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an issue of destitution: MN and KN v London Borough of Hackney

17 May 2013

In a scenario familiar to many social workers, the case of MN and KN v London Borough of Hackney involved an overstaying family with two children aged 3 and 13. The parents and the eldest child had entered the UK on visitors visas in 2000/2001 and never left. The youngest child was born in 2008 and has been diagnosed with autism. The parents approached Hackney for assistance in early 2012, claiming that they were about to be evicted from the property at which they had been staying and as such were about to be street homeless.

A S17 assessment conducted in March 2012 found that the family were not destitute. The social worker had not been satisfied as to destitution because the parents would not provide him with sufficient information to enable him to verify what means of support had been available to them for the previous decade and therefore why that support was no longer available. The social worker also undertook a Human Rights Act assessment that concluded that supporting the family to return to Jamaica would not result in a breach of their human rights under either Article 3 or Article 8 of the Convention. Those decisions were challenged.

Prior to the full hearing of the claim, the High Court gave judgment in the case of KA v Essex County Council - a case that was favourable to the claimants in MN.

The judge found that the decision on destitution was lawful. He went on to consider the claimants other grounds, but his views on those grounds are obiter. In the context, he found that Hackney had not given sufficient consideration to the claimants private (as opposed to family) lives, particularly that of the eldest child. He also found that there had been a failure to adequately investigate the extent to which the youngest childs needs arising from his disability would be met in Jamaica, and that Hackney should have had regard to an expert opinion on that issue that had been submitted to UKBA.

The judge found that the social worker had not been satisfied that the family were destitute because the parents had failed to provide him with sufficient information to enable him to accept their claim that the family would be homeless if Hackney did not assist them and that that was a permissible approach.

The judge held that an authoritys duty and powers under s17 arose only where children are "in need" and that the question of whether or not children were in need was a matter for the judgement of the authority and not a question of objective fact to be determined by the Court. As such, he found that decisions as to need could only be challenged on grounds of rationality or failure to conduct a proper investigation before making the decision.

In considering whether the decision was rational, the judge said that the social worker was entitled:

  • to take account of the fact that the family had successfully supported themselves in this country for over a decade without recourse to public assistance and draw inferences from that
  • to be sceptical of claims that the family were about to be made homeless, made only after the parents were informed that Hackney could only accommodate them if they were destitute
  • to request relevant information including detailed information about how the family had supported themselves in the past and draw adverse inferences when only scant information was provided.

These were matters of fact and judgement which the Court could not and should not second guess. The judge showed considerable deference to the professional judgement of social workers that is to be welcomed.

The judge in MN held (obiter) that Article 8 required a two stage test: stage one, to decide whether what is contemplated involves interference by a public authority with the exercise of the right to respect to private or family life which is sufficient to fall within the scope of Article 8. If so, stage two is to determine whether such interference is in accordance with the law and is necessary and proportionate to one or more of the legitimate aims in Article 8(2). At stage two, the authority could take into account competing demands for its resources but had to give primacy of accord to the best interests of the child and comply with its public sector equality duty in cases of disability.

The judge found that KA was wrongly decided and declined to follow it because it had the effect of putting illegal overstayers in a better position than those who were in the country lawfully. That was contrary to common sense.

The judgment reinforces the importance of conducting a proper investigation into claims of destitution and confirms the possibility of drawing inferences from the information available or any lack of co-operation.

Browne Jacobson LLP acted for The London Borough of Hackney.

This article was first published on www.localgovernmentlawyer.co.uk

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