The King (on the application of HP) v The Mayor and Burgesses of the Royal Borough of Greenwich
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 31 March 2023 |
| Neutral Citation | [2023] EWHC 744 (Admin) |
| Docket Number | Case No: CO/4067/2021 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 744 (Admin)
Mr Justice Fordham
Case No: CO/4067/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING IN LEEDS
Philip Rule (instructed by Instalaw Ltd) for the Claimant
Michael Paget (instructed by Royal Borough of Greenwich) for the Defendant
Hearing dates: 26/1/23 and 1/2/23
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
Introduction
This case is about the power of a local authority (“the Discretionary Power”) to provide support services to a young adult who, as a consequence of the local authority's historically flawed “child in need” assessment, is denied the statutory duties and entitlements applicable to a “former relevant child”. The Discretionary Power was authoritatively identified by the Court of Appeal in R (GE (Eritrea)) v Secretary of State for the Home Department [2014] EWCA Civ 1490 [2015] 1 WLR 4123 (§17iii below). I will need to analyse the Discretionary Power (see §§23–24 below), in light of the statutory framework (see §§11–16 below) and the case-law (§17 below).
Three Decisions
Three key decisions are at the heart of this claim for judicial review.
i) The Local Authority Age Assessment. The first key decision was made on 11 September 2019 by Social Workers Cat Williams and Amie-Louise Clement for the Defendant (“the Council”). By that decision, the Council Age-Assessed the Claimant as being – in September 2019 – “20 years of age” with an estimated date of birth of “1999”. On the basis that he was not a “child”, it was concluded that the Claimant was not a “child in need”. The Local Authority Age Assessment completed a Social Services file of documents generated over the three days 9–11 September 2019 (“the Social Services File”).
ii) The Tribunal Age Determination. The second key decision was made on 5 August 2021 by Upper Tribunal Judge Smith (“the Judge”), after an oral hearing on 29 June 2021 and 1 July 2021. The Tribunal Age Determination was the outcome of a claim for judicial review, by which the Claimant challenged the Local Authority Age Assessment on objective-correctness grounds (see §3ii below) with fresh and updating evidence (§§4–6 below). By the Tribunal Age Determination, the Judge Age-Assessed the Claimant as being – in August 2021 – “19 years old” with the date of birth assigned as “1 January 2002”. The Tribunal Age Determination is binding as to the Claimant's legally correct age and date of birth. It is found within a 47-page and 210-paragraph ruling (“the Judgment”). Anonymity protection was granted and remains in force.
iii) The Impugned Refusal. The third key decision was communicated by email on 18 August 2021 (“the Decision Email”: §36 below) sent by the Council's Head of Legal Services (“HLS”) Azuka Onuorah to the Claimant's solicitors, refusing the solicitors' request by email on 2 August 2021 (“the Email Request”) that the Council exercise the Discretionary Power favourably in the Claimant's case. The Impugned Refusal is the target for this claim for judicial review, commenced on 17 November 2021, for which Eyre J granted permission on 28 June 2022. The decision-maker was social worker manager (“SWM”) Carol Bilham. On 12 January 2022 the Council disclosed the contemporaneous telephone attendance note dated 17 August 2021 (“the Contemporaneous Note”: §35) recording SWM Bilham's decision as communicated to HLS Onuorah.
Two Standards of Review
Judicial review can succeed where a public authority's decision is unlawful, unreasonable or unfair. It will be helpful in the present case to bear in mind two distinct standards of substantive review, which can apply where the outcome of a public authority's decision is challenged by judicial review.
i) The Reasonableness Standard. This involves asking whether the outcome was reasonable. This conventional standard of review is non-substitutionary. The decision is not being retaken afresh by the Court or Tribunal. Review on the Reasonableness Standard is conventionally confined to the material which was available to the decision-maker; not fresh and updating evidence. The Reasonableness Standard applies to a judicial review of the outcome of a Needs Assessment: a local authority's assessment of the “in need” component of the statutory “child in need” test. The Reasonableness Standard also applies to this judicial review of the Impugned Refusal.
ii) The Objective-Correctness Standard. This involves asking whether the outcome was objectively correct. This special standard of review is substitutionary. The decision is being retaken afresh by the Court or Tribunal. Review on the Objective-Correctness Standard is not generally confined to the material which was available to the decision-maker; it considers fresh and updating evidence. The Objective-Correctness Standard applies to a judicial review of an Age Assessment: an assessment of the “child” component of the statutory “child in need” test. This is explained in GE at §66. So, in the present case, the Judge was asked by the Claimant to apply the Objective-Correctness Standard in determining the claim for judicial review of the Local Authority Age Assessment, and did so in arriving at the Tribunal Age Determination.
A Different Picture (2019 and 2021)
One key feature of the present case is that the Tribunal Age Determination (5.8.21) was based on different and much fuller evidence about the Claimant than the Local Authority Age Assessment (11.9.19). That was the consequence of (a) the Objective-Correctness Standard (b) the passage of time and (c) observable conduct over that period in the UK.
To explain, the Local Authority Age Assessment, which completed the Social Services File, was a decision within 3 days of the Claimant's arrival in the UK from Afghanistan. Indeed, as the Judge observed in the Judgment, one of the “unusual features” of the case was:
the speed with which the age assessment process took place .
The Tribunal Age Determination was carried out two years later, with extensive information about the Claimant, derived from his presence in the UK over an extended period. There was a considerable body of evidence adduced before the Tribunal. There were documents and reports; witness statements; and oral evidence with cross-examination. From the Council, the Judge had witness statement evidence about what happened in September 2019, from Social Worker Williams, Social Worker Clement and Foster Carer Bygrave (§7 below). On behalf of the Claimant, witness statement evidence was put forward from a 23 year old friend (Ahsnuliah Ahsas) and support letters from Ella Montgomery-Smith of the Children's Society and Laura Weser of the Red Cross. Witness statement evidence and oral evidence was adduced from Alexandra Swadling, a Support Worker at the organisation “Positive Action For Refugees and Asylum-Seekers” (PAFRAS); and Sharon Browne a Mental Health Support Worker at PAFRAS. The Claimant gave witness statement evidence and oral evidence. The oral hearing took two days. Witnesses who gave oral evidence were cross-examined. The Judgment discusses in comprehensive detail the written, oral and documentary evidence which was before the Judge for the purposes of her objective evaluation of the Claimant's true age.
It has been regarded as significant that the Tribunal Age Determination was based on markedly different, and fuller, information about the Claimant. This point has been emphasised on behalf of the Council, in the context of the Claimant's age. HLS Onuorah in the Decision Email (§36 below) at paragraphs [1] and [2] describes the “long and detailed” Judgment, in which the Judge's decision was “reached … on evidence that was obtained after the age assessment [which] included [the Claimant's] interaction with support workers and a teacher”; that “the evidence upon which the Judge decided the case” was “never before the age assessors”; and that “the case was decided on the basis of subsequent supporting evidence”.
The Claimant
The Claimant's country of origin is Afghanistan. He arrived in the UK on 9 September 2019, and presented at Plumstead Police Station. Asked his age, he said – through an interpreter – that he was 13 years old. Police Inspector Sharpington referred him to the Council who placed him with Jennifer Bygrave, a full-time Foster Carer. He was Age-Assessed by Social Workers Williams and Clement, on 10 and 11 September 2019, as “20 years of age”. The Social Services File (§2i above) was created. Two things came to be determined subsequently.
First, that the Claimant was a refugee. He had a well-founded fear of persecution. His legal entitlement to be and stay in the UK was subsequently recognised by the Home Secretary in April 2022. He had made his asylum claim on 12 September 2019. Having been Age-Assessed to be an adult, he was ‘dispersed’ by the Home Office and placed in National Asylum Support Service (NASS) accommodation, with adults, in Leeds.
Secondly, that the Claimant had been 17 years old – a “child” – in September 2019. Assisted by legal representatives, he brought his judicial review claim (11.12.19) challenging the Local Authority Age Assessment. Permission for judicial review was granted (17.1.20). No application for interim relief was made, seeking an interim order that he be accommodated by the Council as a child, rather than by the Home Office as an adult. The outcome of the judicial review was the Tribunal Age Determination (§2ii above). It found that the Claimant had been 17 years 8 months old, when Age-Assessed as an adult (11.9.19). That means in September 2019 he...
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