HA, R (on the application of) v London Borough of Hillingdon & Anor

Pending judicial determination of a disputed age assessment, responsibility for interim accommodation and support ordinarily remains with the local authority that made the assessment. A simple geographical test cannot determine responsibility where it would permit applicants to be passed from one authority to another or encourage councils to dump applicants elsewhere. An authority cannot rely on an allegedly unlawful age assessment to terminate its statutory duty under section 20 of the Children Act 1989. Questions about a person’s age are objective questions for the court or Upper Tribunal. Possible concurrent duties owed by an original authority and a host authority may arise later, but were not decided.

The claimant, an Afghan asylum seeker claiming to be aged 14, was initially assessed by Hillingdon as appearing to be 14. A later assessment concluded that he was over 18, after which he was placed in Birmingham by the UK Border Agency and Hillingdon ceased providing accommodation and support.

The claimant challenged the later assessment by judicial review. Permission was granted, and the parties agreed that the age issue should be determined by the Upper Tribunal. Hillingdon argued that any section 20 duty had transferred to Birmingham because the claimant was physically within Birmingham’s area. The central issue was which authority should provide interim accommodation and support pending the age determination.

1. Disposition. The claim was transferred to the Upper Tribunal for determination of the claimant’s age. Interim relief was granted against Hillingdon alone. Birmingham was neither joined nor substituted as defendant.
2. Whether a person is a child is an objective question with a right or wrong answer. The local authority’s assessment does not determine its statutory jurisdiction. If the assessment is wrong, the authority cannot create a jurisdiction it lacks or decline one that it has, applying R(A) v Croydon LBC [2009] 1 WLR 2557 and R(MWA) v Birmingham City Council [2011] EWHC 3488.
3. Although section 20 refers to a child being within a local authority’s area, Parliament cannot have intended responsibility to be determined by a simple geographical test. Such a test could enable an applicant to move to obtain a fresh assessment or better support, and could encourage one authority to pass an applicant to another. The statutory scheme must therefore be applied consistently with the principle that children should not be passed from pillar to post, discussed in R(G) v Southwark LBC [2009] 1 WLR 1299.
4. On the facts, Hillingdon’s termination of services followed an age assessment whose legality was under challenge. Hillingdon therefore remained the appropriate authority against which interim relief should be granted until the Upper Tribunal determined the claimant’s age. If he were found to have been an adult, no section 20 duty would arise. If he were found to have been a child, the duration and possible concurrency of duties would require later consideration.
5. The court left open whether Hillingdon and Birmingham might subsequently owe concurrent duties. That issue was not necessary to determine the interim application.

First-instance judicial review and interim-relief proceedings. The judgment itself records no earlier substantive decision.