HP, R (on the application of) v The Mayor and Burgesses of the Royal Borough of Greenwich

The Local Authority Age Assessment. The first key decision was made on 11 September 2019 by Social Workers Cat Williams and Amie-Louise Clement for the Defendant (“the Council”). By that decision, the Council Age-Assessed the Claimant as being – in September 2019 – “20 years of age” with an estimated date of birth of “1999”. On the basis that he was not a “child”, it was concluded that the Claimant was not a “child in need”. The Local Authority Age Assessment completed a Social Services file of documents generated over the three days 9-11 September 2019 (“the Social Services File”).

The Tribunal Age Determination. The second key decision was made on 5 August 2021 by Upper Tribunal Judge Smith (“the Judge”), after an oral hearing on 29 June 2021 and 1 July 2021. The Tribunal Age Determination was the outcome of a claim for judicial review, by which the Claimant challenged the Local Authority Age Assessment on objective-correctness grounds (see §3ii below) with fresh and updating evidence (§§4-6 below). By the Tribunal Age Determination, the Judge Age-Assessed the Claimant as being – in August 2021 – “19 years old” with the date of birth assigned as “1 January 2002”. The Tribunal Age Determination is binding as to the Claimant’s legally correct age and date of birth. It is found within a 47-page and 210-paragraph ruling (“the Judgment”). Anonymity protection was granted and remains in force.

The Impugned Refusal. The third key decision was communicated by email on 18 August 2021 (“the Decision Email”: §36 below) sent by the Council’s Head of Legal Services (“HLS”) Azuka Onuorah to the Claimant’s solicitors, refusing the solicitors’ request by email on 2 August 2021 (“the Email Request”) that the Council exercise the Discretionary Power favourably in the Claimant’s case. The Impugned Refusal is the target for this claim for judicial review, commenced on 17 November 2021, for which Eyre J granted permission on 28 June 2022. The decision-maker was social worker manager (“SWM”) Carol Bilham. On 12 January 2022 the Council disclosed the contemporaneous telephone attendance note dated 17 August 2021 (“the Contemporaneous Note”: §35) recording SWM Bilham’s decision as communicated to HLS Onuorah.

The Reasonableness Standard. This involves asking whether the outcome was reasonable. This conventional standard of review is non-substitutionary. The decision is not being retaken afresh by the Court or Tribunal. Review on the Reasonableness Standard is conventionally confined to the material which was available to the decision-maker; not fresh and updating evidence. The Reasonableness Standard applies to a judicial review of the outcome of a Needs Assessment: a local authority’s assessment of the “in need” component of the statutory “child in need” test. The Reasonableness Standard also applies to this judicial review of the Impugned Refusal.

The Objective-Correctness Standard. This involves asking whether the outcome was objectively correct. This special standard of review is substitutionary. The decision is being retaken afresh by the Court or Tribunal. Review on the Objective-Correctness Standard is not generally confined to the material which was available to the decision-maker; it considers fresh and updating evidence. The Objective-Correctness Standard applies to a judicial review of an Age Assessment: an assessment of the “child” component of the statutory “child in need” test. This is explained in GE at §66. So, in the present case, the Judge was asked by the Claimant to apply the Objective-Correctness Standard in determining the claim for judicial review of the Local Authority Age Assessment, and did so in arriving at the Tribunal Age Determination.

the speed with which the age assessment process took place.

The Tribunal Age Determination was carried out two years later, with extensive information about the Claimant, derived from his presence in the UK over an extended period. There was a considerable body of evidence adduced before the Tribunal. There were documents and reports; witness statements; and oral evidence with cross-examination. From the Council, the Judge had witness statement evidence about what happened in September 2019, from Social Worker Williams, Social Worker Clement and Foster Carer Bygrave (§7 below). On behalf of the Claimant, witness statement evidence was put forward from a 23 year old friend (Ahsnuliah Ahsas) and support letters from Ella Montgomery-Smith of the Children’s Society and Laura Weser of the Red Cross. Witness statement evidence and oral evidence was adduced from Alexandra Swadling, a Support Worker at the organisation “Positive Action For Refugees and Asylum-Seekers” (PAFRAS); and Sharon Browne a Mental Health Support Worker at PAFRAS. The Claimant gave witness statement evidence and oral evidence. The oral hearing took two days. Witnesses who gave oral evidence were cross-examined. The Judgment discusses in comprehensive detail the written, oral and documentary evidence which was before the Judge for the purposes of her objective evaluation of the Claimant’s true age.

Section 23C [of the 1989 Act] sets out a series of duties including a duty on the authority to keep in touch with the former relevant child whether he or she is within their area or not (section 23C(2)(a)); if they lose touch with [them], to re-establish contact (section 23C(2)(b)); to continue the appointment of a personal adviser (section 23C(3)(a)); to continue to keep [their] pathway plan under regular review (section 23C(3)(b)); and to give various forms of assistance as provided for in section 24B in relation to employment, education and training or other assistance to the extent that [their] welfare requires it (section 23C(4)(a)-(c)), including contribution to expenses incurred in living near places of employment, education or training. These duties for the most part subsist until the former relevant child reaches the age of 21 but some of them, particularly in relation to education, may extend until [they are] 25.

the status of ‘former relevant children’ … has considerable legal significance, establishing an entitlement to a wide range of support …

As Thirlwall J explained in R (R) v Croydon LBC [2013] EWHC 4243 (Admin) (§17ii below) at §21, the statutory welfare assistance for a “former relevant child” has been recognised “to extend to a duty to provide … accommodation where necessary”. She added (at §22):

The purpose of these provisions is to ensure that a relevant or eligible child is not simply left without support the moment [they] reach[ their] eighteenth birthday but receives the same sort of support and guidance which children can normally expect from their own families as and when they become adults.

This echoes the observations of Lady Hale in R (G) v Southwark LBC [2009] UKHL 26;[2009] 1 WLR 1299 at §8.

R (MM) v Lewisham LBC [2009] EWHC 416 (Admin) (Sir George Newman, 6.3.09) was an “in need” domestic case. It accorded a judicially-recognised “former relevant child” status, to the young adult deprived of that status by an unreasonable Needs Assessment. The claimant was from Bexley. She had fled domestic violence. She was a recognised “child” (aged 17), when twice Needs-Assessed by Lewisham LBC in July and December 2007. She had turned 18 by the time her judicial review claim was commenced in 2008. Lewisham’s two 2007 Needs Assessments, failing to recognise that she was “in need”, were flawed on unreasonableness grounds (§§16, 20, 29). A reasonable assessment of “need” would have led to her being accommodated aged 17 (§20), so that on turning 18 she would have been a “former relevant child”. Sir George Newman held that in these circumstances she was “entitled” to a declaration that she “is now a former relevant child” (§36).

R (Croydon) (Thirlwall J, 10.2.12) (§14 above) was a “child” asylum case. It accorded a judicially-recognised “former relevant child” status, to the young adult deprived of that status by an incorrect Age Assessment. The claimant was from Afghanistan. He arrived in the UK unaccompanied. He was recognisably “in need” (§30), when Age-Assessed to be an adult in May 2008 by Croydon LBC (§3). An objective correctness judicial review then found (§8) that he had been 15½ when assessed, so that he had been a UASC, albeit he had turned 18 prior to the judicial review judgment in June 2011. His subsequent claim, made as a continuation of the same judicial review proceedings (§9), to be treated as a “former relevant child” (§23), succeeded. Although an “honest mistake”, Croydon’s incorrect Age Assessment meant there had been “unlawful action” (§32) and “a grave error” (§44). Thirlwall J held that in these circumstances it was appropriate for the Court to “direct” Croydon to “treat [him] as a former relevant child” (§45).

GE (CA, 20.11.14) (§1 above) was a “child” asylum case. It rejected the notion of according a judicially-recognised “former relevant child” status, identifying instead the Discretionary Power, where a young adult is deprived of that status by an incorrect Age Assessment. The claimant was from Eritrea. She arrived in the UK unaccompanied. She was recognisably “in need” (§70) and claimed to be 16½ (§1) when Age-Assessed in 2011 as an adult by Bedford Borough Council (§4). Her objective correctness judicial review had been left undetermined, on grounds that it was “unnecessary” (§20), given that the claimant accepted that she had now turned 18 (§5). The Court of Appeal, although the claimant accepted that she was by now 20, directed the High Court to determine the objective-correctness question of her age and any other issues (§§77-78, 101). The Court of Appeal explained that, if the claimant had been a “child” (as well as recognisably “in need”) in 2011, and so incorrectly Age-Assessed as an adult, the correct analysis would be as follows. (1) There would have been an “unlawfulness” and “breach of duty” by reason of the objective-incorrectness of the Age Assessment, even if “fair” and “reasonable” (§§70, 73, 88, 92). (This was a point which Sir Bernard Rix would have preferred to leave open: see §§80, 84.) (2) There could be no statutory duty to treat the claimant as a “former relevant child”, no “deeming” and no “general rule”, because the statutory precondition involved necessary historical facts: 13 weeks actual accommodation including on turning 18, which was absent (§§44, 55, 78, 93, 100). (3) There was, however, the Discretionary Power, if requested to exercise it (§§75, 78, 95): “to make good any unlawfulness” (§54); “to remedy an injustice” (§73); and “to consider correcting an historic injustice” (§96).

A (Enfield) (Hayden J, 16.3.16) (§14 above) was an “in need” domestic case. It secured a declaration requiring consideration of the Discretionary Power (§§51(d), 58), in the case of a young adult deprived of “former relevant child” status by an unreasonable Needs Assessment. The Court made clear that it could not “foresee any circumstances” where it would be “fair to exclude” the claimant from “services … linked to the identification of her welfare requirements” (§57). The claimant was from Enfield. She was recognisably a “child” (aged 16 and 17), when Needs-Assessed by Enfield LBC in 2014 and 2015. The Needs Assessments had wrongly assumed that she was not “in need” while her parental home remained available. They were “manifestly irrational” and “fundamentally flawed” (§§37 and 43). Interim relief had secured accommodation, but not early enough to secure the 13 weeks before her 18^th birthday which would have achieved “former relevant child” status (§56).

R (AB) v Ealing LBC [2019] EWHC 3351 (Admin) (Mathew Gullick, 11.12.19) was an “in need” domestic case. It secured quashing orders, including in relation to the 2019 decisions refusing to exercise the Discretionary Power (§66). The claimant was from Ealing. She was recognisably a child (aged 17) when Needs-Assessed by Ealing LBC in 2018 as not being “in need of accommodation” (§§14-16). That 2018 Needs Assessment was flawed for error of law (§50) and unreasonableness (§53), albeit that an assessment that the claimant needed to be “accommodated” was not the sole lawful outcome in 2018 (§64). Since the 2019 refusals to exercise the Discretionary Power had been based on the (flawed) 2018 Needs Assessment (§§19-20), those 2019 refusals were also quashed (§66).

Where it is established that there has been a relevantly-flawed Age Assessment or Needs Assessment, whose consequences have denied the affected individual the past entitlements of a “child in need” and the present status of “former relevant child”, there is no “general rule” requiring the local authority to treat the individual “as if” they were a former relevant child. I derive this proposition from GE at §§44 & 55 (Christopher Clarke LJ), §78 (Sir Bernard Rix), §§93 & 100 (Davis LJ). See too A (Enfield) at §52. The logic applies to both species of relevant case (discussed in GE at §51): a relevantly-flawed Age Assessment (as in R (Croydon)); or a relevantly-flawed Needs Assessment (as in MM (Lewisham) and A (Enfield)).

A relevantly-flawed Age Assessment or Needs Assessment, whose consequence was to deny the affected individual the past entitlements of a “child in need”, constitutes an “unlawfulness”. I derive this proposition from GE at §§70 & 73 (Christopher Clarke LJ); and §§88 & 92 (Davis LJ).

Where the additional consequence of the relevantly-flawed Age or Needs Assessment is that the affected individual is at present denied “former relevant child” status – with its important social support entitlements – that constitutes an “injustice”. I derive this proposition from GE at §73 (Christopher Clarke LJ) and §96 (Davis LJ). As to the importance of the entitlements, see A (Enfield) at §46 and R (Croydon) at §21 (§14 above).

The Discretionary Power – to choose to treat the affected individual as a former relevant child – is in the nature of a remedial power to “remedy”, and for “correcting”, the present “injustice” (§23iii above) arising from the past “unlawfulness” (§23ii above). I derive this further proposition from GE at §73 (Christopher Clarke LJ) and §96 (Davis LJ).

It can be important to establish whether the Age/Needs Assessment was relevantly-flawed, and whether the consequence is a present denial of “former relevant child” status, because that will engage the Discretionary Power. I derive this proposition from the outcome in GE. There, the High Court had concluded that an Age Assessment was “unnecessary” (§20). The claimant accepted that – by the time of the Court of Appeal’s judgment – she was now aged 20 (§§1, 5). But the High Court’s conclusion was overturned: the remedy was remittal to the High Court for determination of the claimant’s age (§§77, 78, 101). This was important precisely because it could engage the Discretionary Power (§§70, 75, 79, 101).

An Age Assessment will be relevantly-flawed on the Objective-Correctness Standard and a Needs Assessment will be relevantly-flawed on the Reasonableness Standard. I derive this proposition (see §3 above), inter alia, from GE §§46 and 66 (Age Assessment) and A (Enfield) at §§37 and 42 (Needs Assessment).

The duty to consider exercising the Discretionary Power will be triggered by a request by or on behalf of the affected individual; and delay in making that request can be a relevant consideration in the exercise of the Discretionary Power. I derive this proposition from GE at §75 (Christopher Clarke LJ), §78 (Sir Bernard Rix), §§95 and 98 (Davis LJ).

In considering whether to exercise the Discretionary Power, regard should be had to all the circumstances of the case, with relevance and weight being matters for the local authority’s reasonable judgment. I derive this proposition from GE at §55 (Christopher Clarke LJ: “much will depend on the circumstances… The matter would be … to be determined … in the circumstances applying”). As to relevance and weight, being in principle primarily matters for the decision-maker’s reasonable judgment, this is reflected in GE at §99 (Davis LJ).

The circumstances of the case may involve matters of such obvious seriousness that the Discretionary Power can only be exercised favourably, as the sole justifiable outcome. I derive this proposition from GE at §54 (Christopher Clarke LJ: “In an extreme case the court could hold … that there was only one way in which the [decision-maker] could exercise [their] discretion”) and §96 (Davis LJ: “the court may even, exceptionally, compel such a result”). See too A (Enfield) at §54.

One relevant consideration is the degree to which the relevantly-flawed Age or Needs Assessment stands to be criticised, including by reference to the degree of fault or blameworthiness. I derive this further proposition from GE at §55 (Christopher Clarke LJ: “Much will depend on the circumstances, including … to what extent the authority … should be regarded as blameworthy”) and §98 (Davis LJ: “it will be relevant for the local authority to consider whether [it] had acted fairly and reasonably at the time of the original age assessment or whether the erroneous initial age assessment was attributable to some culpable or unreasonable conduct”). See too A (Enfield) at §55.

The degree of unfairness, blameworthiness, culpability or other serious maladministration may be what makes a favourable exercise of the Discretionary Power the sole justifiable outcome (§23ix above). I derive this proposition from GE at §54 (Christopher Clarke LJ: “In an extreme case the court could hold the unfairness was so obvious, and the remedy so plain, that there was only one way in which the [decision-maker] could exercise [their] discretion”), §96 (Davis LJ: “in cases of gross maladministration and conspicuous unfairness the court may even, exceptionally, compel such a result”).

Another relevant consideration is whether the action by or on behalf of the Claimant in challenging the relevantly-flawed Assessment was pursued promptly and whether an application for an interim remedy was made. I derive this proposition from GE at §55 (Sir Christopher Clarke: “Much will depend on the circumstances, including whether or not the claimant had sought interim relief and been refused (as here) [and] whether he was guilty of unacceptable delay”). Interim relief was sought and refused in GE (see §4); it was sought and granted in A (Enfield) (see §§30, 56).

Another relevant consideration is the nature of the services requested by or on behalf of the affected individual. I derive this proposition from GE at §55 (Christopher Clarke LJ: “The matter would be … to be determined in the light of whatever application is made”), §75 (“If the question becomes relevant it will be necessary for the claimant, or her representatives, to indicate what services she seeks”) and §98 (Davis LJ: “Also potentially relevant, of course, will be the nature of the benefits and services which the applicant, as an adult, now claims”).

Given that the statutory duties and entitlements owed to a “former relevant child” apply to an affected individual who was – as a historical fact – a “looked after child” when they turned 18, it may be relevant to the Discretionary Power that it does not involve the envisaged “continuity” of services. I derive this proposition from GE at §98 (Davis LJ: “Also potentially relevant [is] the fact that there will ordinarily not have been continuity between what the applicant now seeks by way of benefits and services as an adult and what the applicant had received as a child”).

Another clearly relevant consideration is the flexibility of the Discretionary Power, under which the local authority may decide to afford only some and not all of the entitlements which would have applied to the affected individual as a former relevant child. I derive this proposition from GE at §53 (Christopher Clarke LJ: “Any such discretion … would have some flexibility. The local authority might, for instance, decide to provide some but not all of the services that it might have been obliged to provide if [the affected individual] was, in fact, a former relevant child”) and §100 (Davis LJ: “it does not follow … that they can then expect to receive, as adults, the same accommodation, maintenance and support which they prospectively would have received had only the correct age assessment been made in the first place. That … would unduly restrict the nature of the discretion which the local authority has”). However, the sole justifiable outcome (§23ix above) may involve the Discretionary Power being exercised favourably in relation to “the entire range of services” (A (Enfield) at §57).

First, about the idea of aggravated injustice. The starting-point is that there is an “injustice”, and the function of the Discretionary Power is as a remedial response to this “injustice” (§23iv above). It therefore makes sense that the decision-maker, in considering the Discretionary Power, should be expected to think about anything which serves to aggravate the injustice. That includes what the person conducting the Age or Needs Assessment did. Even a blameless, but objectively-incorrect, Age Assessment means an unlawfulness (§23ii above) and an injustice. But an objectively-incorrect Age Assessment which was also unreasonable (irrational) or unfair is the more serious an injustice – it is aggravated – because it is the less excusable. An unreasonable (irrational) or unfair Needs Assessment, as well as being relevantly-flawed to give rise to the injustice, is also aggravated in the same way as an unreasonable or unfair Age Assessment. An Age or Needs Assessment which was blameworthy or culpable (§23x, xi above) is even less excusable. Alongside what the local authority did in making the Assessment, it is relevant for the decision-maker to think about what was done or not done by or on behalf of the affected individual. One aspect of that is whether there was a prompt challenge, and whether there was an application for interim relief (§23xii above). The nature and degree of the “injustice” can properly be affected by such features. It may be said that the individual and their representatives have ‘done all they possibly could’. In my judgment, there is a theme here which asks whether there are aggravating – or for that matter mitigating – features so far as the injustice is concerned.

Secondly, about the idea of the sole justifiable outcome. One question is whether the circumstances are so powerful that the favourable exercise of the Discretionary Power is the sole justifiable outcome (§23ix, xi above). In such a situation the local authority cannot reasonably decline to exercise the Discretionary Power. It is right for the decision-maker to address whether the circumstances are of that nature. This could include an injustice seriously aggravated, including by virtue of blame or culpability. But there may be other reasons why a favourable decision is the sole justifiable outcome. These could include needs on the part of the affected individual which are so powerful and so pressing that it could not be reasonable to exercise the Discretionary Power unfavourably. Whether favourable exercise is the sole justifiable outcome is an important question. But it cannot exhaust the consideration that has to be given to the favourable exercise of the Discretionary Power. Any discretionary power is required to be exercised reasonably. If there is a sole justifiable outcome then, in the circumstances, the discretion hardens into a duty. Often, that will not be the case. What is left is the area of latitude, within which the Discretionary Power is exercised on the merits. Here, the local authority decision-maker exercises a choice, without rigidity but with open-minded consideration of the circumstances, to do what is evaluated as being the ‘right’ thing on the ‘merits’. And here – within the area of latitude for judgment and appreciation – the law will require that relevant considerations are taken into account.

Thirdly, about the idea of what is now at stake. In my judgment, this is a further important theme. It explains why it is relevant for the decision-maker to think about the nature of the services requested by or on behalf of the affected individual (§23viii above). It also explains why it is relevant to think about the flexibility which enables the local authority to respond by making some – but not all – services available to the affected individual (§23xv above). Asking ‘what is at stake’ is not a function of how the original and relevantly-flawed decision is to be characterised; or how it was sought to be challenged. It is a function of ‘where are we now’. The services which are requested relate to what the affected individual’s needs are said to be. The flexibility is about responding to some needs, and the ability to prioritise needs. The needs of the affected individual are, in principle, relevant. They may even be such as to make a favourable exercise of discretion the sole justifiable outcome. All of this, in my judgment, makes good sense. After all, the unlawfulness and the injustice have arisen in the context of statutory entitlements which recognise and address needs. The services to which a former relevant child has an entitlement are services which address needs. They are matters of importance, because they address important needs.

First, it is right that this is a case of an “injustice” (§23iii above), because the consequences of a relevantly-flawed Age Assessment involving an “unlawfulness” (§23ii above) have denied the Claimant the past entitlements of a “child in need” and the present status of “former relevant child”. However, GE establishes the important proposition that there is no general legal rule that such an injustice must be remedied (§23i above). It is important not to subvert that proposition.

Secondly, the present case is not one – in my judgment – in which the circumstances and features involve matters of such obvious seriousness that the Discretionary Power can only be exercised favourably (§23ix, xi above). The Age Assessment was relevantly-flawed because it was wrong on an objective-correctness standard. That was established in the Judgment. But the Judge did not conclude – as she could have been invited to conclude (see GE at §101) – that the Council breached public law standards of fairness or reasonableness. That point was made in the Decision Email at paragraph [5a] (§37 below). The Judge did not find “fault” or “blameworthiness” in the Local Authority Age Assessment, as Mr Paget’s submissions emphasised. This is not a case where the injustice is so aggravated – as by blameworthiness or culpability or otherwise – that the discretion hardens into a duty. Nor is it a case where the needs by their nature are so overwhelmingly powerful that the discretionary power, in order to be exercise lawfully and reasonably, could only be exercised favourably. The Email Request did not point to features of this nature. Nor did the subsequent email correspondence or Letter Before Claim. Nor, in my judgment, have Mr Rule’s submissions done so.

First, the statutory scheme expressly identifies triggering situations where a Needs Assessment is required (§15 above). No statutory duty to conduct a Needs Assessment is applicable in the present case.

Secondly, a Needs Assessment, for which the 1989 Act provides, is one of the support services which can apply as a statutory duty and entitlement in the case of a “former relevant child” (§15 above). That means it is one of the very support services which a local authority may choose to provide, as a consequence of the favourable exercise of the Discretionary Power. It would be very striking if it were, in substance in principle and in every case, a precondition of considering whether to exercise the Discretionary Power. This would be a species of “general rule” which would clash with the clear recognition in GE that there is no general rule (§23i above).

Thirdly, in GE itself, one of the “services” being sought was “a needs assessment”, which moreover was the “principal concern” (see GE at §75). The Court of Appeal plainly did not think the equivalent of that service was invariably and in substance required, as a “general rule”. There may be a case where a Needs Assessment – equivalent to that required under the statutory scheme – is the sole justifiable outcome for the reasonable exercise of the Discretionary Power. But that cannot, in my judgment, be said of the present case.

Fourthly, it is important to appreciate that there can – in principle – be other sources of relevant information on the question of needs and what is at stake. One source is whatever is put forward by or on behalf of the affected individual. Another is the process by which the relevantly-flawed Age or Needs Assessment comes to light. Where – as in this case – there has been some legal process to identify the relevantly-flawed Assessment, information is likely to have been elicited which can inform the consideration of the Discretionary Power. The focus of that legal process may have been on Age Assessment (“child”), but information on present needs can nevertheless have come to light, suitably and sufficiently to inform a decision whether to exercise the Discretionary Power. The opportunity to consider that information weighs strongly against there being a public law obligation to undertake an equivalent Needs Assessment.

The UT’s judgment revealed evidence of certain needs of the Claimant: [i] Numeracy needs – he was unable to correctly identify if 15 or 24 was the greater number and thus age. He also had little understanding of age… [ii] Literacy needs (in addition to limited numeracy): he was uneducated save for a limited education in the Quran at the Mosque. [iii] Inability to cook or clean for himself when he arrived. [iv] Problems adhering to schedules – late to court; sleeps a lot and often misses appointments; difficulty following instructions when given medication for a medical condition. Trouble sleeping due to his medical condition (scabies), impacting on attendances at his then college. However [he] had a personal desire to attend college and had “a fervent aim” to take up education. [v] He missed his mother and was very emotional. [vi] Lacking self-care skills, including to budget, resulting in a poor diet. [vii] Suffering low mood. His then tutor Ms Godwin explained that he seemed to suffer low mood that isolated him a little. He sought a lot of reassurance from teachers and teaching assistants. [viii] C is emotional in his interactions, scatter-brained and disorganised. He had been late in attendances due to sleep problems (suffering anxiety in the age assessment process).

It was done. On the evidence, SWM Bilham – as the decision-maker – did have regard to the Now-Known Needs as reflected in the Judgment. I deal with this at §§43-45 below.

It did not need to be done. There is no public law duty on the decision-maker to have regard to Now-Known Needs in exercising the Discretionary Power, still less to do so in circumstances where the triggering request (here the Email Request) did not draw attention to any particular need, including by reference to the Judgment. I deal with this at §§32-33 below.

It could not make a difference. Failing to do so could not be a material public law error, or alternatively the ‘highly likely: not substantially different’ test is applicable, given what was known about the Claimant from the Social Services File. I deal with this at §§46-48 below.

The Discretionary Power is an important power to address an injustice (§23iv above), in a situation where a relevantly-flawed Age Assessment means there was an unlawfulness (§23ii above), and where what are being denied are important support services (§14 above). Although it is important to consider whether there is an aggravated injustice, such that a favourable exercise of discretion is the sole justifiable outcome (§23ix, xi above), the Discretionary Power operates at large – as a discretion to be addressed open-mindedly – beyond those situations (§24ii above). A key theme, in the exercise of the discretion, is the question of what is at stake (§24iii above). This is in a context where needs are at the heart of the statutory scheme alongside which the Discretionary Power operates, making sense of the relevance of the requested services and the local authority’s flexibility.

It is right that the local authority should be protected against any general rule that requires it to undertake the equivalent of a statutory Needs Assessment (§29 above). But one of the important points which weighs against recognising any such precondition is that the local authority can be expected to take advantage of what is now known to it (§29iv above). The position which reconciles the competing considerations is this. The Now-Known Needs constitute a legally relevant consideration. The Discretionary Power cannot be exercised adversely without having first had regard to that as a relevant consideration. That means taking reasonable steps to do so.

There is room for latitude and judgment as to the nature and scope of the enquiry. I would not, for example, accept that the decision-maker was obliged to read all of the witness statement and documentary evidence which was filed before the Judge. Moreover, as Mr Paget emphasises, the Email Request did not draw attention to any particular need; nor to any specific services. The “services” could include a Pathway Plan and a Personal Advisor, as was recognised in the subsequent email correspondence. It is true that the Email Request could have articulated the same eight specific points as I have been identified by Mr Rule in his skeleton argument (§30 above). So could the subsequent email correspondence and the Letter Before Claim. They did not. However, the Email Request was made by the Claimant’s legal representatives to the Council’s legal department, specifically in the context of the Judgment which had been provided in draft (§10 above). In the circumstances of the present case, I agree with Mr Rule: the minimum standard of reasonable enquiry required the decision-maker to have regard to what was now known about the Claimant’s present needs, under the different picture before the Judge (§§4-6 above); and it would have been legally sufficient to have regard to the contents of the Judgment to elicit the nature of the Now-Known Needs as reflected in the Judgment.

I can test the legal logic in this way. Suppose the Email Request had said “we ask you to have regard to the Claimant’s now-known needs as identified in the Judge’s Judgment”. Suppose SWM Bilham had chosen not to take account of those needs, assessing them as “irrelevant”. That, in my judgment, could not have been a reasonable exercise of a judgment on relevance. Rather, it would have been a clear failure to have regard to a relevant consideration. The Now-Known Needs could not, in my judgment, reasonably be characterised as being other than relevant. As it was, the Email Request was written in the specific context of the Judgment, and asked for the Discretionary Power to be exercised favourably. In my judgment, the Discretionary Power could not be exercised unfavourably with at least thinking about the Now-Known Needs as reflected in the features of the case discussed in such a helpful detail in the Judgment. So far as practicality and proportionality are concerned, there would have been no difficulty. Indeed, I am fortified by the fact that one of Mr Paget’s lines of response is that, on the evidence, that is exactly what did happen. I will need to address whether he is right about that.

[1] 17 August 2021. Telephone call with Carol Bilham regarding the Claimant. [2] We discussed the Claimant’s solicitors’ request for ‘leaving’ care. [3] Carol Bilham has spoken with SWMs “BE” and Karen Sholtz and has reviewed the file with Social Workers. [4] The Council will not treat the Claimant as a former relevant child: [4a] The Claimant has never been a looked after child by the Royal Borough of Greenwich. [4b] There was no evidence in September 2019 that he was a child. [4c] Credibility was always an issue. The Upper Tribunal also picked that up. [4d] If the approach had been one month later and the Claimant had been accommodated, he wouldn’t have had 13 weeks.

I refer to the [Upper Tribunal’s] order dated 5^th August and look forward to receiving your submissions on costs in due course. In the meantime the outstanding matter remains your client’s request that the Council exercise its discretion and agree to treat your client as a “Former Relevant Child”. [1] Upper Tribunal Judge Smith produced a long and detailed judgment. She reached a decision on age which was 4 years older than that advanced by your client. She did not accept his evidence on a number of credibility issues. She reached her decision on evidence that was obtained after the age assessment. This included your client’s interaction with support workers and a teacher. In other words the evidence upon which the judge decided the case was never before the age assessors. In September 2019 there was no reliable evidence that your client was a child and the only evidence then available has been held by the judge not to be true namely your client’s own assertion that he was 13 years old. [2] The Council reached a different view on age to the Tribunal Judge but there is nothing blameworthy in the assessors’ conduct; indeed there is nothing inappropriate in their conduct at all because the case was decided on the basis of subsequent supporting evidence. [3] At no stage has your client been looked after as a child by the Council. Following the assessment your client applied for judicial review on the last day available – 11 December 2019, he did not seek interim relief then nor when permission was granted on 17 January 2020. [4] Former relevant children are owed a series of duties – section 23C Children Act 1989. However these duties only apply to children who have been looked after. An adult who asks for support under section 23C cannot be deemed to be a former relevant child – see R (GE (Eritrea)) v Secretary of State for the Home Department [2015] PTSR 854. However the Council has a discretion to treat such an adult ‘as if’ they were a former relevant child. The Court of Appeal provided some guidance on the exercise of discretion.

The four underlined passages in this first part of the Decision Email reflect the contents of the Contemporaneous Note, respectively, at paragraphs [2], [4c], [4b] and [4a]. The remaining content of this first part of the Decision Email extends beyond the content of the Contemporaneous Note.

[5] The Council [i] has fully considered your client’s circumstances and [ii] taken account of the guidance provided by the Court of Appeal and [iii] has concluded that it is not appropriate to exercise its discretion in your client’s favour for the following reasons: [5a] [The] Council has acted fairly and reasonably. [5b] There was no evidence to determine that your client was a child in September 2019. [5c] Your client only brought the judicial review at the last minute and did not seek interim relief. [5d] On the basis of the now assessed age your client was only a child for 16 weeks after the assessment. Had he approached the Council one month later he would not even be a former relevant child because he would not have been looked after for 13 weeks whilst a child. [5e] Your client currently has accommodation and support provided by NASS and access to service pending the outcome of his asylum application. [5f] If the Council had been minded to exercise its discretion in your client’s favour it is unlikely to have afforded any higher level of assistance. The only additional service/ support that the Council would have provided is a Pathway Plan which it would review every 6 months and the support of an allocated Personal Advisor.

The three underlined passages in this second part of the Decision Email reflect the contents of the Contemporaneous Note, respectively, at paragraphs [4], [4b] and [4d]. The remaining content of this second part of the Decision Email extends beyond the content of the Contemporaneous Note.

I have read the Summary and Detailed Grounds of Resistance and I produce here as exhibit “CB1” a bundle of documents comprising the Claimant’s Social Services File to which I referred in making the decision under challenge which was communicated to the Claimant’s solicitors by email by the Head of Legal Services … on 18th August 2021. The file contained all the information the [Council] had on record about the Claimant. In arriving at the decision under challenge I reviewed the file with the Claimant’s allocated Social Workers and liaised with my managers. I am therefore satisfied that I had all the Claimant’s known circumstances in mind.

“CB1” – “the file” – is the Social Services File (§2i above) of the documents dated 9 to 11 September 2019, culminating in (and including) the Local Authority Age Assessment (11.9.19). In my judgment, it is entirely appropriate that SWM Bilham should provide the Court with evidence about what the “file” was that she “reviewed” with “Social Workers” (Contemporaneous Note paragraph [3]). I will return to the rest of this witness statement evidence below.

Mr Rule argues, in essence, as follows: that the Decision Email needs to be read as a “legal submission”, except insofar as its contents reflect the Contemporaneous Note; that “the original record of the decision” and “reasons of the decision-maker” are those found in the Contemporaneous Note; and that there is no evidence that the contents of the Decision Email were “actually considered by the decision-maker”.

Mr Paget argues, in essence, as follows: that the Decision Email constitutes “the decision-maker’s reasons”; that the discussion between HLS Onuorah and SMW Gilham recorded in the Contemporaneous Note at paragraph [2] can be taken to have included, as the relevant context, the additional (non-underlined) points in the Decision Email; that HLS Onuorah’s noted points in the Contemporaneous Note will have been “the key points only”, and the rest of the Decision Email will have conscientiously reflected the rest of what was said in the conversation with SWM Bilham; that this was an ‘entirely conventional’ process of the Council’s duly-qualified in-house lawyer, writing up the reasons of the Council’s duly-authorised decision-maker, to produce the Council’s reasoned decision; and that the reference in SWM Bilham’s witness statement to “making the decision under challenge which was communicated to the Claimant’s solicitors by email by the Head of Legal Services … on 18th August 2021” is evidence making clear that the Decision Email constituted SWM Bilham’s reasons.

The decision-maker was SWM Bilham. Her decision was communicated internally, during the phone conversation with HLS Onuorah, and recorded in the Contemporaneous Note at paragraph [3]. The reasons for arriving at that decision needed to be SWM Bilham’s reasons. HLS Onuorah carefully and conscientiously wrote down, in the Contemporaneous Note, the key points. They are at Contemporaneous Note [3a] to [3d].

It was entirely appropriate for HLS Onuorah, as duly-qualified in-house lawyer, to assist in the ‘writing-up’ of a reasoned decision. But there was an important division of labour to be observed. The reasoned decision written by HLS Onuorah could properly express what SWM Bilham had communicated as her reasons with suitable presentational clarity. The written-up decision could also add in points of context and commentary, provided that these were not presented as “reasons”. That is how Decision Email paragraphs [1] to [5] are to be understood, because paragraph [5] ends by identifying “the following reasons”, with those “reasons” being paragraphs [5a] to [5f]. That means Decision Email paragraphs [1] to [5] are by way of context and commentary, as a setting for the “reasons” that follow at paragraphs [5a] to [5f].

Three specific points [i] to [iii] are made at Decision Email paragraph [5], before the reference to “reasons”. They are each being attributed to the decision-maker. There is no problem with point [iii]: it reflects Contemporaneous Note paragraph [4]. Point [i] was only correct if the process undertaken by the decision-maker SWM Bilham, and communicated to HLS Onuorah, was being conscientiously considered by HLS Onuorah to constitute having “fully considered” the Claimant’s “circumstances”. Point [ii] was only correct if the process undertaken by the decision-maker SWM Bilham, and communicated to HLS Onuorah, was being conscientiously considered by HLS Onuorah to constitute having “taken account of the guidance provided by the Court of Appeal [in GE]”. The Contemporaneous Note does not record points [i] or [ii]. Those points could have been the subject of written communication between HLS Onuorah and SWM Bilham: for example, if HLS Onuorah had emailed SWM Bilham prior to the decision being taken, saying it was necessary in making the decision fully to consider the Claimant’s circumstances; or providing SWM Bilham with a summary of the guidance provided by the Court of Appeal in GE. Or SWMs “BE” or “Karen Scholz” might have said or written this to SWM Bilham. Or SWM Bilham might have said during the conversation with HLS Onuorah that she had fully considered the Claimant’s circumstances; or had taken account of the Court of Appeal’s guidance. The problem is that the only further evidence of what happened is SWM Bilham.

True, SWM Bilham’s witness statement describes “making the decision under challenge which was communicated to the Claimant’s solicitors by the [Decision] Email”. But the decision at Contemporaneous Note paragraph [4] was communicated by the Decision Email paragraph [5] point [iii]. The witness statement says nothing about reasons. I am not told, for example, that the contents of the Decision Email were sent in draft to SWM Bilham at the time, to confirm that it accurately reflected her decision, decision-making process and “reasons”, and that she did so confirm. Even the paragraph [5a] to [5f] “reasons” in the Decision Email are six “reasons” whereas Contemporaneous Note paragraphs [4a] to [4b] were four reasons. There are obvious question-marks. The Council has had fair warning, ever since the Permission-Stage Reply (15.1.22). And the Council has a duty of candour and cooperation to assist the Court “with full and accurate explanations of all the facts relevant to the issues which the Court must decide” (Judicial Review Guide 2022 §15.3.1). If there was more to say and explain, it should have been provided.

[T]here is a certain knowledge required as to what matters should be dealt with in decision letters. Provided the distinction is clearly observed between the decision-maker’s role which is to decide where the truth lies, to decide on the relevant facts and to provide the reasons for those decisions and any assistance given in formulating a decision letter in a way which deals with clarity with the decision and the reasons for it, I can see no objection to a decision-maker receiving advice in the drafting of the decision letter, provided, I stress, that division of labours is observed: the boundary between a decision-maker’s function and his or her reasons for it and assistance then about how the decision letter should be drawn so that it can properly fulfil the duty under the Act to give reasons.

The Contemporaneous Note (§35 above) makes clear that SWM Bilham was aware of the Judgment and some points about what it had decided. To that extent, I agree with Mr Paget’s submission that it is “clear from” the Contemporaneous Note that SWM Bilham had the Judgment “in mind”. First, paragraph [4c] records, as SWM Bilham’s reasoning, that the Tribunal “picked … up” the issue of “credibility”. Secondly, paragraph [4d] records, as SWM Bilham’s reasoning, that an “approach” made by the Claimant “one month later” (ie. October 2019) would not have satisfied the “13 weeks” to be a former relevant child. The Contemporaneous Note also makes clear that SWM Bilham was aware that the Judgment considered a different evidential picture in August 2021 than had Social Workers Williams and Clement in September 2019. Paragraph [4b] records, as SWM Bilham’s reasoning, that there was “no evidence in September 2019 that he was a child”. That shows a recognition that the Tribunal’s Age Assessment was arrived at based on a different picture (§§4-6 above). I accept all of that. But the evidence does not tell me that the Judgment was sent to SWM Bilham; still less that it was read by her. The evidence establishes that the points about the Judgment, to which reference was made, came to SWM Bilham’s attention and were taken into account by her. These points were communicated to her by some means. The evidence does not say.

Importantly, the Contemporaneous Note describes SWM Bilham as having “reviewed [the] file with the Social Workers”. The witness statement of SWM Bilham explains, properly and helpfully (§38 above), that the “file” which she read and reviewed with the Social Workers was the Social Services File. This is positive evidence about what happened. But the Social Services File was the documentation produced over the 3 day period 9 to 11 September 2019, culminating in the Local Authority Age Assessment (11.9.19). That file was two years old. It was the old picture. It was not the Now-Known Needs (§§4-6 above).

Next, the witness statement of SWM Bilham (§38 above) is positive evidence which tells me how she says she “had all the Claimant’s known circumstances in mind”. She describes: