THE QUEEN, on the application of SB v ROYAL BOROUGH OF KENSINGTON & CHELSEA

A local authority may use an abbreviated age-assessment process where suitably qualified staff consider a claimant very likely to be over 18. Once an interview is undertaken, however, the interview must be fair. The assessment normally requires appropriate safeguards, including an interpreter where necessary, the offer of an appropriate adult, and a fair opportunity to respond to significant adverse matters before they are treated as undermining credibility. The safeguards are assessed cumulatively and flexibly, rather than by a rigid checklist. A combination of communication difficulties, absence of an appropriate adult and inadequate opportunity to explain apparent inconsistencies may render the assessment unlawful.

The claimant, a South Sudanese asylum seeker claiming to be aged 17, challenged the defendant local authority’s 11 June 2021 determination that he was an adult. The assessment was conducted by two experienced social workers. They considered his appearance and demeanour, conducted an interview without an interpreter or appropriate adult, and relied on alleged inconsistencies in his account without giving him a proper opportunity to explain them.

The defendant argued that the claim concerned only a refusal to reassess the claimant, attracting the conventional judicial review standard. The court held that the claim directly challenged the June determination and considered whether the assessment process was fair.

1. Nature of the claim. The claim directly challenged the June determination, as stated in the claim documents and understood from the defendant’s response. Permission was granted, if necessary, to pursue that ground. The court therefore assessed the fairness of the original process rather than applying a Wednesbury test to a later refusal to reassess.
2. Applicable approach. The Merton principles, as developed in later authorities, permit flexibility and do not require every age assessment to follow an identical formal procedure. A shortened process may be permissible where suitably qualified local-authority staff regard a young person as very likely to be older than 18. Once the authority decides to conduct an interview, the interview must nevertheless be fair.
3. Safeguards. The absence of an interpreter was a significant shortcoming, although it would not necessarily have been decisive alone. An appropriate adult is not merely an observer and may assist communication, clarify questions and help prevent misunderstandings. The claimant should also have been given a fair opportunity, while adverse conclusions remained provisional, to explain the matters relied upon against him. A formal list of adverse points was unnecessary, but the significant alleged inconsistencies should have been carefully and slowly put to him.
4. Cumulative assessment. The lack of an interpreter, the failure even to offer an appropriate adult, and the defective minded-to process cumulatively made the interview clearly unfair. The court did not determine the claimant’s actual age, since the outcome might have differed after a fair process.
5. Disposition. The application was allowed and the defendant’s decision was quashed. The local authority where the claimant then resided was expected to conduct a fair assessment; no further order was considered necessary.
6. Postscript. The defendant’s attempt, after circulation of the draft judgment, to persuade the court to reverse its decision was improper in light of the limited purpose for which the draft had been circulated.

Not an appeal. The judgment records that permission had previously been granted to challenge the defendant’s refusal to conduct a full age assessment, while permission to challenge Southampton City Council’s decision was refused.