R TH (Iran) v East Sussex County Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lord Justice Ryder,Lord Justice Lloyd |
| Judgment Date | 16 July 2013 |
| Neutral Citation | [2013] EWCA Civ 1027 |
| Docket Number | Case No: C2/2013/0093 |
| Date | 16 July 2013 |
| Court | Court of Appeal (Civil Division) |
[2013] EWCA Civ 1027
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
(acting as a judicial review court)
[Appeal No: CO/10561/2011]
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lloyd
Lord Justice Jackson
and
Lord Justice Ryder
Case No: C2/2013/0093
Ms Shu Shin Luh (instructed by TV Edwards LLP) appeared on behalf of the Appellant.
Mr Scott Matthewson (instructed by East Sussex CC in-house legal team) appeared on behalf of the Respondent.
(As Approved)
This judgment is in three parts, namely:
Part One. Introduction;
Part Two. The Facts;
Part Three. The Appeal to the Court of Appeal.
This is an appeal against a costs order made by the Upper Tribunal.
The award of costs in the matter is within the discretion of the first instance court or tribunal. The Court of Appeal does not interfere with the award of costs unless the court or tribunal below has made some error of law or some error of principle. It is important to say this at the outset, because in recent months I have seen a large number of costs appeals come into this court, many of them based on the misconception that the court will, so to speak, re-exercise the judgment of the court below and start on a blank sheet of paper. That approach is not to be encouraged.
After these introductory remarks, I must now turn to the facts.
The claimant is a citizen of Iran, who came to the UK in January 2011 claiming asylum. The claimant asserted that he was aged 16 years and 10 months, having been born on 22 March 1994.
The defendant carried out an assessment of the claimant's age. That assessment was carried out by a social worker, Mr John Barston. He concluded on 7 January 2011 that the claimant had been born on 21 April 1993 and so was aged at that time 17 years and nine months. The claimant challenged that assessment. The defendant local authority then carried out a fresh assessment on 6 April 2011. The fresh assessment was done by two social workers, one of whom was Mr Barston, dealing with this matter for a second time. The outcome of the second assessment was that the claimant had been born on 22 March 1993 and was therefore aged 18. The result of the second assessment is set out in a document dated 6 April 2011.
The claimant was aggrieved by the results of these two assessments and commenced judicial review proceedings in order to challenge the second age assessment. Ms Luh, who appears for the claimant at the hearing today, has taken us through the claim form and has pointed out that there are two prongs to the claimant's claim. The first prong is the contention that there was a defective procedure followed by the defendant local authority. The second prong is to the effect that, when one looks at all the available evidence, it is clear that the claimant does have the age that he asserts. So far as the first prong of the claim is concerned, the essential points made are that the claimant was not offered the opportunity to have an appropriate adult present at the assessment. The claimant ought to have been, but was not, notified of any adverse factors relied upon by the defendant. The claimant should have been given a chance to comment on those matters. Furthermore, it was wrong that the same social worker should have conducted the second assessment who had been involved in the first assessment.
Turning to the second prong of the claim, the claimant relied upon his own account, his experiences of life in Iran as recounted, and independent evidence that the claimant and his solicitors were assembling. In particular, the claimant obtained a report from an independent expert psychologist and also from an independent social worker. Both of these reports supported the claimant's case. Ms Luh has also taken us to the relief which was sought in the claim form. This relief is as follows: the claimant was seeking a declaration that he had been born on 22 March 1994, a declaration that the defendant's refusal to accept his age was unlawful and an order that the defendant carry out a lawful assessment of his needs and so forth in accordance with his correct age. The real relief which was sought to be achieved by one means or another was a declaration as to the claimant's correct age. Thereafter, all appropriate statutory entitlements would follow from that, if the claimant was successful in the litigation.
The litigation came before Nicol J at a permission hearing on 12 December 2011. On that occasion, Nicol J granted such extension of time as was necessary for commencement of the judicial review proceedings. He granted permission to proceed with the judicial review claim and he ordered that the proceedings be transferred to the Immigration and Asylum Chamber of the Upper Tribunal. The judge added one or two observations in his order explaining why he thought that the claim was arguable.
Following the grant of permission, the defendant rapidly reassessed its position in this litigation. That is not at all unusual. It is strongly to be encouraged that in public law proceedings, if the Administrative Court decides contrary to the contention of the defendant that the claimant has an arguable case, the defendant should review its position and see whether it should continue to contest the litigation with the same vigour that it has previously evinced. The result of the defendant's reassessment of its position was an offer. On 15 December 2011 the in-house solicitor of the defendant local authority wrote to the claimant's solicitors as follows:
"I now make an open offer to your client to conduct a fresh age assessment which will take into full account the information supplied to social services in September of this year. The age assessment will contain the following safeguards:
1. The Age assessment will not involve or be carried out by anyone who attended the previous assessments;
2. Your client will have the opportunity to have an appropriate adult present;
3. At the end of the assessment, your client will be told the decision reached and the reasons why, and will be given an opportunity to comment. Those comments will be noted down;
4. He will be sent a written copy of the assessment along with a covering letter explaining the decision and the reasons given. He will be offered a right of review by an independent officer if he is unhappy with the decision reached."
The council then went on to reserve its position in what might be described as the conventional way.
The claimant, acting no doubt on the advice of his solicitors, rejected that offer. The council repeated its offer on more than one occasion. By letter dated 7 June 2012 the defendant local authority's in-house solicitor wrote as follows:
"…my client wishes to confirm its open invitation to a fresh age assessment as made in our letter to you dated the 15 th of December 2011 (attached). We will also enable [Mr H] to have an independent social worker present to conduct the age assessment with one of the Council's staff. [Mr H] may also bring his own appropriate adult if he wishes."
The claimant, by his solicitors, accepted that revised offer. The claimant's solicitors also added the entirely sensible suggestion that the proceedings should be stayed pending the conclusion of the reassessment. That proposal was, of course, accepted by the defendant.
The further assessment was duly carried out on 4 September 2012. Two social workers carried out the assessment: a Ms Sandra Lambert, who was a senior practitioner employed by the defendant, and Mr Clive Yeadon, an independent social worker who had been nominated by the claimant's solicitors. The two social workers studied the expert reports obtained on the claimant's behalf. They also interviewed the claimant. They both independently came to the conclusion that the claimant had been born on the claimed date, which was 22 March 1994.
Following the result of that assessment, the litigation rapidly settled. The parties entered into a consent order which contained a declaration that the claimant had been born on 22 March 1994 and that the defendant's previous decisions were quashed. That consent order was approved by the court and duly issued.
So far as costs were concerned, the parties were not agreed. That matter was therefore dealt with by written submissions. The claimant sought the entire costs of the action. The defendant resisted that claim on the basis that the claimant should have accepted the original offer dated 15 December 2011.
Upper Tribunal Judge Allen considered the rival submissions. On 31 October 2012 he ordered that the claimant be awarded his costs up to and including 14 December 2011. The judge further ordered that there should be no order for costs in respect of the period thereafter. The basis of the judge's decision, as explained in his written observations, was that the defendant had offered to reassess the claimant's age on 15 December 2011. The claimant had not accepted that offer until many months later. The final acceptance of that offer led to the resolution of the litigation.
The claimant is aggrieved by the Upper Tribunal...
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