J, R (On the Application Of) v Leicestershire County Council

Judicial review remedies are discretionary from permission through to final relief. Where parties agree an age assessment and its consequences, leaving no live dispute, the court or tribunal is generally slow to grant relief and is not obliged to determine age or issue a declaration. The age-determination rule in R (on the application of A) v London Borough of Croydon applies where the local authority’s assessment remains disputed; it does not require a determination after the dispute has been resolved. A declaration sought for use in separate proceedings is not, by itself, a proper reason to grant relief against a party no longer involved. If a court nevertheless considers declaring an agreed age, it must examine the evidence and determine the issue itself.

The claimant, an asylum seeker, challenged the Council’s assessment that he was an adult and claimed entitlement to services under Part III of the Children Act 1989. He also challenged immigration detention by the Secretary of State, but that claim was compromised and the Secretary of State ceased to be a party.

The Council and claimant later agreed the claimant’s date of birth. The Upper Tribunal approved a consent order vacating the substantive hearing and leaving relief and costs to be determined. The Tribunal subsequently refused relief and made no substantive costs order. Permission to appeal was refused below. The issue before the Court of Appeal was whether the Tribunal should nevertheless determine the claimant’s age or grant a quashing order or declaration, particularly for use in separate proceedings.

1. Disposition. The Court of Appeal refused permission to appeal. The agreement between the claimant and the Council had resolved the substantive dispute, including the consequences for the Council’s statutory functions. No live issue remained between the parties.
2. Discretionary remedies. Judicial review is discretionary from the permission stage through to the grant of relief. A quashing order does not necessarily follow from an error of law. Under section 31(2) of the Senior Courts Act 1981, a declaration may be granted only where, having regard to all the circumstances, it is just and convenient. Under section 15 of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal applies the same remedial principles as the High Court. Where a dispute has ceased to exist, relief will generally be refused unless it is necessary to give effect to the agreed position.
3. Age determination. R (on the application of A) v London Borough of Croydon [2009] UKSC 8, [2009] 1 WLR 2557 required the court to determine age itself where a local authority’s assessment remained disputed. It did not require a determination where no live dispute remained. The Tribunal therefore had no obligation to determine age or grant relief.
4. Settlement authorities. AS v London Borough of Croydon [2011] EWHC 2091 (Admin) and R (on the application of N) v London Borough of Croydon [2011] EWHC 862 (Admin) concerned judicial approval of proposed consent orders, including circumstances involving a child claimant and the need for independent consideration. The present consent order had already been approved, contained no provision for quashing or declaration, and left only discretionary relief to be decided. The Tribunal was performing a different exercise. If it had decided to make a declaration, it would have had to examine the evidence and determine age itself rather than rubber-stamp the agreement.
5. The claimant’s wish to use a declaration against the Secretary of State in separate proceedings was not a proper reason for granting relief. Refusal of relief created no risk of inconsistent determinations because the age issue remained open in any proceedings in which it was genuinely disputed.

• Court of Appeal (Civil Division): On 2 July 2014, after a rolled-up hearing, refused permission to appeal.
• Upper Tribunal (Immigration and Asylum Chamber): By an order sealed on 21 January 2013, refused relief and made no substantive costs order. Permission to appeal was subsequently refused.