AOJ, R (on the application of) v London Borough of Islington

A judicial review claim becomes academic where determining it would not affect the parties’ rights or obligations and would confer, at most, a negligible practical advantage in dealings with another public authority. The Administrative Court has an exceptional discretion to determine an academic public-law claim, but that discretion must be exercised cautiously. A good reason will generally require a discrete legal issue of general importance, with numerous existing or anticipated cases and an evidential basis enabling the issue to be resolved satisfactorily. Context-specific duties, including the duty to make reasonable inquiries and the duty of procedural fairness, are unlikely by themselves to justify determination of an academic claim where the facts and decision-making process are unclear.

The claimant, an Afghan national asserting that he was under 18, challenged the London Borough of Islington’s decision of 5 April 2023. The Council declined to undertake an education, health and care needs assessment under section 36 of the Children and Families Act 2014, relying on an earlier age assessment which had concluded that he was at least 28.

The claimant argued that the Council had unlawfully failed to conduct a comprehensive age assessment before deciding that he was not a young person for the purposes of Part 3 of the 2014 Act. After proceedings began, he moved to Birmingham, had no intention of returning to Islington, and sought only a quashing order. The central issues were whether the claim remained live and, if academic, whether the Court should nevertheless determine it.

1. The claim was academic. The claimant no longer sought services or support from Islington, and Birmingham would not be bound by Islington’s decisions. Quashing the decision would have no material practical effect on the claimant’s position. At most, it might provide a negligible advantage in a possible future interaction with Birmingham.
2. Whether a claim is academic depends on the circumstances. The authorities indicate that a claim is generally academic where its outcome does not directly affect the parties’ rights and obligations. The Court adopted the approach in R (SB) v Royal Borough of Kensington and Chelsea [2023] EWCA Civ 924 and R (L) v Devon County Council [2021] EWCA Civ 358.
3. The Court had an exceptional discretion to determine an academic public-law claim. That discretion had to be exercised cautiously and required a good reason. A discrete statutory point of general importance, arising in numerous existing or anticipated cases and capable of satisfactory determination on the evidence, might provide such a reason. The principle derived from R v Secretary of State for the Home Department, ex p Salem [1999] 1 AC 450.
4. No such reason existed. The proposed issue concerning the transfer of age-assessment principles from the Children Act 1989 to the 2014 Act was fact-sensitive, had apparently arisen rarely, and was unsupported by evidence concerning assessment of whether a person was under or over 25. The Court risked giving guidance that later evidence might show to be wrong.
5. Although the hearing had consumed public resources and permission had been granted, those considerations did not outweigh the absence of a live dispute, the exceptional nature of the discretion, and the evidential and general-importance difficulties.

The claim for judicial review was dismissed.