MB, R (on the application of) v Liverpool City Council

Permission to amend a judicial review claim should be refused where the proposed case introduces materially wider issues, is made late, is insufficiently supported by the evidence, and cannot be accommodated fairly without substantial further directions.

In an age-assessment challenge, the absence of an appropriate adult is not automatically unfair. The question is whether the interview was conducted fairly, with reasonable investigation and a proper opportunity to contribute and respond to adverse matters.

A local authority need not reassess age merely because later observations differ from its assessment. Reassessment is required only where the new material gives reason to believe that a significantly different conclusion might be reached. A decision not to reassess is irrational only if that threshold is met and the refusal cannot reasonably be justified.

The claimant, an alleged unaccompanied minor, sought judicial review of Liverpool City Council’s refusal in November 2023 to reassess his age after receiving a letter from a social worker who considered his demeanour and behaviour consistent with a child.

The claimant first applied to amend his grounds to challenge the original age assessment and to rely on Article 8 of the European Convention on Human Rights and authorities concerning safeguards for minors. The amendment application was heard with the substantive claim. The court refused permission to amend because the proposed case was late, wider than the existing claim, inadequately framed and incapable of fair determination without further directions and possible joinder of the United Kingdom.

The remaining issue was whether the Council acted irrationally by declining to conduct a fresh age assessment.

1. Amendment refused. The court had jurisdiction under the relevant provisions of the Civil Procedure Rules, including Rule 17 or, alternatively, the general case-management jurisdiction in Rule 3.1(2). The principles included the need for a real prospect of success, promptness, compliance with the three-month period and regard to the overriding objective. The proposed amendments raised wider issues, were made on the eve of the substantive hearing, were unsupported by a draft when first lodged, and could not fairly be accommodated without further adjournment, evidence and possible joinder. Permission to amend was therefore dismissed.
2. Fairness of the original assessment. Age assessments based principally on appearance and demeanour require caution and should be undertaken only in clear cases, with the benefit of the doubt where appropriate. The requirements associated with Merton were helpful indicia of a fair process, rather than independent rules that had to be applied mechanically. The absence of an appropriate adult did not itself invalidate the interview. The governing question was whether the process permitted the claimant properly to contribute and respond to matters affecting credibility. On the evidence, two experienced specialist social workers investigated the relevant circumstances and gave the claimant an opportunity to address their concerns. The assessment was not shown to be unfair.
3. Reassessment threshold. The court applied the approach described in BM: the issue was not merely whether the new material might bear on the assessment, but whether a significantly different conclusion might be reached. The Council was entitled to consider the new letter in the context of its original assessment. The letter recorded Ms Schwenger’s personal impressions of behaviour and demeanour, but supplied no independent documentary or other corroboration. It did not provide a sufficient reason to believe that reassessment might produce a significantly different conclusion.
4. The refusal to reassess was therefore rational and lawful. The judicial review claim was dismissed.