AXA, R (On the Application Of) v London Borough of Hackney

In an application for mandatory interim relief in a public-law claim, the court may take account of the mandatory character of the order sought and the strength of the underlying claim when assessing the balance of convenience. There is no inflexible rule that a claimant must establish a strong prima facie case, although that may be an important factor. Age assessment is an evaluative process, not an exact science. A careful, Merton-compliant assessment by suitably qualified social workers may outweigh less precise opinions from those who have encountered the claimant. Where no serious issue is shown, interim relief must be refused; in any event, the balance of convenience may independently justify refusal.

AXA, who claimed to be aged 17, sought a mandatory interim injunction requiring the London Borough of Hackney to provide age-appropriate accommodation and support. Hackney had assessed him, following interviews by experienced social workers with an interpreter and independent advocate, as aged between 21 and 25 and had recommended recording his date of birth as 4 April 2000.

The claimant challenged the assessment on factual, evidential and procedural grounds. The court considered the proper approach to interim relief, the weight of evidence concerning age, and whether the assessment disclosed a serious issue to be tried.

1. Interim relief. The court accepted that the underlying test was that in American Cyanamid v Ethicon Ltd [1975] AC 396, but held that its application in a public-law case may require contextual modification. The mandatory nature of the relief and the strength of the claim, so far as they could be judged, were relevant to the balance of convenience.
2. There was no hard and fast rule requiring a strong prima facie case in every application for a mandatory injunction. The approach in AS v Liverpool City Council [2020] EWHC 3531 was accepted: context was decisive, and the strength of the claim could properly be considered alongside the balance of convenience.
3. Age assessment. The principles in R(B) v London Borough of Merton [2003] 4 All ER 280 and R (FZ) v London Borough Council [2011] EWCA Civ 59 supported assessment by suitably trained social workers, with an interpreter where necessary. The objective and jurisdictional question of age is ultimately for the court to determine on the balance of probabilities, without a burden of proof, as explained in R(A) v London Borough of Croydon [2009] UKSC 8.
4. The assessment was careful, detailed and conscientious. It considered the claimant’s appearance, family and social history, education, health, journey, inconsistencies, possible trauma, memory and demeanour. The opinions of the tutor and accommodation manager had to be considered, but were imprecise and did not approach establishing a serious issue in light of the social-work analysis.
5. The procedural-fairness challenge failed because the claimant had an interpreter and independent advocate and was told at the outset of the first two interviews why the assessment was being conducted. The suggestion that the conclusion was unexplained was also rejected: age assessment was not a science capable of precise explanation, and the report as a whole explained the conclusion.
6. The application was refused. There was no serious issue to be tried. Even if there had been one, the balance of convenience would not favour relief, including because the order might place an adult male in accommodation with children and would require a hard-pressed local authority to expend resources on accommodation it considered inappropriate.