| SPOTLIGHT |
The High Court has rejected a challenge against a council’s decision not to undertake an education, health and care (EHC) needs assessment, after the local authority had expressed the view that the claimant was aged approximately 10 years older than his claimed age of 17.
In AOJ, R (On the Application Of) v London Borough of Islington [2024] EWHC 427, Jonathan Moffett KC, sitting as a Deputy High Court judge, concluded that the claim was academic, and dismissed the claim for judicial review.
Outlining the background to the case, the judge noted that the claimant is an Afghan national who arrived in the United Kingdom, and claimed asylum, in March 2022. The claimant said that he was born on 20 February 2006, and that at all material times he was aged under 18.
In October 2022, the council was asked to assess the claimant's age for the purpose of determining whether he was a child to whom the council may have been required to provide accommodation under s 20(1) of the Children Act 1989.
On 27 October 2022, the council carried out a brief assessment of the claimant's age and, in a letter of the same date, it set out its conclusion that the claimant was in his mid-twenties.
In January 2023, the council was asked to undertake an EHC needs assessment of the claimant.
For that purpose, the council was asked to undertake a comprehensive assessment of the claimant's age in order to decide whether he was a young person (over compulsory school age but under 25 years old) to whom the duty to undertake an EHC needs assessment applies.
In response, the council expressed the view that the claimant was aged approximately 10 years older than his claimed age (at that time approximately 27 years old) and, as a result, the duty to undertake an EHC needs assessment was not engaged.
The claimant advanced one ground of challenge, to the effect that the council “unlawfully failed to undertake a lawful inquiry to ascertain the claimant's age as a condition precedent to the discharge of its duties under Part 3 [of the 2014 Act]", said the judge.
He added: “The claimant argues that the council's decision of 5 April 2023 was unlawful because it had not, before reaching its decision, carried out a comprehensive assessment of the claimant's age.”
Permission to apply for judicial review was granted on 11 August 2023.
On 8 September 2023, the claimant moved to the area of Birmingham City Council and, apart from a period of four days in September 2023 when he briefly returned to London, he has not been resident or present in the council's area since then, the judge noted.
He said: “It appears that, since September 2023, if any local authority were to have any responsibilities to the claimant, it would be Birmingham. There is no suggestion, and there is certainly no evidence, that the claimant might have any intention of returning to the council's area in the future, or of seeking from the council any support or services in the future.”
The judge said “it appears that” on 22 October 2023, the claimant was granted refugee status by the Home Office.
Outlining submissions from the parties, the judge said counsel for the claimant made it clear that, in light of the fact that the claimant is now living in Birmingham's area, the only remedy sought was an order quashing the council's decision of 5 April 2023 (or a declaration that the decision was unlawful).
The judge noted that the claimant abandoned his claim for a mandatory order requiring the council to undertake a "Merton-compliant" age assessment.
Counsel for Islington, Hilton Harrop-Griffiths, submitted that the claim was academic, and that the court should not determine it.
The Deputy High Court judge said: “Mr Harrop-Griffiths points to the fact that the claimant has voluntarily left the council's area and has no intention of returning, and therefore there is no longer any question of the council undertaking an EHC needs assessment in respect of the claimant or, indeed, of providing any other services or support the provision of which might turn on the claimant's age.”
Considering the arguments, Jonathan Moffett KC said: “In one sense, there remains an issue between the parties in this case: the claimant says that the council's decision of 5 April 2023 was unlawful, whereas the council says that it was lawful. Further, the claimant continues to seek the quashing of that decision. However, the determination of that issue would not affect the respective positions of the parties in any practical sense, nor would it affect the rights and obligations of the parties.”
He added: “As a result, all that is left is [counsel for the claimant's]point about the claimant potentially being "on the back foot" in relation to Birmingham if the council's decision of 5 April 2023 were not quashed. I accept that, at least in principle, if the resolution of the claim would materially affect the claimant's position in relation to Birmingham, that could potentially constitute a reason why the claim is not academic.”
The judge said he did not consider that there remained a “live issue” between the parties that, if resolved, would affect their respective rights and obligations. He accepted the council’s argument that the claim was academic.
However, on behalf of the claimant, counsel argued that, even if the judge were to conclude that the claim was academic, they should nevertheless exercise their exceptional discretion to decide it, because the claim raises an issue of “general importance” that requires determination.
On this point, the Deputy High Court judge said: “I have significant doubts that the determination of this claim would result in the type of generally-applicable guidance that might be of assistance in other cases. In my view, this point weighs heavily against the exercise of my discretion.”
Dismissing the claim for judicial review, Jonathan Moffett KC said: “I consider that overall the balance clearly falls against exercising my discretion, and there is no good reason in the public interest to determine this claim.
“In this context, I particularly bear in mind the fact that the discretion is an exceptional one, the fact that I consider that it is unlikely that this claim raises an issue of general importance and the fact that, even if I were wrong about that, I consider that it is unlikely that the Court would be in a position satisfactorily to determine the issue of general importance that [counsel for the claimant] identified.”
Lottie Winson
