AF, R (on the application of) v Milton Keynes Council

A local authority asked to provide children’s services to a person claiming to be under 18 must make the necessary inquiries and reach its own informed decision about age. It cannot simply adopt an unverified Home Office assessment. Ordinarily, the proper inquiry is a Merton-compliant age assessment.

A claim may retain practical value after the claimant turns 18, where a lawful assessment could affect eligibility for support, the authority’s discretion to provide services, or related proceedings. Where the authority has unlawfully failed to assess age, a mandatory order requiring a timely assessment is appropriate.

The claimant, a Syrian asylum seeker, claimed to have been 17 when he entered the United Kingdom and requested children’s services from Milton Keynes Council. The Council declined to conduct an age assessment, relying on a Home Office letter indicating that the Kent Intake Unit had assessed him as over 18. Neither party had the underlying assessment.

The claimant sought judicial review, alleging breach of the Tameside duty and Wednesbury unreasonableness. By the hearing he was, on his own case, over 18. The central issues were whether the Council’s failure to assess his age was unlawful, whether the claim had become academic, and what relief was appropriate.

1. Substance. The Council owed a public law duty to make the necessary inquiries and reach an informed decision about AF’s age. Under the [1977] AC 1014 principles, it had to ask the right question and take reasonable steps to obtain relevant information. The duty required an independent decision and could not be discharged by simply adopting the Home Office’s position. A Merton-compliant age assessment was required: [2003] EWHC 1689 (Admin); [2020] EWHC 109 (Admin).
2. The Home Office letter was not an adequate basis for an informed decision. The underlying assessment was unavailable, and the kind of assessment apparently conducted by the Kent Intake Unit had been held unlawful in [2022] EWHC 98 (Admin). The Council’s failure to make its own inquiries was therefore unlawful.
3. Academic issue. The claim remained practically valuable although AF was over 18. A new assessment could inform whether the Council should exercise its discretion to provide services under section 23 C of the Children Act 1989, and could have wider consequences for his treatment in his asylum claim. The claim was therefore not academic, so the public-interest exception in [1999] 1 AC 450 did not arise.
4. Relief. The appropriate order was a mandatory order requiring a timely Merton-compliant assessment, or acceptance of AF’s stated age. If the assessment confirmed that age, the Council was also required to take a decision within good time on whether to exercise its discretion to provide services under section 23 C. Any such decision before the assessment would be premature.