Interim relief in age assessment cases – revisited

Joshua Swirsky discusses a case where Upper Tribunal Judge Smith once again had to consider the balance of convenience in an age assessment case when interim relief is sought.

It is important to stress that the case of R(YI) v LB Hackney was decided on its facts and each case will inevitably have to be considered separately in context.

Background to the judicial review

The applicant, YI, is from Sudan and claims to be 17 but said he was going to turn 18 in a few days.

The local authority’s brief age assessment had concluded that YI was substantially older, so was about to turn 23 on his assessed age.

He was living in a hotel and claimed to be distressed by both his living conditions and the ongoing age assessment litigation.

At the time of the hearing, he was not receiving any education or training, nor did he have a social worker. He had access to healthcare and had been proscribed sertraline; he was also on the waiting list for talking therapy.

‘Balance of convenience’ test

The judge’s approach was that regardless of the strengths or weakness of the case, about which the parties had different views, there was a serious triable issue as permission for judicial review had been granted.

The case then turned on the balance of convenience.

For the local authority:

An order for interim relief would prejudice the local authority by making an additional demand on its resources and diverting staff away from those who were undisputedly entitled to services.

For the applicant:

The judge took the view that as YI was only days away from being 18 she should look at the position as from his 18th. He would not receive leaving care support under s23C of the Children Act 1989 if interim relief was refused.

However, he had accommodation that was by definition suitable for adults and he was provided with food and had access to medical care.

In the absence of any specific factors that pointed to relief she took the view that interim relief should be refused.

If YI ultimately succeeded at trial, the local authority would have to exercise a discretion as to whether he should then be treated as a former relevant child, see R(GE(Eritrea)) v Secretary of State [2014] EWCA Civ 1490.

This went some way to mitigate any short-term prejudice to YI.

The judge was also influenced by the discretionary nature of many of the services that could be provided under the leaving care provisions.

Joshua Swirsky is a barrister at Field Court Chambers. He acted for the successful local authority.