HBTN, R (on the application of) v Sunderland City Council & Ors

Academic judicial review claims should generally be refused unless there is a good reason in the public interest to determine them. Relevant considerations include whether the issue has general application, is important to others, and is unlikely to be determined efficiently in other proceedings.

The Administrative Court is not ordinarily the appropriate forum for resolving contested factual disputes requiring oral evidence. Challenges to age assessments are brought by judicial review, but factual age disputes will usually be transferred to the Upper Tribunal.

Where a person has probably been assessed as an adult by one local authority, another authority need not ordinarily conduct a further assessment. Before the position is clarified, however, local authorities should collaborate promptly to identify which authority will act and safeguard the putative child.

The claimant, a Vietnamese national claiming to be aged 16, sought judicial review against Sunderland City Council and Stockton Council. Sunderland had assessed a vulnerable Vietnamese person, identified as “P”, as an adult. The Home Office treated the claimant as that person, while Sunderland initially denied that it had assessed her and refused to disclose the assessment.

The claimant challenged Sunderland’s refusal to disclose the assessment and argued that Stockton should provide support or conduct its own assessment. The assessment was later disclosed, and the claimant accepted that it was overwhelmingly likely to relate to her. The issues were whether the claims had become academic, whether the Administrative Court should determine the claimant’s identity, and what duties Stockton owed.

1. The claim was dismissed. The challenges against both defendants had become academic after disclosure of the age assessment. The claimant accepted that no effective disclosure remedy remained. Applying R v Secretary of State for the Home Department ex p Salem [1999] 1 AC 450, an academic public-law claim should be heard only where there is good reason in the public interest. The issue should generally have general application, importance beyond the parties, and a real prospect that it would not otherwise be determined as efficiently or expeditiously.
2. The court declined to determine whether the claimant and P were the same person. That issue depended substantially on the credibility of an unsigned statement and contested evidence. Judicial review is not ordinarily suited to fact-finding requiring oral evidence and cross-examination. Following R (FZ) v London Borough of Croydon [2011] EWCA Civ 59, an age challenge should ordinarily be transferred to the Upper Tribunal after permission, where factual disputes and live evidence can be addressed.
3. Whether a person is a child is a question of fact for the court: R (A) v London Borough of Croydon [2009] UKSC 8; [2009] 1 WLR 2557. If the claimant challenged Sunderland’s assessment, the court considering permission could decide whether she had a realistic prospect of proving both that Sunderland had assessed her and that she was a child, applying the approach in R (F) v London Borough of Lewisham [2009] EWHC 3542 (Admin).
4. Once it was overwhelmingly likely that Sunderland had assessed the claimant as an adult, Stockton did not owe her a further duty under the Children Act 1989 to conduct another assessment or provide support as a child. Repeated assessments could encourage local-authority shopping.
5. The court nevertheless observed that, before disclosure, Sunderland and Stockton should have collaborated promptly to resolve responsibility. Section 27 of the Children Act 1989 imposed duties of co-operation, and the relevant guidance contemplated confidential disclosure or agreement about which authority would conduct a fresh assessment. The court did not decide whether the earlier failure was unlawful.