R, R (On the Application Of) v London Borough of Croydon

A local authority’s age assessment is not itself a discharge of its duty under section 20 of the Children Act 1989. Whether a person is a child is an objective question of fact and must be determined before the section 20 duty arises. Where a local authority knows that a child in need requires accommodation but fails to provide it, the authority acts unlawfully, even if the error was made honestly. In an appropriate case, accommodation provided through another public body may be treated as accommodation provided under section 20 where the local authority’s unlawful conduct caused the accommodation to be provided. The court may require the authority to treat the claimant as a former relevant child and provide the services that would have followed lawful compliance.

The claimant, an Afghan national, claimed asylum in the United Kingdom in May 2008 and said that he was aged 15. Croydon assessed him as an adult and referred him to the United Kingdom Border Agency, which provided accommodation and subsistence support. A later fact-finding hearing determined that his date of birth was 9 December 1992, making him 15 when first assessed.

The claimant sought judicial review of Croydon’s refusal to treat him as a former relevant child under section 23C of the Children Act 1989. He argued that the accommodation provided through the United Kingdom Border Agency should be treated as accommodation provided under section 20, or alternatively that Croydon’s failure to accommodate him was unlawful and justified equivalent relief. The central issues were whether the age assessment discharged the statutory duty, whether the accommodation could be treated retrospectively as section 20 accommodation, and what remedy was appropriate.

1. The claim succeeded. The claimant was a child when he came to Croydon’s attention, was a child in need, and required accommodation because of matters within section 20(1) of the Children Act 1989. Croydon therefore owed him a duty to provide accommodation.
2. The question whether a person is a child is an objective question of fact. It is not a judgment forming part of the section 20 process. The local authority’s evaluative judgments arise only after the factual question of age has been determined. The Supreme Court’s distinction between objective age and evaluative questions concerning need was applied.
3. Croydon’s age assessment did not discharge its section 20 duty. Since Croydon did not provide accommodation, it failed to perform the duty and acted unlawfully. The fact that the error was made honestly did not alter that conclusion. The relevant issue was unlawfulness, rather than the cause of the error.
4. The authorities showed that accommodation provided through another public authority may, in appropriate circumstances, be treated as having been provided under section 20. The relevant considerations included action by children’s services and a causal connection between that action and the claimant’s receipt of accommodation. Croydon knew of the claimant and referred him to the United Kingdom Border Agency; the court considered that this causal connection existed.
5. The court therefore directed Croydon to treat the claimant as a former relevant child and to provide the services to which he would have been entitled had he been treated as a child from May 2008 onwards. The precise form of order was left for the parties to agree, subject to further determination if necessary.

The judgment was a first-instance judicial review decision. The judgment itself records that the age issue had previously been determined by Kenneth Parker J following a fact-finding hearing, but gives no citation for that decision.