Last week’s Court of Appeal judgment in R (Agyemang) v London Borough of Haringey [2017] EWCA Civ 1630 reveals familiar tactics by local authorities resisting requests for support under the Children Act 1989.

The claimant-appellant, a Ghanaian mother of a five-year-old child, brought judicial review proceedings with an application for interim relief against Haringey’s decision not to make subsistence payments under section 17 of that Act. The interim relief sought was subsistence payments of £53.20 per week.

After papers were lodged, Haringey offered to pay £32.50 weekly pending an assessment to be produced within 45 days. The claimant accepted but maintained the judicial review challenge to the delay in carrying out this assessment, which she argued ought to take place within four weeks. A hearing was ordered, but in the meantime the claimant settled on an order that the £32.50 be paid until completion of the assessment.

At the costs hearing no order was made, and the Court of Appeal upheld this.

Scare tactics

Practitioners will recognise Haringey’s brinksmanship. Local authorities in last-minute correspondence will emphasise the relatively meagre payments at issue compared to the costs of judicial review proceedings, using the lack of an affordable remedy as justification for their own inaction.

Those representing claimants are careful to ensure that the facts justify the claim, and not to issue pre-emptively. Here the claimant gave the defendant every chance over six months of correspondence to act within the law and make an offer, which it did only after proceedings were started. The judgment that the claimant did not wholly succeed, and therefore should not recover her costs, may well embolden local authorities.

The judgment follows Lord Neuberger’s principles in R (M) v Croydon LBC [2012] EWCA 595. However Lord Neuberger also emphasised that decisions on costs allocations are fact-dependant.

An important fact not emphasised by the court is that the claimant made a big concession on the amount of the subsistence. She could have tried to argue the rationality of expecting two people to live on £32.50 a week, but instead saved the public purse the amount of a child benefit payment – a sacrifice borne by her and her five-year-old child – and the cost of a trial. It is unfortunate that her reasonableness was not recognised or rewarded.

Proving a negative

Also familiar is the fixation, in correspondence by the council, and in comments by Cranston J in the Administrative Court, on establishing the claimant’s financial position.

Even the judgment in the costs appeal repeatedly links the delayed assessment to section 17(8) Children Act 1989, which provides that:

Before giving any assistance or imposing any conditions, a local authority shall have regard to the means of the child concerned and of each of his parents.

The phrase “s17(8) assessment” is used throughout. This suggests that the purpose of an assessment is to look into whether a family is asking for support it does not need, whereas the guidance is that section 17 assessments are to discover the child’s needs and propose a plan for meeting them.

Of course it is relevant, as the claimant here concedes, if she is not being open about her finances. But it is not the main issue and not the purpose of the legislation to have this investigated.

Local authority legal teams know this too. But they will attempt to drag the argument back to whether the child is in fact in need at all.

In this case, the council accepted a duty to accommodate six months ago, and has had the claimant’s bank statements for more than a month. Why does it need a further eight weeks – the length of time it initially pitched for – to decide whether the child is in need?

And why is an appeal court accepting this at face value? There is a circularity in saying that there are indeed questions about how the claimant has survived for so long without any income. She can’t win. She is destitute so the law says she must be helped. But being destitute in itself will raise suspicion as to how she has survived her predicament.

Families with no recourse to public funds survive on the charity of friends or church groups, or from off-the-books work. There may be incomplete records – it’s difficult to keep a perfect sequence of bank statements when you are on the move – so it is not always feasible to settle these questions in the course of correspondence.

That the argument has lingered all the way up to the costs appeal, with the defendant successfully tying the issue of the claimant’s need to whether the judicial review itself was “otiose”, is troubling.