Guidance documents for abbreviated age assessments

The High Court recently found a city council’s guidance for abbreviated age assessments to be unlawful. Philip Rule explains why.

In RM v Manchester City Council CO/1844/2020, on 3 and 4 December 2020, the Administrative Court considered a guidance document used by this local authority, and apparently also by other local authorities given that the guidance form is non-specific as to insertion of the name of the particular authority.

The guidance addressed a short-form inquiry to determine whether to proceed with a full Merton-compliant age assessment in the case of an unaccompanied asylum seeker whose age is unknown.

The two-page pro forma decision is entitled ‘Guidance on Making a Provisional Decision on Age’. This records a series of questions (typed pro forma) with answers entered in the manuscript at the initial meeting. A choice is offered to the social workers to answer the question: “Do you consider this person to be under the age of 18?”. The selection is “No/Yes/Not sure”.

Notably, the question asked did not reflect any appreciation of the potential the impression of physical appearance and demeanour formed by the interviewer may be erroneous. Nothing in the guidance reflects the risk the person is under 18 despite that initial impression; no attempt to reflect the potential for error, only a subjective peremptory view is to be recorded: considered subjectively to be under 18 or not. The indecisive also have the option of not sure, but this pro forma fails to properly reflect the known margin of error to age assessment conducted in such an abbreviated and incomplete manner. The objective attempt to correctly and accurately identify age is not reflected by the process this guidance reflected.

Under ‘Next Steps’, the form provided “If yes or unsure – full assessment required, request release of the young person/possible adult into the care of Your Local Authority Name” with original emphasis. If the answer was ‘No’ then there would be no Merton-compliant assessment and an ‘over-18’ letter issued.

HHJ Sephton QC, sitting as a Judge of the High Court, declared the guidance to be unlawful.

The complaint was advanced that the guidance in use by this local authority gives rise to the unacceptable danger of failing to acknowledge the margin of error in age assessments. Vulnerable minors are prejudiced by the application of the flawed guidance which does not protect them from the unfairness of avoiding a Merton-compliant full age assessment where the potential for a margin of error must be appreciated.

Robin Knowles J had earlier ordered that Manchester must explain why it has declined to undertake a full age assessment, and whether the course it has taken in this case reflects a policy that it is applying in a number of cases.

Mostyn J, granting permission, had noted that a case of this nature would normally be transferred to the Upper Tribunal for the factual issue to be determined there, but observed that there were conventional judicial review challenges appropriate to be heard in the Administrative Court in Manchester.

In the specific case before it the Court did not quash the brief age assessment because it accepted the additional evidence later provided by the three employees of Manchester, Mses Crook, Lawless and Moody, that despite not having recorded it at the time, the opinion of age had actually been formed that would have allowed a margin for error and benefit of the doubt within it. That was a fact-specific point and is unlikely to recur if a similar form were used in future. The courts are often astute to reject ex post facto reasoning advanced in defence of proceedings. In any event, such defective written guidance can no longer be relied upon following this judgment.

The age of RM will now be a matter for the Upper Tribunal to determine for itself at a fact-finding hearing.

Philip Rule is a barrister at No5. He was instructed by Stuart Luke of Instalaw Solicitors. The Claimant is assisted by his litigation friend Francesco Jeff of the Refugee Council. The same team represented the successful claimant in the guideline case earlier this year of R (AB) v Kent County Council [2020] P.T.S.R. 746; [2020] EWHC 109 (Admin).