Kent County Council, R (on the application of) v Secretary of State for the Home Department

Hugh Southey KC for Kent CC drew attention to the evolution of the NTS Protocol. In version 1, which applied from 1 July 2016, its stated aim was to ensure a fair distribution of UAS children across all local authorities and regions in the UK and to ensure that appropriate services were available to them. Local authorities where UAS children accounted for 0.07% or more of the total child population were able to arrange transfers to local authorities within the same region on a voluntary basis.

Version 2 applied from 15 March 2018 and allowed children to be transferred to another region (including the devolved nations) where UAS children made up less than 0.07% of the total child population where “good reason” was shown. Kent CC was treated as a region on its own.

The numbers of UAS children arriving in Kent rose steeply over the course of 2019. Between 1 January and 31 May 2020, Kent CC was unable to transfer responsibility for any UAS children, despite multiple requests. In the period from January to August 2020, 448 UAS children arrived in Kent, but only 69 were transferred out. As noted in my first judgment, Kent CC ceased accepting newly arriving UAS children into its care in August 2020.

In the autumn of 2020, the Home Secretary and Education Secretary undertook a consultation on proposed changes to the NTS. There was a delay in publishing the Government’s response. Kent CC sent a pre-action letter threatening judicial review of the Government’s failure to mandate compliance with the NTS on 3 June 2021. In the same month, the Government announced changes to the NTS, including a national rota to determine which authority would be the “receiving authority” and a new weighting system to take account of pressure on local services. At this stage, however, the NTS remained voluntary.

On 14 June 2021, Kent CC again announced that it would no longer accept newly arriving UAS children into its care and the Home Office began to commission hotels to accommodate them. In October 2021, the Home Secretary and Education Secretary approved a mandatory scheme. Local authorities would be directed to comply with it. It was anticipated that this would eliminate the need to use hotels to accommodate UAS children. (The directions were made in December 2021 and February 2022.)

Meanwhile, version 3 of the NTS was published on 14 December 2021. It introduced a time limit for transfers of 10 working days from referral and stressed the importance of ensuring that transfers take place “without delay”. There was an “escalation process” for local authorities that did not comply. This involved the Home Office sending a letter to the receiving local authority if it had not accepted a transfer 20 working days after the entry local authority first made its request. The letter asked for confirmation that the transfer would be completed within a further 2 working days. If that did not work, the Home Office might decide to escalate the matter internally. This involved a number of steps, leading to the possibility of a recommendation for judicial review proceedings to be brought against the recalcitrant local authority. Kent CC says that, in practice, the child was by this time invariably placed with another local authority.

Version 4 was promulgated on 24 August 2022. It reduced the 10 working day transfer deadline to 5 working days for children who were not in the care of a local authority (i.e. those who were being accommodated by the Home Secretary in hotels) and increased the threshold for transfers from 0.07% to 0.1% of the total child population. It also increased the funding available to local authorities which received a child within 5 working days.

Version 5 was published on 28 June 2023, but it contained no significant changes. Version 6 was published on 17 August 2023, following my first judgment. The main change was to make clear, in line with the legal conclusions in my judgment, that the arrangements for transfer must be made by the entry authority (and not the Home Office).

Mr Southey observes that changes to the NTS appear to have been responses to particular problems. At no stage has the Home Secretary sought to identify the number of UAS children who need to be transferred if all children are to be provided with support under the CA 1989 in a safe manner or what steps need to be taken to achieve that number of transfers. The rota seems to have been designed on the basis of 652 transfers per year, but in recent years the numbers requiring transfer have exceeded this figure. For example, a ministerial briefing on 10 July 2023 shows that funding was cut for UAS child placements for affordability reasons without any assessment of the sums needed to be paid to local authorities to ensure that they are not out of pocket.

Mr Southey summarised the current position on the ground as follows:

As to the operation of the NTS, Mr Southey submitted as follows:

Mr Southey’s grounds of challenge to the decisions taken in the operation of the NTS can be grouped under five heads.

Kent CC seeks a declaration that the Home Secretary is acting unlawfully in these ways and a mandatory order requiring the Home Secretary to implement an effective NTS forthwith.

Stephanie Harrison KC for Brighton & Hove City Counsel (“Brighton & Hove CC”) and East Sussex County Council (“East Sussex CC”) supported Kent CC’s claim. She emphasised that the claim had been necessary because the Home Secretary had since the summer of 2021 been using hotels as an alternative to ensuring the proper and effective functioning of the NTS. Ministerial submissions in February and March 2023 indicated consideration had been given to an exit strategy, but this had been rejected. Instead, the use of hotels had become embedded in the operation of the system.

The Home Secretary’s reliance on the average transfer times was apt to mislead. It was necessary to consider more granular evidence. Brighton & Hove CC’s and East Sussex CC’s evidence reveals the true extent of the delays that can occur. Many children (including under 16s) were remaining in hotels for prolonged periods.

Ms Harrison relied on the judgment of Julian Knowles J in R (DMA) v Secretary of State for the Home Department [2020] EWHC 3416 (Admin), [2021] 1 WLR 2374 and of the Court of Appeal in R (Johnson) v Secretary of State for Work and Pensions [2020] EWCA Civ 778, [2020] PTSR 1872 in support of the proposition that the operation of the NTS was unlawful.

Deok Joo Rhee KC for the Home Secretary submitted that the court should focus on the present position, rather than seeking to attribute blame for historic unlawfulness. At the time of the hearing on 10 October 2023, only 19 UAS children were being accommodated in hotels. There had been a significant improvement since the first judgment, for which the Home Secretary and Education Secretary were both grateful. Whilst intensive work remained to be done – in particular by Kent CC and the Home Secretary with a view to the conclusion of a mutually acceptable financial settlement following the quashing of the Kent Protocol – a significant cause of the previous difficulties had been resolved by my first judgment.

As to the present position:

Ms Rhee submitted that these improvements were attributable to combined action by Kent CC and the Home Secretary and Education Secretary. So far as the Secretaries of State are concerned, this has included the continuation of incentivised funding at the rate of £6,000 per UAS child for authorities able to accept transfers within 5 working days and more proactive engagement with receiving authorities, including use of the NTS escalation procedure. Kent CC has also continued to receive significant financial support. Some of the improvements were attributable to action by Kent CC since the first judgment, but such action is to be expected, given that Kent CC was found to be in breach of its non-derogable duties. The court should not proceed on the footing that Kent CC cannot safely accept UAS children just because it so declares.

As to the evolution of the NTS, Ms Rhee submitted as follows:

Ms Rhee drew attention to a number of features in the current version of the NTS Protocol (version 6), including: (i) the express statement that “…the best interests of unaccompanied children being considered for transfer must always be a primary consideration throughout the transfer process”; (ii) the express statement that the “threshold” of 0.1% of a local authority’s general child population is not a “cut off” point for accepting responsibility for UAS children and the clear indication that local authorities retain the flexibility to agree transfers outside of the rota when that is in the best interests of the child concerned; (iii) the express reference to the escalation procedure and the enforceability of the NTS by proceedings for judicial review.

As to the grounds of challenge, Ms Rhee submitted that:

In R (AA) v National Health Service Commissioning Board [2023] EWHC 43, [2023] PTSR 608, I said this at [100]:

“…it is important to bear in mind that judicial review remedies are, in general, forward-looking. They are appropriate where the public authority cannot or will not remedy the breach itself. As Woolf LJ emphasised in [R v Inner London Education Authority, ex p. Ali (1990) 2 Admin LR 822], the function of judicial review is not, generally, to conduct inquests into whether an authority is culpable for an admittedly unsatisfactory situation.”

I accordingly accept Ms Rhee’s submission that the court’s focus should be on the question whether the Home Secretary is now (or was at 10 October 2023) complying with the duties imposed by the law in relation to the NTS, rather than whether and to what extent there had been such compliance in the past. However, in some situations it may be difficult to form a view about the legality of a defendant’s present conduct without at least some understanding of the legality of past conduct. This is one such situation. To decide what steps the law requires the Home Secretary to take in the light of my judgment of 27 July 2023, and whether those steps have been taken, it is necessary to reach at least some outline conclusions about what the law required beforehand, even if those conclusions are unlikely themselves to ground any forward-looking relief.

I can deal relatively quickly with the first four grounds of challenge. In my judgment, none of them is well-founded, whether one focuses on the Home Secretary’s conduct prior to my first judgment on 27 July 2023 or subsequent conduct.

As to the first, the Padfield principle is that a statutory power must be exercised to promote, and not to frustrate, the policy and objects of the statute which conferred them; and these are to be determined by construction of the statute: see Padfield at 1030 (Lord Reid). Padfield was important because it reasserted that, even where Parliament confers a power rather than a duty to act, a failure to exercise the power may be unlawful if it frustrates the intention of Parliament: see M v Scottish Ministers [2012] UKSC 58, [2012] 1 WLR 3386, [42], [46] and [47] (Lord Reed). In this case, however, the complaint is not that the statutory power has not been exercised. It is about how that power has been exercised. In such a case, the Padfield principle imposes constraints on the decision-maker’s purpose, not on the result achieved. The principle has no application where the holder of a statutory discretion is “trying but failing” to achieve the statutory purpose: see R (Sathanantham) v Secretary of State for the Home Department [2016] EWHC 1781 (Admin), [2016] 4 WLR 128, [67] (Edis J).

In my judgment, that is the position here. All the evidence indicates that the Home Secretary’s decisions in relation to the NTS were aimed at reducing the burden on Kent CC and distributing that burden equitably among other local authorities. The real complaint is that the Home Secretary failed properly to grasp the scale of the problem or the extent of her own responsibility for it, and, accordingly, that what was done was not enough. Even if that criticism is correct, it does not give rise to a breach of the Padfield principle. Nothing in the judgment of Knowles J in DMA suggests the contrary. That case expressly approved the reasoning in Sathanantham: see at [202]. At [204], Knowles J said that a decision to continue a failing system could engage the Padfield principle if it amounted to a “deliberate decision to delay”. Even on Kent CC’s case, however, that is not an apt characterisation of the Home Secretary’s decision-making in relation to the NTS. As noted above, the complaint is that the Home Secretary’s actions were ineffective, not that they amounted to a deliberate decision to avoid taking action to alleviate the burden on Kent CC.

The second ground of challenge adds little to the first. It does not matter whether the NTS Protocol is characterised as a “public law instrument”, as opposed to a policy or guidance document. Either way, there is nothing in its terms with which the Home Secretary’s conduct is inconsistent. The NTS Protocol does not prevent local authorities from engaging directly with one another pursuant to s. 27 CA 1989 – as they in fact have done since my first judgment. Nor is there anything in the Home Secretary’s conduct which is inconsistent with the decision to mandate compliance with the scheme. In this respect, the real complaint is that the Home Secretary has failed to enforce compliance, not that anything was done which in principle undermines or frustrates the obligation to comply.

As to the third ground of challenge, the obligation imposed by s. 55 BCIA is an obligation to make arrangements for ensuring that immigration functions (inter alia) are discharged “having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom”. That obligation is not breached simply because (in the view of the court) the relevant functions could have been exercised in a way which better safeguards and promotes the welfare of children. The question for the court is whether the Home Secretary made arrangements for ensuring that, when the functions were exercised, the persons exercising them had regard to the specified need. In this case, the documents recording the Home Secretary’s decision-making in relation to the NTS shows that the relevant decision-makers thought that what they were doing was sufficient to safeguard and promote the welfare of children. There is, therefore, no evidence to support a breach of s. 55 BCIA.

The fourth ground of challenge is that the Home Secretary’s powers have been exercised in such a way as to frustrate the discharge of Kent CC’s functions under s. 20 CA 1989. For much the same reasons as I have given in relation to the first ground of challenge, I do not consider that Kent CC has shown that the Home Secretary’s decision-making in relation to the NTS has had the effect of frustrating the discharge of Kent CC’s s. 20 CA 1989 duties.

The fifth ground of challenge is that the Home Secretary’s powers have been exercised irrationally.

At the hearing, Mr Southey drew attention to R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin), [2019] 1 WLR 1649, in which Leggatt LJ (with whom Carr J agreed) distinguished two aspects of rationality. At [98], he said this:

“This legal basis for judicial review has two aspects. The first is concerned with whether the decision under review is capable of being justified or whether in the classic Wednesbury formulation it is ‘so unreasonable that no reasonable authority could ever have come to it’: see Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223, 233—234. Another, simpler formulation of the test which avoids tautology is whether the decision is outside the range of reasonable decisions open to the decision maker: see e.g. Boddington v British Transport Police [1999] 2 AC 143, 175, per Lord Steyn. The second aspect of irrationality/unreasonableness is concerned with the process by which the decision was reached. A decision may be challenged on the basis that there is a demonstrable flaw in the reasoning which led to it – for example, that significant reliance was placed on an irrelevant consideration, or that there was no evidence to support an important step in the reasoning, or that the reasoning involved a serious logical or methodological error. Factual error, although it has been recognised as a separate principle, can also be regarded as an example of flawed reasoning – the test being whether a mistake as to a fact which was uncontentious and objectively verifiable played a material part in the decision-maker’s reasoning: see E v Secretary of State for the Home Department [2004] QB 1044.”

During the hearing, I suggested to counsel that it might be said that, at least prior to my first judgment on 27 July 2023, the Home Secretary’s decision-making in relation to the NTS was vitiated by the second kind of irrationality identified here – viz. process irrationality – because there was a failure to take into account the Home Secretary’s own responsibility for Kent CC’s unlawful failure to discharge its s. 20 CA 1989 functions in respect of every UAS child and the unlawfulness of the systematic and routine use of hotels; and these were matters which, as a matter of law, had to be taken into account.

The arguments of Mr Southey for Kent CC and Ms Rhee for the Home Secretary at times bore a striking similarity to those advanced at the hearing on 20 and 21 July 2023. They induced a sense of déjà vu. Mr Southey’s theme was that Kent CC had been “forced” into the position of declining to accept newly arriving UAS children because of the Home Secretary’s failure to operate the NTS in such a way that transfers kept pace with arrivals; and only the Home Secretary had the levers needed to ameliorate the situation. The leitmotif of Ms Rhee’s submissions was that the Home Secretary had resorted to the use of hotels because of Kent CC’s unlawful refusal to discharge its statutory responsibility under the CA 1989 to accommodate and look after every newly arriving UAS child; and in the face of that refusal she had done her best to operate the NTS in such a way as to assist Kent CC as much as possible, introducing reasonable modifications from time to time as circumstances changed.

These positions would be perfectly understandable if I had not already determined in my first judgment that, up to 27 July 2023, both Kent CC and the Home Secretary had been acting unlawfully. The unlawfulness of the Kent Protocol was, as I held, attributable to both parties: see [168]-[169] of my first judgment. The use of hotels had become systematic, routine and entrenched so that they functioned as a substitute for local authority care from December 2021 at the latest: see [201]-[205] of my first judgment. From this date, the Home Secretary was acting unlawfully. The issues now before me focus exclusively on the conduct of the Home Secretary. They fall to be determined against this background.

There are two consequences. First, I should not assume that, whenever Kent CC said that it could not safely accept any more UAS children, that was always so. Not only was Kent CC acting unlawfully when it made those declarations; in addition, the vast increase in the number of UAS children it has taken into in its care since 27 July 2023 suggests that it could almost certainly have accepted at least some additional UAS children at an earlier stage (though not on the basis of the funding arrangements in the Kent Protocol).

Second, however, it would not be fair for the Home Secretary to treat Kent CC’s breach of duty as a fixed feature of the legal landscape when she herself was party to it (by agreeing the Kent Protocol) and indeed enabled it (by using hotels in a systematic and routine manner). As I said at [207]:

“…the Secretaries of State have a range of options open to ensure that UAS children are accommodated and looked after as envisaged by Parliament. These include: directing Kent to comply with its statutory duty under s. 84 CA 1989 (a power which can be exercised by the Education Secretary); increasing the funding made available to Kent CC with a view to lifting the cap on the number of UAS children the RSCS can accept; increasing the financial incentives available to other local authorities to encourage them to accept transfers from the RSCS more timeously; making more robust the arrangements for dispute resolution in the NTS Protocol (for example, by introducing a binding adjudication mechanism); and bringing judicial review proceedings to enforce the terms of the NTS. It is for the Home Secretary to decide whether to take any of these measures, or others, and if so in what combination.”

It is a matter of fact that the Education Secretary decided not to direct Kent CC to comply with its statutory duty. Mr Southey says that this is because it was concluded that it would be difficult or impossible to show that Kent CC was acting unreasonably, and that being so the power to make a direction did not arise. There is some evidence from which an inference to that effect might be drawn. However, I do not need to make any finding about this, because the reasons for the decision not to make a direction do not matter. Whatever the reasons, having decided not to seek to direct Kent CC to comply with its duty, the Home Secretary had to find another way of bringing to an end the unlawful situation for which she herself was partly responsible.

One way would have been to provide significantly increased funding to Kent CC with a view to increasing the number of UAS children it could look after. That was not done. By agreeing to the Kent Protocol, and the cap on numbers inherent in it, the Home Secretary acquiesced in Kent CC’s breach of duty. The only mechanism left to the Home Secretary to remedy the unlawful situation for which she was herself partly responsible was therefore the NTS. As Sales LJ put it in R (London Criminal Courts Solicitors Association) v Lord Chancellor [2015] EWCA Civ 230, [2016] 3 All ER 296 at [13]:

“…even if a decision-maker starting with a blank canvas might have a wide discretion how to proceed in order to achieve the result required, he might proceed in stages and gradually structure his consideration of how to move forward. A decision-maker who structured his approach in this way might adopt criteria as a guide for himself. If he does so, the rationality of his decision-making might in principle be tested by reference to the rationality of his assessment whether his own chosen criteria have been satisfied. The rationality of steps in his reasoning could in this manner be assessed in a more precise and determinate way.”

I appreciate, of course, that when the matters to which a decision-maker must have regard are not prescribed by statute, it is for the decision-maker to decide what is and is not relevant, subject only to rationality review: see R (Friends of the Earth) v Secretary of State for Transport [2020] UKSC 52, [2021] PTSR 190, [118]-[119] (Lord Hodge and Lord Sales). But the rider is important. There will be some considerations which, as a matter of rationality, must be taken into account.

In this case, there were, in my judgment, two key matters in this category: (i) that the Home Secretary was (through her agreement to the Kent Protocol) partly responsible for Kent CC’s unlawful failure to discharge its s. 20 CA 1989 function in respect of every UAS child; and (ii) that the Home Secretary’s use of hotels had by December 2021 become systematic, routine and therefore unlawful. These facts were centrally relevant to the exercise of the Home Secretary’s discretionary powers in relation to the NTS. In my judgment, no exercise of those powers which failed to have regard to those facts could be lawful.

It would be disproportionate to deconstruct and examine each and every decision taken by the Home Secretary in relation to the NTS during the period December 2021 to 27 July 2023. However, it is possible to draw three general conclusions.

First, I do not accept that the Home Secretary was at any stage or is now obliged by law to take, or even threaten, enforcement action in the form of judicial review proceedings against recalcitrant local authorities. Deciding whether and if so when to take or threaten such action is quintessentially a question of judgment, best taken by Ministers on the advice of officials who have been negotiating with the local authorities concerned and thus have a feel for the likely reaction of those authorities. Experience suggests that, while in some situations taking or threatening legal action may produce results, in others it may lead to an entrenchment of positions and the breakdown of cooperation. The need to avoid the latter consequence is of particular importance given that arrangements for transfer depend on a good faith assessment of what is in the best interests of the individual child both by the entry authority and by the receiving authority.

Second, however, some of Kent CC’s, Brighton & Hove CC’s and East Sussex CC’s criticisms of the pace and urgency of the Home Secretary’s decision-making process in relation to the NTS are well founded. There were long delays between June 2021 (when limited changes to version 2 were announced) and December 2021 (when version 3 was published and the first group of local authorities were mandated to comply with the NTS). In May 2022, the Home Office’s own analysis showed that performance against the 10 working day time limit was very variable, but it was a further three months before version 4 was published in August 2022. Despite further analyses showing patchy performance, at the start of 2023, there was a deliberate decision to keep using hotels for the remainder of the year; and all the evidence suggests that the use of hotels would have continued as a matter of routine policy had it not been for my first judgment. It is difficult to avoid the conclusion that the slow pace of decision-making, and the view that it was acceptable to continue to use hotels, was affected by the Home Secretary’s unlawful failure to take into account, or indeed recognise, her own responsibility for the unlawful situation which had occurred and, thus, her own pressing responsibility to remedy it.

Third, Kent CC was right to criticise the lack of any proper analysis of the changes to the NTS which were required to eliminate the use of hotels. I accept that it is for the Home Secretary to decide what analysis to undertake, subject only to rationality review: see R (Balajigari) v Secretary of State for the Home Department [2019] EWCA Civ 673, [2019] 1 WLR 4647, [70]. But the decision about what analysis should be undertaken had to be taken on the basis of a proper understanding of the law. The approach taken was to make minor modifications at intervals of months or years, and after extensive consultation and long consideration of the responses, all on the premise that the use of hotels might still be required if Kent CC continued to act in breach of its CA 1989 duties. That approach may have been an appropriate response to a simple breach by another public authority of its legal obligations, particularly where the breach is of uncertain duration. It was not an appropriate response to a sustained and long-term breach for which the Home Secretary was partly responsible and in which she had acquiesced. The fact that the Home Secretary was enabling this breach by routinely providing hotel accommodation as a substitute for local authority care made it legally necessary to devise a plan directed at using the NTS to eliminate the use of hotels as soon as possible. No such plan was formulated. In this respect, the Home Secretary’s decision-making in relation to the NTS was unlawful in the period December 2021 to 27 July 2023.

Since my first judgment, the two facts to which the Home Secretary previously failed to have regard (see para. 48 above) have been, or should have been, obvious. Since 27 July 2023, there have been a number of improvements to the operation of the NTS. These, combined with the impressive work that has been done collaboratively by Kent CC and the Home Secretary to increase the capacity of Kent CC’s children’s services for UAS children, appear to have effected a significant reduction in the numbers of children being accommodated in hotels. Whether this will be sustained remains to be seen.

In one respect – the timescale for writing to recalcitrant local authorities – Ms Rhee accepted at the hearing that arrangements could and would be improved. One significant failing in the past – the lack of a proper analysis of what changes are required to the NTS to eliminate the use of hotels – does not appear to have been remedied yet. But I do not consider that it would be fair to stigmatise this omission as irrational at a point where the arrangements between Kent CC and the Home Secretary were still in the process of negotiation. The terms of the final arrangements are likely to have an impact on what is needed to ensure that all UAS children are taken into care on arrival. It is also relevant that, at the time of the hearing on 10 October 2023, no decision had been made to commence the provisions of the Illegal Migration Act 2023 (“the 2023 Act”) that confer power to accommodate UAS children. The Home Secretary is entitled to some time to decide, as a matter of policy, whether and when these provisions should be enforced.

However, if the provisions of the 2023 Act are not to be commenced, and once final arrangements between Kent CC and the Home Secretary are concluded, rationality will require a plan to be prepared to ensure that the use of hotels to accommodate UAS children ceases and does not resume. The details of such a plan are for the Home Secretary to determine. A lawful plan will at minimum need to:

For these reasons: