MSA, R (on the application of) v London Borough of Croydon

A local authority which offers an age-assessment interviewee an independent adult observer must interpret that policy fairly and consistently. Independence means independence from the authority, not neutrality between the authority and the claimant. The claimant may choose an adult who satisfies that requirement.

A blanket exclusion of legal representatives, their agents or associates is unlawful where it rests on unsupported generalisations about formality, rapport or openness. The authority may refuse a particular observer where evidence shows that the person would adversely affect the interview. The observer’s substantive role, rather than the label attached to the person, is decisive.

The claimant, an Afghan national whose age was disputed, challenged the defendant’s refusal to allow Andrew Frederick, a legal clerk engaged through an outsourcing agency, to attend a proposed reassessment interview as an independent adult observer.

The defendant’s policy allowed an interviewee to have an independent adult present, but it maintained that legal representatives, their agents and associates were generally inappropriate. The claimant contended that the policy entitled him to choose an adult independent of the authority and that the exclusion was irrational. The central issue was whether the defendant had lawfully refused the nominated observer.

1. Permission and substantive relief. Permission was granted and the judicial review succeeded. The defendant’s refusal was quashed, and a declaration was made that Andrew Frederick was an independent adult observer within the meaning of the defendant’s policy. Permission to appeal was refused.
2. Meaning of independence. The defendant’s policy offered the claimant an adult independent of the defendant authority. It did not require an observer to be independent of the claimant. The examples in the policy, including a friend, family member or Refugee Council representative, demonstrated that the observer could be aligned with the claimant. The claimant was therefore entitled to choose an adult who was independent of the authority.
3. Exclusion of legal representatives. The defendant’s reasons for excluding lawyers, their agents and associates were broad assertions unsupported by evidence. The mere presence of a legal professional, confined to observing and taking a note, could not rationally be assumed to undermine rapport, frankness, information gathering or the professional work of experienced social workers. The defendant could refuse a particular person if it had valid, evidence-based reasons to believe that the person would adversely affect the interview, but it could not impose a blanket exclusion on those grounds.
4. Fairness and transparency. The quality and fairness of the age-assessment interview remained important because the interview might later be the principal evidence before a court determining the claimant’s age. The court gained support from R(NA) v London Borough of Croydon, [2009] EWHC 2357 Admin, although the observations relied upon were not part of that decision’s ratio. The judge respectfully agreed that an independent adult observer could include the young person’s legal representative.
5. The nominated clerk. Mr Frederick was not acting as the claimant’s legal representative. His limited clerking assignment meant that the defendant’s characterisation of him as aligned with the claimant’s solicitors did not justify exclusion. Substance and actual function, rather than the label attached to the role, were decisive.
6. The defendant’s late offer of an alternative observer did not defeat relief. The proposed Refugee Council representative was unavailable, and a key worker would not be independent of the authority.

This was a first-instance judicial review. The court granted permission, granted the substantive claim, quashed the refusal and made the declaration sought. Permission to appeal was refused.