The King on the application of AF v Milton Keynes Council
| Jurisdiction | England & Wales |
| Judge | Susie Alegre |
| Judgment Date | 30 January 2023 |
| Neutral Citation | [2023] EWHC 163 (Admin) |
| Docket Number | Case No: CO/2661/2022 |
| Year | 2023 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 163 (Admin)
Susie Alegre SITTING AS A DEPUTY JUDGE OF THE HIGH COURT
Case No: CO/2661/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
David Gardner (instructed by Instalaw Solicitors) for the Claimant
Matthew Feldman (instructed by Legal Services, Milton Keynes Council) for the Defendant
Hearing dates: 19 January 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on Monday 30 th January 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives (see eg https://www.bailii.org/ew/cases/EWCA/Civ/2022/1169.html).
Susie Alegre SITTING AS A DEPUTY JUDGE OF THE HIGH COURT
This case concerns a challenge to the decision of the Defendant, Milton Keynes Council dated 5 July 2022 not to conduct an age assessment on the Claimant, AF, a Syrian Asylum Seeker claiming to be a child at the time of the decision.
A — Factual Background
AF is a Syrian national who claimed asylum on entry to the UK on 16 November 2021. He informed the Home Office on arrival that he was a child. It is understood that he was age assessed by the Kent Intake Unit (KIU) which determined he was over 18 years of age. The only documentation available to the parties and to the Court related to that age assessment is a letter, provided by the Defendant, dated 28 November 2021 which states that this assessment took place.
The Home Office recorded AF as an adult and allocated him to emergency accommodation suitable for adults under s. 98 of the Immigration and Asylum Act 1999 within the Defendant's local area. It is understood that AF was referred to the Defendant sometime in March 2022 when he was contacted by phone and attended the Defendant's offices but left as he did not understand why he was there and he did not speak English. No further contact was made by the Defendant.
On 20 May 2022, AF's solicitors contacted the Defendant requesting copies of the age assessment documentation in order to understand why the Defendant was not providing services for AF under the Children Act 1989 (the 1989 Act) as AF was a reported putative child in their area requesting services under the 1989 Act. On 24 June 2022, AF's solicitors followed up with a letter before claim again requesting disclosure of age assessment documentation and noting that AF said he was 17 years old at the time and was residing in inappropriate NASS accommodation.
The Defendant responded on 28 June 2022 to say that it had not undertaken an age assessment and did not hold any age assessments conducted by the Home Office or the KIU. AF's solicitors responded with a formal request for services as a child under the 1989 Act and that an age assessment be conducted by the Defendant.
On 5 July 2022, the Defendant replied to say that it relied on the Home Office letter of 28 November 2021 and that, therefore, it considered any claim should be against the Home Office for its determination. AF's lawyers responded the same day reiterating the request for an age assessment and drawing the Defendant's attention to the judgment in R (MA and HT) v Secretary of State for the Home Department [2022] EWHC 98 (Admin). This was followed on 6 July 2022 with a pre-action letter that noted that AF remained in the Defendant's area and claimed to be 17 years old. The letter reiterated the request for the Defendant to conduct an age assessment and requested that AF be provided with accommodation and support under the 1989 Act pending final determination of his age.
There was no response to the letter of 6 July 2022 and, as such, AF's solicitors sent a follow up letter on 13 July 2022 indicating that in the absence of a satisfactory response by 4pm on 15 July 2022, this claim would be filed the following week. In response to a follow up letter, on 14 July 2022 the Defendant sent a pre-action response stating that it had no duty to undertake an age assessment in the circumstances.
The claim was issued in this court on 22 July 2022. Permission was initially refused on the papers by Order of Honourable Mr. Justice Wall on 6 November 2022 but permission was granted following a renewal hearing by Order of Mr. Jonathan Glasson KC sitting as a Deputy Judge of the High Court on 27 October 2022.
B — Application to Extend Time
On 12 January 2023 the Defendant applied for permission to extend the time limit for submission of a detailed statement of grounds. After hearing submissions from the parties, in line with the principles set out in Denton [2014] EWCA Civ 906 at the start of the hearing on 19 January 2023 I allowed the application and granted relief from sanctions.
I found that the failure to submit the detailed statement of grounds was a serious and significant failure to comply with the Order of Mr Jonathan Glasson KC of 27 October 2022 and was part of a pattern of failures on the part of the Defendant to engage with the proceedings in this case. The reasons given for the failure, that the Defendant's lawyer tasked with handling this case was outside the country and unable to work remotely, did not explain delays of several weeks. That the Defendant's resources are stretched is not a good reason for failing to comply with a court order. However, taking account of all the circumstances of the case, in particular the fact that Mr Gardner, Counsel for the Claimant confirmed that the Claimant would not be prejudiced by the extension of the time limit and in light of the desirability of hearing both parties' submissions in the interests of justice, I decided that it would be proportionate to grant the application as requested and to permit Counsel for the Defendant to participate in the hearing.
C — Grounds and relief sought
The Claimant contends that the failure or refusal by the Defendant to assess his age is unlawful on the following grounds:
a. The decision was an unlawful failure of the Defendant to ensure that it had adequate information to determine whether the Claimant was a child to whom the Defendant owed a duty to provide services. This failure was unlawful as contrary to the principles in Tameside and AB.
b. The decision is Wednesbury unreasonable in that any reasonable public body would have determined that it must properly assess the Claimant's age itself in the circumstances — without sight of an age assessment, and with full knowledge of the unlawfulness of the KIU assessment process.
Should the claim succeed, the Claimant asks for relief in the form of:
a. A mandatory order that the Defendant should carry out an age assessment on AF in good time; and
b. Pending final resolution of AF's age, a mandatory order requiring the Defendant to provide support akin to that which would be provided under s.23C of the 1989 Act.
D — The Law
A) The Tameside Duty
The law relating to the substance of the claim was set out by Mr Gardner in his skeleton argument and at the hearing and was not disputed by the Defendant. I will summarise the most relevant elements of the law here.
There is a duty on the local authority, subject to certain exceptions, to provide accommodation and support for a child in need in its area under ss.17 and 20 of the 1989 Act.
Where a request is made for such services, the local authority may refuse to provide such services where it determines the applicant is not a child, but in doing so it must properly inform itself as whether the applicant is a child in accordance with the principles in Secretary of State for Education Science v Tameside Metropolitan Borough Council [1977] AC 1014.
The duty is summarised by Lord Diplock in Tameside at 1065B:
[T]he question for the Court is, did the [Defendant] ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?
In R (RP) v Brent London Borough Council [2011] EWHC 3251 (Admin) at paragraph 239, Mr Justice Stadlen described the Tameside duty as “a requirement of general application to all relevant decision makers and a necessary condition for a decision to be characterised as lawful”.
B) The Tameside Duty in Relation to Age Assessments
To properly inform itself as to whether it owes duties under the 1989 Act, the Local Authority must consider and determine the putative child's age. For that purpose, local authorities are primary fact finders and will generally undertake an age assessment to determine age.
Age assessments must be undertaken in accordance with the principles set out in R (B) v The Mayor and Burgesses of the London Borough of Merton [2003] EWHC 1689 (Admin) (“ Merton”) and built upon by subsequent cases (see R (AB) v Kent County Council [2020] EWHC 109 (Admin) at paragraph 21).
The Tameside duty was considered in the context of age assessments by Mrs Justice Thornton in R (AB) v Kent County Council [2020] EWHC 109 (Admin) at paragraph 31–32:
“[31] When deciding to treat a young person as an adult instead of a child in circumstances where the young person is claiming that he or she is a child, the decision maker is under a public law duty to make the necessary inquiries to arrive at an informed decision on the fact of the young person's age. Failure to discharge this duty lawfully gives rise to a public error of law rendering the decision unlawful ( Secretary of State for Education and Science v Tameside MBC [1977] 1 AC 1014).
[32] The law now proceeds on the basis that the most reliable means of assessing the age of a young person in circumstances where no documentary evidence is available is by a so-called “Merton compliant” assessment (See Underhill LJ in BF(Eritrea) at §53). The guidelines constitute a judge...
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