Way back in July 2014, a migrant family denied recourse to public funds initiated a legal challenge against the London Borough of Newham, which had acknowledged a statutory duty towards the family under section 17 of the Children Act 1989.
At that time, Newham was paying this family- consisting of a single mother and three children- a weekly subsistence allowance of just £50 per week- or £12.50 per person. Newham claimed to have calculated this sum to be in line with those paid to children with recourse to public funds under Child Benefit rates. Newham further claimed to have a responsibility to meet the essential living needs of the children alone, and not to the mother.
The family’s challenge was successful: the High Court ruled not only that Newham’s subsistence rate calculations were irrationally low, since Child Benefit rates were never designed to meet the essential daily living needs of destitute children, but also that Newham could not reasonably accept that it had a statutory duty to recognise the children in the family as ‘in need’ within the meaning of the Children Act, while essentially leaving their mother destitute, since the basic care and support needs of dependent children are essentially indistinguishable from those of their primary carer. Put simply, a child’s support needs cannot reasonably said to have been met if their parent is starving. The judgement suggested that support rates should reasonably be expected to adhere to the basic support test established in relation to families supported under section 95 of the Immigration and Asylum Act 1999- which is to say, around £36 per person.
Moreover, the Court ruled that the Local Authority had a responsibility to make its policy relating to the care and support of families denied recourse to public funds as a consequence of their irregular immigration statuses publicly available, enabling people potentially affected by the policy’s application to seek legal advice and support, and to challenge a policy’s application where appropriate. A summary of the Newham Judgement is available here: http://www.nrpfnetwork.org.uk/News/Pages/Local-authority%E2%80%99s-section-17-subsistence-rates-policy-found-to-be-unlawful-.aspx
On pretty much a weekly basis in the 22 intervening months, ASIRT has sought policy clarification not only from Birmingham City Council but also from neighbouring Local Authorities, repeatedly to be told either bluntly that no such policy exists, or else that it remains available only in ‘draft’ form and is not yet publicly available. One Local Authority we are dealing with – and are initiating litigation against- refuses to share any such policy, and continues to support families at a rate of £12.50 per person per week (actually demanding receipts for food and ‘clawing back’ money in the unlikely event that such an allowance is not fully spent in a seven day period.)
Another flatly refuses to make its policy available either to advocates or service users, and will be defending this position in the High Court in the summer, following legal action initiated by ASIRT.
Birmingham City Council has, to its credit, finally made its policy available, with the consequence that families denied recourse to public funds in the city finally have access to some transparent guidance relating to the approach the City is likely to take when assessing their needs, as well as a clear idea of the level of financial support they can reasonably expect to receive to meet their essential daily living needs. The policy document here is attached, with gratitude- though, at the risk of sounding cynical, we remain of the opinion that it exists primarily as a consequence of concerted pressure on our part.
We know that this information will inevitably become ever more essential to destitute families, and to people working to help them. Home Office policy changes, the ‘hostile environment’ agenda, changes to legislation and case law, austerity and cuts to Legal Aid have created a landscape in which ever increasing numbers of families are denied recourse to public funds, and are entirely dependent on the basic support provision they are entitled to receive under section 17.
Without advocates fighting their corners, these desperate families are likely to be denied not only their basic legal entitlements, but even the right to be provided with transparent information about what these entitlements even are.
This is why once again we will be taking part in this year’s Birmingham Legal Walk, raising funds for ASIRT and for other legal advice charities to support their work in helping vulnerable and precarious people in desperate need of advocacy, representation and advice.
Any help you can give will be greatly appreciated, and genuinely will make a difference to people’s lives.