Zambrano Carers: Children Act 1989

November 15th, 2017

The Supreme Court on 15 November 2017 in R (HC) v SoS for DWP (2017) UKSC 73 has unanimously upheld the decision of the Court of Appeal (2015) EWCA Civ 49, for substantially the same reasons.  The case concerns Mrs HC.  She is an Algerian national who has been living in the UK since 2009. She arrived with leave but then over-stayed.  In 2010 she married a British national on whom she depended financially. She had two children by him, in 2011 and 2013. Her children are British nationals. The relationship ended after domestic violence in late 2012, when Mrs HC sought help from her local authority.  Oldham Council, after initially refusing, agreed to provide Mrs HC and her children with temporary housing and £80.50 per week for subsistence and utilities, under Section 17 of the Children Act 1989.

It was common ground that Mrs HC is entitled to reside in the UK as the carer of her children, due to decision of the Court of Justice of the European Union (“CJEU”) in Zambrano v Office nationale de l’emploi (Case C-34/09) [2012] QB 265.  In Zambrano the CJEU held that an EU member state could not take measures in respect of a non-EU citizen who was the primary carer (a “Zambrano carer”) of an EU citizen, where those measures effectively deprive that dependent EU citizen of the genuine enjoyment of his or her rights under EU law.

In response to the Zambrano decision, the UK Government introduced Regulations which amended legislation to preclude Zambrano carers from claiming various income-related benefits.  Mrs HC challenged the legality of the Regulations.  She contended that the denial of mainstream welfare and housing provision to a Zambrano carer and her child was unlawful, because it amounted to unlawful discrimination under Article 21 of the EU Charter of Fundamental Rights and Freedoms (“the Charter”) and/or under Article 14 of the European Convention on Human Rights (“ECHR”).  It was argued on behalf of Mrs HC that in EU law, once a right of residence is established, the Zambrano carer is automatically entitled to the same social security assistance as nationals of the host state. The Supreme Court rejected that argument.

EU law requires no more for the children of a Zambrano carer than the practical support necessary for them to remain in the EU.  It was common ground that the limited financial support provided to Mrs HC and her children was sufficient for them to remain. It followed that Mrs HC could not rely on the Charter to establish a right to further financial assistance.

Nor did the measures adopted by the UK amount to unlawful discrimination under Article 14 of the ECHR.  The European Court of Human Rights has accepted that the allocation of public funds in the social security context is primarily a matter for national authorities, provided that allocations are not “manifestly without reasonable foundation”.  The objectives underlying the Regulations could not be said to fall outside that wide margin of discretion allowed to national governments.

No issue arose in the appeal as to the scope of the local authority’s duties under Section 17 of the Children Act 1989, but that provision is now an important aspect of the Government’s response to the Zambrano principle. Section 17 confers a duty on local authorities to promote the welfare of the children in their area and, insofar as consistent with that, to promote the upbringing of such children by their families. In this case, the duty arose from a responsibility imposed by EU law, but the allocation of that responsibility as between central and local government is a matter of domestic law only. That does nothing to diminish the importance of the duty under Section 17. It is appropriate to provide guidance at a national level for the various local authorities discharging that duty.

In a concurring judgment, Lady Hale added that a local authority reviewing the needs of the children for the purposes of Section 17 will no doubt consider: (i) the need to promote actively the welfare of the children, when exercising various statutory powers; (ii) the fact that these children are British, with the right to remain here for the rest of their lives; (iii) the impact on the proper development of the children which would follow if they were denied a level of support equivalent to their peers. The other members of the Court agreed with those observations.

Section 17, together with Schedule 2 to the Children Act 1989 and Section 11 of the Children Act 2004, is one way of providing the children of Zambrano carers with what they need.  Section 17 is designed to cover a wide range of circumstances in which a local authority may need to take action to protect the interests of children in their area.  The primary objective is to promote the welfare of the children concerned, including the upbringing of children by their families.   Section 17 services have the great merit of flexibility. Section 17 is not however intended to be a long-term substitute for social housing or means-tested benefits.  Moreover, the sums involved for local authorities are considerable.

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