U and U, R (on the application of) v Milton Keynes Council

The Claimants are children aged (at the time of the hearing) 7 and 8 years respectively. They live with their mother, BU. They are Nigerian nationals, and came to the UK some time between 2011 and August 2014. They originally had leave to enter as visitors but that leave expired and during the period material to the present proceedings they have not had leave to remain in the UK. In consequence they have no recourse to public funds and BU does not have the right to work. On 15 November 2016 BU applied for leave for herself and the children to remain in the UK but that application has not yet been determined.

In March 2017 the Defendant local authority had carried out an assessment of the Claimants’ needs under section 17 of the Children Act 1989 and decided that they were not children in need and therefore that the Defendant would not provide accommodation and support to the Claimants’ along with BU. In these proceedings the Claimants, through BU who is their litigation friend, challenge the refusal of the Defendant local authority to carry out a reassessment of their needs under section 17 of the Children Act 1989 and to provide accommodation to them. On 6^th September 2017 Dinah Rose QC, sitting as a Deputy High Court Judge, gave the Claimants permission to proceed with their claim and ordered that the Defendant secure accommodation for the family until the hearing of the claim or further order.

The hearing of the claim was listed for half a day on 4 October 2017. This was insufficient time for the parties to make their submissions as fully as was appropriate, even in a tightly managed hearing, particularly because of the close attention to the factual detail which was required. I directed counsel to make further written submission. I ordered that the interim relief should continue until I decided the claim or further order. The parties have provided further sequential written submission in accordance with those directions. This explains the length of time between the hearing and judgment.

I have made an order that no information should be disclosed which identifies the Claimants, in order to protect their identities. To the same end, in this judgment I have anonymised other individuals where appropriate.

Since the family entered the UK, according to BU they had lived with various family and friends. They had sought assistance from the British Red Cross in December 2016, claiming to be destitute. BU approached the Defendant for assistance on around 10 January 2017. She said that the family had been living with a Mr O but the house had been sold and that they would no longer be able to live there. On 18 January the Defendant provided temporary accommodation for the family pending an assessment of the children’s needs under the Children Act 1989.

On 19 January the Defendant completed an assessment which recorded what BU had told the social workers including: that some friends in the UK had been helping her; she had a husband and family in Nigeria but was not in contact with them very often and he had stopped providing support for the children some time ago; she had had one short relationship since being in the UK but was currently single; she had a “non-biological aunt” (Esther) in London with whom the family had stayed when they first arrived in the UK, and a step-brother in Peterborough who had refused to help her in the past. In terms of accommodation, she said the family had been staying with friends who were contacts made through the church and through “friends of friends”. They had moved between various friends including one called Clara. BU said that for the last six months they had been staying with Mr O in Heelands. The social worker observed that there was a gap of six months in respect of which BU could not remember where they had been living.

BU had explained that she had received help from friends with food and clothing in addition to accommodation. She had supplemented this with braiding people’s hair for which she was paid between £10 and £20 each time, around three or four times a week. She said she did it at people’s homes. She told the social worker that she could not provide bank statements as she did not have a bank account but that she used an online system called CashPlus.

The assessment noted that there remained some unanswered questions. In particular information was awaited from the Home Office, there were gaps and anomalies in the information regarding where she had previously lived, evidence of her online account had not been seen, BU’s husband had not answered calls, and BU had been asked to provide information about attempts to arrange her own accommodation. The decision was therefore to provide support “whilst assessments are completed” and the assessment recorded that BU should continue to seek accommodation for the family with friends.

The Defendant completed a second assessment on 23 March 2017. BU had told the social worker that her friends were no longer prepared to support her and that, without local authority support, the family would be on the street. It was noted in the assessment that there were concerns that BU had not been forthcoming with information, and it also noted a number of inquiries which had been made by the social worker since the last assessment. The Home Office had provided information that in 2011 BU had been sponsored to come to the UK by Esther who claimed to be BU’s aunt. The social worker thought it was doubtful that BU would have waited until 2014 (as she had claimed) before coming to the UK. The Home Office also confirmed that BU had paid a Home Office application fee of £2433 in November 2016. On 1 August 2016 the Home Office had been notified that BU had made an application to marry a Romanian. The registry office confirmed that an application had been made. BU had not told the local authority about that and, when contacted by the social worker on 17 March, BU had denied that she had planned to get married. The assessment also noted that the registry office stated that they had seen documents showing BU was divorced from her husband in Nigeria and yet during the original assessment she had stated that she was still married to him.

The assessment included a record of a meeting that took place on 22 March including the following:

“[BU] said she had initially come to England in 2007 and was unclear that her aunt sponsored her visa in 2011…. It was explained to [BU] that the Local Authority required an accurate picture of her circumstances before decisions can be made to continue funding her family.

I asked [BU] for details of her aunt Esther … in London however [BU] said she did not have her aunt’s details. [BU] was again asked how she supported herself since 2014 and said she braided hair whilst in Peterborough. [BU] kept answering “no comment” to further questions about her hair dressing work. She did not respond to questions to how much she made from each job and whether she worked out of a hair salon or independently.

[BU] said that she did not know what to say and at one point stated that she did not want to answer too many questions to complicate matters.

It was the view of both social workers that [BU] was not being forthcoming with information as she kept saying “no comment” to questions.”

Under the heading “General concerns regarding Inconsistencies in [BU’s] statements” the assessment noted the following:

The conclusion of the assessment was that the family was not destitute and did not need support under section 17 Children Act because they had other sources of support. The reasons were:

“a)

the family has been supported by friends since at least 2014 and probably earlier as [BU] was granted a visa to visit the UK on 11.11.11. Her paternal aunt lives in London and sponsored her visa. [BU] declined to provide contact details for her aunt.

b)

[BU] remains in contact with Mr [O] who previously provided her with accommodation. She had to leave this property as it had been sold but Mr [O] remains living in Milton Keynes. He has also assisted with the payment of [BU’s] application fee to the Home Office for leave to remain.

c)

[BU] has family in Nigeria including the children’s father who remains in regular contact. He has provided financial support in the past. It is unclear why this ceased as it appears he remains in work.

d)

[BU] has had significant sums of money in her bank account in the past including apparent payment of “rent” to Mr [O]. It is not clear what the source of this money was.

e)

[BU] was planning to marry a Romanian national which she failed to disclose.

f)

[BU] has provided inconsistent or incomplete information regarding her circumstances.”

The Defendant decided to support the family for 14 days and offer assistance to return to Nigeria. In fact it did not terminate the support until 2 June.

On 26 April 2017 the Claimants’ solicitor wrote a letter before claim taking issue with each of the reasons for the conclusion that the Claimants were not children in need (paragraphs (a)-(f) above), and requiring the Defendant to continue support them pending a lawful reassessment of their needs. The Defendant responded disputing the proposed claim but said that it would review the decision in the light of the matters raised on the Claimants’ behalf. The Defendant wrote on 5 May stating that it had considered whether any further investigation was required, that it was minded to confirm its decision that BU was not destitute and had access to other sources of support, but invited her to supply further information in relation to the matters on which the authority relied or any other information that she considered may be helpful. The Defendant’s letter than set out the factual basis for each of the reasons (a)-(f) in the second assessment, and requested further information from BU in relation to each. In addition, the Defendant said that it had received further information which suggested that the family was not destitute: BU had refused a food parcel offered by the Red Cross, she had in her possession a considerable amount of food, and the family had placed belongings in storage until their housing was resolved.

The Claimants’ solicitor responded providing further information in relation to the matters raised by the Defendant. On 15 May the Defendant wrote saying that it had considered the information provided and explained, in considerable detail, why it found the Claimant’s account unsatisfactory. It found a number of discrepancies in the information provided by BU in the light of its own enquiries, and in a number of respects was minded to conclude that BU had lied in order to conceal resources or support available to her, in particular by lying about various matters relating to her aunt. In the first assessment BU had said that she had a non-biological aunt in London but Esther was a biological aunt. She had not disclosed in the first assessment that Esther had sponsored her visa. The solicitor’s letters of 26 April and 10 May had stated that BU had severed all ties with Esther, but Esther had confirmed that BU had called her on her birthday on 9 May and that they were in contact by phone on a monthly basis. Esther had also told the social worker that BU had a mother and large family in Nigeria. The authority asked for further information in relation to a number of matters set out in that letter. It said

“This is [BU]’s final opportunity to frankly and comprehensively explain the matters which are likely to be found against her. Any further information must be supported by documentary evidence. If [BU] does not provide any additional information or the information provided does not provide a frank and comprehensive account on which the Local Authority can by satisfied that the children are in need: the Local Authority will confirm its decision that it is not able to be satisfied that [BU] is not able to meet the needs of her children from her own resources, including her financial resources and the support networks available to her in the UK and the children’s father. The Local Authority will in that event cease support of the family by the 19.5.17. If there is any difficulty in complying with the timescale please let me know as soon as possible before that date.”

The Claimants’ solicitor provided very limited information in response to only two of the numerous points raised. On 19 May the Defendant wrote that it could not be satisfied that the children were in need, for the reasons set out in its earlier letters. The Defendant summarised the key points, giving examples of a number of respects in which it considered BU had lied or had not been forthcoming with relevant information, and said

“BU has not been honest with the Local Authority in a number of respects and it is no longer possible to determine what her current circumstances are with any degree of reliability.

After the Defendant ceased to provide accommodation to the family on 2 June, they stayed with the aunt, Esther, for one night, and obtained temporary accommodation from Sanctuary Hosting from 16 July. Prior to the issue of proceedings, no information was provided as to where the family had stayed for the intervening period.

The Claimants’ solicitors wrote to the Defendant on 28 July 2017 providing further information and a number of documents: a council tax bill and letter from BU’s friend Clara with whom she had lived; written statements from three friends to the effect that they had provided support but could no longer do so, with their contact details, and the names and telephone numbers of other friends who had supported the family in the past, a letter from Esther saying that she was not willing to support them, a letter form the British Red Cross confirming the food parcels provided, and a copy of BU’s application to the Home Office. The solicitor reminded the Defendant of its ongoing duty to consider whether the children were in need in the light of the further material provided. In response, the Defendant accepted that it had a continuing duty to review matters but said that the information provided did not take matters further and so did not cause it to revisit the decision. Further correspondence followed in relation to some of the factual matters. On 10 August the Claimants’ solicitor wrote that the children had recently been staying in the homes of two individuals whose telephone numbers they provided, but that one was no longer able to assist and the other could only do so until 20 August, and that the children were sleeping on the floor. It was not clear from that letter whether BU had been accommodated along with the children. In an email of 14 August the Claimants’ solicitors said that the family was at that being provided with accommodation by Sanctuary Hosting. Sanctuary Hosting matches destitute asylum seekers to people who are willing to accommodate them rent free. The Claimants’ solicitor sent a letter from Sanctuary Hosting dated 7 August confirming that the placement would cease on 31 August. On 16 August the Defendant wrote that the family had accommodation until 31 August and there was nothing in the information which would lead the authority to reassess.

On 17 August the Claimants’ solicitor wrote a letter before claim challenging the Defendant’s refusal to undertake a reassessment of the Claimants’ needs. The Defendant replied on 18 August stating that the information provided since the second assessment did not call for a reassessment, the letter from Sanctuary Housing stated that family had accommodation until 31 August and that the local authority would accommodate the children in foster care until BU found accommodation for the family.

On 25 August the Claimants’ solicitors wrote to the Defendant raising a new point. They said that the Defendant had failed to consider whether, even if BU had sufficient resources to rent a room, she was entitled to do so in the light of the provisions of section 21 of the Immigration Act 2014.

These proceedings were issued on 30 August 2017 along with an application for interim relief. At an oral hearing on 6 September, Dinah Rose QC sitting as a deputy high court judge granted permission and ordered the Defendant to secure accommodation for the family until the hearing of the claim or further order. Pursuant to directions of the deputy high court judge, both parties have filed and served further evidence. **

This claim is concerned with the local authority’s duties under section 17(1) of the Children Act 1989 which provides as follows:

“(1)

It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)—

(a)

to safeguard and promote the welfare of children within their area who are in need; and

(b)

so far as is consistent with that duty, to promote the upbringing of such children by their families,

by providing a range and level of services appropriate to those children's needs.”

Case law establishes that section 17(1) implicitly requires a local authority to take reasonable steps to assess the needs of any child in its area who appears to be in need, and that a child without accommodation is a child in need: R (S and J) v. London Borough of Haringey [2016] EWHC 2692 (Admin) at [35] and [37].

Where a child in need lacks immigration status, a local authority can provide services to the child and parent together if and to the extent that failure to do so would breach the Convention rights of either the child or parent. This is the effect of paragraph 2(1)(b) of Schedule 3 of the Nationality Immigration and Asylum Act 2002: see R (MN) v London Borough of Hackney [2013] EWHC 1205 (Admin) at [19]. I note that in the present case there has been no suggestion that the family’s immigration status is an obstacle to the provision of support under section 17. I assume that this is because there is an outstanding application for leave to remain in the UK (see Clue v. Birmingham City Council [2010] EWCA Civ 460) but, as the parties have not addressed me on this, I say no more about it.

The principles applicable to carrying out an assessment of a child’s needs and making provision to meet the needs are clearly set out in the following passages of the judgment of Helen Mountfield QC, sitting as a Deputy High Court Judge, in R (O) v London Borough of Lambeth [2016] EWHC 937:

“13.

If a child, especially a young child, is here with a parent, and the family unit cannot be sent anywhere else, it will often constitute a breach of the child’s rights to respect for her private and family life not to accommodate her with her family. If the local authority must assume that the family cannot be removed from the jurisdiction consistently with its human rights (as to which see paragraph 39 below), then the effect of section 17 Children Act 1989 and duties not to breach Convention rights by reference to section 6 Human Rights Act 1998, read together with paragraphs 2 and 3 of schedule 3 of the Nationality Immigration and Asylum Act 2002, is consequently often to render the section 17 power to accommodate – in effect – a duty imposed on the local authority to act as provider of last resort in cases where a child and his or her family would otherwise be homeless or destitute.

14.

That means that the threshold duty of enquiring whether the child of the family is a child ‘in need’ acquires a particular significance. The determination that the child is in need triggers powers which will come close to duties to make basic provision in cases where no other state support is available, and where therefore, in the absence of any private support, the consequence is destitution.

15.

The duty of a local authority pursuant to paragraph 1 of schedule 2 to the Children Act 1989 is to take ‘reasonable steps to identify’ whether a child is in need. What those steps are is a matter for the local authority, subject to complying with public law requirements. Statutory guidance as to child in need assessments is set out in “Working Together to Safeguard Children”, dated March 2015, and departure from that guidance as to assessment without reasonable explanation would be a public law failing. However, that is not the suggestion in this case.

16.

The duty to make reasonable enquiry is a duty to make those enquires which are either suggested by the applicant or which no reasonable authority could fail to undertake in the circumstances.

17.

Whether or not a child is ‘in need’ for these purposes is a question for the judgement and discretion of the local authority, and appropriate respect should be given to the judgements of social workers, who have a difficult job. In the current climate, they are making difficult decisions in financially straitened circumstances, against a background of ever greater competing demands on their ever diminishing financial resources. So where reports set out social workers’ conclusions on questions of judgement of this kind, they should be construed in a practical way, with the aim of seeking to discover their true meaning (see per Lord Dyson in McDonald v Royal Borough of Kensington & Chelsea [2011] UKSC 33 at [53]). The way they articulate those judgements should be judged as those of social care experts, and not of lawyers. Nonetheless, the decisions social workers make in such cases are of huge importance to the lives of the vulnerable children with whose interests they are concerned. So it behoves courts to satisfy themselves that there has been sufficiently diligent enquiry before those conclusions are reached, and that if they are based on rejection of the credibility of an applicant, some basis other than ‘feel’ has been articulated for why that is so.

18.

The converse is also true. An applicant parent who is seeking to persuade a local authority that they and their child are destitute or homeless, so as to trigger the local authority’s duties of consideration under section 17 Children Act 1989 is seeking a publicly funded benefit, to which they would not otherwise be entitled, which diverts those scarce funds from other Claimants. Even the process of assessment is a call on scarce public funds. It therefore behoves such an applicant to give as much information as possible to assist the decision-maker in forming a conclusion on whether or not they are destitute.

19.

If the evidence is that a family has been in this country, without recourse to public funds and without destitution for a number of years, reliant on either work or the goodwill and kindness of friends and family, then the local authority is entitled and indeed rationally ought to enquire why and to what extent those other sources of support have suddenly dried up. In order to make those enquiries, the local authority needs information. If the applicant for assistance does not provide adequate contact details for family and friends who have provided assistance in the past, or cannot provide a satisfactory explanation as to why the sources of support which existed in the past have ceased to exist, the local authority may reasonably conclude that it is not satisfied that the family is homeless or destitute, so that no power to provide arises.

20.

Fairness of course demands that any concerns as to this are put to the applicant so that she has a chance to make observations before any adverse inferences are drawn from gaps in the evidence, but otherwise, the local authority is entitled to draw inferences of ‘non-destitution’ from the combination of (a) evidence that sources of support have existed in the past and (b) lack of satisfactory or convincing explanation as to why they will cease to exist in future.

21.

In other words, if sufficient enquiries have been made by the local authority and if as a result of those enquiries an applicant fails to provide information to explain a situation which prima facie appears to require some explanation, then the failure by an applicant to give sufficient information may be a proper consideration for the local authority in drawing the conclusion that the applicant is not destitute: see per Mr Justice Leggatt in R(MN) v London Borough of Hackney [2013] EWHC 1205 (Admin) at [44]. But that does not absolve the local authority of its duty of proper enquiry.”

As is clear from the above, a local authority is entitled to draw adverse inferences from a failure to disclose information or failure to cooperate with the authority’s assessment.

The duty under section 17 is an ongoing one: Holmes-Moorhouse v. London borough of Richmond Upon Thames [2009] UKHL 7. If an authority has assessed a child not to be in need but there is then a relevant change in circumstances or further material information comes to light which suggests that a child may be in need, the authority may have to reassess or, at least, make inquiries in order to decide whether a reassessment is required.

Whether a child is in need is a matter for the evaluative judgment of the local authority, and is challengeable in judicial review on Wednesbury grounds. As Mr Carter accepts, given the nature of decisions under section 17 Children Act 1989 which are of fundamental importance to the lives of vulnerable children, the court must be satisfied that the authority’s inquiries have been sufficiently diligent and give close scrutiny to the decision-making. See O at paragraph 17, and R (S and J) v. London Borough of Hackney [2016] EWHC 2692 (Admin) at [53] and [54].

The effect of sections 20 and 21 of the Immigration Act 2014 is that a person who requires but does not have leave to enter or remain in the UK does not have a right to enter into a residential tenancy agreement granting a right of occupation of premises for residential use rent accommodation and for which rent is paid. The relevant provisions are as follows:

20 Residential tenancy agreement

(1)

This section applies for the purposes of this Chapter.

(2)

“Residential tenancy agreement” means a tenancy which—

(a)

grants a right of occupation of premises for residential use,

(b)

provides for payment of rent (whether or not a market rent), and

(c)

is not an excluded agreement.

(3)

In subsection (2), “tenancy” includes—

(a)

any lease, licence, sub-lease or sub-tenancy, and

(b)

an agreement for any of those things,

and in this Chapter references to “landlord” and “tenant”, and references to premises being “leased”, are to be read accordingly.

(4)

For the purposes of subsection (2)(a), an agreement grants a right of occupation of premises “for residential use” if, under the agreement, one or more adults have the right to occupy the premises as their only or main residence (whether or not the premises may also be used for other purposes).

(5)

In subsection (2)(b) “rent” includes any sum paid in the nature of rent.

….”

21 Persons disqualified by immigration status or with limited right to rent

(1)

For the purposes of this Chapter, a person (“P”) is disqualified as a result of their immigration status from occupying premises under a residential tenancy agreement if—

(a)

P is not a relevant national, and

(b)

P does not have a right to rent in relation to the premises.

(2)

P does not have a “right to rent” in relation to premises if—

(a)

P requires leave to enter or remain in the United Kingdom but does not have it, or

(b)

P's leave to enter or remain in the United Kingdom is subject to a condition preventing P from occupying the premises.

…

(5)

In this section “relevant national” means—

(a)

a British citizen,

(b)

a national of an EEA State other than the United Kingdom, or

(c)

a national of Switzerland.

Although the Claimants’ grounds are set out under a number of headings, there are in essence two principal grounds on which it is argued that the Defendant’s refusal to undertake a reassessment of the Claimants’ needs was unlawful.

First, it is submitted that a duty to reassess was triggered by the provision of new information in May 2017, again in July and August 2017, and finally between the grant of permission and the hearing of this application, and the Defendant’s decision not to reassess was unreasonable. Mr Fraczyk submits that the Defendant was obliged to reassess in the light of the quantity and quality of material provided which showed that, without local authority support, the family would be destitute. He submits that the Defendant did not take the most basic steps open to it to check whether the new material indicated that the previous assessment could no longer be relied upon. The Defendant had been provided with contact details for those who had previously supported the family but would no longer do so but the authority had not contacted them to ascertain the position. He points to the ongoing duty under section 17 Children Act and submits that this is not obviated by the local authority’s previous assessment of BU’s lack of credibility. He says that the engagement of the family’s rights under article 3 or 8 of the European Convention on Human Rights obliges the authority to approach the case with particular rigour.

Second, Mr Fraczyk submits that, once the family had exhausted all possibility of accommodation with other individuals, the Defendant’s reliance on BU’s ability to pay for accommodation without taking into account the provisions of the Immigration Act 2014 was unlawful.

The two grounds are closely linked and it is convenient to address them as they arise in relation to the triggers identified above.

Before, I consider the Claimants’ case as to reassessment, it is necessary to say something about the assessment which was completed in March because, although that assessment is not challenged directly in this claim, the quality of that assessment is relied upon by both counsel in making their respective submissions as to the duty to reassess.

Mr Carter submits that the Defendant had conducted a thorough assessment in March 2017 and was entitled to rely on the findings in that assessment when taking the view that none of the information subsequently called for reassessment. In particular, BU’s credibility was central to the assessment because she was the principal source of the information that the family was destitute, the Defendant had reasonably concluded that she was untrustworthy and so was entitled to reject the information which she provided. He submits that the information provided after the assessment did not call into question the authority’s view of BU’s credibility and so the Defendant was entitled to continue to doubt the reliability of that new information. In response Mr Fraczyk submits that the original adverse credibility findings were flawed and so the authority was wrong to view the new information through the prism of those findings.

I have described in some detail the assessment process and the basis of the decision that was reached in March. In my judgment, the content of the assessment and the reasons given by the Defendant for the conclusion speak for themselves. The Defendant carefully explored all relevant areas with BU. During the January assessment, it identified a number of areas of concern as to which it made further inquiries. The Defendant put its concerns to BU and gave her an opportunity to comment on the information which had been obtained during the course of the Defendant’s own inquiries. It explained why it found that BU’s account lacked credibility. The Defendant did not only rely on her lack of credibility, however. The Defendant identified evidence on the basis of which it concluded that BU had access to accommodation, support and/or money.

More specifically, I reject the principal criticisms made by Mr Fraczyk of that assessment as follows:

The Defendant was entitled to rely on the conclusions reached in the assessment unless subsequently provided information cast doubt on those conclusions such that it could materially affect the outcome, or new information suggested that there was or might have been a change in the family’s circumstances such that the children appeared to be in need.

Despite the careful assessment in March, when the Claimants’ solicitor challenged it, the Defendant was prepared to consider any further relevant information which was provided. In the letter of 5 May it set out clearly the areas of concern, and identified what information would assist. The subsequent exchange of correspondence involved the Defendant considering and responding in some detail to the representations made by the Claimants’ solicitor. These representations were largely based on BU’s further instructions. The Defendant plainly approached these matters with some care and gave BU, through the Claimants’ solicitors, considerable opportunity to respond to the concerns held by the authority before it reached its final decision of 19 May. The Defendant was prepared to reconsider its assessment if it was provided with information which cast doubt on that assessment. However, for the reasons explained in that correspondence, the responses failed to dispel the existing doubts about BU’s credibility and the information she had provided and in some respects compounded them. In particular:

The above are just two examples of the issues raised by the Defendant which were addressed only partially or not at all by the Claimants’ solicitor.

Even giving close scrutiny to the Defendant’s decision of 19 May refusing to carry out a reassessment, that decision was not unreasonable.

In the letters of 28 July and 10 and 14 August the Claimants’ solicitor continued to dispute the correctness of the previous assessment but also provided new information which, it was asserted, showed that the family was by then destitute because the friends who had previously been prepared to support the family were no longer prepared to do so, that the authority’s conclusion that BU had access to funds was incorrect, and temporary accommodation was available only until the end of August. The authority considered that information but decided that it did not suggest that needs of the family were different from when the authority made its decision. In particular, in the letter of 4 August the authority explained that the new material did not change its view of BU’s honesty.

Mr Fraczyk submits that, in refusing the reassess the children’s needs, the Defendant had clung to its previous adverse credibility finding rather than viewing the new evidence along with that which it already held on its merits. I agree that in principle the adverse credibility finding might not provide an answer to all later evidence provided. For instance, BU’s unreliability would not affect the value of relevant evidence from other apparently credible sources. Moreover, regardless of the view taken of their previous situation, evidence of the family’s current circumstances might indicate that they were by then destitute.

The relevance of the information provided in July and August must be considered in the context of the Defendant’s assessment to date. The original assessment that the Claimants were not in need rested on two principal conclusions: that the family had access to accommodation through friends or acquaintances; and that in any event BU had access to funds so that she could pay for accommodation. The conclusions rested substantially but not entirely on the Defendant’s view of BU’s credibility. The Defendant had maintained that position during May.

The Defendant was entitled to conclude that there was nothing in the information provided in July and August which cast any real doubt on its view that BU had not been honest in her account. The new information failed to address many of the concerns previously raised by the Defendant during the assessment and in May. Instead the letter of 28 July gave further inconsistent information in stating that BU had never paid rent to Clara (ie at Stuart Close). When that inconsistency was raised by the Defendant in the letter of 4 August, the Claimants’ solicitor responded saying that the information on the application form was incorrect but stating that some money was paid, irregularly, to Clara. In the light of the shifting and incomplete information, the Defendant cannot be criticised for maintaining its previous position.

In assessing the potential significance of the new material regarding whether BU had access to funds, the Defendant was entitled to take into account its assessment of BU’s honesty. It was not unreasonable for it to reject further factual assertions by the solicitor which were made on BU’s instructions and did no more than repeat what she had previously said. It was reasonably open to the Defendant to afford little weight to the assertions or opinions offered by other agencies which were based solely on what BU told them. Thus, although there was and is no suggestion that the British Red Cross and Sanctuary Hosting were acting in anything other than good faith, their understanding of the needs of the family was derived entirely from what BU had told them. The statements from those two bodies about the food and other assistance they had provided was not new information.

The Defendant noted that some of the information provided had been available before the March assessment was made. In my judgment the Defendant was entitled to take the view that it need not reassess in the light of that information. There was no explanation for the failure to produce it at the time of the assessment and it seems to me that the Defendant’s view was that it was unreliable.

The other information provided with the letter of 28 July had little if any bearing on the question of BU’s funds. Of the three witness statements provided, only one was from a person who claimed to have provided financial support, the others referring only to practical support in caring for the children which was irrelevant to whether the family was destitute. The letter from Esther was about accommodation only. Nothing was said in the 28 July letter to indicate that the other individuals identified there would have anything material to say about BU’s access to funds.

In conclusion, it was reasonably open to the Defendant to maintain its previous assessment that BU had access to funds.

Ms Collier, the Defendant’s solicitor with responsibility for this matter and who had been the author of the Defendant’s letters in this case, made a witness statement in response to this judicial review claim. She added further explanation for the Defendant’s position at that time. She explained that the Defendant had stored the family’s possessions between 2 June and 11 July, including clothing and food, and that BU had not sought to access her belongings during that time. Moreover, a period of almost two months had passed between the last support provided by the Defendant and the letter of 28 July during which there had been no contact from BU other than to collect her belongings. Between 2 June and joining the Sanctuary scheme in July BU had not sought any help with accommodation. Ms Collier also explained that the school had not confirmed the Claimants’ solicitor’s assertion that the children’s schooling was suffering. In essence, it seems that the Defendant believed that the family had been accommodated and supported elsewhere during the periods referred to.

During August, however, the situation changed. Although BU’s account of her previous accommodation arrangements was and remained unsatisfactory, by August the evidence was that the accommodation arrangements made by Sanctuary Hosting would cease at the end of August. The Defendant did not dispute that. In its letter of 16 August the Defendant relied on the fact that accommodation was available until the end of the month in order to support its conclusion that “there are resources upon which she can rely”. It did not say that it thought that accommodation would be available thereafter.

The Defendant’s position is that it did not need to address the question whether accommodation would be provided for the family after the end of August. In its view BU had sufficient funds to pay for accommodation. In her second witness statement Ms Collier explained that “The Defendant remains of the view that the Mother is not, nor has been, frank and open in her responses to its enquiries and has undisclosed resources with which to support the Children.” Thus, by August the Defendant’s position was that it was not required to reassess the Claimants’ needs because it could continue to rely on its decision that BU had sufficient funds to support the family including by paying for accommodation. Mr Carter confirmed this in his written submissions. He relied on the Defendant’s assessment that BU had funds and said that “the unavailability of accommodation made no difference to the Defendant’s decision that the Mother had sufficient income available to prevent her from becoming destitute.” His submissions on the evidence addressed solely the position regarding BU’s finances. Although later in those submissions he stated that the family could have lived in accommodation provided by a friend or relative, he did not contend that this formed any part of the Defendant’s assessment of the position in August or its decision refusing to carry out a reassessment of the children’s needs.

It is worth pausing here to recap. The Defendant expressly disavows reliance on the family having access to accommodation provided by others after the end of August. The Defendant relies on BU’s access to funds with which to pay for accommodation. I have concluded that it was reasonably open to the Defendant to maintain its assessment of BU’s financial position. However, whether it was open to the Defendant to rely on that in support of its view that the children were not in need depended on whether it had reasonably assessed that BU could in reality secure accommodation through her own means. The answer to this turns on the Immigration Act ground, which I now consider.

The above is the background to the letter of 25 August 2017 in which the Claimants’ solicitors referred to section 21 Immigration Act 2014 and said that the Defendant had failed to take it into account in considering the Claimants’ accommodation needs. The Defendant did not reply to that letter before proceedings were issued.

In the Defendant’s detailed grounds and skeleton argument it accepted that BU was disqualified as a result of her immigration status and so may not occupy premises under a residential tenancy agreement. The Defendant’s position in those documents was that section 21 did not prevent the family living in accommodation which BU did not pay for. That position could not reasonably be maintained in the light of the Defendant’s position explained at paragraph 52 above. In oral submissions at the hearing Mr Carter made a different submission, which was that BU could obtain hotel accommodation which would not be covered by the prohibition in section 21 because the family would not be occupying it as a residence.

In Mr Carter’s post-hearing written submissions, in addition to the possibility of renting hotel accommodation, he submitted that there were two other options open to BU. He said she could rent a mobile home on a protected site, as an agreement to which the Mobile Homes Act 1983 applies is excluded from the provisions of section 21. Moreover, under section 21(3) she has the right to occupy premises under a residential tenancy agreement if the Secretary of State gives permission. These considerations formed no part of the assessment nor of the decision not to undertake a reassessment, at any time prior to the hearing of this case. The scenarios are hypothetical and, without consideration of what was realistically possible in this particular case, they cannot excuse the refusal to reassess the Claimants’ needs.

The heart of the issue in this aspect of the case is whether occupation of a hotel by BU and her children would be occupation “as their only or main residence”. Mr Carter submits that the phrase “as their only or main residence”, which is not defined in the Immigration Act, should be construed consistently with the same or similar phrases used in the Leasehold Reform Act 1967, Rent Act 1977 and Housing Act 1988. In Crawley Borough Council v Sawyer (1988) HLR 98, the Court of Appeal said there was no material difference between occupying premises as a home and occupying them as a residence. Occupation as a home or residence requires “a substantial degree of personal occupation by the tenant of an essentially residential nature”: Herbert v Byrne [1964] 1 WLR 519 at 528. In a similar vein, in Swanbrae Ltd v Elliott (1986) 19 HLR 86 Swinton Thomas J said that “residing with” means more than “living at” and “mean something more than dwell transiently and to my mind they have the connotation of having a settled home”. The question is one of fact and degree. In Freeman v Islington LBC [2010) HLR 6 at Jacobs LJ said at [22]:

“mere ‘temporary residence’ is not enough. One is looking for something which can fairly be called ‘homemaking’.”

Mr Carter submits that staying in a hotel, as a temporary expedient to avoid homelessness, would not amount to occupation of premises for residential use.

I accept that occupation of hotel accommodation may not be residential but whether it is in any particular case will be dependent on all the circumstances. Relevant considerations may include the intention of the occupier, the length of occupation, the actual living arrangements and what alternatives there are.

In understanding what is meant by the statutory terms, I may properly have regard to the Explanatory Notes to the Act: see Wilson v First County Trust (No.2) [2003] [UKHL] 40; [2004] 1 AC 816 at [64]; Hillingdon LBC v Secretary of State for Transport [2017] EWHC 121 (Admin). Paragraph 108 of the Explanatory Notes to the Immigration Act explain that “for example, holiday accommodation will not ordinarily be captured, as for most people it will not provide their only or main home, but if somebody chooses to live in a hotel, the arrangements for that person will be captured.” This illustrates the fact-sensitive judgment that must be made in each case and that short term accommodation which is not generally provided as a home could be caught. If occupation of holiday accommodation can be for residential use, so can occupation of a hotel. It all depends on the circumstances. The Explanatory Note provides reassurance that my construction of the provisions is consistent with the legislative intention.

There is no indication that BU’s immigration application will be decided any time soon. The family may therefore be in need of accommodation for some considerable time. If, as BU claims, the family has nowhere else to go (and, I repeat, the Defendant does not rely on the availability of other accommodation), it cannot be ruled out that their occupation of a hotel would amount to occupation under a residential tenancy agreement and so would not be permitted.

It may be that the family’s occupation of a hotel would not start off as residential but that it might acquire that character over time. In my judgment the Defendant’s decision cannot be supported on the basis that BU could have obtained hotel accommodation for a short period without the agreement falling within the provisions of the Act. Assuming that she could have done so, a decision that the family could avoid destitution by short term occupation of hotel accommodation and so would have move from one hotel to another in a series of short-term stays, would raise questions about the suitability of such an arrangement for the children and therefore whether it could properly be relied on as a way of avoiding them becoming children in need. That was a material consideration which the local authority should have addressed before concluding that BU and the Claimants could avoid homelessness by staying in hotel accommodation. It did not do so.

I am satisfied that, in failing to take into account the possible impact of section 20 of the Immigration Act, the Defendant failed to take into account a relevant factor. The asserted position of the family by August was that the only accommodation available to them would not continue after the end of the month. The Defendant did not dispute that. The Defendant’s case was that there was no need to reassess because BU had funds with which she could support the family and pay for accommodation. However the Defendant gave no thought to whether BU could lawfully pay for accommodation which was suitable for the children, in the light of the provisions of the Immigration Act 2014.

In consequence I consider that, once the Defendant accepted that the family’s current accommodation was due to end at the end of August, and having made no finding that there was other accommodation available to the family thereafter, the Defendant should have assessed whether it was possible, compatibly with the children’s needs, for BU to secure accommodation for the family in the light of the limitations in section 20 of the Immigration Act 2014. Its failure to do so rendered the continuing refusal to reassess unlawful.

The Defendant’s offer to place the children in foster care for a short period until BU found accommodation for the family does not affect my conclusion. As the Defendant had not made a lawful assessment that BU could secure suitable accommodation for the family, it could not assume that foster care would only be for a short period. The Defendant had not assessed that long-term foster care was appropriate and there is nothing in the materials to suggest that it was.

In the light of this conclusion there is no need for me to address the relevance of the information provided by both parties after the grant of permission save to say that there is nothing in it that affects the conclusion which I have reached. If the Claimants contend that that information is relevant to future decision-making by the Defendant, then that must be addressed separately.

For the above reasons, this application for judicial review succeeds. The parties will address me on the appropriate orders.