The Queen (on the application of BM) v London Borough of Hackney

Hearing date: 15 November 2016

Approved Judgment

Ms Leigh-Ann MulcahyQC:

Introduction

The issue in this claim brought by BM, the Claimant, is whether the London Borough of Hackney, the Defendant, misdirected itself or acted Wednesbury unreasonably when deciding to refuse to reassess the Claimant's age following the Claimant's request (through her solicitors) on 2 December 2015 that it do so. The request was accompanied by a body of expert and other material in support. The decision which is challenged is contained in the Defendant's letter to the Claimant's solicitors dated 14 January 2016 declining to reassess the Claimant's age ("the Decision").

The claim for judicial review was issued on 14 April 2016. An anonymity order was made by Ms Dinah Rose QC sitting as a Deputy High Court Judge on 20 June 2016. Permission to proceed with a claim for judicial review was given by Ms Sara Cockerill QC sitting as a Deputy High Court Judge on 18 July 2016. The substantive judicial review hearing came before me on 15 November 2016 and, following the hearing, I have (with permission) received a Joint Note dated 18 November 2016, a Further Note on behalf of the Defendant by Mr Harrop-Griffiths of Counsel dated 5 December 2016 and a responsive Note on behalf of the Claimant by Ms Moodie of Counsel dated 12 December 2016, all of which I have read and taken into account.

This judgment is structured as follows:

i) The issues

ii) The factual background to the claim

iii) The significance of an age reassessment for the Claimant

iv) Relevant law and guidance

v) The materiality and relevance of the material supplied on 2 December 2015

vi) The relevance and materiality of the procedural deficiencies in the 2013 age assessment

vii) The Defendant's alleged policy of not conducting age assessments on adults

viii) Section 31(2A)(a) Senior Courts Act 1981

ix) Conclusion and relief

(1) The issues

It is important to begin by identifying what is not in issue in relation to this claim.

As stated at paragraph 14 of the Claimant's skeleton argument dated 7 November 2016, and confirmed by Ms Moodie in oral submissions on 15 November 2016, the Claimant's challenge is not to the age assessment that was carried out by the Defendant on 17 January 2013 ("the 2013 age assessment"). This is important because parts of the Amended Statement of Facts and Grounds and the evidence in support set out various criticisms of the 2013 age assessment which appeared to suggest that a challenge was being made to that assessment.

The judicial review claim was issued on 14 April 2016, over 3 years after the 2013 age assessment was carried out and nearly 3 years after expiry of the limitation period for bringing a judicial review claim pursuant to CPR 54.5. The Claimant has been in receipt of legal advice from at least 25 April 2013 according to an email from the social worker who carried out the age assessment to the Defendant's Duty Lawyer on that date which stated that he had received an email from solicitors acting for the Claimant on that date. No legal challenge was made to the 2013 age assessment, even out of time. Irrespective of whether or not it would have succeeded on its merits, such a claim is now far too late.

However, as already stated, the Claimant's case is that she is not seeking to challenge the 2013 age assessment in these proceedings and accordingly, that the points made by the Defendant about delay are not relevant. Ms Moodie further confirmed at the hearing on 15 November 2016 that the Claimant is not pursuing grounds set out in the Amended Statement of Facts and Grounds relating to the following:

i) A medical assessment carried out by Dr Brown on 3 January 2013 (paragraphs 95–98 Amended Statement of Facts and Grounds);

ii) Evidence from Hackney and Regent's Colleges (paragraphs 99–102 Amended Statement of Facts and Grounds);

iii) Lagos schools and phone calls (paragraphs 103 to 105 Amended Statement of Facts and Grounds);

iv) The Defendant's failure to refer the Claimant into the National Referral Mechanism ("NRM") (paragraphs 114–115, 117, 119, 120–121 Amended Statement of Facts and Grounds).

The Claimant's case regarding the relevance of the 2013 age assessment in relation to the present claim is that "the flaws identified with the 2013 age assessment, some of which are expressly accepted by the Defendant, are relevant when assessing the reasonableness of the Defendant's refusal to revisit/disturb its decision on age" (Claimant's skeleton, paragraph 14).

The flaws which the Claimant relies on in relation to the 2013 age assessment are procedural ones identified by reference to the 'Merton guidelines' derived from Stanley Burnton J's judgment in The Queen on the application of B v The Mayor and Burgesses of the London Borough of Merton[2003] EWHC 1689 (Admin); [2003] 4 All ER 280 at [37–38] (the " Merton" case) and developed in subsequent case law, culminating in guidelines laid down by the Court of Appeal in R (FZ) v Croydon[2011] EWHC Civ 59; [2011] PTSR 748 at [21–25]:

i) First, the absence of an appropriate adult, to which the Claimant was entitled, at the interview on 20 November 2012 for the purpose of assessing her age;

ii) Secondly, the failure of the Defendant to give the Claimant an opportunity to respond to adverse findings at a provisional stage in order to correct any misunderstandings or provide further details where required.

The Defendant accepts that the 2013 age assessment suffered from both these deficiencies and accordingly, accepts that a Merton-compliant age assessment was not carried out. In the Defendant's skeleton argument dated 11 November 2016, it was originally contended that an independent appropriate adult was present at two meetings on 20 November 2012 and 18 February 2013. However, it was conceded on behalf of the Defendant in oral submissions on 15 November 2016 that DC Jade Allen, who was present at the meeting on 20 November 2012, did not constitute an appropriate adult within the meaning of the relevant guidance (referred to at Section (4) below), and that the presence of a member of the Refugee Council, who was an appropriate adult, at the meeting on 18 February 2013 did not assist it because the purpose of that meeting was to communicate the Defendant's decision on the age assessment made on 17 January 2013 and was not a meeting that was part of the age assessment process. The second deficiency identified above was accepted at paragraph 55 of the Defendant's skeleton argument. It was confirmed to me by Mr Harrop-Griffiths in oral submissions that the procedural deficiencies had not in fact been taken into account in relation to the Decision whether to reassess the Claimant's age. It was, however, contended by Mr Harrop-Griffiths on behalf of the Defendant that the procedural deficiencies were not material to that Decision and/or, if considered, would have made no material difference to the outcome. Accordingly, the relevance of the procedural deficiencies and their materiality are in issue between the parties.

In Ms Moodie's Note dated 12 December 2016, she identified a third alleged flaw based on paragraph 52 of the Defendant's skeleton argument read together with the 2013 age assessment, namely that the age assessment was conducted entirely or in part by one social worker, Mr John Clare, on 20 November 2012 and 18 February 2013, rather than two experienced and qualified social workers. She contended that when this further breach was raised at the hearing, it was not disputed by the Defendant. This alleged flaw was not raised in terms at the hearing and it would appear to be something of an after-thought. It is based on an interpretation of Mr Harrop-Griffiths' skeleton argument in relation to a meeting on 20 November 2012 at which only Mr Clare was present. However, it would appear that another (consultant) social worker, Edrich Alexander, was involved in certain other meetings with the Claimant, albeit these were not for the purpose of carrying out an age assessment. Mr Harrop-Griffiths in his Note dated 5 December 2016 refers to Mr Clare as being the " principal assessor" rather than the sole assessor. As stated above, the meeting on 18 February 2013 was for the purpose only of communicating the decision on the age assessment and is not therefore relevant. Given that no issue over the number of social workers was raised by the Claimant in advance of the hearing on 15 November, and though raised at the hearing was not particularly in focus, and the absence of any clear acceptance in relation to this point by the Defendant, I do not consider that it would be appropriate to take this further alleged flaw into account in relation to my determination.

In summary, the issue for determination is whether the Defendant's Decision not to reassess the age of the Claimant in light of the material submitted to it by the Claimant, against a backdrop of an age assessment which is accepted in two procedural respects to be non- Merton compliant (if these procedural deficiencies are relevant to the decision, which is in dispute), was:

i) the result of asking itself the wrong question and failing to take reasonable steps to acquaint itself with the relevant information to answer it correctly ( Secretary of State for Education and Science v Metropolitan Borough Council of Tameside[1977] AC 1014 at 1065B...