AS, R (On the Application Of) v Liverpool City Council

There is no hard and fast rule requiring a claimant seeking interim relief in a public-law claim to establish a strong prima facie case. The strength of the claim, the mandatory character of the relief and the wider public interest are factors in the balance of convenience. This approach applies even where the court must ultimately determine a factual issue for itself, such as the claimant’s age. In age-assessment cases, the court must scrutinise the decision particularly carefully, follow the Merton guidelines and apply the benefit of the doubt principle. Interim relief may preserve support pending determination of permission, although it must not place the claimant in a better position than continued acceptance of the claimed age would have done.

The claimant, a Sierra Leonean asylum-seeker in the care of Liverpool City Council, challenged an age assessment which concluded that he was aged 20 or over. He sought interim relief requiring the council to continue accommodating and supporting him as a child in its care.

Stacey J had refused interim relief on the papers. The claimant renewed the application orally. The issues were whether a strong prima facie case was required, whether the mandatory nature of the relief affected the test, and where the balance of convenience lay, particularly because the claimant would shortly turn 18.

1. Interim relief granted. The order was to continue until permission was determined or further order.
2. There was no hard and fast rule that the claimant had to show a strong prima facie case. The strength of the claim, so far as it could be judged at that stage, was relevant to the balance of convenience. The fact that the relief might be characterised as mandatory was also a factor, but did not impose a separate threshold.
3. The claimant had at least a triable issue concerning whether he was a child when assessed. The question in the substantive judicial review would be the claimant’s actual age, rather than merely whether the council had made a conventional error of law, applying R (A) v London Borough of Croydon and [2009] 1 WLR 2557.
4. The court was not deciding permission, but the approach to permission in age-assessment cases supported the conclusion that the claim raised a triable issue: permission should be granted unless the claim, taken at its highest, could not properly succeed at a contested factual hearing. The court also considered the claimant’s appearance, demeanour, alleged early sexual intercourse, previous assessments, interview criticisms and additional birth-certificate evidence. Those matters did not eliminate a triable issue.
5. The court’s role in reviewing the age assessment was akin to that of the local authority. It should follow the Merton guidelines, apply the benefit of the doubt principle and give the decision particularly close scrutiny, as explained in R (MVN) v London Borough of Greenwich and [2015] EWHC 1942 (Admin).
6. The balance of convenience favoured relief. The claimant would not be destitute because Home Office support might be available, but that support was materially less than the duties owed by the council. From 1 January 2021, he was entitled only to the duties owed to a former relevant child under Children Act 1989 s 23C, and not to the full duties owed to a child in care.

First-instance judicial review proceedings. Stacey J refused interim relief on the papers. The claimant renewed the application before Mr Justice Nicol, who granted interim relief.