GE (Eritrea), R (On the Application Of) v Secretary of State for the Home Department Bedford Borough Council

A person is a former relevant child only if the statutory conditions were actually met before adulthood. A local authority’s failure to provide accommodation which it ought to have provided cannot be treated as actual accommodation, nor can the court deem the resulting status to exist.

Age is an objective jurisdictional fact for section 20(1) of the Children Act 1989. A mistaken assessment that a person was adult does not itself exclude the statutory duty if the person was in fact a child. Where unlawful failure to accommodate has caused loss of leaving-care status, the authority may have to consider discretionary support to remedy injustice, but its discretion is flexible and does not recreate statutory entitlement.

GE, an Eritrean asylum seeker, said that she was aged 16 when she arrived in the United Kingdom. Bedford Borough Council assessed her as adult and did not accommodate her. The Secretary of State instead provided accommodation through NASS after her release from immigration detention.

After GE had reached 18, she claimed that, if she had been correctly assessed and accommodated, the Council owed her leaving-care duties as a former relevant child. Mr Ockleton, sitting as a Deputy High Court judge, dismissed the claim without determining her age, holding that she had never been looked after by the Council.

The appeal raised whether the statutory status could arise from accommodation which the Council ought to have provided, and whether an age determination remained necessary because the Council might have to consider discretionary redress for a past breach.

1. Appeal allowed. The court set aside the dismissal of GE’s claim and remitted the matter to the Administrative Court for a determination of her age. If she was under 18 at the material time, directions would be required for any subsequent claim against the Council.

2. Christopher Clarke LJ, with whom Davis LJ agreed, held that a former relevant child must actually have been looked after by a local authority for the prescribed period before reaching 18. The language of sections 22, 23A and 23C of the Children Act 1989 did not include a person who ought to have been accommodated. Accommodation supplied by UKBA through NASS could not be attributed to the Council. The court rejected the contrary obiter proposition in Southwark London Borough Council v D [2007] EWCA Civ 182.

3. The majority held that whether an applicant is a child is an objective jurisdictional fact. The Council’s belief that GE was adult could not itself remove a section 20(1) duty if she was in fact a child in need requiring accommodation. Sir Bernard Rix agreed that an age determination was required, but preferred to leave unresolved whether a fair but ultimately mistaken age assessment automatically constituted breach of section 20(1).

4. A local authority may exercise, and in some circumstances may be required to exercise, a discretion to remedy injustice caused by a past unlawful failure to accommodate. There is no general duty to undo every past error fully. Relevant matters may include the lawfulness of the assessment, delay, blameworthiness, public interest, available remedies and the support now sought. Treating an applicant as if they were a former relevant child does not confer the statutory package of leaving-care entitlements.

• Court of Appeal (Civil Division) — allowed the appeal in [2014] EWCA Civ 1490, set aside the dismissal, and remitted the age issue to the Administrative Court.
• High Court of Justice, Queen’s Bench Division — Mr C M G Ockleton, sitting as a Deputy High Court judge, held that GE was not a former relevant child because she had not been looked after by the Council, and dismissed the claim without deciding her age.