Fri, 10 Feb 2023
Local Authority had a duty to age assess putative child independently of a Home Office assessment and case is not academic just because the Claimant has turned 18: David Gardner represents the Claimant in a successful judicial review.
No5's David Gardner represented the Claimant in the case of R (AF) v Milton Keynes Council  EWHC 163 (Admin), which was heard by Susie Alegre (sitting as a Deputy High Court Judge) in the Administrative Court on 19 January 2023.
The Claimant, when he entered the UK, informed Home Office officials that he was an unaccompanied asylum seeking child (UASC). He was age assessed by the Home Office’s Kent Intake Unit on arrival which considered him to be over-18. As such, he was sent to Home Office accommodation in the Milton Keynes area. He later presented at Milton Keynes Council as a putative child (before he was 18 on his own assertion) and requested he be supported under ss.17 and 20 of the Children Act 1989. Ultimately, the Local Authority refused to provide services or to undertake an age assessment as it relied on the Home Office decision, despite the fact that it had not seen the Home Office assessment, just a letter informing of the result.
The Court allowed the Claimant’s claim on the basis that the Local Authority had failed in its duty of inquiry in accordance with the principle in Secretary of State for Education Science v Tameside Metropolitan Borough Council  AC 1014. It was not open to the Local Authority to simply refuse to provide services and it should have undertaken an age assessment which complied with the safeguards in R (B) v The Mayor and Burgesses of the London Borough of Merton  EWHC 1689 (Admin).
The Local Authority argued that the claim had become academic because, since the claim was filed, the Claimant had turned 18 even on his own assertion. The Court rejected this argument, noting that the duty of inquiry remained in order for the Local Authority to establish whether it should exercise its discretion to provide services to the Claimant after he turned 18 (see s.23C of the Children Act 1989 and R (GE (Eritrea) v Secretary of State for the Home Department  1 WLR 4123) and, in any event, the results of an age assessment may also go to how the Home Office treats the Claimant and have an impact on his asylum claim (see R (AE) v London Borough of Croydon  EWCA Civ 547).
The Court made mandatory orders that the Local Authority either accept the Claimant’s age or undertake an age assessment and it must consider whether to exercise its discretion to provide services to the Claimant.
David was instructed by Martin Bridger and Gintare Daukintyte of Instalaw Solicitors. The link to the full judgment can be found here: https://caselaw.nationalarchives.gov.uk/ewhc/admin/2023/163