T & Ors, R (on the application of) v The Secretary of State for Education, Court of Appeal - Administrative Court, October 06, 2018, [2018] EWHC 2582 (Admin)

Resolution Date:October 06, 2018
Issuing Organization:Administrative Court
Actores:T & Ors, R (on the application of) v The Secretary of State for Education
 
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Neutral Citation Number: [2018] EWHC 2582 (Admin)

Case No: CO/5938/2017

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 6 October 2018

Before :

THE HONOURABLE MR JUSTICE LEWIS

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Between :

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Ian Wise Q.C. and Michael Armitage (instructed by Hopkin Murray Beskine) for the Claimants

Rory Dunlop and Jack Anderson (instructed by Government Legal Department) for the Defendant

Hearing dates: 4th and 5th July and 14th and 24th September 2018

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The Honourable Mr Justice Lewis:

INTRODUCTION

  1. This is a claim for judicial review brought by three parents and three children challenging regulations which have the effect that the defendant, the Secretary of State for Education, is to secure that an additional 15 hours a week of free childcare is available for children of working parents. At present, all children aged three and four are eligible for 15 hours a week of free childcare. Section 1 of the Childcare Act 2016 (``the 2016 Act'') and the qualifying conditions contained in the Childcare (Early Years) (Provision Free of Charge) (Extended Entitlement) Regulations 2016 (``the Regulations'') have the effect of requiring the provision of an additional 15 hours a week of free childcare for children aged three and four of working parents (as defined by the legislation).

  2. Two of the claimants are lone, or single, parents with caring responsibilities and one is a lone parent who was the victim of domestic abuse. As those parents are unable to work their children will not be able to qualify for the additional hours of free child care. The claimants contend that the Regulations give rise to a breach of Article 14 read with Article 8 of the European Convention on Human Rights (``ECHR''). They contend, in broad terms, that there is differential treatment between families where one parent is working and families such as the claimants' where a lone parent has a child but cannot work. Children in the former group are eligible for the additional 15 hours of free childcare: children in the latter group are not. They contend that the defendant cannot justify the differential treatment. The defendant accepts that there is differential treatment within the meaning of Article 14 but contends that the differential treatment is objectively justified. The defendant contends that the 2016 Act and the Regulations pursue a legitimate aim, namely incentivising and facilitating parents to undertake paid work. The means adopted for achieving that aim, namely the provision of additional hours of free child care for those in paid work, is proportionate to that aim.

    THE FACTS

  3. The first and second claimants, GW and T, are mother and daughter. GW is 24 years old. Her daughter was born on 13 September 2015. The father of T has not taken responsibility for his daughter and does not live in this country. GW and T were homeless and were provided with temporary accommodation by the local housing authority. GW's mother has mental health problems. GW has been recognised as providing at least 35 hours care for her mother and receives a carer's allowance from the Department of Work and Pensions. In fact, GW provides far more than the 35 hours of care each week necessary to qualify for a carer's allowance. She explained in her evidence that she thinks that she provides a minimum of 70 hours a week of care for her mother. As a result, it is not possible at present for GW to work.

  4. T will begin attending a nursery for 15 hours a week free of charge from 8 January 2019. As her mother, GW, is not a working parent, she will not be eligible for the additional 15 hours of free childcare provided for children of working parents. In her witness statement, GW explains that she is concerned that the amount of time she spends caring for her mother impedes upon the time that she can spend with her daughter. She would like her daughter to attend a nursery for 30 hours a week as that would give GW some respite time for herself and to enable her to undertake household and caring tasks whilst her daughter was at nursery. She would like her daughter to get the best out of nursery and believes that attendance for 30, rather than 15, hours, a week would enable her daughter to meet and socialise with other children, and believes that the additional hours will help her daughter educationally when she begins to attend school.

  5. The third and fourth claimants, LP and RS, are a mother and son. LP is 26 years old and has two sons. She is estranged from the father of the children. LP and her sons live in temporary accommodation. The older son is 7 years old and been diagnosed with autistic spectrum disorder and developmental delay. He attends a special school locally. RS was born on 12 January 2015. He too has significant developmental delays and difficulties and is being assessed to determine if he has autistic spectrum disorder. He attends a nursery for 15 hours, that is for 3 hours a day, 5 days a week

  6. LP provides at least 35 hours' care a week for her older son and receives a carer's allowance from the Department of Work and Pensions. LP describes in her witness statement the many challenges and difficulties that arise out of looking after two young boys with severe developmental difficulties. She describes the almost constant need for care and attention that has to be given to her sons when they are at home. As she explains, both boys are distressed and uncontrollable throughout the day when at home. LP cannot relax or let her attention drift for a second as keeping them safe requires constant vigilance. LP graduated from university and worked part-time whilst studying. She would like to work in the longer term, and would like to become a social worker. Looking after the needs of her two sons means that that is not a realistic option at present as looking after her two sons is a full-time job even with the older son in full-time education and RS attending a nursery part-time. LP says that RS is isolated at home and she finds it difficult to keep him safe, occupied and stimulated. She believes that he is ready for additional hours at a nursery and believes that this would benefit his social and educational development as he would be able to meet other children at nursery and develop social skills. She believes that nursery attendance would help him with his speech and language skills.

  7. The fifth and sixth claimants are FB and her younger son aged 2. FB is 35 years old and was born in Morocco. She moved to London when she married in 2009 and had two sons, the older one aged 8 and the sixth claimant. FB left her husband, with her children, because of his abusive behaviour. FB and the two children now stay at a woman's refuge in Islington. FB had been studying in Morocco but stopped studying when she married. She would like to teach but does not think that that this will happen in the near future as she would have to study for a long time to obtain the necessary qualifications and it would be too difficult as a lone parent with young children. FB explains that it would be difficult to find and keep a job whilst living at the refuge. Her older son is settled in a new school. FB would like her younger son to start at a nursery. He is eligible for 15 hours free child care a week and FB hopes to obtain a place for him soon but has not yet found a place. She does not believe that she would be able, because of her circumstances, to find a job before her younger son becomes three years old so he would not qualify for the additional 15 hours childcare. She believes it would be beneficial if he could start with 15 hours of nursery provision and then have 30 hours a week once he attained the age of three.

    THE LEGISLATIVE FRAMEWORK

    The Pre-216 Act Legislation - Provision of Childcare by English Local Authorities

  8. Legislation places certain duties on local authorities to provide childcare. Section 6 of the Childcare Act 2006 (``the 2006 Act'') provides for a local authority in England to secure, so far as is reasonably practicable, that the provision of childcare is sufficient to meet the requirements of parents in their area who require childcare in order to enable the parents to take up or remain in work or to undertake education or training.

  9. Section 7 of the 2006 Act places a duty on a local authority in England to secure early years provision for children free of charge. The section provides, so far as material that:

    ``7 Duty to secure early years provision free of charge in accordance with regulations

    (1) An English local authority must secure that early years provision of such description as may be prescribed is available free of charge, in accordance with any regulations under this subsection, for each young child in their area-

    (a) who is under compulsory school age, and

    (b) is of such description as may be prescribed.''

  10. Early years provision is defined in section 20 of the 2006 Act to mean the provision of childcare for a young child. ``Childcare'' is defined in turn in section 18 as ``any form of care for a child'' and includes education for a child and any other supervised activity (save where these are provided by a school during school hours).

  11. The Local Authority (Duty to Secure Early Years Provision Free of Charge) Regulations 2014 (``the 2014 Regulations'') prescribed those children who were eligible for early years provision. In essence, as appears from Regulations 1(2) and 3(3), 3(2) and 4 of the 2014 Regulations, the following groups of children are eligible to receive 15 hours free childcare provision for 38 weeks a year:

    (1) All three- and four- year old children; and

    (2) Children aged two whose parent is entitled to one of a number of specified welfare benefits (including income support for those not...

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