case.

Mr Sheldon QC also submitted that to the extent that the premise of the third claimants’ argument was that there was a duty on the Secretary of State to formulate and publish a policy under section 96(2), this was misconceived. Given that the section was concerned with exceptional needs in particular cases, by definition it was difficult to set out a policy.

In relation to the complaint that the Secretary of State was requiring evidence of need and cost under section 96(2) Mr Sheldon QC submitted that the complete answer in law was that the Secretary of State was only under an obligation to provide additional relief if exceptional needs appeared to her to be established.

Overall, Mr Sheldon QC submitted that there was no arguable case on behalf of the third claimants but in any event the delay in bringing the claim made it wholly inappropriate as a test case.

In my judgment, the legal analysis put forward by Mr Sheldon QC as to the legal status in domestic law of the UNCRPD is correct. It is not incorporated into English domestic law and at best should inform that law, which should so far as possible be interpreted in accordance with it. However, far more important than the status of that Convention is that, in so far as alleged discrimination on the grounds of disability is concerned, the complete answer is that, as Popplewell J held, after a careful and detailed analysis with which I respectfully agree, the system of weekly payments under section 96(1)(b) of the 1999 Act is only concerned with able-bodied asylum seekers, not the disabled, whether adults or children. In those circumstances, as Mr Sheldon QC submitted, the Secretary of State is entitled to proceed on the basis that the necessary care and assistance is provided to the disabled, whether adults or children, by local authorities, under, for example, section 2 of the Chronically Sick and Disabled Persons Act 1970. There is no evidence put forward on behalf of the claimants that any additional financial assistance required by the disabled is not being provided by local authorities.

Of course, there may be situations where additional exceptional support can be provided under section 96(2) of the 1999 Act, but those cannot be assessed in advance. For example, Mr Bentley says in his sixth witness statement that the review team did consider it possible that some destitution-linked needs could be greater with regard to the disabled, for example travel needs but thought it would be impossible to provide a standard cash amount to cover such needs, since they would depend on the facts of each case and would thus be addressed under section 96(2). In my judgment, this approach was in no sense discriminatory. In the circumstances, it seems to me that no question of any discrimination on grounds of disability arises whether under the UNCRPD or any other Convention or provision.

Both Mr Westgate QC and Ms Gallagher have engaged in a detailed critical analysis of the evidence of Mr Bentley and the Policy Equality Statement, submitting that the Secretary of State was in breach of the PSED. It seems to me that, as a matter of first principle, their approach is misconceived for two main reasons. First, as Mr Sheldon QC correctly submitted by reference to the various authorities referred to at [313] and [314] above, what is required is a realistic and proportionate approach to evidence of compliance with the PSED, not micro-management or a detailed forensic analysis by the court. Second, it is clear that the PSED, despite its importance, is concerned with process, not outcome, and the court should only interfere in circumstances where the approach adopted by the relevant public authority is unreasonable or perverse.

It is also worth emphasising that the extent of the PSED and the necessary due regard in any particular case will depend upon the particular circumstances of that case, as a number of the authorities make clear. Furthermore, as Lord Neuberger PSC said in Hotak v. Southwark London Borough Council [2015] UKSC 30; [2015] 2 WLR 1341 at [73]-[75], approving the statement of the relevant legal principles in Bracking, provided that the court is satisfied that the Secretary of State has engaged in a 'proper and conscientious focus on the statutory criteria…the court cannot interfere … simply because it would have given greater weight to the statutory criteria.' In other words, as Elias LJ made clear in Hurley,it is not for the court to substitute its decision as to the weight to be given to equality considerations and the statutory criteria if satisfied that the Secretary of State has complied with the duty.

The principles enunciated in the previous two paragraphs are of considerable importance in the circumstances of the present case. So far as the protected characteristic of disability is concerned, as I have alreadysaid in the previous section of the judgment, Popplewell J had held, after a careful and detailed analysis with which I agree, that the system of weekly payments under section 96(1)(b) of the 1999 Act is only concerned with able-bodied asylum seekers, not with the disabled, whether adults or children. Not surprisingly in those circumstances, the Policy Equality Statement reflected that analysis and stated that the 2015 review had focused on the needs of the able-bodied, on the basis that those with disabilities would receive additional support from local authorities.

As Mr Sheldon QC submitted, there is no evidence of any problem in the provision of the necessary additional support to disabled people by local authorities. Indeed it is apparent from the evidence in the third claimants’ case that RG is receiving such support. Accordingly, there was nothing which should have caused concern to the Secretary of State from the reduction of rate in relation to disabled people. As the Policy Equality statement said, the disabled were outside the scope of the review. There was no need for “due regard” under section 149 of the 2010 Act beyond what was stated in the Policy Equality Statement. Furthermore, I agree with Mr Sheldon QC that to the extent that individual asylum seeker disabled children needed extra support for exceptional needs under section 96(2), anticipation of what those needs would be is not what “due regard” pursuant to the PSED requires. In the circumstances, it does not seem to me that the approach of the Secretary of State in relation to the protected characteristic of disability can be said to be unreasonable or perverse.

So far as the protected characteristic of sex is concerned, I agree with Mr Sheldon QC that this was raised for the first time very late in the day at the outset of the hearing, almost a year after the 2015 Decision and that, if there had been a problem with “due regard” under section 149 in that respect, it would have been raised earlier. Indeed, it is striking that the second claimant, a single mother, does not raise this point at all. Furthermore, I agree with Mr Sheldon QC that at its core the argument of the third claimants was that lone parents need more money for their children so that the issue is the needs of the children, not the sex of the parent. The Secretary of State had looked at the needs of children carefully (as is apparent from the Policy Equality Statement and from my analysis of the second claimant’s case set out above) and determined that, in the case of able-bodied children to whom the review was directed, the flat rate of £36.95 was sufficient to meet the needs of the general cohort of children. In those circumstances, lone parents, whatever their sex did not need more and “due regard” under section 149 did not require more detailed consideration by the Secretary of State of a problem which had not been demonstrated to exist.

In the circumstances, I agree with Mr Sheldon QC that the third claimants’ case that the Secretary of State was in breach of the PSED is not, on analysis, an arguable one and accordingly, I refuse permission to apply for judicial review on those grounds.

None of this is to belittle the importance of compliance with the PSED or the cogency of Ms Gallagher’s submissions on behalf of the EHRC about the need for such compliance as a general principle. However, in the particular circumstances of this case, I consider that her criticisms of the Secretary of State are misplaced. It is also to be noted that her submissions ranged more widely than the claims of either the second or third claimants, encompassing as they did lone parents with children generally, not just disabled children (in circumstances where the second claimant has not pursued a claim on this basis) and disabled people generally (thus including disabled adults in circumstances where there is no claim by a disabled adult asylum seeker before the court). I would be very reluctant to embark on consideration of the position of disabled adult asylum seekers when there is no claim by one before the court and no evidence about their situation.

Although the court had refused permission to the third claimants at the outset of the hearing to pursue a systemic attack on the system of section 96(2) support, it seems to me that many of Mr Westgate QC’s submissions verge on amounting to such an attack, particularly the submission that it was incumbent upon the Secretary of State to have put in place a fully publicised system to deal with exceptional needs before the reduction in the support rate took effect. However, even if it were open to him to pursue that case, I consider that it is without merit. As the detailed evidence in Mr Bentley’s sixth witness statement demonstrates, the Home Office had liaised with the NASF and other volunteer groups to correlate all section 96(2) applications and to publicise the availability of the support. As Mr Sheldon QC said, there is simply no evidence of widespread gaps in support.

The third claimants’ reliance on Lumba is misplaced. As Mr Sheldon QC pointed out that case concerned an unpublished blanket policy of the Secretary of State to detain foreign national prisoners on completion of their sentence of imprisonment. The Supreme Court held that the policy was unlawful because it was a blanket policy which admitted of no exceptions and was inconsistent with the published policy. That was the context in which Lord Dyson JSC emphasised the need for transparency in his judgment at [34]-[36]. I agree with Mr Sheldon QC that he was not purporting to lay down a rule that every public body had to publish its policy in relation to every statutory duty.

Furthermore, the circumstances of the present case are very different from those of Lumba. Far from the availability of section 96(2) support being an unpublished “policy”, the Home Office had liaised with NASF and other support groups and the availability of additional support was well known. Given that section 96(2) is concerned with the exceptional circumstances of any particular case, the suggestion that the Secretary of State should have formulated and published some policy under section 96(2) is in any event misconceived. It would be difficult if not impossible to formulate a policy to cover all the exceptional situations which might arise and require additional support.

To the extent that the third claimants’ criticism was that the Secretary of State was requiring evidence of exceptional needs and the cost of those needs under section 96(2), that criticism is misplaced. As Mr Sheldon QC submitted, the Secretary of State can only provide additional support where she considers the circumstances exceptional and that consideration can only be made if the Secretary of State has evidence to establish the exceptional need and what it costs. To provide support without such evidence would itself be open to the criticism that it was outside the statutory powers afforded to the Secretary of State.

In relation to what Mr Westgate QC described as the other “points of principle” as set out in [320] above, they are concerned with economies of scale and whether toys and recreation had to be provided for RG as part of the essential living needs. I have already set out in the context of the second claimant’s claim why essentially the same arguments failed in her case and do not need to repeat that analysis. Whether toys and games could be provided to RG as an exceptional need under section 96(2) is a matter for the Secretary of state if a properly evidenced application were made.

For all these reasons, I consider that the criticisms levelled by the third claimants against the Secretary of State in respect of section 96(2) support are without merit and permission to apply for judicial review is refused. However, even if I had thought there was any merit in any of the third claimants’ arguments, I would have refused permission. It seems to me that the criticisms made relate to the position as it was in August 2015 and are academic, since the Home Office is now consulting with stakeholders about section 96(2) support and the third claimants are receiving additional support pursuant to the sub-section.

In any event, in relation to the third claimants’ application generally, there is also obviously an issue as to whether they continue to be entitled to section 96 support (as opposed to section 4 support) given that RG has now reached the age of 18. I agree with Mr Sheldon QC that those matters, together with the delay in bringing the application, make this wholly inappropriate to be a test case.

For all the reasons I have given, the first and second claimants’ claims for judicial review of the 2014 and 2015 Decisions are dismissed. The third claimants’ application for permission to apply for judicial review of the 2015 Decision is likewise dismissed.