R (M) v Croydon London Borough Council

JurisdictionEngland & Wales
JudgeThe Master of the Rolls,Lady Justice Hallett,Lord Justice Stanley Burnton
Judgment Date08 May 2012
Neutral Citation[2012] EWCA Civ 595
Docket NumberCase No: C1/2011/1716
CourtCourt of Appeal (Civil Division)
Date08 May 2012
Mayor and Burgesses of the London Borough of Croydon

[2012] EWCA Civ 595


The Master of the Rolls

Lady Justice Hallett DBE

(Vice-President of the Queen's Bench Division)


Lord Justice Stanley Burnton

Case No: C1/2011/1716





Royal Courts of Justice

Strand, London, WC2A 2LL

Case CO/1468/2009

Robert Latham (instructed by Hansen Palomares) for the Appellant, M Catherine Rowlands (instructed by Policy & Corporate Services Department of Croydon LBC ) for the Respondent, Croydon LBC

Hearing date: 14 March 2012

The Master of the Rolls

This appeal raises the issue as to the proper approach to awarding costs in judicial review proceedings, where the defendant public authority effectively concedes some or all of the relief which the claimant seeks. As with any question relating to costs, the issue is both highly fact-sensitive and very much a matter for the discretion of the first instance tribunal. However, a degree of consistency of approach is self-evidently desirable, and the issue gives rise to some points of principle and policy.

The factual and procedural background


The appellant, known in these proceedings as M, arrived unaccompanied in the UK from Afghanistan on 19 March 2008. He immediately applied for asylum, informing the Secretary of State for the Home Department that he was aged 12, so his date of birth was recorded as 1 January 1996. He was then referred to the respondents, the London Borough of Croydon, one of the so-called gateway local authorities for young asylum seekers. The respondents accepted responsibility for the appellant pursuant to section 20 of the Children Act 1989 ('section 20'), and placed him with foster parents and at a school ('the school'). (The appellant has now been granted leave to remain in the UK as a refugee).


Under section 20, the nature and extent of the duty of a local authority depends on the age of an individual, and in the past few years, there have been a significant number of cases brought in the Administrative Court by claimants challenging a decision of a local authority as to their age.


In this case, the school questioned the appellant's age in early June 2008, suggesting that he was 14. That same month, Bennett J gave judgment in R (M) v Lambeth LBC; R (A) v Croydon LBC [2008] EWHC 1364 (Admin), in which he concluded that the question whether an individual was a child for the purposes of section 20 was a matter for the relevant local authority rather than the court, although the court could review the local authority's decision on normal judicial review principles.


On 20 August 2008, two experienced social workers employed by the respondents assessed the appellant's age as over 14. Soon afterwards the Refugee Council referred the appellant to his present solicitors. In mid-September 2008, those solicitors wrote the first of a series of letters challenging the respondents' assessment. The respondents replied, disclosing their reasoning, whereupon the appellant's solicitors requested an assessment from someone they believed was an expert in the field, Dr Birch.


On 7 October 2008, Dr Birch produced a report assessing the appellant's age to be between 12 and 14, from which she derived a mean age of 12 years and 11 months. On 30 October, the appellant's solicitors sent a very detailed pre-action protocol letter to the respondents, together with Dr Birch's report and two witness statements from staff at the Refugee Council. They asked the respondents to set aside the age assessment of 20 August 2008, and to accept that the appellant was aged 12 or to carry out a further age assessment.


The respondents asked for further time to consider the issue. On 17 November 2008, a member of the respondents' Unaccompanied Minors Team carried out a review and affirmed that the appellant was 14. The respondents then wrote to the appellant's solicitors, rejecting Dr Birch's methodology, stating that they stood by their original age assessment, and disclosing their file and a care plan.


On 28 November 2008, in R (A by Valbona Mejzninin) v Croydon LBC [2008] EWHC 2921 (Admin), Mr Stephen Morris QC, sitting as a deputy High Court Judge, quashed the respondents' decision as to another child's age, because they had not had adequate regard to a report from Dr Birch. He held that the respondents should not have rejected her expert medical opinion without 'sound reason'. Further correspondence ensued with no change of position on either side.


On 18 December 2008, this court handed down judgment in R (A) v Croydon LBC and R(M) v Lambeth LBC [2008] EWCA Civ 1445, upholding the decision of Bennett J. Thus, it was apparent that, if the issue of the appellant's age was to be litigated, it would be on the basis of a judicial review. So, in order to succeed, the appellant would have to establish that the respondents' decision that he was born in 1994 rather than 1996 was ' Wednesbury unreasonable' i.e. that the decision was irrational, in the sense of being one which no reasonable local authority could have reached.


In January 2009, in R (A) v Croydon and R (WK) v Kent County Council, Holman J directed a stay of all age assessment cases, pending a trial which would involve consideration of the reliability and value of expert evidence as to the age of a child.


By the end of that month, the appellant's solicitors had resolved that they wished formally to challenge the respondents' decision of 17 November 2008, so they had to issue any claim by 17 February 2009. Accordingly they sent another pre-action protocol letter on 30 January, contending that the respondents' failure to accept the appellant was born in 1996 was irrational, in the light of the report of Dr Birch and statements from the workers at the Refugee Council. By the letter, the appellant's solicitors required the respondents to accept that the appellant was born in 1996, or to carry out a further assessment, and requesting a response within two weeks.


On 3 February, the appellant's solicitors served the respondents with a draft claim form and a chronology. On 12 February, the respondents conducted a case review, and, four days later, they wrote saying that, given the volume of documentation they had received, they were unable to respond by 13 February. The appellant's solicitors then issued and served a claim form, seeking permission to apply for an order quashing the respondents' decision of 17 November 2008 to refuse to revisit their assessment that the appellant was born in 1994. The relief sought was a (i) declaration that "any rational authority would have withdrawn their decision of 20 August and reassessed the claimant" in the light of Dr Birch's report and "the witness statement of the Refugee Council", and (ii) a mandatory order directing a reassessment within 14 days. The respondents' acknowledgement of service should have been filed by 9 March 2009, but it was not. Nevertheless the parties continued to correspond about the appellant's education and future, while the appellant's claim, like all other age assessment cases remained stayed in accordance with the direction of Holman J.


In March 2009, Lisa Thomas, Head of Year at the appellant's school again confirmed that in her opinion the appellant was born in 1994. Thus, to date the respondents had received opinions from the appellant's teachers and from experienced social workers that he was born in 1994, and opinions from Dr Birch and two workers at the Refugee Council that he was born in 1996.


Meanwhile, on 8 May 2009, Collins J gave judgment in R (A) v Croydon and R (WK) v Kent County Council [2009] EWHC 939 (Admin). He was very critical of Dr Birch's methodology, and consequently he disagreed with the approach adopted by Mr Morris QC (who had not had the benefit of detailed evidence and argument as Collins J had done). Collins J directed that the outstanding age assessment cases be listed as soon as possible.


Because the appellant's solicitors had relied on the views of Dr Birch, the respondents, on 27 May 2009, invited them to withdraw the appellant's claim. However, on 15 June 2009, the appellant's solicitors invited the respondents to accept that the appellant was born in 1996 or to re-assess his age having regard to an addendum statement from Dr Birch and statements made by workers at the Refugee Centre.


Correspondence ensued during which the respondents indicated they were in the process of reviewing the outstanding cases where there were medical reports. A further review was conducted on 11 August 2008, when a practice manager, Eileen Lawrence, and Ms Henry confirmed the respondents' original assessment. At the end of August 2009 the appellant's solicitors wrote expressing why, in their view, the assessment of 11 August was flawed and asked for yet another review claiming the previous reviews had not been properly conducted. They alleged the previous reviews had simply provided ex post facto reasons for the previous decisions. The respondents were asked to disclose particulars of their contact with the appellant's school and disclosure of all relevant records. They were disclosed.


On 26 November 2009, the decision of the Court of Appeal, upholding Bennett J, was reversed by the Supreme Court in R (A) v Croydon LBC and R (M) v Lambeth LBC [2009] UKSC 8 [2009] 1 WLR 2557 (' R(A) v Croydon'). The Supreme Court concluded that the determination of age is a fact precedent to the exercise of a local authority's powers under section...

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