Following on from our inaugural advocacy clinic on the topic of care leavers’ rights, in this issue we revisit a 2013 High Court judgment which confirmed that the payment of tuition fees falls within the ambit of sections 23C and 24B of the Children Act 1989 and should be treated as ‘expenses connected with education’. The judgment clarified that financial assistance connected to a care leaver’s education is a statutory duty of local authorities as corporate parents (to the extent that the young person’s welfare and educational or training needs require it), and that assessment of care leavers’ educational needs should be contextual and based on individual circumstances.
Cost of care leavers’ tuition fees is part of ‘expenses connected with education’ and relevant duties in the Children Act 1989
This judgment relates to a judicial review application made by two brothers, Yonas, 21, and Abiy, 19. Yonas and Abiy were Ethiopian nationals who arrived in the UK in 2004. In 2007, after being abandoned by their relatives, they became looked after. Yonas was 15 and Abiy 13 at the time, and they remained in the care of the same local authority until the age of 18. Both brothers had had their asylum claims refused, but they were granted discretionary leave to remain in the UK until the end of November 2014.
Yonas and Abiy wanted to start university in England but, due to their immigration status, they were classified as overseas students and were therefore ineligible for student support (i.e., student loan). Both brothers were, however, eligible for leaving care support as former relevant children (see lower down for definitions).
The local authority which looked after both brothers refused to consider the brothers’ need for financial assistance in the form of payment of their tuition fees and gave three reasons for this: first, there was no legal duty but merely (discretionary) power to do so; second, it would be inappropriate to use very limited local authority resources given Parliament’s decision to exclude people with discretionary leave to remain from entitlement for student support; third, there was considerable risk that any loan made could not be recovered in the future.
The refusal led to a judicial review on behalf of Yonas and Abiy. The brothers’ legal team requested an order from the High Court requiring the local authority to provide financial support to cover both brothers’ tuition fees, either in the form of a grant or a loan.
The legal framework
- Entitlement to student support
Section 22 of the Teaching and Higher Education Act 1998 allows for regulations (secondary legislation) to enable the Secretary of State to authorise the making of grants or loans to eligible students. Initially, the Education (Student Support) Regulations 2009 included persons with discretionary leave to remain in the category of people eligible for student support. This was amended two years later, with the Education (Student Support) Regulations 2011 restricting eligibility for support and leaving people with discretionary leave to remain outside of the ‘eligible’ category.
- Statutory duties towards care leavers
Former relevant child: someone who is over the age of 18 and who was previously a relevant child OR was an eligible child immediately before they stopped being looked after – section 23C(1) of the Children Act 1989. Eligible child: someone aged 16 or 17 who is currently looked after and has been looked after for 13+ weeks since the of age 14 – schedule 2, paragraph 19B of the Children Act 1989. Relevant child: someone aged 16 or 17 who is no longer looked after but who was an eligible child before they ceased to be looked after – section 23A(2) of the Children Act 1989. [Please note that there are two additional categories of ‘relevant children’ – you can find accessible definitions with links to the relevant law on pages 11-12 of Children Act 1989 volume 3 statutory guidance].
Section 23C defines local authority duties towards former relevant children. They include:
– Duty to take reasonable steps to keep in touch with the young person (whether they are within their area or not) and to re-establish contact if contact is lost – section 23C(2).
– Duty to continue the appointment of a personal adviser (PA) AND keep the young person’s pathway plan under regular review – section 23C(3).
– Duty to give the young person assistance with employment, education and training (described in section 24B(1)-(2)), to the extent that the young person’s welfare and educational or training needs require it AND other assistance if the young person’s welfare requires it – section 23C(4).
As per section 23C(6)-(7), these duties continue until the young person turns 21 OR for longer if they are completing an education or training programme, as set out in their pathway plan.
Section 24B (read in combination with section 23C(4)) relates to employment, education and training, including giving assistance by “making a grant to enable [the care leaver] to meet expenses connected with [their] education or training.
The High Court’s decision
The key question before the High Court was the meaning of the duties set out in section 23C Children Act 1989, in combination with section 24B – i.e.: Did the local authority have a duty to give the brothers financial assistance, to the extent required by their welfare and educational needs, by paying the expenses connected with their education?
The local authority argued that, rather than a duty, it had the power to provide financial assistance. The High Court disagreed. The local authority also argued that meeting expenses connected with education did not encompass tuition fees. The High Court disagreed saying that:
“First, a principal expense associated with education is the cost of tuition. There is an inseparable connection between tuition and education. Second, as a matter of ordinary, natural language, tuition fees are expenses connected with education. Third, the argument falls into difficulties as soon as it is questioned. Why might a text book recommended by a tutor be an expense connected with education, but not the expense associated with the tutor? […] Accordingly it follows it was the duty of [the council] to give assistance by making a grant to enable the brothers to meet expenses connected with their education to the extent that their educational needs required it.” (Paragraphs 13-14 of the judgment)
The High Court also clarified that “the determination of educational needs must be contextual” and must “reflect the position of the individual in question”. (Paragraph 29 of the judgment)
Responding to the local authority’s comments about scarce resources, the High Court acknowledged the clear financial pressures experienced by local authorities but stressed that the language of the Children Act 1989 is clear and that it places a duty to give assistance.
The High Court quashed the local authority’s decision and instructed the local authority to make a new decision, taking into account the judgment.
You can read the full judgment here:  EWHC 355 (Admin)
To learn more care leavers’ rights, visit our ‘Advocacy clinics’ pages. You may also find our guides to the Children Act 1989 useful.