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Does a local authority have power under s.17 Children Act 1989 to support an adult sibling of a child in need?

R(OA) and others v LB Bexley [2020] EWHC 1107 (Admin)

The factual background was that the Claimants were the child's mother, the child, and the child's adult sibling. All were immigration overstayers and therefore without status. Bexley agreed to provide support pending an immigration application being made, but the subsistence support it provided was stated to be to meet the needs of child and mother, and not adult sibling.

This was challenged on the basis that it was unlawful to fail to provide support to meet the subsistence needs of the adult sibling where the reality of the situation was that support intended for two persons was having to meet the needs of three, with the result that the child reported that he was frequently hungry. The Claimants contended that Bexley had power to provide subsistence support to include the adult sibling under s.17(3).

Bexley's argument was that it lacked power to support an adult who was not the parent or carer of the child in need and that on its assessments, the child's needs were being met by the mother.

It was held that s.17(3) was wide enough to permit a local authority to support an adult household member who is not a parent or carer for the child, but that this power arose only once there had been assessment under s.17(1) that the provision of support to that adult was a need of the child: on Bexley's assessments, the child did not have a need for his brother to be supported with subsistence payments.

The judgment considers the relationship between s.17(1) and (3), with the Claimants contending that s.17(3) contains a wider power than 17(1). It was held that "s.17(3) is only concerned with the services which may be provided "in the exercise of functions conferred on [an authority] by this section"; so that the power to provide a service under s.17(3) can only be exercised for the purposes of meeting the general duty under s.17(1): see R(G) v Barnet LBC [2004] 2 AC 239 at [91] per Lord Hope. In my judgment it follows, given the closing words of s.17(1), that the services must always be those that are appropriate to the "needs" of the relevant child" [64].

The Claimants' challenge to the assessments was dismissed see [76]: there had been a sufficiently detailed inquiry as to the relationship between the child and his sibling, and a rational conclusion that the needs of the child were being met by the child's mother, to whom support was being provided.

The claim for judicial review was dismissed.

Siân Davies appeared for the Defendant LB Bexley, instructed by Bexley Legal Services