High Court orders local authority to conduct re-assessment of age and considers “significantly different conclusion” test in ADCS Guidance for the first time

The High Court this week ordered Hackney to conduct a re-assessment of age after criticising its flawed and irrational approach to fresh evidence that went to the heart of the claimant’s credibility. The court agreed that Hackney’s previous assessment was procedurally unfair and non-Merton compliant. Combined with the claimant’s potential claim to being a Former Relevant Child entitled to care-leaver support, this persuaded the court that a mandatory direction for a full re-assessment was necessary.

BM v London Borough of Hackney [2016] EWHC 3338 (Admin)

The claimant was represented by Maria Moodie of Garden Court’s Administrative and Public Law Team.

The claimant is a victim of human trafficking for the purposes of domestic servitude who was brought to the UK by her Aunt and later abandoned. In 2013, the London Borough of Hackney conducted an unlawful and unfair age assessment during which the claimant was deprived of an appropriate adult and of the opportunity to respond to adverse findings at a provisional stage.

In 2015, the claimant presented Hackney with a considerable body of new evidence including expert trafficking, medical and country of origin reports and requested a re-assessment of her age. Hackney failed to properly engage with this evidence, refused to disturb the findings of its previous unlawful assessment and relied on a policy of not assessing the age of adults.

Although never disclosed and not relied upon at the substantive hearing, the Court made clear findings that the operation of any such blanket policy precluding the assessment of age of those who have since become adults where legal rights or credibility remained at stake would be unlawful [at 37, 39, 86-87].

For the first time, the High Court considered the threshold of “significantly different conclusion” proposed in the ADCS Guidance (pg 31) to trigger a re-assessment of age. Importantly, the Court agreed with the Claimant’s submissions that;

• There is no time restriction in the Guidance on when a re-assessment of age is no longer appropriate [at 46]
• There is no restriction in the Guidance pertaining to the type of evidence that may trigger a re-assessment of age [at 46]
• Evidence obtained primarily in relation to an individual’s asylum claim, for example country of origin or trafficking evidence, that does not directly assist with determining age but nonetheless corroborates the individual’s account and credibility is materially relevant evidence in assessing age [at 53, 61, 62, 65, 69-72]
• Flaws or procedural unfairness identified in any previous age assessment are a relevant consideration when presented with a request to re-assess age.
• There is no burden on Claimants to identify a specific detriment arising from procedural failings in a previous age assessment and any such breaches should not be considered lightly [82-84].
• Instead, there is a heavy onus on public bodies to show that judicial review should be refused because the decision ‘inevitably’ would have been the same had the procedural breaches not been committed [at 85]

In response to Hackney’s suggestion that if the refusal to re-assess were quashed and remitted for reconsideration, it would be highly likely that the same decision would be reached, the judge issued a stark warning that the “Court would naturally expect a responsible local authority whose decision had been quashed as unlawful to approach the reconsideration of the issue of whether to carry out a reassessment of age and the evidence with an open mind and to take full account of the matters set out in the Court’s judgment when considering the issues before it for the second time” [at 94].

Maria Moodie is a member of the Public Law, Housing and Community Care Teams. She was instructed by Warwick Norris at GT Stewart Solicitors.

For more information, the full judgment is available: BM v London Borough of Hackney [2016] EWHC 3338 (Admin)