CYK, R (on the application of) v Kent County Council [2026] EWHC 779 (Admin)

[2026] EWHC 779 (Admin)

IN THE HIGH COURT OF JUSTICE

KING’S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 31 March 2026

Before

Jonathan Moffett KC, sitting as a deputy High Court Judge

Case No AC-2025-LON-000736

Case No Between:

Between

CYKClaimant

KENT COUNTY COUNCILDefendant

SECRETARY OF STATE FOR THE HOME DEPARTMENTInterested Party

THE KING

on the application of

Case No: AC-2025-LON-003567

THE KING

on the application of

Between

DSClaimant

KENT COUNTY COUNCILDefendant

SECRETARY OF STATE FOR THE HOME DEPARTMENTInterested Party

Nicola Braganza KC and Emma Fitzsimons (instructed by Coram Children’s Legal Centre) for Claimant CYK

Zoë Leventhal KC and Ayesha Christie (instructed by Coram Children’s Legal Centre) for Claimant DS

Martin Westgate KC (instructed by Invicta Law) for Defendant in each claim

Hearing Hearing dates: 27 and 28 January 2026

JUDGMENT

This Judgment was handed down electronically at 10am on Wednesday 31 March 2026 in accordance with the Practice Guidance dated 16 December 2021.

Jonathan Moffett KC, sitting as a Deputy High Court Judge:

[1]Each of these claims for judicial review raises the issue whether my decision in R (AAM) v Bromley London Borough Council

[2025] EWHC 1565 (Admin)

[2025] 1 WLR 5528

is correct.

[2]Underlying that issue is the precise nature of the interrelationship between one element of a local authority’s functions under the leaving care provisions of the Children Act 1989 (“the 1989 Act”) and the functions of the Interested Party in each case, the Secretary of State for the Home Department (“the Secretary of State”), under the asylum support provisions of the Immigration and Asylum Act 1999 (“the 1999 Act”).

[3]Under s 24A (5) of the 1989 Act, a local authority has, in exceptional circumstances, a power to provide accommodation and financial assistance to a person qualifying for advice and assistance (“a qualifying young person”). In AAM, I held that, in the case of a qualifying young person who is an asylum-seeker (“an asylum-seeking qualifying young person”), when a local authority is deciding whether there are exceptional circumstances for the purposes of s 24A(5), it is not entitled to take into account the fact that the young person is being provided with, or might be provided with, asylum support by the Secretary of State under s 95 of the 1999 Act.

[4]In each of these claims, the Claimant argues that the Defendant, Kent County Council (“the Council”), failed to act in accordance with AAM, that that casewas correctly decided, and that I should follow it. In each claim, the Council argues that AAM was incorrectly decided, and that I should not follow it.

[5]In consequence, the parties agree that the main question which arises for determination in each case may be articulated as follows: when a local authority is determining whether to provide an asylum-seeking qualifying young person with accommodation or financial assistance pursuant to s 24A(5), is the local authority entitled to take into account the fact that the young person is or could be provided with asylum support pursuant to s 95?

[6]As the parties recognise, I do not start with a blank canvas when considering that question, as it is in essence the same question which I determined in AAM. I am not bound by my decision in AAM, but the parties agree that I should follow it unless there is a powerful reason not to do so (see Willers v Joyce (No 2)

[2016] UKSC 44

[2018] AC 843

, para 9 per Lord Neuberger). Indeed, there is authority to the effect that I should follow AAM unless I am convinced that it is wrong (see R v Greater Manchester Coroner, ex p Tal

[1985] QB 67

, 81A-B per Robert Goff LJ for the Divisional Court). Accordingly, the starting point for my consideration of the question set out above must be my reasoning in AAM.

[7]The claims were heard together. At the hearing, CYK was represented by Nicola Braganza KC and Emma Fitzsimons, DS was represented by Zoë Leventhal KC and Ayesha Christie, and in each case the Council was represented by Martin Westgate KC. On the Claimants’ side, Ms Leventhal shouldered the main burden of the oral submissions, with Ms Braganza adopting Ms Leventhal’s submissions and supplementing them with an additional supporting argument.

[8]I am grateful to all counsel, and their supporting teams, for the high quality of the submissions. It is fair to say that the arguments on all sides were much more developed and referred to a wider range of statutory provisions and authorities, than the arguments which I heard in AAM. In particular, I have been referred to two authorities which were not cited to me in AAM, and which have proved to be significant. As a result, and as I explain below, I have concluded that, although the broad shape of my analysis in AAM is sound, it requires modification in two important respects.

[9]The Secretary of State was named as an interested party in each claim. In each claim, she filed an acknowledgment of service stating that she adopted a neutral position on the claim and that she did not intend to participate in the proceedings. Accordingly, the Secretary of State was not represented at the hearing, and I have received no submissions from her.

[10]There are three legislative provisions which are at the heart of these cases: s 95 of the 1999 Act, s 24A of the 1989 Act, and reg 6 of the Asylum Support Regulations 2000 (SI 2000 No 704) (“the 2000 Regulations”)). For convenience, I shall refer to those provisions simply as “s 95”, “s 24A”, and “reg 6”, respectively. Similarly, and also for convenience, I shall refer to s 4 of the 1999 Act simply as “s 4”, and to s 17 of the 1989 Act simply as “s 17”.

[11]The Secretary of State’s functions in relation to the provision of asylum support under the 1999 Act were formerly exercised by a division of the Home Office known as the National Asylum Support Service, or NASS; hence accommodation and support which is provided under the 1999 Act has often been referred to as “NASS accommodation” and “NASS support”. I used these expressions in AAM but, because NASS no longer exists as a discrete division of the Home Office, the parties in the present cases preferred not to use this terminology. Accordingly, I shall refer to accommodation provided under s 95 as “asylum accommodation”, and I shall refer to support (including accommodation) provided under s 95 as “asylum support”.

[12]In view of the length of this judgment, it may be of assistance to the reader to set out at the outset an index of the topics which I cover. They are as follows.a. A. Introduction (paragraphs 1-12)

b. B. Procedural matters (paragraphs 13-26)

c. C. The factual background (paragraphs 27-65)

d. D. The legislative and policy framework (paragraphs 66-109)

e. E. The decision in AAM (paragraphs 110-120)

f. F. The parties’ arguments (paragraphs 121-141)

g. G. The issues (paragraphs 142-148)

h. H. Issue 1: does the potential for deadlock arise at all? (paragraphs 149-153)

i. I. Issue 2: the correct approach to identifying relevant considerations (paragraphs 154-159)

j. J. Issue 3: is s 95 a “residual” function in the context of s 24A? (paragraphs 160-207)

k. K. Issue 4: how should the potential deadlock otherwise be broken (paragraphs 208-230)

l. L. Summary and consequential matters (paragraphs 231-239) B. PROCEDURAL MATTERS (1). Anonymity

[13]In CYK’s case, permission to apply for judicial review was granted by an order of UTJ Church, sitting as a Deputy High Court Judge, dated 25 September 2025. UTJ Church granted a withholding order, a restricted reporting order under s 11 of the Contempt of Court Act 1981, and an order restricting access to documents on the Court’s file under CPR 5.4C(4). He did so on the basis that CYK is a vulnerable care leaver who has an outstanding application for asylum.

[14]In DS’s case, permission to apply for judicial review was granted on one ground only by an order of Foxton J dated 5 November 2025. Foxton J ordered that the claim should be expedited, and that it should be listed together with CYK’s claim. At an earlier stage, by an order dated 17 October 2025, Lieven J had granted a withholding order, a restricted reporting order, and an order restricting access to documents on the Court’s file. She did so on the basis that DS is an asylum-seeker, and there was evidence of protests taking place in the vicinity of his asylum accommodation.

[15]At the outset of the hearing, I canvassed with the parties whether the anonymity orders granted by UTJ Church and Lieven J should be maintained. Ms Braganza and Ms Leventhal argued that they should be maintained; Mr Westgate had no objection. I established that no members of the press were in attendance at the hearing.

[16]Anonymity orders of the kind made in these cases constitute a departure from the important constitutional principle of open justice to which significant weight must be attached. Nevertheless, I was persuaded that a derogation from that principle was justified in each case. At the time of the hearing, CYK was an asylum-seeker, and his case involves information about his mental health and an allegation that he has been sexually assaulted, matters which would otherwise be private. DS is an asylum-seeker who says that he has been the victim of torture, and whose case involves information about his mental health, information which would again otherwise be private. In those circumstances I considered that the derogation from the principle of open justice was justified, and that UTJ Church’s order and Lieven J’s order should remain in force, a decision which I announced at the hearing. I remain of that view.

[17]Accordingly, any report of these proceedings or this judgment must not directly or indirectly identify either Claimant. (2). Application to amend in DS’s case

[18]On 23 December 2025, DS applied to amend his claim form and statement of facts and grounds. In broad terms, the amendments delete DS’s second ground of challenge (which was a fact-specific challenge to an assessment completed by the Council in September 2025, and in relation to which Foxton J had refused permission to apply for judicial review), and more tightly focus the final remedies sought. The proposed amendments were primarily a response to the Council’s acceptance that, if DS were to succeed on his first ground of challenge (which relies on AAM), it would undertake a re-assessment of DS’s needs. The Council did not object to the proposed amendment, and I therefore granted permission to amend at the outset of the hearing. (3). The evidence

[19]The evidence on behalf of CYK comprises contemporaneous documentation, a witness statement from CYK himself, dated 6 March 2025, and three witness statements from his solicitor, Radhi Shah of Coram Children’s Legal Centre (“CCLC”). Ms Shah’s third witness statement was filed by way of reply to the Council’s evidence. CYK required permission to rely on this witness statement and, as the Council did not object to it being admitted into evidence, I granted that permission at the outset of the hearing. In CYK’s case, the Council relies on a witness statement from Elaine Simcock, a Team Manager in the Council’s 18+ Care Leavers Service, and a witness statement from Rita Boboye, the Service Manager of that service.

[20]In DS’s case, I was provided with contemporaneous documentation relating to his case and, on behalf of the Council, two witness statements from Ms Boboye. Ms Boboye’s first witness statement, dated 24 October 2025, addressed certain matters in relation to DS’s specific case; her second, dated 17 November 2025, covered broadly the same ground as her witness statement in CYK’s case, save that it omitted certain sections. On 27 November 2025, DS made a formal request under CPR Part 18 for further information from the Council, in relation to certain of the matters referred to by Ms Boboye in her second witness statement. The Council responded to that request on 10 December 2025.

[21]In each case, I was provided with an agreed chronology, on which I have gratefully drawn for the summaries of the factual background which I set out below.

[22]No party took a point that any evidence which had been adduced in one case could not (insofar as it is relevant) be relied on in the context of the other case, and no party took a point that a particular witness statement went beyond evidence of fact and comprised or included inadmissible opinion evidence or submission. Accordingly, the hearing proceeded on the basis that, insofar as any evidence is relevant to the issues which I have to determine, I could take it into account regardless of whether it had been adduced in one or both of the cases. (4). Whether to entertain CYK’s academic claim

[23]At the hearing, CYK and the Council were agreed that, for the reasons which I explain below, CYK’s claim was largely academic. Since the hearing, CYK has been granted asylum by the Secretary of State which, it seems to me, renders the claim academic. However, each of CYK and the Council contend that I should nevertheless determine the claim.

[24]The starting point is the general rule that the Court should not entertain an academic claim, a rule which should be applied with rigour (R (L) v Devon County Council

[2021] EWCA Civ 358

[2021] ELR 420

, para 50 per Elisabeth Laing LJ). Although the Court has a discretion to hear an academic claim, that discretion should be exercised in only exceptional circumstances (see the Administrative Court Judicial Review Guide 2025, para 6.3.4.2).

[25]In CYK’s case the main factor which weighs against the exercise of my discretion is the fact that the only issue which remains for determination in CYK’s case is already before the Court in DS’s case. Nevertheless, Mr Westgate was content for me to entertain CYK’s claim, and there is one countervailing factor which has – just – persuaded me that I should exercise my discretion to do so. As I have already mentioned, in CYK’s case Ms Braganza advances an argument which is additional to those advanced by Ms Leventhal in DS’s case. In my judgment, in circumstances in which I am being asked to decide whether my decision in AAM is correct, it is important that all of the arguments are considered. In order to do so, I should consider Ms Braganza’s additional argument in CYK’s case.

[26]Accordingly, I consider that I should exercise my discretion to entertain CYK’s claim.

C. THE FACTUAL BACKGROUND

[27]The parties have proceeded on the basis that the main issue to which the claims give rise is an issue of law, and that resolution of that issue does not turn on the specific facts of either Claimant’s case. In consequence, although in each case there are differing accounts of the Council’s interactions with the Claimant, none of the parties has suggested that I need to resolve those differences. Indeed, none of the parties made any substantive oral submissions on the specific facts of either Claimant’s case. Accordingly, for present purposes, it is sufficient for me to summarise the facts of each case briefly. (1). CYK’s circumstances

[28]CYK was born in Egypt on 8 February 2006. He is now 20 years old. He came to the United Kingdom on 14 January 2024, when he was aged 17, as an unaccompanied asylum-seeking child.

[29]On the day after CYK arrived in the United Kingdom, 15 January 2024, the Council accepted that CYK was a child in need, and that it was necessary to provide accommodation to him under s 20 of the 1989 Act.

[30]CYK turned 18 on 8 February 2024, on which date he was taken to the Home Office’s Kent Intake Unit, and thereafter he was taken to asylum accommodation in Oxford. CYK says that he did not feel safe or supported in that accommodation and, two weeks later, he left and travelled to London, where he spent two nights on the streets. After he contacted the authorities, CYK was transferred to asylum accommodation in Gloucester.

[31]While CYK was accommodated in Gloucester, his case was taken up by Gloucester Action for Refugees and Asylum-Seekers (“GARAS”), a local charity. GARAS helped CYK to make contact with the Council and, on 22 April 2024, the Council produced a needs assessment of CYK.

[32]On 9 July 2024, the Secretary of State moved the Claimant from Gloucester to asylum accommodation in Feltham. This move interrupted GARAS’s support for the Claimant, but his case was subsequently taken up by the British Red Cross, and then by his current solicitors, CCLC.

[33]On 15 November 2024, CCLC asked the Council to provide CYK, as a qualifying young person, with advice, assistance and support under ss 24A and 24B of the 1989 Act.

[34]The Council responded on 22 November 2024, accepting that the Claimant was a qualifying young person for the purposes of the 1989 Act, and agreeing to provide CYK with support on an interim, discretionary basis. The Council informed CCLC that it would undertake an assessment of CYK’s needs in order to determine the support, advice and befriending that he required as a qualifying young person.

[35]On 10 December 2024, the Council produced a further needs assessment of CYK, headed “Part Two - The Plan” (“the December 2024 assessment”). This is the assessment which is challenged by way of CYK’s claim for judicial review. The December 2024 assessment considered CYK’s needs by reference to ten domains. It recorded CYK’s struggles with his mental health, his wish to attend college in Reading and to improve his English, his immigration status, the fact that he had no family in the United Kingdom, the fact that he had limited money, and the fact that he wanted to live in Reading, where most of his friends were. The December 2024 assessment recorded the steps which were proposed to be taken to meet CYK’s needs, primarily by way of assistance from his personal advisor.

[36]On 28 January 2025, CCLC sent a letter before claim to the Council, pursuant to the Pre-Action Protocol for Judicial Review. CCLC contended, amongst other arguments, that the December 2024 assessment was predicated on an error of law, in that the Council had taken into account the fact that CYK was being provided with asylum accommodation by the Secretary of State. The Council responded on 11 February 2025, contending that CYK did not have a need for accommodation, because his welfare and accommodation needs were already being met by the Secretary of State. Nevertheless, the Council stated that it would review the December 2024 assessment in order to address the matters which CCLC had brought to its attention.

[37]CYK’s claim for judicial review was filed on 7 March 2025. The claim challenged the December 2024 assessment, and what was said to be the Council’s ongoing unlawful failure to discharge its functions in respect of the Claimant as a qualifying young person, on three main grounds. Ground 1(a), which is the only ground which remains live, is that the Council erred by taking into account the fact that CYK was being provided with asylum accommodation under s 95.

[38]The Council’s summary grounds of resistance, which were filed with its acknowledgment of service on 4 April 2025, contested ground 1(a), but repeated the offer to undertake a re-assessment of CYK which it had made in response to the letter before claim. On this basis, the Council contended that the claim was academic.

[39]In May 2025, CYK reported that he had been sexually assaulted by another resident at his asylum accommodation in Feltham. As a result, the Council agreed to provide CYK with accommodation in Ashford, where CYK has resided since 13 May 2025.

[40]On 12 June 2025, the Secretary of State rejected CYK’s claim for asylum, and CYK appealed that decision to the First-tier Tribunal.

[41]On 20 June 2025, the Secretary of State, exercising her functions as the National Referral Mechanism, decided that there were reasonable grounds to suspect that CYK has been a victim of modern slavery.

[42]On 25 September 2025, UTJ Church granted permission to apply for judicial review. In its detailed grounds of resistance, filed on 14 November 2025, the Council stated that it had undertaken a re-assessment of CYK, although that re-assessment was still in draft form. The re-assessment, which is dated 29 October 2025, was exhibited to Ms Simcock’s witness statement. The Council argued that, in light of the fact that CYK was now being accommodated by it as an exceptional case (and the Council had no plans to change those arrangements), and in light of the fact that the Council had undertaken a re-assessment of CYK, the claim was academic insofar as it sought to challenge the December 2024 assessment.

[43]However, the Council maintained its position that as a matter of law, when it undertakes its functions under s 24A of the 1989 Act, it is entitled to have regard to the fact that an individual is being provided with asylum accommodation by the Secretary of State. As such, the Council argued that the claim raises “an important issue of principle” which is of continuing significance to the Council and to others, and that the Court should entertain it notwithstanding the fact that the claim is academic insofar as it relates to CYK in particular.

[44]In their skeleton argument on behalf of CYK, Ms Braganza and Ms Fitzsimons accept that, because CYK is currently being provided with accommodation under s 24A (5), insofar as the claim addresses CYK’s own position, it is academic, save in relation to an issue as to financial assistance on which I heard no specific argument. Since the hearing, on 6 March 2026, CYK was granted asylum by the Secretary of State. Accordingly, as at the date of this judgment, he is no longer an asylum-seeking qualifying young person.

[45]In his witness statement, CYK describes his experiences since he arrived in the United Kingdom, including his dealings with the Council and the Home Office. CYK also explains the ongoing difficulties that he has experienced with his mental health since he arrived in the United Kingdom, and to the fact that he has on occasion self-harmed and experienced suicidal ideation, in part as a result of the effect on him of the deaths of his brother and his mother, which CYK found out about shortly after he arrived in the United Kingdom. Ms Shah’s first statement on behalf of CYK explains the efforts that she has made to support CYK and to ensure that he is able to access any support to which he is entitled. In her second witness statement, Ms Shah provides an update as to events which had occurred since the claim was filed in March 2025. In her witness statement on behalf of the Council, Ms Simcock provides a detailed account of the Council’s interactions with CYK and its handling of his case. (2). DS’s circumstances

[46]DS was born in Eritrea on 14 April 2006, and he is now 19 years old. He came to the United Kingdom as an unaccompanied asylum-seeking child on 6 February 2024.

[47]The Council accepted that DS was a child in need, and it accommodated him under s 20 of the 1989 Act.

[48]In February 2024, DS was assessed by a paediatric specialist doctor, to whom he disclosed that, on his journey to the United Kingdom, he was held captive in Libya, where he was beaten. The doctor diagnosed DS as suffering from post-traumatic stress disorder.

[49]DS turned 18 on 14 April 2024, and the following day he was transferred to asylum accommodation in Uxbridge.

[50]Subsequently, CCLC became involved in DS’s case, and on 5 May 2025, they asked the Council to conduct an assessment of his needs, and to provide advice and assistance under s 24A of the 1989 Act.

[51]The Council completed a needs assessment of DS on 6 June 2025, although it was not provided to DS until 17 July 2025. Upon receipt of this needs assessment, CCLC sent a letter before claim to the Council. I have not seen a copy of that letter, but I understand that it contended that the needs assessment did not comply with the law as set out in AAM.

[52]As a result, on 5 August 2025, the Council completed a second needs assessment of DS. This prompted a further letter before claim from CCLC, dated 10 September 2025, in response to which the Council completed a third needs assessment on 22 September 2025, headed “Part Two - The Plan” (“the September 2025 assessment”). The September 2025 assessment considered DS’s needs by reference to nine domains. It recorded that DS had suffered issues with his health, both physical and mental, that he wished to engage in education at Uxbridge College, and that he had no family in the United Kingdom. In relation to accommodation, the September 2025 assessment recorded the view of the assessing social worker that she did “not believe the issues presented by [DS] as part of the accommodation suitability assessment are of ‘exceptional circumstances’ which require [the Council] to provide alternative accommodation”. The September 2025 assessment recorded the steps which were proposed to be taken to meet DS’s needs, primarily by way of assistance from his personal advisor and support from organisations other than the Council.

[53]CCLC sent pre-action correspondence in respect of the September 2025 needs assessment on 26 September and 1 October 2025, and DS’s claim for judicial review was issued on 16 October 2025. The claim form stated that the matter challenged was the Council’s ongoing failure, including in the September 2025 needs assessment, to conduct a lawful assessment of DS’s needs and lawfully to consider whether to provide DS with accommodation and financial support pursuant to s 24A of the 1989 Act. The claim was originally brought on two main grounds: first, the Council had unlawfully failed properly to apply the decision in AAM; and, secondly, the Council had unlawfully failed properly to assess DS’s needs, and in particular his need for suitable accommodation and financial support. DS also sought expedition and an interim injunction requiring the Council to provide him with accommodation and support pending the resolution of the claim.

[54]On 1 October 2025, the Secretary of State, exercising her functions as the National Referral Mechanism, decided that there were reasonable grounds to suspect that DS has been a victim of modern slavery.

[55]The Council’s acknowledgment of service and summary grounds of resistance were filed on 24 October 2025. The Council accepted that permission to apply for judicial review should be granted on DS’s first ground of challenge but resisted the grant of permission on the second ground.

[56]As I have noted above, by an order dated 5 November 2025, Foxton J granted permission to apply for judicial review on DS’s first ground of challenge only. Foxton J also granted expedition and directed that DS’s claim should be listed together with CYK’s claim, which would ensure an early substantive hearing. By an order dated 12 November 2025, Sweeting J refused DS’s application for an interim injunction.

[57]The Council’s detailed grounds of resistance were filed on 17 November 2025. The Council continued to resist DS’s first ground of challenge, but accepted that, if DS were to succeed on that ground of challenge, the September 2025 assessment would have to be quashed, and the Council would have to undertake a fresh re-assessment of DS. (3). General background

[58]Unlike in AAM, each of the parties contextualised their submissions by reference to particular elements of the general background.

[59]Ms Leventhal and Ms Braganza relied on Ms Shah’s evidence as to the likely characteristics and needs of asylum-seeking qualifying young persons. In her third witness statement in CYK’s case, Ms Shah explains what she sees as the main difficulties which are likely to face asylum-seeking qualifying young persons, by reference to her own experience of assisting such persons, published papers, and CYK’s particular circumstances.

[60]Ms Shah explains that most, if not all, such young persons will have arrived in the United Kingdom as unaccompanied asylum-seeking children, and that they often have no parental or other familial support in the United Kingdom, which in itself presents risks. Ms Shah points out that many such young persons have been exposed to traumatic experiences, including experiencing or witnessing abuse and torture, and potentially witnessing persons close to them being killed. She explains that there are studies which indicate a high level of mental health conditions amongst unaccompanied asylum-seeking children, including post-traumatic stress disorder, depression and anxiety. Ms Shah refers to the risk that unaccompanied asylum-seeking children and asylum-seeking qualifying young persons will have experienced trafficking or other types of exploitation and observes that they are likely to be more vulnerable to such exploitation in the future. Ms Shah points out that the position of unaccompanied asylum-seeking children in this respect is recognised by the statutory guidance on modern slavery. Ms Shah explains that many unaccompanied asylum-seeking children have had disrupted educations, or even no formal education at all. She points out that it can be difficult for asylum-seeking qualifying young persons to sustain a stable education in the United Kingdom because, if the Home Office transfers a young person between accommodation at different locations, that is likely to make it difficult for him or her to continue his or her studies at a particular institution.

[61]Ms Shah refers to the insecure immigration status of asylum-seeking qualifying young persons as a factor which potentially contributes to their vulnerabilities. Ms Shah also makes the point that, whilst the law provides for a bright line between children and young people who have attained the age of 18, no such bright line applies in relation to their natural development, and the difficulties that an unaccompanied asylum-seeking child experiences as a minor are likely to continue after the age of 18. Ms Shah also makes the point that, although the law provides for a young person to have differing entitlements to care and support according to how long he or she has spent in a local authority’s care, there is not necessarily a correlation between the length of time that a young person has spent in care and the level of his or her needs.

[62]Ms Shah discusses the nature of the asylum accommodation which is provided by the Secretary of State, and she explains why, in her view, it is inferior to the accommodation which may be offered by a local authority. In particular, she points to the fact that asylum accommodation is provided only on a “no choice” basis, the fact that a young person might be accommodated alongside other much older asylum-seekers, and the fact that the Home Office does not conduct an holistic assessment of a young person’s needs in order to consider the suitability of accommodation. Ms Shah explains why, in her view, factors such as these are likely to exacerbate the situation of asylum-seeking qualifying young persons.

[63]On behalf of the Council, Mr Westgate emphasises the likely financial and practical difficulties which arise if my decision in AAM is correct. In her witness statements, Ms Boboye explains the likely impact on the Council, and the difficulties which would arise, if the Council were to be required to provide accommodation to asylum-seeking qualifying care leavers who are currently accommodated in asylum accommodation. She explains that, during the period January 2024 to September 2025, 142 asylum-seeking qualifying young persons had moved from accommodation provided by the Council to asylum accommodation, a figure that she compares with the only 58 qualifying young persons who are not asylum-seekers for whom the Council has responsibility. Ms Boboye estimates the likely cost to the Council if it were required to provide accommodation for 142 asylum-seeking qualifying young persons from the age of 18 until the age of 21. The relevant figure, as corrected, is almost £6.3 million.

[64]Ms Boboye emphasises that this figure represents only the cost of providing accommodation, and that it is likely that other costs, such as travel costs and staff costs, would have to be added to that figure. She explains that the Council is not funded to meet such costs and that, if the Council were to have to fund them, difficult decisions would arise as to whether other services provided to care leavers should be reduced. Ms Boboye also emphases the practical difficulties which would face the Council if it were to have to support asylum-seeking qualifying young persons, including the potential need to employ additional staff and the fact that, in practice, it would be challenging to source sufficient appropriate accommodation.

[65]Ms Boboye goes on to explain that, in the Council’s experience, the asylum accommodation which is provided to asylum-seeking qualifying young persons is appropriate, and she gives some examples of specific cases. She points out that, where that is not the case, consideration is given as to whether the Council should exercise its discretion to provide accommodation and, as in CYK’s case, in an appropriate case it does so. D. THE LEGISLATIVE AND POLICY FRAMEWORK (1). The Secretary of State’s functions under the 1999 Act

[66]Section 95(1) provides for the Secretary of State to have a power to provide asylum support to certain asylum-seekers, as follows. “95 Persons for whom support may be provided (1) The Secretary of State may provide, or arrange for the provision of, support for— (a) asylum-seekers, or (b) dependants of asylum-seekers, who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed.” who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed.”

[67]For the purpose of s 95, an “asylum-seeker” is defined as a person who is not under 18 and who has made a claim for asylum which has been recorded by the Secretary of State, but which has not yet been determined (see s 94(1)). Under s 94(3), a claim for asylum is determined at the end of a prescribed period beginning on the day on which the Secretary of State notifies the claimant of her decision on the claim or, if the claimant has appealed against the Secretary of State’s decision, the day on which the appeal is disposed of within the meaning of s 94(4). Accordingly, DS is an asylum-seeker for the purposes of s 95(1), and CYK was an asylum-seeker until 6 March 2026.

[68]The period which has been prescribed for the purposes of s 95(1) is 14 days (if the asylum-seeker is not already being provided with asylum accommodation under s 95) or 56 days (if the asylum-seeker is already being provided with asylum accommodation) (see reg 7 of the 2000 Regulations).

[69]By virtue of s 96(1) of the 1999 Act, asylum support under s 95(1) may be provided in a range of ways, including by providing asylum accommodation which appears to the Secretary of State to be adequate for the needs of the supported person (see s 96(1)(a)). Ms Leventhal points out that the adjective “adequate” connotes a lower threshold than would, for example, a requirement that accommodation be “suitable”.

[70]Although s 95(1) confers a power on the Secretary of State, in certain circumstances the Secretary of State has a duty to provide asylum support. In particular, under reg 5(1) of the Asylum Seekers (Reception Conditions) Regulations 2005 (SI 2005 No 7) (“the 2005 Regulations”), if an asylum-seeker applies for asylum support under s 95, and the Secretary of State thinks that the asylum-seeker is eligible for support under that section, the Secretary of State must offer asylum support. It would appear that this duty applies in DS’s case and formerly applied in CYK’s case. The 2005 Regulations were made under s 2(2) of the European Communities Act 1972, in order to give effect to the United Kingdom’s then obligations under EU law, as set out in Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers. I note that the Secretary of State has laid before Parliament a draft of the Asylum Seekers (Reception Conditions) (Amendment) Regulations 2026 which, if approved by each House and if made by the Secretary of State, will repeal reg 5 with effect from 2 June 2026.

[71]Section 95(3) and the following subsections make provision for when an individual is to be treated as destitute. Insofar as is relevant, those subsections provide as follows. “(3) For the purposes of this section, a person is destitute if—(a) he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or

(b) he has adequate accommodation or the means of obtaining it but cannot meet his other essential living needs. … (5) In determining, for the purposes of this section, whether a person’s accommodation is adequate, the Secretary of State— (a) must have regard to such matters as may be prescribed for the purposes of this paragraph; but (b) may not have regard to such matters as may be prescribed for the purposes of this paragraph or to any of the matters mentioned in subsection (6). (6) Those matters are— (a) the fact that the person concerned has no enforceable right to occupy the accommodation; (b) the fact that he shares the accommodation, or any part of the accommodation, with one or more other persons;

(d) the location of the accommodation. (7) In determining, for the purposes of this section, whether a person’s other essential living needs are met, the Secretary of State— (a) must have regard to such matters as may be prescribed for the purposes of this paragraph; but (b) may not have regard to such matters as may be prescribed for the purposes of this paragraph. (8) The Secretary of State may by regulations provide that items or expenses of such a description as may be prescribed are, or are not, to be treated as being an essential living need of a person for the purposes of this Part.” (a) he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or (b) he has adequate accommodation or the means of obtaining it but cannot meet his other essential living needs. (a) must have regard to such matters as may be prescribed for the purposes of this paragraph; but (b) may not have regard to such matters as may be prescribed for the purposes of this paragraph or to any of the matters mentioned in subsection (6). (a) the fact that the person concerned has no enforceable right to occupy the accommodation; (b) the fact that he shares the accommodation, or any part of the accommodation, with one or more other persons; (c) the fact that the accommodation is temporary; (d) the location of the accommodation. (a) must have regard to such matters as may be prescribed for the purposes of this paragraph; but (b) may not have regard to such matters as may be prescribed for the purposes of this paragraph.

[72]As Ms Leventhal points out, the effect of s 95(6) is that, when the Secretary of State considers whether an asylum-seeker has, or has any means of obtaining, adequate accommodation, the fact that such accommodation might be temporary, or that the asylum-seeker has no right to occupy it, cannot be treated as rendering that accommodation inadequate. Ms Leventhal refers to an example of accommodation which is provided to an asylum-seeker by a friend on a voluntary and temporary basis and observes that such accommodation could not be treated as inadequate for those reasons alone.

[73]For the purposes of s 95, the relevant matters are prescribed by the 2000 Regulations, which were made under Schedule 8 to the 1999 Act (to which effect is given by s 95(12)). In the 2000 Regulations, “asylum support” means support provided under s 95 (see reg 2(1)). For present purposes, reg 6 is of particular relevance. It provides as follows. “6. Income and assets to be taken into account(1) This regulation applies where it falls to the Secretary of State to determine for the purposes of section 95(1) of the Act whether– (a) a person applying for asylum support, or such an applicant and any dependants of his, or (b) a supported person, or such a person and any dependants of his, is or are destitute or likely to become so within the period prescribed by regulation 7.

(2) In this regulation ‘the principal’ means the applicant for asylum support (where paragraph (1)(a) applies) or the supported person (where paragraph (1)(b) applies).

(3) The Secretary of State must ignore– (a) any asylum support, and (b) any support under section 98 of the Act, which the principal or any dependant of his is provided with or, where the question is whether destitution is likely within a particular period, might be provided with in that period.

(4) But he must take into account– (a) any other income which the principal, or any dependant of his, has or might reasonably be expected to have in that period; (b) any other support which is available to the principal or any dependant of his, or might reasonably be expected to be so available in that period; and (c) any assets mentioned in paragraph (5) (whether held in the United Kingdom or elsewhere) which are available to the principal or any dependant of his otherwise than by way of asylum support or support under section 98 or might reasonably be expected to be so available in that period.

(5) Those assets are– (a) cash; (b) savings; (c) investments; (d) land; (e) cars or other vehicles; and (f) goods held for the purpose of a trade or other business.

(6) The Secretary of State must ignore any assets not mentioned in paragraph (5).” (1) This regulation applies where it falls to the Secretary of State to determine for the purposes of section 95(1) of the Act whether– (a) a person applying for asylum support, or such an applicant and any dependants of his, or (b) a supported person, or such a person and any dependants of his, is or are destitute or likely to become so within the period prescribed by regulation 7. (2) In this regulation ‘the principal’ means the applicant for asylum support (where paragraph (1)(a) applies) or the supported person (where paragraph (1)(b) applies). (a) any asylum support, and (b) any support under section 98 of the Act, which the principal or any dependant of his is provided with or, where the question is whether destitution is likely within a particular period, might be provided with in that period. (a) any other income which the principal, or any dependant of his, has or might reasonably be expected to have in that period; (b) any other support which is available to the principal or any dependant of his, or might reasonably be expected to be so available in that period; and (c) any assets mentioned in paragraph (5) (whether held in the United Kingdom or elsewhere) which are available to the principal or any dependant of his otherwise than by way of asylum support or support under section 98 or might reasonably be expected to be so available in that period. (a) cash; (b) savings; (c) investments; (d) land; (e) cars or other vehicles; and (f) goods held for the purpose of a trade or other business. (6) The Secretary of State must ignore any assets not mentioned in paragraph (5).”

[74]As I explain below, there is an important dispute between the parties as to the correct interpretation of reg 6(4).

[75]Regulation 8 of the 2000 Regulations prescribes, for the purposes of s 95(5)(a), matters to which the Secretary of State must have regard when determining whether accommodation is adequate. Regulation 9 prescribes, for the purposes of s 95(7)(b), matters to which the Secretary of State may not have regard when determining whether an asylum-seeker’s essential living needs are met. Ms Leventhal points out that the latter matters include, for example, the asylum-seeker’s personal preferences as to clothing, most travel expenses, toys and recreational items, and entertainment expenses. She observes that this indicates that s 95 provides for only a basic, subsistence level of support. Ms Leventhal told me that, where an asylum-seeker is provided with full-board accommodation, the Secretary of State provides financial support in the sum of £9.95 per week and, where accommodation is provided in self-catering accommodation, financial support is provided in the sum of £49.18 per week.

[76]Section 97 of the 1999 Act provides for the matters to which the Secretary of State must and may not have regard when exercising her power to provide asylum accommodation under s 95. Under s 97(1), she must have regard to the fact that the accommodation is to be temporary pending determination of the asylum-seeker’s claim for asylum, and to the desirability of providing accommodation in areas in which there is a ready supply of accommodation. Under s 97(2), the Secretary of State may not have regard to the asylum-seeker’s preference as to where accommodation is provided. Regulation 13 of the 2000 Regulations prescribes as further matters which the Secretary of State may not take into account the asylum-seeker’s personal preference as to the nature of the accommodation, or as to the nature and standard of the fixtures and fittings. However, the Secretary of State may take into account the asylum-seeker’s personal circumstances as they relate to accommodation needs. Ms Leventhal points out that the effect of these provisions is that accommodation under s 95 is provided on what is in effect a “no choice” basis, and that an asylum-seeker may be accommodated in, or dispersed to, any part of the country.

[77]Section 115 provides that a person who is subject to immigration control (as defined by s 115(9)) is not entitled to welfare benefits, including universal credit. As Ms Leventhal points out, this exclusion applies to asylum-seekers, including asylum-seeking qualifying young persons. Further, s 116 of the 1999 Act amended s 21 of the National Assistance Act 1948 (“the 1948 Act”) to exclude from the provision of accommodation under the latter section persons subject to immigration control whose need for care and attention has arisen solely because he or she is destitute, or because of the physical effects of his or her being destitute. Section 117 of the 1989 Act provided for a similar amendment to s 45 of the Health Services and Public Health Act 1968, but the latter provision has since been repealed.

[78]Section 122 of the 1999 Act caters for the situation in which an asylum-seeker who is eligible for the provision of support under s 95 has a dependent child. Under s 122(3) and (4), if it appears to the Secretary of State that the child is not being provided with adequate accommodation, or the child’s essential living needs are not being met, the Secretary of State must exercise her powers under s 95 to provide adequate accommodation or to provide for essential living needs (as the case may be) for the child as part of the asylum-seeker’s household. Under s 122(5), where the Secretary of State complies with her duties under s 122, or there are reasonable grounds for believing that the Secretary of State would be required to comply with s 122 if the asylum-seeker were to apply for asylum support, no local authority may provide assistance under s 17 in respect of a dependant or any member of his or her family.It has been held that the effect of s 122(5) is that it excludes a local authority from providing assistance where the Secretary of State should be complying with her obligations under ss 95 and 122 (see R (A) v National Asylum Support Service

[2003] EWCA Civ 1473

[2004] 1 WLR 752

, para 67 per Waller LJ).

[79]As Ms Leventhal points out, there is nothing in the 1999 Act which expressly modifies any of the powers and duties which a local authority might have in respect of an unaccompanied asylum-seeking child, or a local authority’s powers and duties under the leaving care provisions of the 1989 Act.

[80]Certain provisions of the 1999 Act make provision for the Secretary of State to call on local authorities for assistance. In particular, s 99 of the 1999 Act in effect makes provision for the Secretary of State to contract out to local authorities the provision of asylum support, s 100 imposes on local authorities a duty to cooperate with and assist the Secretary of State on request, and s 110 confers on the Secretary of State a power to make payments to local authorities.

[81]Section 98 of 1999 Act confers on the Secretary of State a power to provide temporary accommodation to an asylum-seeker while she determines whether she may provide accommodation under s 95. Section 4 of the 1999 Act is considered in some of the case law to which I refer below. In brief, s 4 confers on the Secretary of State a power to provide accommodation to a person whose claim for asylum has been rejected. The Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005 (SI 2005 No 930) (“the Failed Asylum-Seekers Regulations”) make further provision in relation to s 4.

[82]For completeness, I should note that, by virtue of s 54 of, and paragraph 1(1)(g) of Schedule 3 to, the Nationality, Immigration and Asylum Act 2002, a person to whom any of paragraphs 4 to 7C of Schedule 3 refers is not eligible for support under s 24A (save where it is necessary to provide support in order to avoid a beach of a person’s Convention rights: see paragraph 3 of Schedule 3). None of the parties referred to these provisions or suggested that they are relevant to the issues which I have to decide. (2). Local authority functions under Part III of the 1989 Act

[83]Part III of the 1989 Act makes provision for the support which must or may be provided to children and young people by local authorities in England. Part III of the 1989 Act does not apply in Wales, where relevant provision is made by the Social Services and Well-being (Wales) Act 2014.

(a) Functions in respect of children

[84]Part III of the 1989 Act imposes duties and confers powers on local authorities in respect of children (i.e. persons under the age of 18: see s 105(1)). For example, under s 17(1), every local authority has a general duty to safeguard and promote the welfare of children within its area who are in need, by providing a range and level of services appropriate to those children’s needs. Ms Leventhal emphasises that s 17(10) defines “child in need” by reference to whether a child is likely to achieve or maintain a reasonable standard of health or development, and that s 17(11) defines those concepts in broad terms.

[85]Under s 20(1), every local authority has a duty to provide accommodation for any child in need (as defined by s 17(10)) within its area who appears to it to require accommodation as a result of there being no person who has parental responsibility for the child, the child being lost or having been abandoned, or the person who has been caring for the child being prevented from providing the child with suitable accommodation or care.

[86]A child who is provided with accommodation by a local authority in the exercise of its social services functions (within the meaning of the Local Authority Social Services Act 1970, s 1A and Schedule 1, other than s 17, 23B and 24B of the 1989 Act), or who is in its care under a care order, becomes a “looked after child” for the purposes of the 1989 Act once he or she has been accommodated for a continuous period of more than 24 hours (s 22(1) and (2)). Accordingly, a child who is provided with accommodation under s 20(1) for more than 24 hours is a “looked after child”. It is on this basis that each Claimant was a looked after child while he was accommodated by the Council prior to his 18th birthday.

(b) Leaving care functions

[87]The provisions of the 1989 Act which are of most direct relevance in the present case are ss 24 and 24A. They constitute part of a suite of provisions which were inserted into the 1989 Act by the Children (Leaving Care) Act 2000 (“the 2000 Act”). Those provisions confer various so-called “leaving care” functions on local authorities with the objective of helping young people who have been looked after with the transition from childhood and local authority accommodation into adulthood and independent living (see, for example, paragraph 5 of the Explanatory Notes to the 2000 Act).

[88]As originally enacted, s 24(1) of the 1989 Act provided that, where a child was being looked after by a local authority, the local authority had a duty to “advise, assist and befriend” the child with a view to promoting the child’s welfare when he or she ceased to be looked after by it (see s 24(1), as originally enacted). Further, s 24(2) to (11) provided for a so-called “aftercare duty”. In brief, where a person who had been looked after by a local authority while aged 16 or 17 was in the area of the local authority, it appeared to the local authority that the person was in need of advice and being befriended, and the person had asked the local authority for help of a kind which it could give under s 24, the local authority was under a duty to “advise and befriend” the person, and it had a power to provide assistance.

[89]The 2000 Act inserted new paragraphs 19A to 19C into Schedule 2 to the 1989 Act, inserted new ss 23A to 23E, and replaced the original s 24 with new ss 24 and 24A to 24D. Those provisions have since been amended, and further sections have been inserted, including by the Adoption and Children Act 2002.

[90]The leaving care provisions inserted by the 2000 Act make different provision for different categories of children and young persons. In broad terms, the relevant categories are as follows. An “eligible child” is a child aged 16 or 17 who is looked after by a local authority (and who has been so looked after for a minimum period); a “relevant child” is a child aged 16 or 17 who would be an eligible child but for the fact that he or she is no longer looked after by the local authority; a “former relevant child” is a young person aged 18 or over who was previously an eligible child or a relevant child; and a “person qualifying for advice and assistance” (to whom I refer as a “qualifying young person”) is the category into which each Claimant falls. Although the present case is primarily concerned with the duties owed to a qualifying young person, it is necessary briefly to sketch out the position in relation to the other categories.

[91]Paragraphs 19A to 19C fall within Part II of Schedule 2 to the 1989 Act, to which effect is given by s 22F. Paragraph 19A replicates the duty formerly imposed by s 24(1) as originally enacted. Paragraph 19B imposes certain duties in respect of eligible children who are looked after by a local authority. An eligible child is a child aged 16 or 17 who has been looked after by a local authority for a period of at least 13 weeks which began after he or she had reached the age of 14 and ended after he or she reached the age of 16 (Schedule 2, paragraph 19B(2); Care Planning, Placement and Case Review (England) Regulations 2010, reg 40(1)).

[92]A local authority is under a duty to carry out an assessment of an eligible child’s needs, with a view to determining what advice, assistance and support it would be appropriate for it to provide under the 1989 Act after it ceases to look after the child, and it must prepare a pathway plan for the child (paragraph 19B(4)). The pathway plan must be kept under regular review (paragraph 19B(5)). Further provision about the assessment of the needs of, and the content of pathway plans for, eligible children is made by s 23E and regs 42 and 43 of, and Schedule 8 to, the Care Planning, Placement and Case Review (England) Regulations (SI 2010 No 959). Paragraph 19C requires a local authority to arrange for an eligible child who they are looking after to have a personal advisor, the functions of whom are laid down by reg 44 of the Care Planning, Placement and Case Review (England) Regulations 2010.

[93]Sections 23A to 23B of the 1989 Act impose certain duties in relation to relevant children. By virtue of s 23A (2), a relevant child is a child aged 16 or 17 who is not being looked after by a local authority, and who was, before last ceasing to be looked after, an eligible child. A local authority must take reasonable steps to keep in touch with a relevant child (whether he or she is within its area or not), it must appoint a personal advisor for the relevant child, and (unless the relevant child already has a pathway plan) the local authority must carry out an assessment of the relevant child’s needs and prepare a pathway plan for him or her (s 23B(2) and (3)). Further, the local authority must safeguard and promote the relevant child’s welfare and, unless it is satisfied that the child’s welfare does not require it, support the child by maintaining him or her, providing the child with or maintaining him or her in suitable accommodation, and provide such other support as is prescribed (s 23B(8)). If the local authority loses touch with a relevant child, it must take reasonable steps to re-establish contact, and as long as the child remains a relevant child it must continue to take such steps until they succeed (s 23B (11)).

[94]Sections 23C to 23CA of the 1989 Act impose certain duties in relation to former relevant children. By virtue of s 23C(1), a former relevant child is a person who has been a relevant child (and would be one if he were under 18), or a person who was being looked after by the local authority when he or she turned 18 and, immediately before ceasing to be looked after, was an eligible child. Until a former relevant child reaches the age of 21 (see s 23C(6)), a local authority must take reasonable steps to keep in touch with a former relevant child (whether he or she is in its area or not) and, if it loses contact with the former relevant child, to re-establish contact (s 23C(2)). A local authority must also continue the appointment of a personal advisor for the former relevant child and continue to keep his or her pathway plan under review (s 23C(3)). Further, a local authority must provide certain assistance to a former relevant child. In this respect, s 23C(4) provides as follows. “(4) It is the duty of the local authority to give a former relevant child –(a) assistance of the kind referred to in section 24B (1), to the extent that his welfare requires it;

(b) assistance of the kind referred to in section 24B (2), to the extent that his welfare and his educational or training needs require it;

(c) other assistance, to the extent that his welfare requires it.” (a) assistance of the kind referred to in section 24B (1), to the extent that his welfare requires it; (b) assistance of the kind referred to in section 24B (2), to the extent that his welfare and his educational or training needs require it; (c) other assistance, to the extent that his welfare requires it.”

[95]The assistance referred to in s 24B(1) and

(2) is assistance by way of contributing to expenses incurred by a young person in living near the place where he is, or will be, employed or seeking employment or where he is, or will be, receiving education or training. In R (O) v Barking and Dagenham London Borough Council

[2010] EWCA Civ 1101

[2011] 1 WLR 1283

, the Court of Appeal held that the assistance to which s 23C(4)(c) refers includes assistance by way of the provision of accommodation (see paragraph 30 per Tomlinson LJ).

[96]A local authority also has various duties to provide advice and support to a former relevant child who is aged between 21 and 24 (s 23CZB), and various duties in relation to a former relevant child who is aged under 25 and who is pursuing, or who wishes to pursue, a programme of education (s 23CA).

(c) Sections 24, 24A and 24B of the 1989 Act

[97]Section 24 of the 1989 Act makes provision for who is to be treated as a qualifying young person. Insofar as is relevant for present purposes, a qualifying young person is a person who is aged under 21, who was at any time after reaching the age of 16 looked after by a local authority, and who is no longer looked after (s 24(1B) and (2)(a)). Each Claimant became a qualifying young person at the point at which he turned 18: at that point each Claimant was (and still is) under 21, had been looked after by the Council after his 16th birthday, and was no longer looked after by the Council.

[98]In the case of such a qualifying young person, s 24(4) provides as follows. “…it is the duty of the local authority which last looked after him to take such steps as they think appropriate to contact him at such times as they think appropriate with a view to discharging their functions under sections 24A and 24B.”

[99]Section 24A makes provision for a local authority to have certain duties and powers to provide advice and assistance to a qualifying young person. Insofar as is relevant, s 24A provides as follows (for the purposes of s 24A, the “relevant authority” is the local authority which last looked after the qualifying young person: see s 24(5)). “24A Advice and assistance(1) The relevant authority shall consider whether the conditions in subsection (2) are satisfied in relation to a person qualifying for advice and assistance.

(2) The conditions are that— (a) he needs help of a kind which they can give under this section or section 24B; … …

(3) If the conditions are satisfied— (a) they shall advise and befriend him if…he is a person to whom section 24(1B) applies and he was being looked after by a local authority…; … …

(4) Whereas a result of this section a local authority are under a duty, or are empowered, to advise and befriend a person, they may also give him assistance.

(5) The assistance may be in kind and, in exceptional circumstances, assistance may be given— (a) by providing accommodation, if in the circumstances assistance may not be given in respect of the accommodation under section 24B, or (b) in cash.

(6) Subsections (7) to (9) of section 17 apply in relation to assistance given under this section or section 24B as they apply in relation to assistance given under that section.” (a) he needs help of a kind which they can give under this section or section 24B; … … (a) they shall advise and befriend him if…he is a person to whom section 24(1B) applies and he was being looked after by a local authority…; … … (a) by providing accommodation, if in the circumstances assistance may not be given in respect of the accommodation under section 24B, or (b) in cash.

[100]Mr Westgate emphasises that the “exceptional circumstances” condition for which s 24A (5) provides did not feature in s 24 as originally enacted, and that the introduction of s 24A had therefore, as he put it, heightened the bar for the provision of accommodation or financial support to a qualifying young person.

[101]In the course of submissions, something of a dispute arose as to whether s 24A requires or envisages that a local authority undertake a formal needs assessment of a qualifying young person in order to determine whether it should provide assistance under s 24A (4) or (5). I do not think that I need to resolve this dispute but, insofar as the Claimants might have suggested that such a formal assessment is required by s 24A itself, I would not accept that suggestion. Nevertheless, it seems to me that, in the exercise of its functions under s 24A, a local authority is subject to the conventional Tameside duty of reasonable inquiry (see Secretary of State for Education and Science v Tameside Metropolitan Borough Council

[1977] AC 1014

, HL, 1065 per Lord Diplock), and in this context the provisions of the relevant statutory guidance (to which I refer below) may also be relevant.

[102]Section 24B makes provision for a local authority to have certain duties in respect of a qualifying young person in respect of his or her employment, education or training. In addition to the assistance which may be provided under s 24B(1) or (2), to which I have referred above, in certain circumstances s 24B(5) also empowers a local authority to provide a young person who is in full-time further or higher education with suitable accommodation during the vacation (or with funding for such accommodation).

(d) National guidance on the leaving care functions

[103]The Secretary of State for Education has issued guidance on the leaving care functions, in the form of The Children Act 1989 guidance and regulations, Volume 3: planning transition to adulthood for care leavers. The version to which I was referred was that which was last revised in February 2025 (“the Transition Guidance”). The Transition Guidance was issued under s 7 of the Local Authority Social Services Act 1970, which requires a local authority, in the exercise of its social services functions (including the exercise of any discretion conferred by any relevant enactment), to act under the general guidance of the Secretary of State.

[104]Ms Leventhal emphasises a number of passages in the Transition Guidance, beginning with the statement in the preface that the leaving care regime is “designed to ensure care leavers are given the same level of care and support that their peers would expect from a reasonable parent and that they are provided with the opportunities and chances needed to help them move successfully into adulthood” (see also paragraph 1.8). In this respect, the Transition Guidance recognises that the period when a child transitions to adulthood is often a turbulent time (see paragraph 1.7).

[105]Paragraphs 2.6 to 2.11 of the Transition Guidance address the position of “qualifying children”. Insofar as is relevant, paragraph 2.6 states as follows. “2.6 Local authorities may give advice, guidance and assistance to certain groups of young people who ‘qualify’ for leaving care support. Some ‘qualifying children’ will be as vulnerable and have very similar needs to eligible, relevant or former relevant children….

[106]In relation to the question whether a local authority is required to undertake a needs assessment of a qualifying young person, Ms Leventhal drew my attention to paragraph 2.9 of the Transition Guidance:

“2.9 Where a qualifying child has been previously looked after, the local authority must assess their needs to establish whether they require advice and assistance. Where, following an initial assessment, the authority concludes that support will be necessary over a period of time, they should draw up a plan with the young person outlining the support that will be provided. In order to determine the extent of the support required, a core assessment may be required and the plan that follows might follow the same format as a pathway plan for a relevant or former relevant child. The plan will outline the support to be provided to the young person, including, if necessary, any financial support. The plan should be drawn up by a social worker or suitably qualified person.”

[107]Paragraph 3.3 of the Transition Guidance states that the responsibilities of local authorities to support care leavers as they make the transition to adulthood apply irrespective of any other services being provided to them because, for example, a care leaver is being looked after as a result of entering the country as an unaccompanied asylum-seeking child. Paragraphs 6.20 to 6.27 give specific guidance in relation to unaccompanied asylum-seeking children.

[108]Paragraphs 8.43 to 8.51 of the Transition Guidance address the provision of financial assistance to qualifying young persons. Insofar as is relevant, they state as follows. “8.43 For care leavers who do not become relevant children, but who qualify for advice and assistance under section 24(2), the primary financial support role remains with the Department for Work and Pensions. However, local authorities may also give financial assistance to these young people on account of their particular needs over and above those of other young people and, where appropriate, may provide assistance to the same level of that provided to an eligible, relevant or former relevant child. 8.44 Where a local authority has either a duty or a power to advise or befriend young people who have left care (section 24(1)(b)), it may also give assistance which may be in kind or, in exceptional circumstances, in cash (sections 24A (4) and (5)). It should, however, be borne in mind that the local authority’s power to provide assistance to these care leavers extends until they reach the age of 21, or 25 where the young person is engaged in education or training. Where a young person has no parent to turn to for help, or where the parent does not have the capacity to provide assistance, it is to be expected that they will turn to the local authority for help. In these circumstances and following an assessment of need the local authority may provide support to the same level as that provided to other care leavers. 8.45 Local authorities are encouraged to be pro-active in advising young people of the circumstances in which assistance can be provided and to take into account the fact that the reference to the provision of financial assistance in ‘exceptional circumstances’ (section 24A (5)) refers to the individual young person rather than to the general policy of the authority. It will be for the authority to decide in each case whether the provision of financial assistance would be appropriate, but the presumption should be that such assistance should be provided where this is necessary to protect the young person’s welfare and it cannot be made available by any other agency.

(e) Corporate parenting principles

[109]Under s 1(1) of the Children and Social Work Act 2017, when carrying out its functions in relation to certain children and young persons, a local authority must have regard to the need to pursue certain so-called corporate parenting principles, such as the need to act in the best interests and promote the physical and mental health and well-being of those children and young persons. Under s 1(2), that duty applies in relation to looked after children, relevant children, and former relevant children; as Mr Westgate pointed out, it does not apply in relation to qualifying young persons.

E. THE DECISION IN AAM

[110]As I have explained, my decision in AAM is the starting point for my consideration of the parties’ arguments in these cases. Although that decisionmust speak for itself, in order to set the scene for what follows, I think that it would be helpful to summarise what I see as the ten main steps in my analysis in AAM.

[111]First, if one were to adopt a conventional approach to what constitutes a relevant, irrelevant or permissible consideration in relation to s 24A(5), a local authority would be entitled to take into account asylum support which is or could be provided by the Secretary of State when considering whether it should provide accommodation or financial support under that subsection. As a result, at least in principle a local authority would be entitled to refuse to provide accommodation or financial support under s 24A (5) on the basis that the relevant qualifying young person is being or could be provided with asylum support under s 95 (AAM,paragraphs 104, 105 and 107). I did not understand any of the parties to disagree with this analysis. Indeed, it appears that this analysis reflects what has typically occurred in practice, at least prior to the decision in AAM, and it is what occurred in each Claimant’s case.

[112]Second, and again on a conventional approach to relevant, irrelevant and permissible considerations, in the context of s 95 the Secretary of State would be entitled to take into account accommodation and financial assistance which is being or could be provided by the local authority when she considers whether an asylum-seeking qualifying young person is destitute. As a result, and again at least in principle, the Secretary of State would be entitled to conclude that an asylum-seeking qualifying young person is not destitute, and that asylum support should not be provided under s 95, on the basis that the qualifying young person is being or could be provided with accommodation or financial assistance by the local authority (AAM,paragraphs 106 to 107).

[113]Third, if one were to consider each of the statutory regimes under the 1999 Act and the 1989 Act in isolation, on the approaches set out at the first and second steps above, there is the potential for what I described as “deadlock”. That potential deadlock arises out of the fact that there is the opportunity for each of the local authority and the Secretary of State to decline to provide accommodation by reference to the possibility that the other would or could do so, with the potential consequence that a qualifying young person would not be provided with accommodation by either (AAM,paragraph 93).

[114]Fourth, insofar as possible the two statutory regimes should be interpreted and given effect in a way which avoids the potential deadlock arising (AAM,paragraph 94). This was common ground in AAM, and it was common ground in the present cases.

[115]Fifth, similar issues in relation to a potential deadlock between s 95 and other statutory regimes had arisen, and been resolved, in O v Barking (which concerned s 23C of the 1989 Act) and in R (TMX) v Croydon London Borough Council

[2024] EWHC 129 (Admin)

, (2024) 27 CCL Rep 233 (which concerned s 18 of the Care Act 2014). However, in neither case had the respective court expressly articulated the basis on which it had found it possible to interpret functions conferred on local authorities under one statutory regime by reference to functions conferred on the Secretary of State under a different statutory regime which had been enacted at an earlier point in time. I took the view that the courts in those cases had likely proceeded on the basis that, notwithstanding the fact that the two statutory regimes were enacted at different points in time, because they might in some situations occupy the same field, the regimes must be interpreted in a way which ensures that the overall legislative scheme is coherent and does not produce absurdity, in the form of the potential deadlock (AAM,paragraph 130).

[116]Sixth, the way in which the courts in the O v Barking and TMX cases had ensured coherence and avoided absurdity was to adopt and apply the analysis of the Secretary of State’s functions under s 95 which had been set out by Lord Hoffmann in R (Westminster City Council) v National Asylum Support Service

[2002] UKHL 38

[2002] 1 WLR 2956

, paragraphs 38-41. In the Westminster case, Lord Hoffmann held that the effect of the legislative regime governing asylum support (and, in particular, reg 6(4)) is that the Secretary of State’s functions under s 95 are “residual” functions, which cannot be exercised in a case in which support is available to an asylum-seeker under some other provision. On this basis, in O v Barking, Tomlinson LJ held that the possibility of asylum accommodation being provided under s 95 is a legally irrelevant consideration in the context of a local authority’s “non-residual” functions under s 23C of the 1989 Act. In TMX, Alan Bates (sitting as a Deputy High Court Judge) reached a similar conclusion in the context of a local authority’s functions under s 18 of the Care Act 2014 (see AAM,paragraphs 131 to 132).

[117]Seventh, none of the earlier case law constituted binding authority on the approach that I should adopt in the context of s 24A of the 1989 Act. In particular, the local authority functions considered in the earlier case law were duties, whereas s 24A is a discretionary power predicated on the exercise of an evaluative judgement (AAM,paragraph 129).

[118]Eighth, although there was force in the argument that the approach adopted in the earlier case law should not be applied because s 24A of the 1989 Act is a discretionary power which is predicated on the exercise of an evaluative judgement, ultimately, I did not accept that argument (AAM,paragraphs 135 to 136). In my view, the analyses in the earlier case law did not turn upon the fact that the relevant local authority functions were duties, or upon a comparison between those functions and the functions of the Secretary of State under s 95; rather, they turned on an analysis of the Secretary of State’s functions under s 95 themselves (AAM,paragraph 137).

[119]Ninth, bearing in mind how s 24A operates in practice (in light of the parties’ agreement in AAM as to what would constitute exceptional circumstances), accommodation under that section might reasonably be expected to be available to an asylum-seeking qualifying young person within the meaning of reg 6(4) of the 2000 Regulations (AAM,paragraph 138).

[120]Tenth, because accommodation under s 24A(5) might reasonably be expected to be available to an asylum-seeking qualifying young person within the meaning of reg 6(4), the Secretary of State’s functions under s 95 are correctly characterised as “residual” in the context of s 24A, i.e. in effect the functions under s 95 cannot be exercised in a case in which an asylum-seeker is a qualifying young person for the purposes of s 24A (AAM,paragraph 140).

[121]These ten steps led me to my conclusion that, when a local authority is deciding whether there are exceptional circumstances for the purposes of s 24A(5), it is not entitled to take into account the fact that an asylum-seeking qualifying young person is being provided with, or could be provided with, accommodation by the Secretary of State under s 95 of the 1999 Act; that matter is an irrelevant consideration (AAM,paragraph 142). I granted a declaration to that effect (AAM,paragraph 187).

F. THE PARTIES’ ARGUMENTS

[122]As I have mentioned, the submissions which have been advanced before me in this case are much more detailed and developed than those which I heard in AAM. As I understand the parties’ arguments, none of them suggest that the overall shape of my reasoning in AAM is flawed; rather, the parties focus on particular elements of that reasoning. In particular, Mr Westgate, on behalf of the Council, argues that particular elements of my reasoning in AAM were wrong. Accordingly, I shall begin by summarising Mr Westgate’s arguments. (1). The Council’s arguments

[123]On behalf of the Council, Mr Westgate argues that, in accordance with the conventional approach to the exercise of statutory discretions, the starting point for any analysis must be that under s 24A(5) a local authority is entitled to take into account the fact that accommodation is provided by a third party, regardless of the identity of that third party. On this basis, Ms Westgate argues that the starting point must be that a local authority is entitled to take into account the fact that a qualifying young person is being provided with, or could be provided with, asylum accommodation by the Secretary of State. Mr Westgate argues that my reasons in AAM for departing from this starting pointare flawed in a number of respects.

[124]At a general level, Mr Westgate submits that in AAM I went wrong by not applying the correct test for whether the actual or potential provision to an asylum-seeking qualifying young person of asylum support is a legally irrelevant consideration in the context of s 24A (5) is. Mr Westgate argues that it could be treated as an irrelevant consideration only if such a restriction on the factors which a local authority can consider is necessarily implicit in s 24A, and that there is no basis on which the strict test for a necessary implication could be satisfied.

[125]Mr Westgate also argues that in AAM I was wrong to conclude that a potential for deadlock arose at all. In this respect, he argues that I misinterpreted reg 6(4), and that the decision of Carnwath LJ in R (O) v Haringey London Borough Council

[2004] EWCA Civ 535

[2004] HLR 44

decided that reg 6(4) requires the Secretary of State to have regard to accommodation which might be provided to an asylum-seeker by another public body only if that other public body is under a duty to provide it. Mr Westgate submits that s 24A (5) does not impose the type of duty which Carnwath LJ contemplated in O v Haringey.

[126]If, however, the potential for deadlock does arise, Mr Westgate argues that in AAM I had been wrong to adopt a route out of the deadlock which applied the approach adopted in O v Barking, and wrong to hold that s 95 is residual in the context of s 24A (5). He submits that O v Barking should be distinguished on the basis that it was concerned with a duty and, moreover, a duty which differs from the s 24A (5) function in that, unlike s 24A (5), it involves an assessment of needs.

[127]In this context, Mr Westgate emphasises that the 1989 Act provides for a graduated set of functions in relation to different categories of young persons, categories which Parliament has chosen to delineate by reference to bright lines. He submits that the Claimants’ arguments seek to elide those different categories. By way of example, he points to the fact that s 23C of the 1989 Act imposes on a local authority certain express duties in the case of a former relevant child, such as duties to appoint a personal advisor and to maintain a pathway plan, but Parliament has chosen not to impose similar duties in the case of a qualifying young person.

[128]Mr Westgate argues that the Council’s approach to the interrelationship between s 95 and s 24A (5) would result in a practically acceptable outcome. In particular, he emphasises that, on his analysis, a local authority would not be prevented from providing accommodation or financial assistance to an asylum-seeking qualifying young person whose needs are not met by asylum support. Mr Westgate points to CYK’s case as an example of the Council adopting exactly that approach. Mr Westgate submits that the acceptability of this outcome is demonstrated by the fact that it would reflect the distinction as between destitute asylum-seekers and destitute and infirm asylum-seekers (the “infirm destitute”) which had previously applied in the context of the 1948 Act, and which now applies in the context of the Care Act 2014.

[129]Mr Westgate argues that, in contrast, the approach which I adopted in AAM risks giving rise to absurdity. He relies on Ms Boboye’s evidence to the effect that asylum accommodation is suitable for many asylum-seeking qualifying young persons to support an argument that the effect of the decision in AAM is that local authorities will have to expend their scarce financial resources on meeting the needs of individuals who do not in reality require assistance, potentially at the expense of those who do. In particular, he emphasises that the assistance which may be given to a qualifying young person under s 24A (5) includes assistance in cash. Mr Westgate observes that, in circumstances in which an asylum-seeking qualifying young person requires financial support above the level of the financial support provided by the Secretary of State, it would be absurd to require a local authority to proceed on the basis of a counter-factual assumption that the Secretary of State is providing no financial support whatsoever, rather than simply allowing the local authority to top up the financial support provided by the Secretary of State to the requisite level.

[130]By reference to the evidence of Ms Boboye, Mr Westgate emphasises the likely impact on the Council’s limited resources which would arise if I were to adhere to my decision in AAM, and he points out that in effect requiring a local authority to expend its scarce resources on the exercise of a discretion is antithetical to the conventional distinction between a statutory power and a statutory duty. Mr Westgate submits that, in the absence of express provision to that effect, Parliament cannot be taken to have intended to impose such a burden on local authorities. (2). The Claimant’s arguments

[131]On behalf of the Claimants, Ms Leventhal and Ms Braganza argue that my analysis in AAM is correct, and they rely on additional points which they say support my conclusion.

[132]Ms Leventhal’s main additional point is based on a submission that the scheme of asylum support under the 1999 Act and the scheme of support under Part III of the 1989 Act are discrete schemes which are qualitatively different, which have different purposes, and which are not intended to overlap: the former is a residual safety net which operates as a last resort concerned only with alleviating destitution, whereas the latter is what she characterised as a “welfare-driven” scheme, which is intended to ensure that the welfare needs of children and young persons are met. Ms Leventhal, supported by Ms Braganza, argues that this indicates that there is a clear hierarchy as between the two schemes, and that the scheme of asylum support under the 1999 Act is to be treated as residual in the context of the scheme of support under Part III of the 1989 Act.

[133]In support of this argument, Ms Leventhal guided me through a detailed analysis of both the 1999 Act (and certain pre-legislative materials) and the 1989 Act (and the Transitional Guidance). She drew on the points which she made in relation to specific aspects of the 1999 Act, some of which I have mentioned above, to emphasise that the 1999 Act generally, and s 95 in particular, provides for what the White Paper which preceded the 1999 Act described as a “safety net” which operates as a “last resort” (see Fairer, Faster and Firmer - A Modern Approach to Immigration and Asylum, 1998, Cm 4018 (“the White Paper”), paragraphs 8.18 and 8.19). Ms Leventhal also refers to the Explanatory Notes to the 1999 Act, which explain that the Act created “a new safety net support scheme”. She describes the purpose of the 1999 Act as being the limited purpose of alleviating destitution for a temporary period by providing asylum-seekers with a minimum level of subsistence.

[134]Ms Leventhal supports this submission by reference to a range of authorities in which the 1999 Act has been described as a residual scheme of last resort, or similar. For example, she relies on R (JK (Burundi)) v Secretary of State for the Home Department

[2017] EWCA Civ 433

[2017] 1 WLR 4567

, paragraphs 59 and 67, where Gross LJ held that the aim of s 95 is to avoid destitution, and that asylum support is provided to a subsistence standard, not a welfare standard. She also refers to paragraph 77 of TMX, where Mr Bates observed (emphasis in original):

“It is plain from the wording of s 95 of the IAA 1999 that the provision of accommodation or other support under s 95(1) is intended to be a ‘residual’ safety net, i.e. the safety net of last resort. It is effectively the lowest positioned of all the various social welfare safety nets the state provides. It is intended to catch only those people who have been unable to benefit from any other safety net, doing so just before they reach the ‘destitution’ bottom of the pit of homelessness and penury. The Claimant and the Secretary of State are therefore right to describe entitlement to accommodation and support under s.95 as being ‘residual’.”

[135]Ms Leventhal contrasts the scheme provided by the 1999 Act with that provided for by the 1989 Act which, also in reliance on points which I have mentioned above, she submits is concerned with individuals’ welfare, in the broad sense of their health and development. As I have mentioned, Ms Leventhal characterises Part III of the 1989 Act as a “welfare-driven” scheme, which involves local authorities stepping in to meet the needs of children and young people in cases in which their parents or other support networks do not, or are unable to, do so.

[136]Ms Leventhal accepts that there is what might be described as a hierarchy of functions provided for by the leaving care provisions, by which the nature and extent of a duty or power is calibrated by reference to the length of time that an individual has been looked after by the relevant local authority. She accepts that s 24A is at the bottom of the hierarchy of the different types of provision which must or may be made under Part III, and she also accepts that, in view of the fact that s 24A(5) confers a power (and, moreover, a power that is subject to an exceptionality condition) it is unlikely that in a typical case a local authority would have to provide a qualifying young person with accommodation under that subsection. However, she argues that asylum-seeking qualifying young persons are in a unique position, in that it is likely that it is their particular circumstances (i.e. arriving in the United Kingdom as an unaccompanied asylum-seeking child) which results in them being looked after for only a short period, but the fact that they might have been looked after for only a short period provides no guide to their level of needs. In particular, she emphasises that an asylum-seeking qualifying young person who was previously an unaccompanied asylum-seeking child might be extremely vulnerable and might have extensive needs which are greater than those of young persons who qualify for support under other parts of the leaving care regime. Ms Leventhal emphasises that this point is recognised by paragraph 2.6 of the Transition Guidance. Accordingly, she submits, when compared to other qualifying young persons, an asylum-seeking qualifying young person is likely to present a local authority with exceptional circumstances.

[137]Ms Leventhal also submits that the 1999 Act introduced a new scheme of asylum support which was intended to ensure that local authorities do not bear the burden of providing accommodation for most, but not all, asylum-seekers. She emphasises that, where Parliament intended that an asylum-seeker should be excluded from welfare support, it made express provision for what she characterised as carefully crafted, specific and limited carveouts from the relevant welfare legislation. She submits that, where the legislative intention was that the welfare-driven scheme should be displaced in favour of the residual scheme, the 1999 Act made express provision to that effect.

[138]Ms Leventhal argues that, had Parliament intended that such a carveout should apply to s 24 (as it was in force at the time when the 1999 Act was enacted), it would have made express provision to that effect, and that the absence of any such carveout indicated that Parliament did not intend to exclude the operation of s 24 in the case of asylum-seeking qualifying young persons. She submits that there is no basis for concluding that the substitution of sections 24A and 24B for s 24 as originally enacted made any difference to the position in this respect.

[139]Ms Leventhal submits that the fact that s 24A (5) confers a power, and does not impose a duty, makes no difference to the analysis. In this respect, she relies on three main matters. First, she emphasises that the carveouts for which the 1999 Act provides apply not only to duties under welfare legislation, but also to powers. In this respect, she cites as an example s 122 of the 1999 Act, which in certain circumstances disapplies the general power conferred by s 17. She argues that this demonstrates that the mere fact that s 24A provides for a power is not conclusive. Secondly, Ms Leventhal points to what she says are the unique circumstances of asylum-seeking qualifying young persons, in particular their vulnerability and the fact that they are excluded from the conventional social security benefits to which other qualifying young persons have access. Ms Leventhal argues that, in practice, it would be irrational for a local authority not to provide an asylum-seeking young person who has no access to any other support with accommodation, and that the s 24(5) power is in effect a duty. Thirdly, Ms Leventhal argues that the key question for present purposes is whether asylum support is or is not an irrelevant consideration for the purpose of a local authority’s assessment of an asylum-seeking qualifying young person’s needs for assistance (and whether there are exceptional circumstances), an exercise which logically precedes the consideration of the power under s 24A(5). Ms Leventhal argues that there is no material difference between this question and the question that the Court of Appeal addressed in O v Barking (see my analysis at paragraph 123 of AAM).

[140]In response to Mr Westgate’s reliance on the resource implications of requiring the Council to provide accommodation to asylum-seeking qualifying young persons, Ms Leventhal submits that this is not a matter which is relevant to the issues which I have to decide, and where the financial burden should fall is a matter for the Secretary of State and local authorities to resolve between themselves.

[141]Ms Braganza seeks to reinforce Ms Leventhal’s argument that s 95 is residual in the context of s 24A (5) by reference to Ms Shah’s third witness statement in CYK’s case. Ms Braganza emphasises the multi-faceted vulnerabilities which asylum-seeking qualifying young persons are likely to experience, a point which chimes with Ms Leventhal’s point about the likely greater needs of a qualifying young person who was formerly an unaccompanied asylum-seeking child. Ms Braganza argues that this indicates that asylum accommodation is likely to be inherently unsuitable for such individuals, who she submitted were likely to be equivalent to the category of infirm destitute asylum-seekers which the House of Lords had held fell outwith s 95(1) in the Westminster case.

G. THE ISSUES

[142]At the outset of this judgment I set out the parties’ agreed formulation of the main question which I have to decide: when a local authority is determining whether to provide an asylum-seeking qualifying young person with accommodation or financial assistance pursuant to s 24A(5), is the local authority entitled to take into account the fact that the young person is or could be provided with asylum support pursuant to s 95?

[143]Bearing in mind the ten main steps in my reasoning in AAM, and parties’ arguments in the present case, in order to answer this main question, it seems to me that I need to consider the following issues.(1) Is it correct that the potential for deadlock arises at all? On behalf of the Council, Mr Westgate argues that my conclusion to this effect in AAM was incorrect, and that no potential for deadlock arises. I address this issue in section H below (paragraphs 149-153).

(2) In AAM, did I adopt the correct approach to the determination of whether a particular factor is an irrelevant consideration for the purposes of s 24A (5)? Mr Westgate argues that I did not adopt the correct approach, and that I should have applied the strict test for necessary implication. I address this issue in section I below (paragraphs 153-159).

(3) Is it correct that the potential deadlock should be broken by treating the Secretary of State’s s 95 functions as “residual” in the context of s 24A (5)? Again, Mr Westgate argues that my conclusion to this effect in AAM was incorrect. Ms Leventhal and Ms Braganza argue that my conclusion was correct and, moreover, that there are additional reasons for supporting it. I address this issue in section J below (paragraphs 160-207).

(4) If the potential deadlock is not broken by treating the Secretary of State’s s 95 functions as residual in the context of s 24A (5), how should the potential deadlock be broken? Mr Westgate argues that a local authority is entitled to take into account the fact that the Secretary of State is providing or could provide asylum accommodation to the qualifying young person; Ms Leventhal and Ms Braganza argue that it is not so entitled. I address this issue in section K below (paragraphs 208-230).

[144]Before turning to consider these issues, I should preface my consideration by explaining the nature of the exercise in which I am engaged.

[145]On one view, the problem of the potential deadlock to which I have referred above might be resolved by adopting what could be described as an empirical approach to each particular case. For example, an asylum-seeking qualifying young person might present himself or herself first to a local authority. In such a case, the local authority might refuse to provide accommodation under s 24A because it considers that the Secretary of State would be likely to provide asylum accommodation. If the young person were subsequently to present himself or herself to the Secretary of State, it seems likely that, in light of the local authority’s decision, the Secretary of State would have to proceed on the basis that accommodation was not otherwise available to the young person, and she would have to provide asylum accommodation under s 95. In effect, the Secretary of State’s hands would be tied by the local authority’s prior refusal of accommodation. Similarly, it seems likely that the converse might be the case in circumstances in which the young person presented first to the Secretary of State.

[146]None of the parties in this case suggests that it would be appropriate to adopt such an approach (and nor did the parties in AAM). I agree. It would be unsatisfactory if the distribution of responsibilities as between the Secretary of State and a local authority were to turn on the happenstance of to which body an asylum-seeking qualifying young person were to present first.

[147]Nevertheless, the example above illustrates a potential broader problem, in that the starting point for any analysis of the statutory schemes may well condition the eventual conclusion. Although this is a problem which the parties acknowledged in oral argument, it seems to me that in some respects their arguments were predicated on an unstated assumption that the analysis should proceed by considering one or other of the functions of the Secretary of State or a local authority first. However, I consider that it is necessary to consider the respective functions in parallel, in effect on the hypothetical basis that their exercise is being considered simultaneously.

[148]I recognise that this approach risks giving the analytical exercise an air of practical unreality. For example, in each of the Claimant’s cases, he was in fact being accommodated by the Secretary of State at the point at which the Council took the relevant decision under s 24A (5), and there was no suggestion that the Secretary of State would in the foreseeable future have withdrawn that accommodation. Indeed, it appears that the Secretary of State’s general practice is to provide asylum support to asylum-seeking qualifying young persons. As such, it might legitimately be said that it is unrealistic to analyse the Council’s functions on the hypothetical basis that the Secretary of State is not providing or might not provide asylum accommodation. Nevertheless, in light of the way in which the parties addressed the issues, it seems to me that this is the basis on which I should approach my task.

H. ISSUE 1: DOES THE POTENTIAL FOR DEADLOCK ARISE AT ALL?

[149]Mr Westgate argues that in AAM I was wrong to conclude that a potential for deadlock as between the functions of the Secretary of State and the functions of a local authority arose at all (see the third step in my reasoning, summarised in paragraph 113 above). In this respect, Mr Westgate submits that the second step in my reasoning (see paragraph 112 above) constituted a wrong turn. He submits that reg 6(4) requires the Secretary of State to have regard to accommodation which might be provided to an asylum-seeker by another public body only if that other public body is under a duty to provide it, and s 24A does not impose the requisite type of duty. In this respect, Mr Westgate relies on the decision of the Court of Appeal in O v Haringey.

[150]I do not accept this argument. In paragraph 106 of AAM, I explained the position in relation to the Secretary of State’s functions under s 95 as follows (emphasis added):

“…In order to decide whether she must provide accommodation to a person under s 95(1), the Secretary of State must consider whether that person has adequate accommodation or has any means of obtaining adequate accommodation. In doing so, under reg 6(4) of the 2000 Regulations, the Secretary of State must take into account any support which is, or might reasonably be expected to be, available to the person. It seems to me that the possibility of a local authority providing accommodation under s 24A(5)(a) of the 1989 Act is, where it exists, very likely to be a factor which is relevant to this exercise; at the very least, it is very likely to be a permissible factor to which the Secretary of State is entitled to have regard.”

[151]Accordingly, my view was that, in the context of the exercise which s 95 entails, accommodation which is or could be provided by a local authority is at least a permissible factor to which the Secretary of State is entitled to have regard (i.e. a factor to which she may, but is not required to, take into account). This part of my analysis in AAM was not dependent upon a conclusion that the Secretary of State was required by reg 6(4) of the 2000 Regulations to take into account accommodation which is being or could be provided by a local authority; rather, it turned on my conclusion that, at least in principle, each body was at least entitled to take into account the possibility that accommodation could be provided by the other body.

[152]Although Mr Westgate does not expressly take issue with the latter conclusion, I have nevertheless reconsidered it, and I remain of the view that it is correct.Under s 95, the Secretary of State’s duty to provide support to an asylum-seeker is triggered in a case in which the asylum-seeker is or is likely to become destitute. Section 95(3) provides for the relevant definition of destitution, which involves the Secretary of State considering whether the asylum-seeker has adequate accommodation or any means of obtaining it. Section 95(3) requires the Secretary of State to exercise an evaluative judgement. Section 95(5)(b) and (6) and reg 6(3) specify certain matters which are to be treated as irrelevant when the Secretary of State makes her evaluative judgment, and s 95(5)(a) and reg 6(4) specify certain matters which are to be treated as relevant. The factors specified as irrelevant and relevant do not encompass all of the factors which might bear on the Secretary of State’s exercise of her evaluative judgement. For example, none of the factors specified relates to the physical quality of the accommodation. On ordinary principles, therefore, I consider that when the Secretary of State exercises her evaluative judgement under s 95(3), she is entitled (but not required) to have regard to a matter which has not been specified as either relevant or irrelevant (save where it would be irrational do so).

[153]Accordingly, I do not consider that Mr Westgate’s submission as to the proper interpretation of reg 6(4), and as to the effect of O v Haringey, could affect the second and third steps in my reasoning in AAM. Nevertheless, Mr Westgate’s submission requires careful consideration in the context of the third issue, and I return to it below.

I. ISSUE 2: THE CORRECT APPROACH TO IDENTIFYING IRRELVANT CONSIDERATIONS

[154]As I have explained above, although the Courts in O v Barking and TMX did not expressly articulate the conceptual basis on which they concluded that a local authority is not entitled to take into account the possibility that an individual might be provided with asylum support by the Secretary of State, in AAM I took the view that the analysis must rest on the concept of irrelevant considerations. As I have also explained above, in AAM I ultimately concluded that the fact that an asylum-seeking qualifying young person is being or could be provided with asylum support under s 95 is a legally irrelevant consideration for the purposes of s 24A.

[155]The starting point for Mr Westgate’s submissions on behalf of the Council is an argument to the effect that in AAM my approach to whether asylum accommodation was a legally irrelevant consideration for the purposes of s 24A was flawed generally, because I did not apply the correct test for identifying whether a particular factor constitutes an irrelevant consideration. In summary, Mr Westgate’s argument in this respect is as follows. Section 24A does not expressly provide for a lexicon of the factors which must or must not be taken into account by a local authority when it exercises its functions under s 24A. Accordingly, a particular factor would be a legally irrelevant consideration only if that were implicit in s 24A. The applicable test in this context is that which applies when a court considers whether it is necessary to imply a matter into a statute, i.e. the implication must be “compellingly clear” from the express provisions of the statute, interpreted in their context and having regard to their purpose (see Pwr v Director of Public Prosecutions

[2022] UKSC 2

[2022] 1 WLR 789

, paragraph 34 per Lord Hamblen, Lord Burrows and Lady Arden; R (Ball) v Hinckley and Bosworth Borough Council

[2024] EWCA Civ 433

[2024] PTSR 1344

, paragraph 60 per Coulson LJ). This test for a necessary implication is an onerous test, and Mr Westgate argues that it cannot be met in the context of s 24A (5).

[156]Although, in their skeleton argument, Ms Leventhal and Ms Christie implicitly accept that Mr Westgate is correct to say that the applicable test in this context is the test for necessary implication, I have to confess that my initial reaction to this argument was one of scepticism, and that the question whether a particular factor is a legally relevant or irrelevant consideration is to be determined by way of a conventional exercise in the interpretation of the provision which confers the relevant decision-making function.

[157]In support of his submission, Mr Westgate relies primarily on R (Friends of the Earth Ltd) v Secretary of State for Transport

[2020] UKSC 52

[2021] PTSR 190

, paragraphs 116-188, where Lord Hodge and Lord Sales summarised the correct approach to identifying relevant, irrelevant and permissible considerations. However, although Lord Hodge and Lord Sales referred to authority which makes it clear that the question is whether the relevant statute expressly or impliedly identifies a particular factor as relevant or irrelevant, they did not suggest that the correct test in this context is the onerous test for a necessary implication. Further, I do not consider that any of the case law to which Lord Hodge and Lord Sales referred is authority for the proposition that the necessary implication test applies. Indeed, the decision of the New Zealand Court of Appeal which provides the foundation for much of the domestic case law in this area, CREEDNZ Inc v Governor-General

[1981] NZLR 172

, might be thought to point away from the application of such a test, as there Cooke J appears to posit a somewhat less strict approach to the identification of relevant considerations (see page 183: “it is safe to say that the more general and the more obviously important the consideration, the readier the Court must be to hold that Parliament must have meant it to be taken into account”).

[158]I think that it is fair to say that, by the end of his submissions, Mr Westgate was not inclined to press this argument particularly forcefully. However, having considered the argument further since the hearing, I have detected at least some suggestion in the case law that the test for necessary implication might have some application in this context (see, for example, R (D) v Parole Board

[2018] EWHC 694 (Admin)

[2019] QB 285

, paras 138–141).

[159]Nevertheless, I do not consider that it is necessary for me to resolve this point for the purpose of deciding the present claims. In my view, whichever approach to identifying irrelevant considerations were adopted, the result would be the same. As I explained at the fifth stage of my reasoning in AAM, my decision was underpinned by what I saw as the need to ensure that the overall legislative scheme is coherent and does not produce absurdity in the form of the potential deadlock (see paragraph 115 above). In my judgment, if it were correct to apply the test for necessary implication, that test would be met where it is necessary to imply that a particular factor is irrelevant in order to ensure coherence and to avoid absurdity in a legislative scheme.

J. ISSUE 3: IS SECTION 95 A “RESIDUAL” FUNCTION IN THE CONTEXT OF SECTION 24A?

[160]The tenth step and final step in my reasoning in AAM was that the Secretary of State’s functions under s 95 are correctly characterised as “residual” in the context of s 24A, and therefore the functions under s 95 cannot be exercised in a case in which an asylum-seeker is a qualifying young person for the purposes of s 24A (see paragraph 120 above).In the present case, Mr Westgate argued that this part of my reasoning was incorrect, whereas Ms Leventhal and Ms Braganza supported it, including on grounds additional to those on which I had relied in AAM.

[161]In order to address those arguments, it is necessary to take matters in stages. Accordingly, in this section of the judgment, I begin with a re-examination of why s 95 has in previous cases been held to be “residual”. I then address Mr Westgate’s argument (to which I have adverted above) that it is not correct to treat s 95 as residual in the context of s 24A because reg 6(4) applies only to duties, and s 24A does not impose a duty. Next, I consider Ms Leventhal’s argument that, in any event, s 24A does in effect impose the type of duty contemplated by reg 6(4). I then consider Ms Leventhal’s and Ms Braganza’s separate argument that s 95 should in any event be treated as residual in the context of s 24A. Finally in this section of the judgment, I explain the implications of my conclusions on these matters. (1). The analysis as to why section 95 is “residual”

[162]In order to contextualise my consideration of the parties’ submissions on the issue of whether s 95 is residual in the present context, it is necessary to begin by re-examining why s 95 has been held to be residual, and what that means, in other cases.

[163]In AAM, I analysed the Westminster, O v Barking and TMX cases. I noted that the thread which runs through those cases is that the Secretary of State’s functions under s 95 are “residual” functions which are exercisable only where no other support is available (see AAM, paragraph 119). I concluded that the way in which the courts in O v Barking and TMX had ensured coherence and avoided absurdity in the statutory schemes considered in those cases was to hold that, when a local authority considers whether to exercise its functions to provide such other support, it may not take into account the possibility of the Secretary of State exercising her residual functions (see AAM, paragraph 131). I also observed that, in those cases, the courts had decided that the s 95 functions were “residual” based on an analysis of those functions themselves, and not on any particular feature of or comparison with the relevant functions of the local authority (see AAM, paragraphs 133 and 137).

[164]I consider that the broad shape of my analysis of the previous case law in AAM is correct. However, the arguments in the present cases have afforded me an opportunity to reflect further on that analysis, particularly in light of Mr Westgate’s focus on the proper interpretation of reg 6(4). Accordingly, I need to re-examine the two appellate authorities, Westminster and O v Barking, with a particular focus on the role which reg 6(4) plays in the reasoning.

[165]As it was in AAM, my starting pointis the speech of Lord Hoffmann in the Westminster case (see paragraphs 111-119 of AAM). In paragraphs 38-41 of Westminster, Lord Hoffmann endorsed the conclusion of the courts below that the Secretary of State’s functions under s 95(1) are “residual and cannot be exercised if the asylum seeker is entitled to accommodation under some other provision” (emphasis in original).

[166]As I see it, there were two parts to Lord Hoffmann’s reasoning in this respect. First, in the Westminster case, the particular issue was whether the local authority or NASS had a duty to accommodate an asylum-seeker who was (in Lord Hoffmann’s words) “infirm destitute”. The relevant provision in the case of the local authority was s 21 of the 1948 Act, and therefore the amendment which s 116 of the 1999 Act had made to that section constituted a particularly important focus for the analysis. In that respect, Lord Hoffmann agreed with the courts below that the duty to infirm destitute asylum-seekers which local authorities had borne prior to the enactment of the 1999 Act had not been removed by that Act. Secondly, Lord Hoffmann referred to the fact that, under reg 6(4), the Secretary of State “must” take into account any other support which is available to an asylum-seeker, with the effect that an infirm destitute asylum-seeker (to whom support is available under s 21 of the 1948 Act) cannot be treated as destitute for the purposes of s 95 (see paragraph 40). Accordingly, insofar as there would otherwise have been an overlap between the functions of the Secretary of State and the functions of the local authority, reg 6(4) provided a tiebreaker by removing the Secretary of State’s duty. This was also the conclusion of Stanley Burton J at first instance (see

[2001] EWHC Admin 138

, paragraphs 20-22) and Simon Brown LJ in the Court of Appeal (see

[2001] EWCA Civ 512

(2001) 33 HLR 83

, paragraph 28).

[167]Thus, Lord Hoffmann concluded that, on the one hand, local authorities had a duty to accommodate infirm destitute asylum-seekers and, on the other hand, the effect of reg 6(4) was to remove what would otherwise have been a power of the Secretary of State to provide asylum support to such asylum-seekers. In view of some of the arguments which were advanced in the present case, it is important to recognise that (as I mentioned in paragraphs 133 and 137 of AAM) Lord Hoffmann’s reasoning did not turn on a relative assessment of the two statutory schemes in issue, much less a relative assessment of the quality of the accommodation and support which is likely to be provided under each of those schemes (see AAM, paragraphs 133 and 137). Once it had been established that the local authority owed a duty to infirm destitute asylum-seekers, his conclusion as to whether the Secretary of State also had a power to provide support to such asylum-seekers was based entirely on an analysis of the relevant provisions of Part VI of the 1999 Act and the regulations made under it, in particular reg 6(4). In my view, this is reflected in the way in which Lord Hoffmann used the adjective “residual” to refer to a function which cannot be exercised if an asylum-seeker is entitled to accommodation under some other provision. I note that this analysis of Lord Hoffmann’s approach accords with the summary of his reasoning set out in R (A) v National Asylum Support Service

[2003] EWCA Civ 1473

[2004] 1 WLR 752

, paragraph 53 per Waller LJ) and in O v Haringey, paragraph 23(iii) per Carnwath LJ.

[168]What I described as Lord Hoffmann’s “idea” of the Secretary of State’s functions under s 95 being residual was picked up and applied in O v Barking (see paragraphs 120-122 of AAM). In that case, a potential deadlock similar to the one which potentially arises in the present cases arose as between s 95 and s 23C of the 1989 Act (see O v Barking, paragraph 32). Tomlinson LJ (with whom Leveson and Jacob LJJ agreed) referred to Lord Hoffmann’s speech in Westminster, and accepted an argument on behalf of the asylum-seeker and the Secretary of State that “it has clearly been decided that the power under section 95 is residual and cannot be exercised if the asylum seeker is entitled to accommodation under some other provision” (see paragraph 37). Tomlinson LJ went on to reject an argument on behalf of the local authority that the decision in Westminster could be distinguished because it turned on the amendment which had been made to s 21 of the 1948 Act by s 116 of the 1999 Act. In this respect, he held that “Lord Hoffmann’s reasons for regarding the powers of the Secretary of State as in that respect residual have nothing whatever to do with the regime provided by section 21(1B)” (see paragraph 39). Tomlinson LJ set out his conclusion in paragraph 40, as follows. “…this court is, in my judgment, bound to conclude that since the powers under s 95 (and s 4) of the Immigration and Asylum Act 1999 are residual, and cannot be exercised if the asylum seeker (or failed asylum seeker) is entitled to accommodation under some other provision, a local authority is not entitled, when considering whether a former relevant child’s welfare requires that he be accommodated by it, to take into account the possibility of support from NASS….”

[169]Tomlinson LJ’s reasoning is concise but, read in the context of his references to Lord Hoffmann’s speech in Westminster, it seems to me that its logic is clear: the Secretary of State cannot provide asylum support to an asylum-seeker under s 95 if he or she is entitled to accommodation under some other provision; therefore, when a local authority considers whether to provide accommodation to an asylum-seeker under that other provision, it may not take into account the possibility of the Secretary of State providing asylum support. Although Tomlinson LJ did not expressly refer to reg 6(4) in his reasons, it seems to me that his conclusion must have been predicated on Lord Hoffmann’s analysis of that regulation in Westminster. In this respect, I note that Tomlinson LJ (at paragraph 37) expressly referred to the decision of the Court of Appeal in R (W) v Croydon London Borough Council

[2007] EWCA Civ 266

[2007] 1 WLR 3168

, in which the Court of Appeal adopted a materially similar analysis in the context of s 4 (see paragraphs 16-17 per Laws LJ for the Court of Appeal).

[170]In light of Westminster and O v Barking, therefore, the proper interpretation of reg 6(4) comes to the fore. If under reg 6(4) the Secretary of State must take into account assistance which is or could be provided under s 24A, then she cannot exercise her functions under s 95 and, under s 24A, a local authority cannot take into account the possibility of the Secretary of State exercising her functions under s 95. If, however, assistance which is or could be provided under s 24A is not within the scope of reg 6(4), some other route out of the deadlock must be found.

[171]Accordingly, it is necessary to turn to Mr Westgate’s argument as to the proper interpretation of reg 6(4). (2). The proper interpretation of reg 6(4)

[172]In AAM, each party assumed that, under reg 6(4), the Secretary of State must take into account accommodation, which is or could be provided under s 24A, and I did not receive any submissions on the proper interpretation of reg 6(4). I therefore proceeded on the basis of the same assumption as the parties. In the present cases, Mr Westgate relies on Carnwath LJ’s judgment in O v Haringey to argue that this assumption was incorrect, and that reg 6(4) applies only where there is a duty to provide accommodation. In response, Ms Leventhal argues that the relevant part of Carnwath LJ’s judgment is both obiter and incorrect, and that I should not follow it.

[173]O v Haringey was not cited to me in AAM. That is unfortunate because, as I shall explain, I consider that it has a material impact on the correctness of my analysis in AAM.

[174]In O v Haringey, the claimant was a citizen of Uganda who was HIV positive. She had originally entered the United Kingdom on a visitor’s visa, in order to join her husband, who was already in the United Kingdom on a work permit. Once in the United Kingdom, the claimant sought leave to remain as the spouse of a work permit-holder, but that application was not determined by the Secretary of State. Subsequently, the claimant, with her two children, left the family home because she had experienced domestic violence at the hands of her husband. The claimant then applied for exceptional leave to remain on the basis that, because of her HIV positive status, it would be a breach of her rights under

art 3 of the European Convention on Human Rights

to return her to Uganda. The effect of this application was that she became an asylum-seeker for the purposes of the 1999 Act (see the definition of “claim for asylum” provided for by s 94(1) of that Act).

[175]The relevant local authority had been providing the claimant and her sons with accommodation and subsistence under s 21 of the 1948 Act (in the case of the claimant) and the 1989 Act (in the case of her sons). It accepted that it had a duty to continue to accommodate the claimant under s 21 of the 1948 Act as an individual who was infirm destitute. However, it argued that responsibility for accommodating the children fell on NASS. In effect, the local authority argued that responsibility for accommodating the family was shared between it (in respect of the claimant) and NASS (in respect of the children). The claimant brought a claim for judicial review of the local authority’s decision that it was not responsible for accommodating her children. The local authority did not wish to separate the family, or to subject the children to destitution, and therefore the issue was whether it had either a duty or a power to provide accommodation for the children. The claimant sought a declaration that the necessary power or duty arose under the 1948 Act, the 1989 Act or the Local Government Act 2000. The Secretary of State was an interested party; she aligned herself with the claimant and argued that the local authority bore sole responsibility for accommodating the entire family.

[176]At first instance, Ouseley J dismissed the claim, holding that the Secretary of State bore responsibility for accommodating the family (see

[2023] EWHC 2798 (Admin)

). The Court of Appeal (Lord Woolf LCJ, Rix and Carnwath LJJ) dismissed the claimant’s and the Secretary of State’s appeal (albeit for reasons which differed from those given by the Judge), with Carnwath LJ giving the only reasoned judgment.

[177]Carnwath LJ addressed the issue of the correct interpretation of reg 6(4) in paragraphs 13 to 17 of his judgment, where he reached two main conclusions. First, under reg 6(4), when the Secretary of State considers whether an asylum-seeker is currently destitute, she must ask herself simply whether other support is currently available to the asylum-seeker, not whether other support might be provided during the prescribed period (see paragraphs 13-16). Carnwath LJ’s reasoning on this first point is somewhat compressed, but in my respectful view his conclusion is firmly grounded in the statutory scheme. Because Ms Leventhal argued that Carnwath LJ’s conclusion on the first point was wrong, I should set out the correct analysis as I see it.(1) Section 95(1) distinguishes between an asylum-seeker who is currently destitute, and an asylum-seeker who is not currently destitute, but who is likely to become so within the prescribed period. Section 95(3) provides for the circumstances in which a person is destitute, using the present tense throughout. Thus, an asylum-seeker is currently destitute if he or she does not currently have adequate accommodation or he or she does not currently have the means of obtaining adequate accommodation. An asylum-seeker who is not currently destitute would be likely to become destitute if it is likely that those circumstances would apply to him or her within the prescribed period.

(2) Under s 95(12) of, and paragraph 2 of Schedule 8 to the 1999 Act, the Secretary of State has a power to make regulations supplementing s 95. In particular, paragraph 2(1)(b) of Schedule 8 empowers the Secretary of State to make regulations which provide, in connection with determining whether an asylum-seeker “is” destitute, for her to take into account (except insofar as may be prescribed) support which is or might reasonably be expected to be available to the asylum-seeker. As I understand the position, reg 6 was made under this power.

(3) Regulation 6(1) reflects the distinction drawn by s 95(1), in that it provides that reg 6 applies where the Secretary of State determines whether an asylum-seeker is currently destitute and where the Secretary of State determines whether an asylum-seeker who is not currently destitute is likely to become destitute within the prescribed period.

(4) Regulation 6(3) also reflects the distinction drawn by s 95(1), in that the final words differentiate between, in a case in which the Secretary of State has to decide whether an asylum-seeker is currently destitute, any asylum support with which the asylum-seeker is being provided and, in a case in which the Secretary of State has to decide whether the asylum-seeker is likely to become destitute, any asylum-support which might be provided during the prescribed period.

(5) Regulation 6(4) does not reflect the distinction drawn by s 95(1) quite so clearly. However, its structure reflects the structure of reg 6(3). In particular, the first part of each of reg 6(4)(a), (b) and (c), in which the present tense is used, must be referrable to the question whether an asylum-seeker is currently destitute. The second part of each subparagraph, in which the forward-looking formulation “might reasonably be expected to” is used, must be referrable to the question whether an asylum-seeker who is not currently destitute is likely to become destitute.

(6) Taking s 95(3)(a) together with reg 6(4), when the Secretary of State considers whether an asylum-seeker is currently destitute (i.e. whether the asylum-seeker currently does not have adequate accommodation or any means of obtaining it), she must take into account any other support which is currently available to the asylum-seeker. When the Secretary of State considers whether an asylum-seeker who is not currently destitute is likely to become destitute within the prescribed period (i.e. whether before the end of the prescribed period the asylum-seeker will no longer have adequate accommodation or any means of obtaining it), she must take into account any support which might reasonably be expected to be available during that period.

[178]Carnwath LJ’s second conclusion is set out in paragraph 17, as follows. “This distinction is I think of some importance in the present discussion. In deciding whether a person is destitute, it is not enough that the [other] authority may have a power or discretion to provide accommodation or other support, or that the Secretary of State might reasonably expect them to do so. The question is whether the [asylum-seeker] has ‘the means’ to obtain that support (section 95(3)) or whether it ‘is available’ to them. These words to my mind, at least where the source of the support is a public authority, connote a legal entitlement or enforceable expectation that the support will be given.”

[179]Ms Leventhal makes the fair point that the reasoning here is again somewhat compressed. In particular, Carnwath LJ does not expressly articulate why he considered that the statutory wording has, in the particular context of support from another public body, the specific and limited meaning which he attributed to it. Nevertheless, in my view, the effect of this passage is that, in a case in which the other support in question is support from a public body, reg 6(4) requires the Secretary of State to take into account that other support only if the asylum-seeker has “a legal entitlement” to that support or “an enforceable expectation” that it will be provided.

[180]Carnwath LJ did not explain what he meant by “a legal entitlement” or “an enforceable expectation” in this context. Mr Westgate submits that Carnwath LJ must have been referring to a statutory duty, in the sense of a statutory provision phrased in mandatory terms (such as a provision which states that a public body “must” or “shall” do a particular act). However, for two main reasons, I agree with Ms Leventhal that Carnwath LJ did not use these expressions in that narrow sense. First, the expressions used by Carnwath LJ would have been an unusual way to describe a statutory duty of the kind to which Mr Westgate refers; had Carnwath LJ intended to refer to such a statutory duty, it would have been straightforward for him to have said so in terms. Instead, he used words which, on their ordinary meaning, have a wider reach. I recognise that Carnwath LJ’s judgment should not be parsed in the same way as one would analyse a statutory provision, but in my view it is telling that, rather than using the language of duty, Carnwath LJ used the language of “entitlement” and “expectation”, which seems to me to place the focus on the position of the particular asylum-seeker in question.

[181]Secondly, Carnwath LJ’s general approach to the arguments also indicates that he used the expressions in a wider sense. The claimant and the Secretary of State relied on various statutory provisions as imposing on the local authority a responsibility to provide accommodation to the family, including s 21 of the 1948 Act (which, in relation to the claimant’s children, was said to confer a power which could be rationally exercised in only one way: see paragraphs 34 and 37), the power conferred by s 17, and the power conferred by s 2 of the Local Government Act 2000. None of those provisions is phrased in mandatory terms, but Carnwath LJ did not reject the arguments based on them for that reason alone.

[182]Accordingly, I accept Ms Leventhal’s submission that the “legal entitlement” and “enforceable expectation” to which Carnwath LJ referred in paragraph 17 of O v Haringey encompass a power which the public body is, in the specific factual circumstances of a particular case, required to exercise.

[183]However, I do not accept Ms Leventhal’s further submission that paragraph 17 of Carnwath LJ’s judgment was obiter. The relevant context in O v Haringey was the claimant’s and the Secretary of State’s argument that responsibility for accommodating the family fell on the local authority alone, and that the Secretary of State was not responsible for the provision of accommodation under s 95. Carnwath LJ recognised that, in the light of the Westminster case, the key question was therefore whether accommodation was available to the family from the local authority; if it was, then they were excluded from the provision of asylum-support under s 95 (see paragraph 23(iii)). This is what led him to identify the main issue on the appeal as that of whether accommodation for the claimant and her family together was available from the local authority (see paragraphs 29-32). Carnwath LJ went on to apply his conclusion in paragraph 17 in the context of his analysis of this main issue, expressly asking whether the family had an “entitlement” to or “expectation” of accommodation from the local authority (see paragraphs 33 and 42). Similarly, elsewhere he discussed the issue in terms of whether the local authority had a “duty” to provide for essential living needs (see paragraph 55).

[184]In my view, Carnwath LJ’s conclusion in paragraph 17 constituted the starting point for his analysis of the issues on the appeal. As Carnwath LJ himself noted in paragraph 17, his conclusion there was “of some importance” to the consideration of those issues. Accordingly, I consider that paragraph 17 of Carnwath LJ’s judgment forms part of the ratio decidendi of O v Haringey, even on the narrow approach to what constitutes a ratio. In my view, it is part of the rulings and the reasons given to justify his ultimate decision, read in the light of the facts of the case and the issues which arose (see R (Youngsam) v Parole Board

[2019] EWCA Civ 229

[2020] QB 387

, paragraph 58 per Leggatt LJ). It follows that it is not open to me to consider Ms Leventhal’s argument that Carnwath LJ’s second conclusion was wrong.

[185]Mr Westgate and Ms Leventhal each relied on different parts of the decision of the Divisional Court (Munby LJ and Langstaff J) in R (VC) v Newcastle City Council

[2011] EWHC 2673 (Admin)

[2012] PTSR 546

, as supporting his or her analysis of O v Haringey. As the parties recognised, the decision in VC requires careful consideration, and I return to it in more detail below. For present purposes, insofar as Munby LJ’s judgment in VC sheds any light on O v Haringey, I consider that it supports my understanding of the latter case. First, in my view, Munby LJ not only referred to paragraph 17 of Carnwath LJ’s judgment in terms which suggest that Munby LJ saw it as forming part of the ratio of Carnwath LJ’s decision (see paragraph 62: “[a]pplying this approach…”), he also applied it to reject one of the claimant’s arguments (see paragraph 72). Secondly, as in O v Haringey,in VC the claimant’s reliance on s 17 was not dismissed out of hand on the basis that s 17 does not impose the type of statutory duty to which Mr Westgate refers (see paragraphs 21-27 and 72).

[186]For present purposes, the relevant circumstances are those in which the Secretary of State is considering whether an asylum-seeker is currently destitute. As I have explained in paragraph 147 above, I need to consider the Secretary of State’s exercise of her functions on the hypothesis that a local authority has not already decided whether to provide assistance under s 24A(5).

[187]For the reasons set out above, I consider that the effect of O v Haringey is that, when the Secretary of State considers whether an asylum-seeker is currently destitute for the purposes of s 95, reg 6(4) requires her to take into account support which could be provided to an asylum-seeker by a local authority only if the local authority has a statutory duty to provide that support or if, in the specific circumstances of the particular case, the local authority is required to exercise what would otherwise be a discretion to provide that support.

[188]This is a materially narrower approach to reg 6(4) than that which I adopted in AAM (cf paragraphs 137 and 138 of AAM) and, in my view, this conclusion overtakes Ms Leventhal’s argument that it makes no difference to the analysis that s 24A (5) provides for a power and not a duty. (3). Does section 24A impose the type of obligation contemplated by reg 6(4)?

[189]My conclusion as to the effect of O v Haringey means that the next question which arises is whether, in the case of an asylum-seeking qualifying young person, a local authority must exercise its discretion under s 24A(5) to provide accommodation, such that s 24A(5) gives rise to the type of entitlement or expectation to which Carnwath LJ referred in O v Haringey.

[190]In this context, it is necessary to recall that (insofar as is relevant) there are potentially two steps to a local authority’s decision-making under s 24A(5): first, the local authority must determine whether there are “exceptional circumstances”; secondly, if there are exceptional circumstances, it must decide whether to exercise its discretion to give assistance by providing accommodation.

[191]In the AAM case, there was no dispute between the parties as to what would constitute “exceptional circumstances” for the purposes of s 24A(5); it was common ground that exceptional circumstances would arise if an asylum-seeking qualifying young person’s welfare requires the provision of accommodation, and that accommodation cannot be made available by any other agency (see paragraphs 99-103 of AAM). On this basis, I concluded that, where exceptional circumstances arise, it is very difficult to see how a local authority could properly decline to exercise its discretion to provide accommodation under s 24A (5) (see paragraphs 138-141 of AAM).

[192]In the present case, none of the parties suggested that this approach to what constitute “exceptional circumstances” was incorrect. However, Mr Westgate contended that it was a misstep to proceed directly from that conclusion to a further conclusion that a local authority is in effect required to exercise its discretion under s 24A (5). This aspect of the case was touched on only relatively briefly in argument, with the consequence that I inevitably approach the resolution of this issue with some diffidence.

[193]Mr Westgate argues that, because s 24A(5) provides no lexicon of the matters to which a local authority may and may not have regard when deciding whether to exercise its discretion, a local authority may take into account matters such as its limited resources, other demands on those resources, and the availability to it of appropriate accommodation (by way of shorthand, I shall refer to such factors simply as “resources”). In this respect, Mr Westgate particularly relied on R (G) v Barnet London Borough Council

[2003] UKHL 57

[2004] 2 AC 208

, paragraphs 10-13 per Lord Nicholls and R (Health and Safety Executive) v Wolverhampton City Council

[2012] UKSC 34

[2012] 1 WLR 2264

, paragraph 48 per Lord Carnwath. In the former case, Lord Nicholls explained that one of the main differences between a statutory duty and a statutory power is the fact that a duty does not allow for a local authority to allocate its resources according to its own priorities, whereas a power does. In the latter case, Lord Carnwath observed that “general principles would normally dictate that a public authority should take into account the financial consequences for the public purse of its decisions”. In this context, Mr Westgate pointed to the evidence of Ms Boboye as to the likely financial and practical impact on the Council of it having to accommodate asylum-seeking qualifying young persons.

[194]Ms Leventhal touched on this issue only briefly, and only in her reply, when she argued, by reference to R (Kebede) v Newcastle City Council

[2013] EWCA Civ 960

[2014] PTSR 82

, that a local authority’s resources are irrelevant to its discretion under s 24A (5). Kebede concerned the relevant local authority’s decision not to make a grant under s 24B (2) of the 1989 Act. Sir Stanley Burnton (with whom Laws and McCombe LJJ agreed) held that the local authority’s resources are irrelevant to such a decision, but it is plain that his conclusion turned on the particular statutory context. Accordingly, I do not consider that Kebede provides support for a more general proposition that a local authority’s resources are necessarily irrelevant to the exercise of a discretion under the leaving care provisions.

[195]I accept that, at a general level, Mr Westgate’s argument finds support in the authorities. However, it is clear from Lord Carnwath’s judgment in the Wolverhampton case that the general approach which he outlined is only the starting point; whether resources are a permissible consideration for the purposes of a particular decision-making function depends on the context and, in particular, the specific statutory context (see also Alnwick District Council v Secretary of State for the Environment, Transport and the Regions

(1999) 79 P&CR 130

, 142 per Richards J). In the Wolverhampton case, the discretion in question was one which was to be exercised to achieve a “public objective”; in contrast, the discretion here is one which (where it is exercised) is to be exercised for the benefit of a particular individual. If nothing else, Kebede is at least an example of resources being an irrelevant consideration in a closely related context in which a discretion is to be exercised for the benefit of a particular individual.

[196]Nevertheless, on the basis of the relatively limited submissions which I heard on this point, I would be prepared to accept that resources are a permissible consideration in the context of a local authority’s discretion under s 24A. In this respect, I consider that the most relevant features of the statutory context are the fact that s 24A(5) provides for a discretionary power, the fact that the only express restriction on that discretionary power is one which limits the circumstances in which a local authority may exercise it (i.e. the exceptional circumstances condition), and the fact that s 24A(5) sits at the bottom of the hierarchy of a local authority’s leaving care functions.

[197]However, even if it is correct that resources are a permissible consideration for the purposes of s 24A (5), a local authority would be able to take them into account only if it were rational to do so in the specific circumstances of the particular case. Similarly, a local authority would be able to attach overriding weight to its resources (in the sense of that factor outweighing other competing factors) only if it were rational to so. As a result, in my judgment I cannot go so far as to say that it will in every case inevitably be rational for a local authority both to take resources into account and to attach overriding weight to them. As such, I am not prepared to hold that, as a matter of principle, it would always be lawful for a local authority to decline to provide accommodation under s 24A (5) by reference to its resources.

[198]In the circumstances, I do not consider that I am in a position to conclude either that a local authority’s resources are inevitably irrelevant in the context of s 24A (5), or that they are inevitably a factor to which a local authority is rationally entitled to have regard and to attach overriding weight. As ever, much will depend on the particular circumstances.

[199]It follows that, whether s 24A imposes on a local authority the type of obligation to which Carnwath LJ referred in O v Haringey depends on particular circumstances.

[200]Before leaving this part of the discussion, I should record that none of the parties made any submissions on whether the principle of legality, or an analogous principle of statutory interpretation, might be of relevance in the present context (cf R v Secretary of State for Social Security, ex p Joint Council for the Welfare of Immigrants

[1997] 1 WLR 275

, 292 per Simon Brown LJ and R (W) v Secretary of State for the Home Department

[2020] EWHC 1299 (Admin)

[2020] 1 WLR 4420

, paragraph 61). Further, none sought to examine the question of a local authority’s discretion under s 24A (5) through the prism of s 6 of the Human Rights Act 1998. In particular, neither Ms Leventhal nor Ms Braganza argued that in the case of an asylum-seeking qualifying young person, a local authority is inevitably required to exercise its discretion to avoid a breach of the young person’s rights under, for example,

art 3 of the Convention

(cf R (Limbuela) v Secretary of State for the Home Department

[2005] UKHL 66

[2006] 1 AC 396

). (4). Is section 95 in any event residual in the context of section 24A?

[201]Ms Leventhal, supported by Ms Braganza, advances an argument to the effect that in the present context the scheme of asylum support is in any event “residual” in the sense in which that adjective was used by Lord Hoffmann in Westminster and by Tomlinson LJ in O v Barking because of what they characterise as the clear hierarchy as between that scheme and the scheme laid down by the 1989 Act. In support of this argument, Ms Leventhal relies on her submission that the scheme of asylum support is a scheme of last resort which is concerned only with alleviating destitution, whereas the scheme laid down by the 1989 Act is a “welfare-driven” scheme.

[202]I do not accept this argument. As I held in AAM, the authorities do not treat the scheme of asylum support as residual as a result of any comparative evaluation of that scheme against the scheme laid down by the 1989 Act (see paragraphs 133 and 137 of AAM). Rather, as I have sought to explain above, the asylum support scheme has been treated as residual primarily because of the effect of reg 6(4). As a result, I consider that in this respect the Claimants’ arguments as to the residual nature of the scheme of asylum support do not bear on the concept of residuality as it was deployed in Westminster and O v Barking. I shall, however, have to consider them further in due course when I come to address the Divisional Court’s decision in VC. (5). Summary and conclusion on issue 3

[203]I can summarise my reasoning on the question whether s 95 is “residual” in the context of s 24A (5) as follows.(1) If, under reg 6(4), the Secretary of State must take into account accommodation which is or could be provided by a local authority under s 24A, she cannot provide asylum support under s 95. In such circumstances, a local authority cannot under s 24A take into account the actual or anticipated provision of asylum support under s 95.

(2) The Secretary of State is required to take into account accommodation which is or could be provided by a local authority under reg 6(4) only where the local authority is under a statutory duty to provide that accommodation or where, in the specific factual circumstances of a particular case, the local authority is required to exercise a power to provide accommodation.

(3) Whether a local authority is in a particular case required to exercise its power to provide accommodation under s 24A (5) depends on the specific factual circumstances of that case.

(4) Accordingly, whether the Secretary of State must in a particular case take into account the actual or anticipated provision of accommodation or financial assistance under s 24A

(5) depends on the specific factual circumstances of that case. (5) It follows that whether a local authority can or cannot take into account under s 24A (5) the actual or anticipated provision of asylum support under s 95 also depends on the specific factual circumstances of the particular case.

[204]Drawing these strands together, I have concluded that, when considering whether to provide accommodation or financial assistance under s 24A(5), a local authority may not take into account the actual or anticipated provision of asylum support under s 95 if the local authority would, in the specific factual circumstances of the particular case (and ignoring the actual or potential provision of asylum accommodation by the Secretary of State), be required to exercise its power to provide accommodation or financial assistance (as the case may be) under s 24A(5).

[205]I recognise that this conclusion may be thought to be unsatisfactory in some respects. Both the Claimants and the Council urged on me an approach which would provide certainty by allocating responsibility for providing accommodation in all cases to either the Secretary of State or a local authority, regardless of the particular circumstances. Mr Westgate in particular cautioned against an approach which would require either a local authority or the Secretary of State to run through something akin to hypothetical pre-action protocol process in order to work out where responsibility for providing accommodation lies in a particular case.

[206]I accept that it might be desirable, and more workable in practice, for there to be a clear allocation of responsibilities which applies across the board. I also accept that my conclusion risks giving rise to some of the undesirable consequences to which Mr Westgate referred (although I would not go so far as to accept that it gives rise to absurdity). Nevertheless, I consider that my conclusion follows the combined logic of Westminster, O v Haringey and O v Barking.

[207]My conclusion leaves open the possibility that, in a particular case, the Secretary of State’s functions under s 95 are not to be treated as residual (in the sense in which that concept was used in Westminster and O v Barking), and that some other mechanism must be found for breaking the potential deadlock. Of course, if my analysis in relation to residuality were incorrect, it would also be necessary to find another mechanism for breaking the potential deadlock. Accordingly, I now turn to consider what that other mechanism is.

K. ISSUE 4: HOW SHOULD THE POTENTIAL DEADLOCK OTHERWISE BE BROKEN?

[208]The final issue which arises is that of how the deadlock should be broken in a case in which a local authority may under s 24A (5) take into account the actual or anticipated provision of asylum support under s 95. A similar issue arose in VC, upon which Mr Westgate relied. I shall therefore begin with a consideration of that case. (1). The Divisional Court’s decision in VC

[209]The only claimant whose case was live in VC was a foreign national who had claimed asylum on arrival in the United Kingdom. She was accommodated by the Secretary of State under s 95, but that accommodation was withdrawn when the claimant’s application for asylum was rejected. Thereafter, and shortly before the claimant’s first child was born, the local authority began to provide accommodation under s 17. Subsequently, the claimant had a second child. The local authority had decided that at least the claimant’s first child was a child in need for the purpose of Part III of the 1989 Act. In due course, the local authority informed the claimant that, unless she applied to the Secretary of State for accommodation under s 4, it would withdraw the accommodation which was being provided under s 17.

[210]The issue which the Divisional Court had to determine in VC was whether the Secretary of State was required to exercise her power to provide accommodation under s 4, or whether the local authority was required to exercise its power under s 17 (see paragraph 57).

[211]It appears that the claimant’s primary argument was that, in the circumstances of her case, she had a legal entitlement or enforceable expectation, in the sense in which Carnwath LJ used those expressions in O v Haringey, that the local authority would provide accommodation under s 17(see paragraphs 23-27 and 72 per Munby LJ). Although it is not entirely clear from the judgments, it seems that the claimant might have sought to rely on the equivalent to reg 6(4) which applied in the context of s 4 (i.e. reg 2 of the Failed Asylum-Seekers Regulations) to contend that the Secretary of State’s functions under s 4 were “residual” in the context of s 17 (see paragraph 71). In any event, Munby LJ (with whom Langstaff J agreed) rejected the claimant’s primary argument on the basis that s 17 did not impose the necessary type of duty (see paragraph 72).

[212]That being the case, it would appear that Munby LJ accepted the local authority’s argument that, because Parliament could not have intended that the Secretary of State’s power under s 4 and the local authority’s power under s 17 should be “exactly equal and overlapping”, the task for the Court was “to determine as a matter of statutory interpretation whose power is dominant and whose power is residual” (see paragraph 73). On this question, the parties’ submissions were very similar to the submissions which were advanced in the present cases (see paragraphs 74-81).

[213]In the event, Munby LJ concluded that the Secretary of State’s power was “residual” (or “residuary”) and, as a result, the fact that accommodation is or may be available under s 4 does not of itself exonerate a local authority from what would otherwise be its powers and duties under s 17 (see paragraph 86). Munby LJ reached this conclusion by reference to three “key legislative indicators”. First, the contrast between purposes of, and the types of support available under, the two statutory regimes (see paragraph 87). Second, the fact that by s 122 of the 1999 Act, Parliament had expressly excluded families who are or may be eligible for support under s 95 from local authority support under s 17 but had not done so in relation to families who are or may be eligible for support under s 4 (see paragraph 88). Third, the fact that Schedule 3 to the 2002 Act, which (as I have mentioned) excludes certain categories of individuals from eligibility for support by a local authority, does not exclude the children of failed asylum-seekers from eligibility for support under s 17 (see paragraph 89). From the latter point, Munby LJ inferred that the legislative intent is that, where both s 4 and s 17 are theoretically engaged, the more advantageous support regime under s 17 is to apply

[214]Munby LJ explained the effect of his conclusion in paragraphs 91 to 95. He began by posing the rhetorical question whether a local authority which had assessed a child as being a child in need could refuse to provide support under s 17 on the basis that support is or may be available under s 4. He answered this rhetorical question as follows. “91. …Consistently with what I have already said [the local authority] will not be able to justify the non-provision of assessed services and support under section 17 on the ground that section 4 support is available unless it can be shown, first, that the Secretary of State is actually able and willing (or if not willing can be compelled) to provide section 4 support, and, second, that section 4 support will suffice to meet the child’s assessed needs. Given the residual nature of the Secretary of State’s functions under section 4, the local authority may well have difficulty in establishing the first. Given the very significant difference between what is provided under section 4 and what is very likely to have been assessed as required for the purposes of section 17, the local authority is unlikely to be able to establish the second. 92. In practical terms, and whatever the theoretical possibilities, a local authority faced with a child who is assessed as being ‘in need’ is, I suspect, very unlikely in the general run of such cases to be able to justify non-intervention by reliance upon section 4.”

[215]Finally, Munby LJ expressly declined to decide an argument advanced by the Secretary of State to the effect that she is entitled to refuse to provide support under s 4 to a failed asylum-seeker on the basis that he or she is not destitute because he or she is entitled to support from a local authority under s 17 (the Secretary of State’s “proposition (iv)”: see paragraphs 71 and 96).

[216]I think that the reasoning in VC requires some unpacking. The starting point is Munby LJ’s conclusion, based on the three legislative indicators to which he referred, that s 4 provides for a residual power. Although there is no material difference between the language of “residual” (or “residuary”) used by Munby LJ in VC and the language of “residual” that was used in Westminster and O v Barking,in my judgment Munby LJ was not referring to the same concept as that to which the two earlier cases referred. As I have sought to explain, the reasoning in those earlier cases turned primarily on reg 6(4) and, as I have mentioned, it appears that in VC Munby J rejected an analogous argument by the claimant which was founded on reg 6(4). Accordingly, in my view Munby LJ used the adjective “residual” in a more general, comparative sense. Such a reading of Munby LJ’s judgment would be consistent with the way in which the local authority’s argument was summarised in paragraph 73 of his judgment (see paragraph 212 above).

[217]Although the summary of the local authority’s argument refers to the relevant exercise as being an exercise in statutory interpretation, it is apparent that the exercise which Munby LJ actually undertook in the context of his three legislative indicators was one which was not confined to an application of conventional principles of statutory interpretation or to an analysis of s 4 and s 17 (or even the 1989 and 1999 Acts) alone; rather, he considered a conspectus of the overall legislative scheme in order to infer the relevant legislative intent (see paragraph 89).

[218]Consistently with my understanding of the way in which Munby LJ used the adjective “residual”, it is to be noted that (unlike the approach adopted in the context of s 23C in O v Barking) he did not hold that the actual or potential provision of support under s 4 is inevitably an irrelevant consideration in the context of s 17. Rather, Munby LJ held that the consequence of the s 4 power being residual is that a local authority cannot refuse to exercise its power under s 17 simply by reference to the possibility that support is being or could be provided under s 4. As such, he held that a local authority may refuse to provide support under s 17 by reference to s 4 only if:(a) the Secretary of State is able and willing (or can be compelled) to provide support under s 4; and

(b) that support meets the child’s needs, bearing in mind the fact that the child has been assessed as a child in need.

[219]Pausing there, Munby LJ did not expressly articulate the conceptual basis for the imposition of the two conditions which he identified. I infer from his earlier reference to “the legislative intent” (see paragraph 89) that he might have had in mind that the two conditions to which he referred are implicit in s 17. Although the particular analytical route by which he concluded that the two conditions apply is, with respect, not entirely clear, I would venture to suggest that the best explanation is again that he held that the availability of asylum support is a legally irrelevant consideration unless the two conditions are met.

[220]Insofar as Munby LJ referred to the fact that it is likely to be difficult for a local authority to conclude that the Secretary of State is able and willing (or can be compelled) to provide support under s 4, it is important to recognise that he did not purport to lay down a proposition of law; as I see it, he merely made a factual prediction. Again, however, Munby LJ did not expressly articulate the basis on which he made that prediction (other than by reference to the residual nature of the s 4 power), and he did not expressly explain how the prediction sits with the fact that he had expressly left unresolved the implications for the power under s 4 of his conclusion in relation to s 17.

[221]Finally, Munby LJ’s prediction that it is likely to be difficult for a local authority to conclude that support provided under s 4 is sufficient to meet a child’s assessed needs is anchored in the important context that, in order to exercise its power under s 17, a local authority must first have concluded that the relevant child is a child in need within the meaning of s 17(10). On the facts, at least one of the claimant’s children had been assessed as being a child in need (see paragraphs 15 and 82). (2). Analysis

[222]I recognise that the Divisional Court’s decision in VC did not concern the relationship between s 95 and s 24A and that, in any event, I am not necessarily bound by that decision. Nevertheless, I would need to have a good reason not to follow the approach adopted by a Divisional Court, and in my view, I should treat the decision in VC as providing guidance as to the general approach which I should adopt in the present context. In particular, I consider that I should adopt Munby LJ’s approach of considering the relevant legislative intent by reference to the overall legislative scheme.

[223]It seems to me that it is at this point that Ms Leventhal’s and Ms Braganza’s submissions as to the residual nature of s 95 come into play. I have summarised those arguments above and, as I have observed, they are very similar to the arguments which were advanced by the claimant, and accepted by Munby LJ, in VC. On one view, therefore, those arguments could amount to a powerful case in favour of treating s 95 as “residual” and s 24A (5) as “dominant” (to use the language which was used in VC). Nevertheless, there are three main reasons why I do not accept them and why, in my judgment, s 24A (5) should in this context be treated as the residual provision.

[224]First, an important feature of the reasoning in VC is that it was concerned with children in need within the meaning of s 17(10) of the 1989 Act. Accordingly, underpinning Munby LJ’s analysis as to which provision is residual was the fact that he was inevitably concerned with the position of children who (in broad terms) would be unlikely to achieve or maintain a reasonable standard of health or development unless services were provided under Part III of the 1989 Act. In contrast, the position in relation to s 24A is very different. Although I recognise that, in some (and perhaps many) cases, an asylum-seeking qualifying young person might have a level of needs which might call for the provision of assistance by a local authority, I accept Mr Westgate’s submission that this is not inevitably the case. In particular, unlike in VC, it does not inevitably follow from the statutory scheme itself.I consider that this is an important point of distinction between VC and the present cases.

[225]Second, and relatedly, whilst there is force in Ms Leventhal’s description of Part III of the 1989 Act as constituting a “welfare-driven” scheme, the focus must be on s 24A in particular. The Claimants accept that s 24A is at the bottom of the hierarchy of the leaving care provisions and, in my view, its purpose is different from that of s 17. As Munby LJ summarised the position in VC, the purpose of s 17 is to “promote the welfare and best interests of children in need” by reference to assessed needs. In contrast,as I observed in AAM, the purpose of s 24A is primarily to provide a qualifying young person with the equivalent to a friend and advisor (see paragraph 96 of AAM). Again, this is an important point of distinction from VC.

[226]The reason why these are important points of distinction is revealed when one considers Mr Westgate’s arguments about the practical consequences of the different approaches to s 24A (5). First, it is at least possible that an asylum-seeking qualifying young person’s needs will be met by asylum support provided by the Secretary of State under s 95. In such circumstances, there is no obvious reason why a local authority should be required to step in and provide similar assistance under s 24A (5). However, that would be the effect of treating s 24A (5) as the dominant provision.Conversely, if an asylum-seeking qualifying young person’s needs were not met by the asylum support provided by the Secretary of State, even if s 95 were treated as the dominant provision, the local authority retains its power under s 24A (5) to provide additional or alternative assistance. As Mr Westgate explained, in the latter respect an asylum-seeking qualifying young person would be in no different a position to a qualifying young person who is not an asylum-seeker and who is in receipt of some form of support from another public body, such as where accommodation is provided by a local housing authority.

[227]Third, a further important point of distinction between these cases and VC is the fact that Parliament has expressly provided that the power under s 24A (5) may be exercised only in exceptional circumstances, whereas there is no such limitation on the exercise of the power under s 95. Indeed, by virtue of the 2005 Regulations, the power under s 95 has since its enactment been converted into a duty. In my view, this is a further indication that s 95 is the dominant provision, and s 24A is the residual provision.

[228]As a result, I consider that in a case in which the s 95 function is not to be treated as residual (in the sense in which that adjective was used in Westminster and O v Barking), a local authority is entitled to have regard to the actual or potential provision of asylum support under s 95 when it considers the exercise of its functions under s 24A(5).

[229]There remains the question of what approach the Secretary of State may adopt under s 95 in this context. If the Secretary of State were to be able take into account the fact that a local authority might provide support under s 24A (5) in the context of s 95, there is a risk that the potential deadlock to which I have referred would continue to arise. Accordingly, I consider that, unlike the Divisional Court in VC, I must grapple with this question.

[230]I am of the view that, in this context, I should again follow the guidance given by VC. In light of my conclusion as to which of s 95 and s 24A (5) is dominant and which is residual, the positions of the Secretary of State and of a local authority are in effect the reverse of their positions in VC. As a result, it seems to me that I can apply the logic of VC to the position of the Secretary of State. On that basis, the Secretary of State is not entitled to avoid her duty under s 95 by reference to the mere fact that accommodation or financial assistance for an asylum-seeking qualifying young person is or may be available from a local authority under s 24A (5). Rather, she may take into account the actual or potential provision of accommodation or financial assistance under s 24A(5) only if the relevant local authority is actually able and willing (or, if not willing, can be compelled) to provide such accommodation or assistance, and that it would comprise adequate accommodation and such financial assistance as is necessary to meet the asylum-seeking qualifying young person’s other essential living needs (cf paragraph 91 of VC).

L. SUMMARY AND CONSEQUENTIAL MATTERS

[231]As I explained at the outset of this judgment, the question which the parties have posed for me is whether, when a local authority is determining whether to provide an asylum-seeking qualifying young person with accommodation or financial assistance pursuant to s 24A(5), is the local authority entitled to take into account the fact that the young person is or could be provided with asylum support pursuant to s 95?

[232]My answer to that question is that it depends on the specific factual circumstances of the particular young person’s case. More particularly, returning to the issues which I identified in paragraph 143 above, my conclusions are as follows.

[233]First, notwithstanding Mr Westgate’s argument to the contrary, I consider that the potential for deadlock which I identified in AAM does indeed arise. Second, and again notwithstanding Mr Westgate’s argument to the contrary, for present purposes I do not consider that it makes any material difference which is the correct forensic approach to the determination of whether a particular factor is an irrelevant consideration for the purposes of s 24A (5).

[234]Third, when considering whether to provide accommodation or financial assistance under s 24A(5), a local authority may not take into account the actual or anticipated provision of asylum support under s 95 if the local authority would, in the specific factual circumstances of the particular case (and ignoring the actual or potential provision of asylum accommodation by the Secretary of State), be required to exercise its power to provide accommodation or financial assistance (as the case may be) under s 24A(5).

[235]Fourth, in a case in which the local authority would not, in the specific factual circumstances of the particular case (and ignoring the actual or potential provision of asylum accommodation by the Secretary of State), be required to exercise its power to provide accommodation or financial assistance (as the case may be) under s 24A(5), when considering whether to provide accommodation or financial assistance under s 24A(5), the local authority is entitled to have regard to the actual or potential provision of asylum support under s 95.

[236]The latter two conclusions constitute a departure from the conclusion which I reached in AAM. This has been largely driven by the fact that in these claims I have had the opportunity to consider O v Haringey and VC (neither of which was cited to me in AAM) and, in turn, the former case has led me to focus more closely on the role which reg 6(4) played in the analysis of Lord Hoffmann in Westminster and Tomlinson LJ in O v Barking. In my view, the fact that I have now had the opportunity to consider these two authorities and their implications, together with the more developed arguments of counsel in these cases, constitutes a sufficient reason to depart from AAM in this respect.

[237]When I circulated a copy of this judgment in draft, I invited the parties to agree any consequential matters, and to make written submissions on any matters on which it did not prove possible to reach agreement. In the event, the parties were unable to agree on any consequential matters. In particular, the parties were unable to agree as to whether it would be appropriate to grant a declaration reflecting my conclusions and, if so, the terms of any such declaration. Further, the parties indicated that (save in one respect) they did not wish consequential matters to be dealt with in writing but would prefer that such matters be dealt with at a hearing.

[238]DS sought to persuade me that I should, on the basis of written submissions, grant a declaration which reflects my conclusions, and that I should set out the terms of any such declaration in this judgment. The Council disagreed and explained why it considered that in any event the terms of the declaration proposed by DS were inappropriate. I am sympathetic to the suggestion that, if I were to grant a declaration which reflects my conclusions, it would be desirable to set it out in this judgment. However, I am not at present persuaded that it would be appropriate to make a declaration in the terms proposed by DS and therefore, in circumstances in which it is going to be necessary to convene a further hearing to deal with consequential matters in any event, I do not consider that it would be appropriate to resolve only this matter on the papers.

[239]Accordingly, I shall give directions for a further hearing to deal with consequential matters.