Question 5

How is the responsibility of a local authority for an asylum seeking child established?

A local authority (LA) has a general duty under section 17 of Children Act 1989 to: “…safeguard and promote the welfare of children within their area”. Section 20(1) imposes a more specific duty on local authorities, that of providing accommodation for any child in need in their area who seems to require it because:

• There is no one with parental responsibility for him or her;
• S/he is lost or has been abandoned; or
• The person who has been caring for the child has been prevented from providing him or her with suitable accommodation or care.

An unaccompanied asylum seeking child will become the responsibility of the authority which covers the area in which the child first arrived in the UK or otherwise first came to attention as being in need of support. [1] The key phrase regarding which LA is responsible is “within their area”, which as been held to mean that “physical presence” is required [2].

This is reiterated by the Joint Working Protocol on age assessment between Immigration and Nationality Directorate of the Home Office (IND) and the Association of Directors of Social Services (ADSS), which asserts that local authority responsibility is tied to geographical boundaries. In reference to age assessments, it observes that it is therefore possible that an asylum seeker moving across boundaries may seek assessments from more than one local authority.

Therefore, a duty might cease when a child leaves a certain area, but “an authority under a duty to provide services cannot bring that duty to an end by transferring a person to the area of another authority.” [3]. Furthermore, situations may arise where the responsibility for a child lies with more than one authority [4]. In a case where more than one authority is under a duty to assess the needs of a child, there is clearly no reason for more than one authority to in fact assess a child’s needs, and so, in the absence of an outlined dispute resolution procedure [5] , co-operation and a sharing of the burden by the authorities is required [6].

In the event of conflicting local authority assessments, which local authority is responsible?

LA responsibility is tied to geographical boundaries and it is therefore possible that an asylum seeker moving across these boundaries may seek age assessment from more than one LA. In some cases the assessments may not agree.

• A LA approached for an age assessment should check whether any previous assessment has been carried out by another LA. The host LA should request a copy of the age assessment from the original LA and base further action on the content.

• In the event that no new evidence is being brought forward that was not considered at the original assessment, the issue should be treated as a complaint about the original assessment and referred to the LA responsible for it.

• In the event that new evidence has been brought forward the host LA should continue to reassess the age of the applicant taking full account of all sources of information. [7]

A recent case regarding age assessment illustrates the current thinking on local authoroty responsibility [8]. Liverpool’s responsibility had ceased when the child AK (assessed by Liverpool to be an adult) left its area. This responsibility did not revive when an Immigraiton Judge concluded that AK was a child. However, Hillingdon, in whose area AK now was, declined to undertake an assessment on the basis that it was for AK to challenge Liverpool’s assessment. This was incorrect – had AK requested an age assessment, Hillingdon should have provided one. However, AK then left Hillingdon’s area, fully in accordance with his undoubted wishes [9], and went where he clearly and firmly wanted to go – back to Liverpool. Hillingdon’s responsibility in its turn ceased once AK had returned to Liverpool. AK was then “a putative child in need within Liverpool’s area who requires accomodation as a result of their being no person who has parental responsibility for him. This is so irrespective of how AK came to be in Liverpool again”.

Revised 22/09/08

Notes

[1] Border and Immigration Agency UASC Reform Consultation Document, para. 17

[2] See R v Wandsworth LBC, ex parte Sandra Stewart [2001] EWHC Admin 709, [2002] 1 FLR 46

[3] LiverpoolCity Council (R on the application of) v London Borough of Hillingdon [2008] EWHC 1702 (Admin), para 50.

[4] R v Wandsworth LBC, ex parte Sandra Stewart [2001] EWHC Admin 709, [2002] 1 FLR 46 para 26

[5] “…the absence of a dispute resolution procedure such as that in section 30 in respect of the “ordinary residence” of a child supports the view that a section 17 duty may lie on more than one authority.” Para 28 of the Sandra Stewart Case

[6] See Children Act 1989, s.27 Co-operation between authorities