B, R (on the application of) v London Borough of Merton

Except in an obvious case, a local authority assessing whether a person is under 18 cannot decide from appearance alone. It must obtain an adequate personal, family and educational history, consider relevant cultural matters and assess any doubts about credibility without imposing a burden of proof or predisposition.

The authority must decide independently and give adequate reasons. Procedural fairness requires it to explain the interview’s purpose and give the applicant an opportunity to answer matters supporting a provisional adverse credibility finding. A breach requires the decision to be set aside unless the authority establishes that the same result was inevitable. Medical evidence, prolonged observation and a verbatim record are not invariably required.

The claimant was a destitute asylum-seeker who said that he was 17. If under 18, he fell outside the relevant support scheme under the Nationality, Immigration and Asylum Act 2002 and could be owed accommodation and support duties under the Children Act 1989.

The defendant local authority interviewed him through a French interpreter by telephone. Its social worker concluded from his appearance, demeanour and apparent inconsistencies in his history that he was at least 18. The contemporaneous decision letter stated only that the authority had adopted the Home Office’s position.

The claimant sought judicial review. The principal issues were whether the authority had made an adequate and independent age assessment, whether medical or other additional inquiry was required, whether adequate reasons had been given, and whether procedural fairness required the adverse credibility matters to be put to him before the decision was made.

Claim allowed. The defendant’s age determination was set aside and remitted for reconsideration on the information then available. The claimant was awarded his costs.

1. Age assessment in a borderline case may be informal, but it must satisfy minimum standards of inquiry and fairness. Except where age is obvious, appearance alone is insufficient. The authority should obtain the applicant’s family, personal and educational history, recent activities and any relevant ethnic or cultural information. It must assess appearance, behaviour, history and credibility together.
2. No burden of proof applies under Part III of the Children Act 1989. The authority must assess the material available to and obtained by it without a predisposition that the applicant is either an adult or a child. Medical evidence, prolonged observation, a verbatim interview record and the applicant’s countersignature are not invariably required. The inquiry needed depends on the difficulty of the individual case.
3. A local social services authority cannot simply adopt the Home Office’s conclusion. It must itself decide whether the applicant is a child in need. Although the decision letter suggested adoption, the evidence established that the social worker had made her own assessment from the claimant’s history, appearance, demeanour and credibility.
4. The court admitted later evidence explaining the decision. Applying Nash v Chelsea College of Art & Design [2001] EWHC Admin 538, it found the later reasons genuine, sufficiently consistent with the original material and produced without undue delay. The overly broad part of Nash was corrected consistently with R (Ashworth Mental Hospital) v Mental Health Review Tribunal [2001] EWHC Admin 901. R v Westminster City Council, ex parte Ermakov [1996] 2 All ER 302 was distinguished because no statute required contemporaneous reasons here.
5. Common law nevertheless required adequate reasons because refusal of support could have drastic consequences. Merely stating that the applicant was not a child communicated the decision, not its reasons. Brief reasons would suffice if they identified the relevant appearance, demeanour and credibility matters.
6. Consistently with (R) Q v Secretary of State for the Home Department [2003] EWHC 195 Admin and [2003] EWCA Civ 364, fairness required the interview’s purpose to be explained. Any matters supporting a provisional conclusion that the applicant was lying had to be put to him. The authority did not do so. Given the risks of misunderstanding through a remote interpreter, it failed to establish that the same decision would inevitably have followed.
7. The statutory complaints procedure was not shown to be a suitable alternative remedy. Its 28-day response period was too long for a person claiming to be a child without accommodation or support.

not stated in the judgment.