The King on the application of BAA v Liverpool City Council
| Jurisdiction | England & Wales |
| Judge | Pearce |
| Judgment Date | 14 October 2022 |
| Neutral Citation | [2023] EWHC 252 (Admin) |
| Docket Number | Claim No. CO/3483/2022 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 252 (Admin)
His Honour Judge Pearce
Claim No. CO/3483/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at Manchester
The Claimant in person
Ms Tara O'Leary (instructed by Liverpool City Council Legal Services) for the Defendant
Hearing date: 26 January 2023
Approved Judgment
This judgment was handed down remotely at 10.00 am on Wednesday 8 February 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
INTRODUCTION
This is my judgment on the hearing of the Defendant's application to set aside my order of 14 October 2022. By that order, I granted the Claimant permission to apply for judicial review on ground 5 of the grounds set out in the application (with consequential directions for transfer to the Upper Tribunal Immigration and Asylum Chamber) and directed that, pending further order or the conclusion of the claim, the Defendant was required to treat the Claimant as a child and make arrangements for the provision of support and suitable accommodation for him in accordance with its statutory duties. The Defendant seeks to set aside only the second part of this order requiring it to provide interim relief by way of supporting the Claimant.
BACKGROUND
The Claimant is a Sudanese national. He contends that his date of birth is 5 May 2005 and that he is therefore now 17 years old, though not far from being 18. It appears that he left Sudan for Chad in 2019, on account of the war in his native country. He was in Chad for about one year then he travelled to Libya where he remained for about another year. He then travelled to the United Kingdom via Italy and France.
He arrived at Dover on 17 July 2022. He was interviewed and it would appear that his interviewers thought he was lying about his age. They considered him to have been born in 2000. The Claimant travelled first to London where he stayed in a hotel for a short while and then to Liverpool, where again he was housed as an adult in a hotel.
On 4 and 5 August 2022, he was the subject of an age assessment by the Defendant. The social workers who conducted that assessment concluded that he was over 18 and he was therefore housed as an adult until my order of 14 October 2022.
This claim was brought by Claim Form dated 23 September 2022, naming the Defendant as the relevant local authority charged with the statutory duty of housing those under the age of 18 in Liverpool. The application for permission comprised five grounds:
5.1. The Defendant failed to provide adequate and intelligible reasons for its decision;
5.2. The Defendant failed to comply with its duty of reasonable enquiry;
5.3. The Defendant's assessment procedure was procedurally unfair due to the unexplained absence of an Appropriate Adult;
5.4. The Defendant's assessment decision was tainted by the absence of a fair and effective ‘minded to’ procedure; and
5.5. The Defendant's decision was wrong as a matter of precedent fact.
Interim relief was sought bye way of order requiring the Defendant to support the Claimant.
PROCEDURAL HISTORY OF THE CLAIM
The Claimant's application for permission to bring judicial review proceedings and for interim relief came before Upper Tribunal Judge Plimmer sitting as a Judge of the High Court on 27 September 2022. She gave expedited directions for consideration of the application which brought the case back before me on 14 October 2022.
At that time, there was no Acknowledgment of Service or other communication from the Defendant before the Court. It appeared that the Defendant had been served with the order for expediting the time for the acknowledgement of service yet had not complied. In fact, it is the Defendant's case that it was not served with the order of 27 September 2022 and accordingly was unaware of the expedited timetable. Coincidentally, it served an Acknowledgement of Service, in accordance with the timetable that would have applied but for Judge Plimmer's order, on 14 October 2022 (the document is dated the previous day) but that had not been processed and placed before me at the time that I considered the application.
The material before the court on 14 October 2022 was therefore limited to that which the Claimant had filed. That included details of a pro forma decision on the Claimant's age from the Defendant which stated, so far as relevant:
“ You have presented to the local authority claiming to be a child aged with a date of birth as stated 05/05/2005 (Persian or Gregorian calendar) or no date of birth stated. In accordance with the ruling under Merton, that states “there are cases where it is very obvious that a person is under or over 18. In such cases there is normally no need for a prolonged enquiry” a full assessment of your age is deemed unnecessary. In this instance, on the basis of a visual assessment of your appearance, demeanour and a brief enquiry with the assistance of an interpreter, it is our opinion that your appearance and demeanour strongly suggest that you are significantly over 18 years of age.
It is not the intention, therefore, of the Local Authority to undertake a full assessment of age and in our opinion you should be treated as an adult. We have informed the Immigration Officers responsible for your case and they will now be responsible for making arrangements for you.”
In fact, in carrying out the age assessment, the Defendant had completed a rather fuller enquiry than this letter suggested, recorded in an “ Age Brief Enquiry Form”. This had not been served on the Claimant by the time of his original application for permission and, because the Defendant was seemingly unaware of the order of Judge Plimmer, it was not provided in advance of my decision on 14 October 2022. It follows that the contents of that document were not a factor in my decision to grant permission on ground 5 and to grant interim relief as referred to above.
On 30 November 2022, the Defendant applied to set aside the order of 14 October 2022, seeking relief from sanction in so far as that application was required and citing material, including the Age Brief Enquiry Form in support of an argument that permission should not be granted and no interim relief should be provided. The Defendant also filed a witness statement from Mr Steve Moutray, containing material of significance to the assessment of the balance of convenience. It follows that the material before the court now is significantly different to that which was before the court when I made my order of 14 October 2022.
THE HEARING OF THE APPLICATION
The Defendant's application came before me on 16 January 2023. The Claimant attended with a support worker but without a putative litigation friend, any legal representation or a translator. Given that he has poor English, the last of these made a fair hearing impossible and I adjourned to 26 January 2023. A litigation friend did not appear to be necessary for a fair hearing but I explored with the support worker who accompanied the Claimant the possibility of obtaining legal advice or representation.
On 26 January 2023, the Claimant attended with a translator and the support of a social worker. At the beginning of the hearing on that day, I ruled on four issues:
12.1. Whether to adjourn the hearing to allow the further opportunity for the Claimant to get legal representation.
12.2. Whether it was appropriate to proceed with the hearing without a litigation friend having been appointed for the Claimant;
12.3. Whether the Claimant's statement was admissible; and
12.4. Whether the Defendant's application amounted to an application for relief from sanction, requiring the application of the test in Denton.
On the first issue, I refused the application giving a reasoned judgment at the time. I shall not repeat it here. Suffice it to say that I have endeavoured to consider all matters that could properly be argued on his behalf in an attempt to avoid any prejudice through the hearing having proceeded with out legal representation on his behalf.
On the second issue, the Claimant had, in issuing this application, sought the court's permission to proceed without a litigation friend. Of course, on the Defendant's case a litigation friend is not required, since it is only for reason of his age that he would fall within the ambit of CPR Part 21. I had had no difficulty in making my first order without his having a litigation friend, given in particular what Lane J said in paragraph 84 of his judgment in R (on the application of JS) v SSHD [2019] UKUT 00064 (IAC). These comments were made in a context where when one of the Applicant's before the court was legally represented therefore the potential for prejudice to the Claimant/Applicant was less than here.
Nevertheless, given the following factors, it was in my judgment appropriate to permit this application to proceed without the Claimant having a litigation friend:
15.1. He had launched the claim itself without a litigation friend;
15.2. He has not sought to have one appointed;
15.3. A social worker was present in this hearing to support him;
15.4. He is, on his own case, very nearly 18 years old;
15.5. He appears an intelligent person who would, barring language issues, have been as able to deal with the case as many people aged 18 or more.
15.6. The court could seek to protect his position by taking an inquisitorial role as to his case.
15.7. To require a litigation friend might significantly delay the hearing, since it is not obvious who would act for him. There are not identified family members and he is currently accommodated by the Defendant who therefore clearly could not fill the gap. Thus finding a litigation friend might take some time whilst, in the interim, the...
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The King (on the application of Kra) v Cheshire East Council
...and (b) the local authority was well-equipped to deal with any safeguarding risks. 12 In R (BAA) v Liverpool City Council [2023] EWHC 252 (Admin) (HHJ Pearce, 8.2.23), the claimant said he was 17 (turning 18 on 5.5.23) but was assessed to be over 18. Permission for judicial review was gran......