HP, R (on the application of) v The Mayor and Burgesses of the Royal Borough of Greenwich

A flawed age or needs assessment that deprives a young person of past child-in-need entitlements and current former relevant child status creates unlawfulness and injustice, but does not trigger a general duty to treat the person as if they had that status. The local authority has a remedial discretionary power, triggered by request, to decide whether and to what extent to provide support. It must consider all the circumstances, including fault, delay, interim relief, requested services, continuity, flexibility and what is now at stake. It must take reasonable steps to consider information now known about present needs. No equivalent statutory needs assessment is automatically required. In exceptional cases, aggravated injustice or overwhelming needs may make favourable exercise the sole justifiable outcome.

The claimant, who arrived in the United Kingdom from Afghanistan in September 2019, was assessed by the Council as an adult and therefore not as a child in need. An Upper Tribunal age determination in August 2021 later found that he had been 17 years and eight months old when assessed. He consequently lost the opportunity to become a looked after child and, on reaching 18, a former relevant child.

The claimant asked the Council to exercise its discretionary power to provide support equivalent to that available to a former relevant child. The Council refused. The judicial review concerned whether favourable exercise was the sole justifiable outcome, whether an equivalent needs assessment was required, whether the decision-maker considered needs emerging from the Upper Tribunal process, and whether the reasons communicated by the Council’s lawyer were properly the decision-maker’s reasons.

1. Disposition. The claim succeeded on the Now-Known Needs issue. The refusal to exercise the discretionary power was quashed and the matter was to be reconsidered by a duly authorised decision-maker. The Defendant was ordered to pay the claimant’s costs on the standard basis. A contingent anonymity order was maintained, with liberty to apply.
2. Statutory and public-law framework. The Children Act 1989 distinguishes the child and in-need components of the statutory scheme. Age assessment is reviewed for objective correctness, on a substitutionary basis. Needs assessment and the impugned refusal are reviewed for reasonableness, on a non-substitutionary basis. The historic statutory conditions for former relevant child status cannot be deemed to have occurred, and there is no general rule requiring a person to be treated as if they had that status. The approach was derived principally from R (GE (Eritrea)) v Secretary of State for the Home Department [2014] EWCA Civ 1490.
3. Discretionary power. A relevantly flawed assessment causing loss of past child-in-need entitlements and present former relevant child status amounts to unlawfulness and injustice. The power is remedial and flexible. The authority must consider all the circumstances, including the seriousness and aggravation of the injustice, fault or blameworthiness, delay and interim relief, the services sought, continuity with childhood services, present needs and the possibility of providing some rather than all services. In an exceptional case, aggravated injustice or exceptionally powerful needs may make favourable exercise the sole justifiable outcome.
4. Now-known needs. The common-law duties of reasonable enquiry and attention to relevant considerations require reasonable steps to take account of what is now known to the authority about the affected person’s needs. That does not impose a general precondition of conducting an equivalent statutory needs assessment. The authority has latitude as to the nature and scope of the enquiry. In this case, the Upper Tribunal judgment was a sufficient source from which the claimant’s present needs could have been identified.
5. Reasons and application. The decision-maker’s reasons had to be the decision-maker’s own reasons. A lawyer could assist with drafting and add context, but could not present additional reasoning as the decision-maker’s without evidence that it had been adopted. The evidence showed that the decision-maker reviewed only the old social services file and had not taken account of the fuller, later picture of needs. The Court could not conclude that the decision would inevitably, or highly likely, have been the same. The refusal was therefore materially unlawful and was quashed for fresh consideration.

This was a first-instance judicial review. The claim challenged the Council’s refusal dated 18 August 2021, following an Upper Tribunal age determination dated 5 August 2021. Permission was granted by Eyre J on 28 June 2022.