Judge hands down ruling on meaning of 'child in need' under Children Act for families who have 'no recourse to public funds' 

His Honour Judge Tindal, sitting as a judge of the High Court, also refused permission to appeal to GW, a child who brought the case through his mother and litigation friend RM.

HHJ Tindal said the claim for judicial review concerned the meaning of 'child in need' under s.17 Children Act 1989 for families with no recourse to public funds (NRPF), who have no access to the mainstream benefits and housing systems due to their restricted immigration status.

They can receive support from local authorities under s.17 of the Children Act 1989, but only for a child deemed 'in need’.

The judge said many people might think children in such families were obviously 'in need’ as although they have access to universal healthcare and can go to school, their families are among the poorest.

“However, despite all those practical and financial challenges, many parents in NRPF families do just about manage to meet their children's' needs, albeit often at the expense of their own,” he said.

GW is a 10-year old boy with an eight-year old brother and baby sister. The family came to the UK in 2023 on RM's skilled work care visa, which authorised her - and her husband  BW - to work but without recourse to public funds.

RM alleged exploitation by her then employer and in April 2024, the Home Office National Referral Mechanism (NRM) accepted there were reasonable grounds to believe that.

She has since received financial support from the NRM but at a lower rate than that for asylum seekers as BW is authorised to work but does not due to unfitness.

Dudley concluded in May 2024 that GW and his brother were not 'in need’. An initial claim was withdrawn on the basis that Dudley would undertake a reassessment but for reasons disputed between the parties, that happened only in April 2025.

There were now four grounds of challenge to that assessment.

The first was misdirection on the facts and in law when considering whether the child is in need for additional provision to meet welfare needs.

HHJ Tindal said: “The nub of this ground is the allegation that [Dudley] wrongly applied a 'destitution threshold' to its assessment of whether the claimant was 'in need’”.

The second was that of misdirection on the facts and in law when considering whether a child is in need to decide the availability of housing provision to avoid street homelessness.

This ground claimed Dudley failed to take a 'forward-looking' view given the precarious nature of the family's housing and that it wrongly applied a 'homelessness threshold' for the claimant being 'in need' .

A third ground again concerned misdirection on the facts and in law this time over whether Dudley wrongly relied on its view that the family could return to Zimbabwe to improve its material situation.

The final ground was that if any of the preceding three was successful, the assessment would also be irrational.

On the first ground, HHJ Tindal said Dudley’s social worker had gone through the family’s situation in detail and had not simply described them as ’not destitute’.but had made “a holistic professional social work judgement on the evaluative question of 'need' that did not apply a 'destitution threshold' or similar legal error”.

The judge said that by focussing on the parents' potential means, the social worker not only took into account s.17(8) of the Children Act but applied a suitably 'forward-looking' analysis.

He dismissed that ground and also ground two, where he said Dudley’s assessment had been 'forward-looking' when it was done, rather than in the light of hindsight.

“Ultimately, at the time of the assessment on 9 April 2025, [the social worker] was entitled to consider the need for housing was not only not 'imminent', but that their housing situation was not yet sufficiently precarious for the claimant and his siblings to be 'in need' on that basis,” HHJ Tindal found.

He continued: “However, it is one thing saying that an assessment should be 'forward-looking', it is another thing to expect a social worker to gaze into a crystal ball.

“This argument presupposes that the family will continue to have insufficient income to afford the rent. But as [RM’s barrister] pointed out, that just goes back to the points discussed above under Ground 1 that [the social worker] was entitled to take into consideration that RM may have health problems, but also that she was authorised to work and actively looking for it (again, one cannot use hindsight to rely on her subsequent diagnosis of a hernia and unfitness to work); and there was no medical evidence proving that BW could not work (and he would not need to care for the children if RM was not).”

He found that even if the social worker applied too high a legal threshold she was plainly entitled to conclude the family's housing situation was not yet sufficiently precarious as to constitute a housing 'need' under s.17 Children Act for the children requiring accommodation at the time of the assessment or in the near future.

HHJ Tindal also dismissed the third ground concerning return to Zimbabwe to improve its material situation,

He said that if the social worker had refused support simply because the family could return to Zimbabwe that would be an error of law,

But the social worker had concluded it would be safe for the family to return to Zimbabwe and the judge said it would be unrealistic to say the assessment's refusal of support has the effect of requiring the family to leave the UK.

Having dismissed these three grounds, HHJ Tindal also dismissed that on irrationality.

Mark Smulian