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

A local authority assessing whether an asylum seeker is under 18 must conduct a fair and lawful assessment without imposing an unnecessarily legalistic procedure. Social workers are not required to cross-examine an applicant as lawyers would. However, where the applicant relies centrally on expert age-assessment evidence, the authority must explain clearly and concisely why it departs from that evidence. The existence of material capable of justifying rejection does not cure a decision which fails to state the reasoning relied upon. A flawed decision should ordinarily be quashed, leaving the statutory decision to be remade by the responsible local authority.

The claimant, who had claimed asylum after arriving in the United Kingdom, sought support from the London Borough of Merton under the Children Act 1989. The authority assessed her as aged 18 or over and refused support. Following further assessments and reconsideration, it maintained that decision on 20 May 2005.

The claimant challenged the decision on grounds including inadequate consideration of her birth certificate, failure to assess the evidence fairly, and failure to explain the rejection of an age-assessment report by Dr Colin Michie, who estimated her age as 17, subject to an error margin of two years. The central issue was whether the authority’s decision was lawful and sufficiently reasoned.

1. Grounds 1 and 2 failed. The authority had conducted an assessment which was not rendered unlawful merely because it did not adopt a judicialised procedure. Social workers were entitled to use their own expertise. They were not required to act as lawyers or cross-examine the claimant. The birth-certificate issue had been addressed by the final decision, and the authority was not required to obtain a further photocopy from the Home Office.
2. Ground 3 succeeded. Although the authority had material which could potentially justify rejecting Dr Michie’s opinion, its decision did not explain why that opinion was not accepted. The report was a central feature of the claimant’s case. A bare statement that it had been considered was inadequate. The authority needed to state, even briefly, whether it rejected the report because it regarded the claimant’s account as unreliable, because an age of 18 or over was consistent with the report’s stated margin of error, or for some other identified reason.
3. The relevant approach was consistent with B v LB Merton, [2003] EWHC (Admin), which emphasised the need to assess the applicant’s history while avoiding judicialisation. T v LB Enfield, [2004] EWHC 2297 (Admin), and I&O v SSHD, [2005] EWHC 1025 (Admin), illustrated the importance of addressing relevant expert evidence.
4. The decisions of 3 and 20 May 2005 were quashed. The later rejection of the claimant’s asylum appeal did not justify withholding relief. The local authority remained the proper decision-maker and was required to make a fresh decision. It could have regard to the Immigration Judge’s determination when doing so. There was no order as to costs.