On 31 March 2023 the Administrative Court (sitting at Leeds) allowed the judicial review claim of R (HP) v Royal Borough of Greenwich [2023] EWHC 744 (Admin). No5’s Philip Rule KC represented the successful claimant.

This is the first case to consider in detail the proper approach that a local authority must take to the exercise of a discretion to provide support services to a young adult previously identified, in principle, to exist 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. That discretion is to provide services as a remedy to an injustice otherwise to be occasioned as a consequence of (a) the local authority’s earlier flawed assessment (in September 2019 in HP’s case) that the person was not a “child in need” (since established – by a decision of the Upper Tribunal in HP’s case – to have been wrong), meaning that (b) he is denied, as a young adult, the formal status of a “former relevant child” and the statutory duties and entitlements applicable to such a status as of right.

This decision is of importance to the practice that parties may adopt when an age dispute has arisen for example. This is because even if a Tribunal may decide that the individual is an adult by the date of any determination nonetheless if he or she was a child at the date of the original referral and age assessment, so that there was an error by the local authority at the outset, the (a) precise nature of the error, and extent of any unfairness, blameworthiness, culpability or other serious maladministration, informs the exercise of the discretion to be exercised, and (b) consideration of the needs of the individual revealed by the witness and documentary evidence in the age dispute proceedings might prove of materiality to the exercise of the discretion, even if sometimes less obviously relevant to determining age itself. There can also be an impact in the promptitude to bringing the challenge, or by the decision whether or not to seek interim relief at the outset of the age dispute.

Mr Justice Fordham’s judgment provides guidance in relation to the legal principles in this area of law for the first time, and in particular the manner in which the young adult’s needs may be relevant to the exercise of the discretion. The Court found that there was, as the claimant had averred, an unlawful failure to consider the needs of HP when refusing to exercise the discretion. The result of that decision having been the denial of any ongoing support under the Children Act 1989 former relevant child provisions.

The local authority’s case was that there was no legal obligation to consider the needs of the claimant at all. That principal defence, that there is no need to consider needs at all, rested on the assertion that there was not any culpability on the authority’s part when it had wrongly assessed the claimant to be an adult rather than a child. It therefore contended it could decide it was under no obligation to exercise the discretion on that basis alone.

An issue as to whether or not a formal type of needs assessment should be undertaken arose because of the defence that needs were irrelevant. The Court found that a formal needs assessment was not mandatory. Nonetheless, the individual’s needs had to be considered by reference to what was known or ought to have been known. For example, there was a considerable amount of information as to need that was to be found recorded in the Upper Tribunal’s judgment, even if that case had been concerned to establish age rather than specifically required to consider the vulnerabilities or needs of the individual.

The local authority’s failure to consider the needs of the individual, as disclosed by evidence that had been available at the time of the decision constituted a legal error (judgment, §§32-33). The defendant’s case was rejected on multiple fronts, dismissing: (a) its denial of any legal duty to consider the relevant needs; (b) its factual claim to have done so in this case in any event; and (c) its argument that relief should be denied even if there was unlawful failure to consider the individual’s needs.

The learned judge also had to address what constituted the reasons of the decision-maker, rather than those presented in argument by the defendant’s solicitor (judgment, §§39-42). It was appropriate to reiterate the importance of the ‘distinction’ and ‘division of labour’ between a decision-maker’s reasons and a lawyer assisting with their presentation, citing observations, made in R v Wandsworth LBC, ex p Dodia (1998) 30 HLR 562 (at 565-566). The distinction must be clearly observed to ensure it is the decision-maker’s role to decide where the truth lies, to decide on the relevant facts and to provide the reasons for those decisions.

This case now provides guidance to future decisions to be made where there is a request to be made or to be considered for the exercise of the power of a local authority 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”.

At paragraphs 23 and 24 of the judgment Mr Justice Fordham explains the legal principles that apply to the exercise of this discretion deriving the following propositions from GE and the line of authority within which it is found. To summarise (and with the concepts referred to being clearly set out within the judgment itself):

i) Where it is established that there has been a relevantly-flawed Age Assessment or Needs Assessment, whose consequences have denied the affected individual the past entitlements of a “child in need” and the present status of “former relevant child”, there is no “general rule” requiring the local authority to treat the individual “as if” they were a former relevant child.

ii) A relevantly-flawed Age Assessment or Needs Assessment, whose consequence was to deny the affected individual the past entitlements of a “child in need”, constitutes an “unlawfulness”.

iii) Where the additional consequence of the relevantly-flawed Age or Needs Assessment is that the affected individual is at present denied “former relevant child” status – with its important social support entitlements – that constitutes an “injustice”.

iv) The Discretionary Power – to choose to treat the affected individual as a former relevant child – is in the nature of a remedial power to “remedy”, and for “correcting”, the present “injustice” arising from the past “unlawfulness”.

v) It can be important to establish whether the Age/Needs Assessment was relevantly-flawed, and whether the consequence is a present denial of “former relevant child” status, because that will engage the Discretionary Power.

vi) An Age Assessment will be relevantly-flawed on the Objective-Correctness Standard [i.e. whether the outcome was objectively correct – the decision being retaken afresh by the Tribunal] and a Needs Assessment will be relevantly-flawed on the Reasonableness Standard [i.e. conventional Wednesbury standard of judicial review].

vii) The duty to consider exercising the Discretionary Power will be triggered by a request by or on behalf of the affected individual; and delay in making that request can be a relevant consideration in the exercise of the Discretionary Power.

viii) In considering whether to exercise the Discretionary Power, regard should be had to all the circumstances of the case, with relevance and weight being matters for the local authority’s reasonable judgment.

ix) The circumstances of the case may involve matters of such obvious seriousness that the Discretionary Power can only be exercised favourably, as the sole justifiable outcome.

x) One relevant consideration is the degree to which the relevantly-flawed Age or Needs Assessment stands to be criticised, including by reference to the degree of fault or blameworthiness.

xi) The degree of unfairness, blameworthiness, culpability or other serious maladministration may be what makes a favourable exercise of the Discretionary Power the sole justifiable outcome.

xii) Another relevant consideration is whether the action by or on behalf of the Claimant in challenging the relevantly-flawed Assessment was pursued promptly and whether an application for an interim remedy was made.

xiii) Another relevant consideration is the nature of the services requested by or on behalf of the affected individual.

xiv) Given that the statutory duties and entitlements owed to a “former relevant child” apply to an affected individual who was – as a historical fact – a “looked after child” when they turned 18, it may be relevant to the Discretionary Power that it does not involve the envisaged “continuity” of services.

xv) Another clearly relevant consideration is the flexibility of the Discretionary Power, under which the local authority may decide to afford only some and not all of the entitlements which would have applied to the affected individual as a former relevant child.

To these propositions his Lordship adds the following observations (as summarised):

xvi) First, about the idea of aggravated injustice. The starting-point is that there is an “injustice”, and the function of the Discretionary Power is as a remedial response to this “injustice”. It therefore makes sense that the decision-maker, in considering the Discretionary Power, should be expected to think about anything which serves to aggravate the injustice. That includes what the person conducting the Age or Needs Assessment did. Even a blameless, but objectively-incorrect, Age Assessment means an unlawfulness and an injustice. But an objectively-incorrect Age Assessment which was also unreasonable (irrational) or unfair is the more serious an injustice – it is aggravated – because it is the less excusable. An unreasonable (irrational) or unfair Needs Assessment, as well as being relevantly-flawed to give rise to the injustice, is also aggravated in the same way as an unreasonable or unfair Age Assessment. An Age or Needs Assessment which was blameworthy or culpable is even less excusable. Alongside what the local authority did in making the Assessment, it is relevant for the decision-maker to think about what was done or not done by or on behalf of the affected individual. One aspect of that is whether there was a prompt challenge, and whether there was an application for interim relief. The nature and degree of the “injustice” can properly be affected by such features. It may be said that the individual and their representatives have ‘done all they possibly could’. There is a theme here which asks whether there are aggravating – or for that matter mitigating – features so far as the injustice is concerned.

xvii) Secondly, about the idea of the sole justifiable outcome. One question is whether the circumstances are so powerful that the favourable exercise of the Discretionary Power is the sole justifiable outcome. In such a situation the local authority cannot reasonably decline to exercise the Discretionary Power. It is right for the decision-maker to address whether the circumstances are of that nature. This could include an injustice seriously aggravated, including by virtue of blame or culpability. But there may be other reasons why a favourable decision is the sole justifiable outcome. These could include needs on the part of the affected individual which are so powerful and so pressing that it could not be reasonable to exercise the Discretionary Power unfavourably… If there is a sole justifiable outcome then, in the circumstances, the discretion hardens into a duty. Often, that will not be the case. What is left is the area of latitude, within which the Discretionary Power is exercised on the merits. Here, the local authority decision-maker exercises a choice, without rigidity but with open-minded consideration of the circumstances, to do what is evaluated as being the ‘right’ thing on the ‘merits’. And here – within the area of latitude for judgment and appreciation – the law will require that relevant considerations are taken into account.

xviii) Thirdly, about the idea of what is now at stake. This is a further important theme. It explains why it is relevant for the decision-maker to think about the nature of the services requested by or on behalf of the affected individual. It also explains why it is relevant to think about the flexibility which enables the local authority to respond by making some – but not all – services available to the affected individual. Asking ‘what is at stake’ is not a function of how the original and relevantly-flawed decision is to be characterised; or how it was sought to be challenged. It is a function of ‘where are we now’. The services which are requested relate to what the affected individual’s needs are said to be. The flexibility is about responding to some needs, and the ability to prioritise needs. The needs of the affected individual are, in principle, relevant. They may even be such as to make a favourable exercise of discretion the sole justifiable outcome. All of this makes good sense. After all, the unlawfulness and the injustice have arisen in the context of statutory entitlements which recognise and address needs. The services to which a former relevant child has an entitlement are services which address needs. They are matters of importance, because they address important needs.

This guidance shall now assist decision-makers and applicants in properly addressing the   question of the exercise of the discretion to ensure that the needs of an individual who was unjustly deprived of care when a child in need, but wrongly not treated as such at that time, seeks the assistance in young adulthood that they may very well need if they are to have a fair start in life.