FZ, R (on the application of) v London Borough of Croydon

THE DEPUTY JUDGE: This is a hearing to determine whether permission to apply for judicial review should be granted, and if so what directions ought to be given, pursuant to directions made by HHJ Steven Davies sitting as a judge of the High Court. HHJ Davies also made an order directing, pursuant to CPR 39.2, that the identity of the claimant should not be disclosed and that he should be known only as FZ.

The claimant is an unaccompanied young person from Iran. I do not give his age for reasons that will become apparent. He is currently housed by the defendant London Borough of Croydon. It is common ground that he has mental health difficulties. He claims that that was because of Post Traumatic Stress Disorder as a result of his experiences in Iran. It is also clear that he has, in the recent past, attempted to self harm.

He claims that the defendant has acted unlawfully in three ways. First, in not assessing his needs; second, in not securing for him adequate accommodation; and he makes a third claim to the effect that the determination of his age is wrong. The first two claims have been resolved between the parties for today's purposes and I will later address the appropriate order that needs to be made in respect of them. Therefore, I need only to note the history and then address the issue of whether he should have permission to bring his age claim further forward.

As to the claim for the provision of accommodation, it is apparent that the claimant has lived in his current accommodation since October 2009 and he has received substantial services as a child; he is provided with an allocated social worker and he has a Pathway Plan which was created in December 2009 and reviewed in July 2010. He is provided with 10 hours of key working sessions per week, provided by AG Social Care and Others, who provide weekly reports. As and when required, there is education, training and career planning.

As to the claim in respect of his age, the claimant claims to be 16 with a date of birth of 28 December 1993. The defendant contends that he is at least 18 years old, with a date of birth of at least 28 December 1991.

The brief background is that, on 4 September 2009, the defendant carried out an age assessment. The claimant disputed this and produced some documentary evidence in the form of a vaccination card. The defendant reassessed the age and contended that the first assessment was accurate. Further information was produced from Dr Kavanagh, and the defendant carried out a yet further assessment and came to the same conclusion. The issue of age is relevant as to when the services provided by the defendant are likely to be terminated, and it appears from the witness evidence it is obviously relevant to whether he gets a bus pass.

The Merton Assessment is so named because it follows guidance provided by Stanley Burton J in R(B) v Merton [2003] 4 AER 280 where a whole series of detailed provisions were set out. I will return to those later.

In R(A) v Croydon [2009] UKSC 8 it was noted that there was a right or wrong answer about a person's age, and that was a matter which could be determined. In R(F) v Lewisham [2009] EWHC 3542 Admin, Holman J noted that the proper approach to the question of grant of permission in such age cases, and therefore the proper question for me today, is whether there is a realistic prospect that at a substantive fact finding hearing the court will reach a conclusion that the claimant is of a younger age than that assessed by a local authority. The weight to be attached to various reports and information will obviously vary from case to case.

It seems to me plain that, in this case, there is no such prospect that at a substantive fact finding hearing the court will reach a relevant conclusion that the claimant is of a younger age than that assessed by a local authority. First, it seems to me that this was a proper Merton Assessment. Miss Luh has made a series of detailed and perfectly proper points about the assessment. She refers to 3.6 in the bundle before me about inconsistencies, the fact that it was said he did not shave and had some hair on his upper lip and side burns and that it appears he was not a regular shaver, and contrasted that with 3.15 where it was noted that:

Similarly, a contrast was made between what was recorded at 3.8 and in the notes at 3.15. It seems to me perfectly apparent that these are not the complete notes and if one looks further on in the bundle at 3.23 and 3.24, one can see relevant information which is set out there.

At 3.8 it was noted that there was an internal inconsistency about his level of confidence and his trembling. On the other hand, there seems to be consistent evidence about his ability to be assertive in certain circumstances.

The chronology on which Miss Luh relies, and really the high point of the claimant's case that his age is as he claims it to be, is the chronology that he gave about his attendance at schooling, which is recorded at 3.10 of the age assessment, and indeed is reported and set out in the helpful witness statement from the claimant's solicitors. What is said is that the social workers were wrong to disbelieve what he said about his schooling, and were wrong to say:

It was then said that there were procedural failings in relation to this age assessment. The first is that the provisional conclusion, that he was not of his assessed age, was not put to him with the reasons for it so that he could deal with it. It seems to me the answer to that proposition is at 3.33. This stated:

That, in fact, was actually put to the claimant at the time of the interview and it has "F understood the above" and the signature is given.

The second point is made that the claimant was interviewed without an appropriate adult and that he was a child at the relevant time. It seems to me that in the circumstances of this case I should assume for these purposes that he was, because there appears to be at least some confusion on the defendant's side about whether that was right. I should assume for these purposes, and do, that he was interviewed without an appropriate adult and that he should have had an appropriate adult. On the other hand, I am quite satisfied that in this case the failure was not such as to undermine the proper process. That is because it is perfectly apparent from the full notes, typed notes and hand written notes that the claimant had a good relationship and interaction with the Azeri interpreter, and indeed maintained appropriate contact with him throughout one of the points which was noted in the report, and indeed that he was noted to be assertive and perfectly capable of dealing with matters at times. Indeed, at 3.8 it is recorded:

In those circumstances, I entirely accept the propositions that Miss Luh made as to the desirability of having an appropriate adult, but it does seem to me that this is one of those cases where not every departure from good practice will result in a conclusion of unfairness.

I am fortified in that conclusion by the following points. When the original age assessment was challenged on the basis of a photocopy of a vaccination card that was provided, there was a further meeting with the claimant. He appeared to be in good health -- this is at 3.1 of the bundle -- gave consent for the meeting to take place, questions were put in relation to the vaccination card, half way through he became agitated and stated he did not want to talk about the issue any more. Despite several attempts at persuasion he refused to engage. Being aware of the mental health condition, the allocated worker did not want to cause any unnecessary distress to F. The assessors then went on -- and I should deal with the vaccination card because it is relied on as showing that there is a realistic prospect of showing a younger age The assessors opinion about the vaccination card was that it needed to be highlighted that it was based on a photocopy. The originals were still with the solicitors. Attempts were made to try and contact the vaccination card issuing authority with no success. The vaccination card had neither photograph nor signature. There was no issuing date or other identification mark linking F to this vaccination card. They were not satisfied with the explanations being offered.

Mr Hadden has gone further in his submissions today and said if you look through all that the claimant has said, he said that he had further documents in Iran and it is surprising that those are not available. It does not seem to me that that necessarily takes the matter very much further forward.

The second reason why it seems to me that the absence of the appropriate adult takes the matter no further forward is because of the information provided by Abanda Kihindo who is the allocated social worker for F. He says that the authority does not dispute the conclusions drawn by Dr Kavanagh about F's evidence in response to questions, did not dispute that F had mental health difficulties and noted that had support that was being provided. However, he did go on at page 3/3 to say this:

For all those reasons, it seems to me that the proper point taken about an appropriate adult cannot lead to any basis or realistic prospect that this age assessment would be quashed on procedural grounds alone. Indeed, having regard to all the information, it seems to me perfectly plain that there is no realistic prospect that the age assessment would come to a different conclusion.

I should just complete by recording this, the initial impressions in the Merton Assessment were this:

In all those circumstances, and notwithstanding the considerable skill Miss Luh has deployed in making the points that have been made on behalf of the claimant, I remain firmly of the view that there is no realistic prospect that a court will come to a different conclusion in relation to the claimant's age. To the extent that the point is put separately that there was such procedural unfairness that the matter ought to be set aside, I am satisfied that, for the reasons I have given, there was no such sufficient procedural unfairness.

Right. Miss Luh, thank you very much. You have obviously sorted out your first two points.

MISS LUH: Can I just make one correction on your Lordship's judgment. He does not have a Personal Adviser, that is one of the reasons we have compromised grounds 1 and 2 today, it is accepted by the local authority that he does not have a Personal Adviser and that it would be appointed. Therefore, although my learned friend does make that submission that he has a Personal Adviser in the summary grounds, he then corrects himself in the skeleton argument.

THE DEPUTY JUDGE: Right. Okay. That was not the relevant bit of the judgment, but yes.

MISS LUH: Just factual -- simply because it may still be a live issue in the future.

THE DEPUTY JUDGE: Sorry, I thought you had concluded the whole of that.

MR HADDEN: It might be preferable to simply replace it with "he has an allocated social worker".

THE DEPUTY JUDGE: That is fine.

MISS LUH: I am grateful for that. So the only remaining issues in relation to grounds 1 and 2 are that we have not sought to ask for permission today on the basis that the defendant has agreed to appoint a Personal Adviser, to allow the claimant to familiarise himself with the Personal Adviser because the whole role of it is to have the Personal Adviser be the advocate in effect, and upon that happening that Pathway Plan will be re-done, because it was not involving a Personal Adviser to start with.

THE DEPUTY JUDGE: No. Your point was that, effectively, it was compliance in form alone because there was no actual proper involvement.

MISS LUH: Yes. So that is going to be produced. Given the time scale and Christmas coming, I suspect we can sensibly -- I said 4 weeks for the assessment and Pathway Plan, but I think that will take us until after Christmas anyway, so we can sensibly agree a date after early January.

THE DEPUTY JUDGE: For what?

MISS LUH: For production of the Pathway Plan. Obviously this will be the first time he has actually, we say, had a proper Pathway Plan, the agreement between the parties is to seek the court's leave to amend the grounds, if so advised, obviously having considered the Pathway Plan, if there is any residual challenge to the Pathway Plan.

THE DEPUTY JUDGE: Right. You have worked out some detailed directions, have you?

MISS LUH: I am happy to draft them and agree with my learned friend and send them across.

THE DEPUTY JUDGE: I think that is the way forward.

MISS LUH: I am happy to do so, my Lord.

Now, in relation to costs, we say that there should not be --

THE DEPUTY JUDGE: It is a permission hearing anyway, and in any event there has been -- from what I can infer because you have both, perfectly properly, kept me slightly in the dark about the other matters -- mixed success on both sides is all I can say.

MISS LUH: Yes. So no order as to costs in relation to the permission on ground 3 but costs reserved on the remainder, because there may be still a live issue and because you have not had to deal at all with it.

THE DEPUTY JUDGE: No I have not. What do you say, Mr Hadden?

MR HADDEN: My Lord, my instructions are, if permission were refused on ground 3, to seek costs.

THE DEPUTY JUDGE: The points that were made by Miss Luh were properly made. I rejected them but it would be obviously completely wrong to suggest they were anything other than properly made.

MR HADDEN: Yes. Very well.

MISS LUH: So no order to costs.

THE DEPUTY JUDGE: No order as to costs on ground 3. Ground 1 and 2, costs reserved because --

MR HADDEN: And grounds 4 and 5 as well. There are five grounds.

THE DEPUTY JUDGE: Right. And 4 and 5.

MISS LUH: The remainder of the claim reserved.

THE DEPUTY JUDGE: Okay. Well, that is fine. Is there anything further that I need to do to help you or not?

MISS LUH: No, my Lord. I am happy to get the email address from the court clerk and email across the agreed order.

THE DEPUTY JUDGE: And if it is an agreed order you then do not need me to sign it, do you?

MISS LUH: I believe we still do, because it is --

THE DEPUTY JUDGE: In which case, I do not know whether you are going to manage to do it this afternoon -- the short answer is not in the real world.

MISS LUH: My Lord, I have also been asked to get an expedited transcript of your judgment. I would be grateful for that direction if I could include that in the order.

THE DEPUTY JUDGE: You will have to address me on how that works.

MISS LUH: It simply, if you make an indication which I then can include in the order that a copy of the transcript shall be made available on an expedited basis then it would hurry the transcript up.

THE DEPUTY JUDGE: Does that make any difference?

MISS LUH: I have been waiting for a transcript from early October that was not expedited so --

THE DEPUTY JUDGE: Well, I am told this will be with me in 10 days normally and 5 days expedited.

MISS LUH: It does not in reality happen in 10 days, I can say that for sure, although that may be the hope.

THE DEPUTY JUDGE: In which case, because obviously it will bump other things out of the queue, perhaps even your other transcript, why do you want it?

MISS LUH: Well, we want it in relation to consideration about the procedural fairness point, because it is relevant obviously to other permission hearings as well. That is simply why we want to consider it.

THE DEPUTY JUDGE: I am happy, I am not in any sense worried about that, it is just, is there any time limitation why you require it urgently rather than on --

MISS LUH: It seems that admin courts are very enthusiastic about listing permission hearings on age assessment, so it is just a matter of --

THE DEPUTY JUDGE: On applications for permission, such as this, the costs are not covered by the contract, so the only way that it will be produced on any basis is if your solicitors pay for it. You are happy to do that?

MISS LUH: We are happy to cover the costs of production of the judgment.

THE DEPUTY JUDGE: In which case, when you draft the order do you mind putting the undertaking just to record that.

MISS LUH: I am happy to do that.

THE DEPUTY JUDGE: Then on that basis of course I will expedite it.

MISS LUH: I am grateful, my Lord.

THE DEPUTY JUDGE: Thank you very much indeed for your assistance.