S, R (on the application of) v London Borough of Croydon & Anor

A local authority assessing the age of an apparently unaccompanied asylum-seeker must comply with applicable statutory guidance and treat the person as a child until a full age assessment establishes that he is an adult, unless there are cogent reasons to depart from the guidance. The duty to act under guidance extends to ancillary functions, including identifying whether a person may be a child and making arrangements during an unresolved assessment. A previous Home Office view that the person is an adult is not, without more, a cogent reason for departure where the local authority has itself agreed to assess age. Accommodation for adult asylum-seekers is unsuitable for a child unless specific measures make it suitable.

The claimant, an unaccompanied Iraqi asylum-seeker, said that he was aged 15. The Home Office accommodated him in adult asylum-seeker accommodation at Brigstock House, while the defendant local authority agreed to carry out an age assessment but refused accommodation and support pending its completion. The claimant sought judicial review, relying on duties under the Children Act 1989, the Children Act 2004, the Localism Act 2011, and statutory guidance. The central issues were whether the local authority had to treat him as a child pending assessment, whether the guidance applied to its interim arrangements, and whether Brigstock House was suitable accommodation.

1. Claim allowed. It was unlawful for the defendant not to observe the Statutory Guidance and not to treat the claimant as a child pending determination of his age assessment.
2. Section 17 of the Children Act 1989 required the defendant to take reasonable steps to assess the needs of a child in need within its area. The claimant had not been assessed, although it was accepted that he would be in need if he were a child. The reasoning in R. (G) v Barnet London Borough Council [2004] 2 A.C. 208 was applied.
3. Section 20(1) imposed a duty to provide accommodation where the claimant was a child in need who appeared to require accommodation. Existing accommodation did not necessarily discharge that duty. Brigstock House was designed for adults and was unsuitable for children, although carefully scrutinised special arrangements might in principle make otherwise unsuitable accommodation appropriate.
4. The final sentence of the definition of child in the Statutory Guidance was substantive and required a person whose age was in doubt to be treated as a child until a full age assessment showed that he was an adult. Although that drafting technique was unusual, it was the correct construction.
5. The guidance had been issued under section 7 of the Local Authority Social Services Act 1970. The obligation to act under it extended beyond the eventual provision of services to ancillary functions, including determining which individuals were children and dealing with individuals whose age remained unresolved. The defendant therefore needed cogent reasons to depart from it, applying London Borough of Tower Hamlets v The Queen on the application of X [2013] EWCA Civ 904.
6. The defendant’s reliance on the Home Office’s initial assessment, general safeguarding concerns, and a single welfare-check telephone call did not provide good reasons for departure. By agreeing to undertake an assessment, the defendant had disagreed with the Home Office conclusion that the claimant was definitely an adult. The status of the non-statutory ADCS Guidance did not need to be decided, although it was relevant to whether departure from the Statutory Guidance was justified.