Local Authority Powers

November 21st, 2013

The General Power of Competence (GPOC) under Section 1 of the Localism Act 2011 was held inapplicable in R (MK) v Barking & Dagenham LBC [2013] EWHC 3486 (Admin).  The Court held that the local authority did not have power either under Section 17 of the Children Act 1989 or pursuant to GPOC to accommodate and provide basic subsistence to an “overstayer”.  The safety net power to accommodate a person who was temporarily admitted to the UK was for central government, under Section 4 of the Immigration and Asylum Act 1999, rather than for local government.  Neither GPOC nor the Children Act could be used in order to circumvent the prohibitions on other statutory means of relief which might otherwise be available to the claimant were it not for her immigration status.  There was a comprehensive statutory scheme reflecting Parliament’s intention to exclude those unlawfully in the UK from a whole range of benefits, including the ones relevant to this case.  Section 2 Localism Act restrictions applied to the Section 1 power.  The scope of “pre-commencement limitation” in Section 2(1) of the Localism Act was held (para 76) to be the same as under Section 3 of the Local Government Act 2000 as interpreted by the Court of Appeal in R (Khan) v Oxfordshire County Council [2004] EWCA Civ 309 from para 30.  At para 84 the Judge said that Section 1 of the Localism Act “was not intended by Parliament as a means of overriding a clear statutory scheme prohibiting the provision of benefits of all kinds to those unlawfully in the UK”.

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