LYB, R (On the Application Of) v Kent County Council

At the permission stage of an age-assessment challenge, the court must ask whether the evidence, taken at its highest, could properly succeed at a contested factual hearing. If it could, permission should normally be granted, subject to discretionary considerations such as delay.

Age is an objective fact and, where disputed, is ultimately for the court to determine. The local authority must make the initial assessment, but judicial review may require the court to determine the issue itself. Where a properly arguable dispute exists, interim accommodation and support may be ordered. The balance of convenience must reflect the court’s heightened responsibility to evaluate the objective fact and the protective approach applicable to children.

LYB claimed to be 16 and asserted that Kent County Council had unlawfully assessed him as an adult and terminated his accommodation and support under the Children Act 1989. The claim challenged the assessment on conventional judicial review grounds and on the basis that the factual dispute about his age required determination by the court.

Permission had previously been refused on the papers by Murray J. The renewed application was heard with oral submissions. The issues were whether the evidence could properly succeed at a contested factual hearing and whether interim accommodation and support should be granted pending determination of the claim.

1. Permission granted. The court applied the approach in R (on the application of FZ) v Croydon London Borough Council [2011] EWCA Civ 59. The question was whether the material, taken at its highest, raised a factual case which could not properly succeed at a contested hearing. Unless that question was answered affirmatively, permission should normally be granted, subject to discretionary factors such as delay.
2. The court distinguished the permission question from the merits of the age assessment. Under R (on the application of A) v Croydon London BC, R (on the application of M) v Lambeth London BC [2009] UKSC 9, age is an objective fact and a jurisdictional fact for the purposes of the Children Act 1989. The local authority must determine age initially, but the court may determine the disputed fact in judicial review proceedings.
3. The court considered the Merton guidance in R (on the application of B) v Merton London Borough Council [2003] EWHC 1689 (Admin). The assessment probably complied with those conventional requirements. That conclusion did not dispose of the renewed application because the FZ threshold was met.
4. The evidence, taken at its highest, could support LYB’s case. Relevant matters included his repeated account of being told that his date of birth was 20 November 2004, supportive impressions from his foster carers and social worker, the possible effect of trauma on his recollection, his small physical frame, and the absence of stubble or a regular shaving habit.
5. Interim relief granted. Following R (BG) v Oxfordshire County Council [2014] EWHC 3187 (Admin), the balance of convenience favoured mandatory accommodation and support pending determination. The dispute concerned whether LYB belonged to the class of persons for whom Parliament required provision. The protective and precautionary approach, together with the court’s heightened responsibility to evaluate the objective fact of age, supported relief.
6. The parties were expected to agree the consequential order.

This was a renewed permission application. Murray J had refused permission on the papers by an order dated 20 January 2021. On oral argument, the Deputy High Court Judge granted permission and ordered interim relief.