MT, R (on the application of) v London Borough of Hillingdon

A renewed application for permission to appeal may succeed where a later Supreme Court decision provides apparently compelling support that the case below proceeded on the wrong legal basis. In an age dispute relevant to a local authority’s accommodation duty, the issue may be determined by the courts as a question of fact on the balance of probabilities, rather than being confined to procedural review of the authority’s decision. The Court of Appeal may permit amendment of the appellant’s notice and grant permission to argue that point, while leaving the appellant’s ultimate entitlement to advance it for the full appeal.

MT arrived from Eritrea claiming to be an unaccompanied minor. Hillingdon accepted that she was a child under section 105(1) of the Children Act 1989 and accommodated her under section 20. Following an age assessment, Hillingdon decided that she was over 18 and that the accommodation duty no longer applied.

Her application for judicial review was refused by the Administrative Court: [2009] EWHC 2402 (Admin). Permission to appeal was subsequently refused on paper. After the Supreme Court’s decision in R (on the application of A) v London Borough of Croydon [2009] UKSC 8, the central issue became whether MT’s age dispute should be determined by the courts as a factual question on the balance of probabilities, and whether that new argument could be raised on appeal.

1. Permission and amendment. Lord Justice Rimer accepted that the Supreme Court’s decision in R (on the application of A) v London Borough of Croydon [2009] UKSC 8 provided apparently compelling support for the contention that the case had been argued and decided below on the wrong basis. MT was therefore permitted to amend her Appellant’s Notice and was granted permission to appeal to the full court on the new point.
2. Nature of the age dispute. The suggested effect of Croydon was that the dispute about MT’s age was not confined to a challenge to the procedural integrity of Hillingdon’s assessment. It could instead be determined by the courts as a matter of fact, applying the ordinary civil standard of the balance of probabilities. The Court did not finally determine either that legal issue or MT’s age; it held only that the point was sufficiently supported to justify permission.
3. Other grounds and orders. The court left open whether MT was entitled to raise a new case that had not been run below. The remaining grounds, which counsel accepted were unlikely to retain force after Croydon, were adjourned to the full court on notice to Hillingdon. The appeal was to follow immediately on any ground for which permission was granted. The possibility that MT could still benefit from a successful challenge was not excluded because the Children Act 1989 might impose continuing duties in respect of persons over 18 previously accommodated under section 20.

• Court of Appeal (Civil Division): On 21 January 2010, Lord Justice Rimer allowed MT to amend her Appellant’s Notice and granted permission to appeal to the full court on the age-assessment issue. The other grounds were adjourned.
• Administrative Court: Mr Timothy Brennan QC, sitting as a deputy High Court judge, refused permission to apply for judicial review: [2009] EWHC 2402 (Admin).
• Permission stage: Sir Richard Buxton refused permission to appeal on the papers.