Mr Kiana came to the UK and applied for asylum. He subsequently lived with his partner and they had a child together. Mr K was provided support under s.95 Immigration and Asylum Act 1999. Following the failure of his application and the subsequent appeals, s.95 support was terminated. Mr K applied for support under s.4 I&A Act 1999 on the grounds that he was destitute. The Secretary if State’s refusal was overturned on appeal and Mr K was offered accommodation with one of the SoS’s ‘target landlords’, separate and away from his partner and child. Mr K refused the offer and the SoS refused further assistance.

On Judicial Review of that decision, Mr K argued that s.4 did not stop the SoS providing support separately from accommodation or, if it did, there was no reason accommodation could not be provided by entering an agreement with his partner’s landlord. Second, in providing accommodation only through target landlords, the SoS forced Mr K to chose between staying with his family and remaining destitute or accepting the offer and leaving his family, as such it was an interference with his Art.8 human rights.

The Secretary of State argued that he could not provide support under s.4 without providing accommodation. He was obliged to ensure that the accommodation was adequate and safe and that this was achieved through the target contracts with landlords, which could be monitored.

Held:
Unlike s.95, which conferred a wider power to provide accommodation and/or support, s.4 simply gave a power to provide the failed asylum seeker with somewhere to live. The inferred intention of Parliament was that s.4 was a more limited power, tied to the provision of accommodation.

The s.4 obligations could not have been discharged though an informal arrangement with Mr K’s partner’s landlord, as the SoS was obliged to ensure the accommodation was adequate. That was ensure through the screening and monitoring of target landlords.

There was no Art 8. breach. Mr K was not being separated from his family in the same way as someone subject to a deportation order. Art 8 did not guarantee the provision of accommodation or welfare support. There was a positive obligation on states to provide support where family life was severely inhibited or welfare of children threatened but this did not apply in this case.

The support under s.4 was deliberately designed to be less advantageous than support under s.95 as a part of the legitimate immigration control policy.

Application refused.

This was an appeal heard by the House of Lords over the course of four days in July, but with judgment delivered by the new Supreme Court.  We reported the Court of Appeal’s judgment here.  At issue was to what extent the courts could review the decision of a local authority that an individual is over the age of 18.  On one view this case turns on a narrow point about construction of the Children Act 1989 and does not really need a lengthy examination on a housing law blog.  I’m going to suggest that there is plenty of juicy stuff in here, albeit obiter, that is worthy of consideration.

The normal order of things is of course for young people to claim to be older than they really are.  Scores of cottage industries churning out fake IDs have depended on this pretty much since the dawn of time.  Claiming to be younger than one really is has long been the preserve of Hollywood actresses, supermodels and footballers of a certain nationality (allegedly).

However, there are certain benefits to being found to be under 18.  It opens the door to accommodation under the 1989 Act.  Someone over 18 is not capable of being a “child in need” under s.20(1) and cannot therefore be entitled to accommodation under that section.  There are other legal consequences that flow from this, see for instance the discussion in R (M) v Hammersmith & Fulham [2008] UKHL 14.

Everyday experience tells us that assessing someone’s age accurately is no easy task.  It will be clear that the decision in these cases is an important one to get right.  Quite apart from the resource implications, which are not insignificant, wrongly classifying a child as an adult, or vice versa, can lead to serious consequences for them.  In this regard it is probably better to exercise any element of doubt in favour of assessing someone as younger rather than older.  As an ILPA report has stated “the risks of wrongly treating children as adults are considerably higher than the other way round.  This is because the children’s system has in-built support and supervision to prevent children from being harmed.  No such safeguards exist in the adult system.”  This was endorsed by the Children’s Commissioner for England before the Court of Appeal in this case.

Facts

The facts of these cases can be very briefly stated.  The appellants arrived as unaccompanied asylum seekers.  They claimed to be under 18, but social workers decided that they were over the age of 18, despite there being some medical evidence in both cases to suggest that they were under 18.  In A’s case there was some documentary evidence too, while in the other an immigration judge had accepted that M was 17 years old.

Issues

There were three issues before the House of Lords, identified by Lady Hale at [13]:

1. is the duty imposed by s.20(1) owed only to a person who appears to the local authority to be a child, so that their decision can only be challenged on Wednesbury principles, or is the duty owed to any person who in fact is a child, so that a court can determine the issue on the balance of probabilities?
2. is the issue of whether someone is a child is one of precedent fact to be decided by a court on the balance of probabilities?
3. does s.20(1) give rise to a civil right so that Art 6 of the ECHR is engaged and, if so, is the process whereby social workers assess age coupled with the availability of JR on Wednesbury principles sufficient compliance with Art 6?

Children Act 1989

It may be helpful to set out a few of the relevant provisions of the 1989 Act here.

Section 17(10):

For the purposes of this Part a child shall be taken to be in need if—

(a)   he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;

(b)   his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or

(c)  he is disabled,

and “family” , in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.

Section 20(1):

Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of—

(a)  there being no person who has parental responsibility for him;

(b)  his being lost or having been abandoned; or

(c)  the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.

Section 105(1):

In this Act—

… “child” means, subject to paragraph 16 of Schedule 1, a person under the age of eighteen

Note that paragraph 16 of Schedule 1 does not apply in this case.

‘Child’ or ‘Child in Need’?

So ‘child’ is defined as “a person under the age of eighteen”.  This is the definition used throughout the Act.  As the appellants argued the definition was not:

[14] … “a person who appears to the local authority to be under the age of eighteen” or “a person whom the local authority or any other person making the initial decision reasonably believes to be under the age of eighteen”.  Reaching the conclusion that this is what it means in section 20(1) requires, as the Court of Appeal accepted, words to be read in section 20 which are not there.

The respondent LAs argued (see [20]) that “child in need” was a composite term of art that requires the sorts of professional value judgment that Parliament cannot have intended should be made by the courts.

Lady Hale gave the lead judgment, with which all members of the Court agreed.  In her opinion:

[26] … The 1989 Act draws a clear and sensible distinction between different kinds of question. The question whether a child is “in need” requires a number of different value judgments. What would be a reasonable standard of health or development for this particular child? How likely is he to achieve it? What services might bring that standard up to a reasonable level? What amounts to a significant impairment of health or development? How likely is that? What services might avoid it? Questions like this are sometimes decided by the courts in the course of care or other proceedings under the Act. Courts are quite used to deciding them upon the evidence for the purpose of deciding what order, if any, to make. But where the issue is not, what order should the court make, but what service should the local authority provide, it is entirely reasonable to assume that Parliament intended such evaluative questions to be determined by the public authority, subject to the control of the courts on the ordinary principles of judicial review. Within the limits of fair process and “Wednesbury reasonableness” there are no clear cut right or wrong answers.

[27] But the question whether a person is a “child” is a different kind of question. There is a right or a wrong answer. It may be difficult to determine what that answer is. The decision-makers may have to do their best on the basis of less than perfect or conclusive evidence. But that is true of many questions of fact which regularly come before the courts. That does not prevent them from being questions for the courts rather than for other kinds of decision makers.

[28] …In section 20(1) a clear distinction is drawn between the question whether there is a “child in need within their area” and the question whether it appears to the local authority that the child requires accommodation for one of the listed reasons.  In section 17(10) a clear distinction is drawn between whether the person is a “child” and whether that child is to be “taken to be” in need within the meaning of the Act.

Lord Hope agreed at [51]:

The question is whether the person is, or is not, under the age of eighteen. However difficult it may be to resolve the issue, it admits of only one answer. As it is a question of fact, ultimately this must be a matter for the court.

This leads into whether or not the question is one of jurisdictional or precedent fact.  In the Court of Appeal Ward LJ thought this was not a precedent fact case because he viewed the question as whether a person was a “child in need”.  Lady Hale thought that this was looking at the wrong question:

[32] However, as already explained, the Act does draw a distinction between a “child” and a “child in need” and even does so in terms which suggest that they are two different kinds of question. The word “child” is undoubtedly defined in wholly objective terms (however hard it may be to decide upon the facts of the particular case). With a few limited extensions, it defines the outer boundaries of the jurisdiction of both courts and local authorities under the 1989 Act. This is an Act for and about children. If ever there were a jurisdictional fact, it might be thought, this is it.

Lord Hope again agreed:

[53] … The question whether the child is “in need” is for the social worker to determine. But the question whether the person is or is not a child depends entirely upon the person’s age, which is an objective fact. The scheme of the Act shows that it was not Parliament’s intention to leave this matter to the judgment of the local authority.

Therefore, where there is a dispute, the courts can determine an applicant’s age on the balance of probabilities as part of judicial review proceedings.  JR can be adapted to deal with the determination of questions of fact, see R (Wilkinson) v Broadmoor Special Health Authority [2001] EWCA Civ 1545 (see in the present case Lady Hale at [33] and Lord Hope’s comments on the practical consequences at [54].

Article 6

Although this was enough to deal with the appeal both Lady Hale and Lord Hope went on to consider whether a civil right was being determined and therefore whether Article 6 was engaged.  Although this part of the opinions is strictly obiter, it is still very important and will presumably have an impact in other situations, so all of [35]-[45] and [55]-[65] are worth looking at.  It will become apparent that there was here a slight divergence of opinion on whether Art 6 applied.

Firstly, it will be remembered that in Runa Begum the House of Lords had assumed without deciding that a claim to be provided with accommodation under Part VII of the Housing Act 1996 could give rise to a civil right.  However, there is no Strasbourg case that has gone that far.  The appellants relied on a series of Russian cases (such as Teteriny v Russia and Sypchenko v Russia), which they claimed did establish this proposition.  Both Lady Hale and Lord Hope noted that there did not appear to be any argument on the point in the Russian cases and they did not assist the Court.

Lady Hale concluded at [40] that:

…[I]f a right such as this is a “civil right” at all, it must lie close to the boundary of the concept and not at the core of what it entails. If so, this may have consequences for the second question, which is what article 6 requires.

Lord Hope was prepared to go further.  I won’t break the whole thing down, but after considering the authorities at [55]-[64] he concluded that:

[65] …I think that it can now be asserted with reasonable confidence that the duty of the local authority under section 20(1) of the 1989 Act to provide accommodation for any child in need within their area who appears to them to require accommodation as a result of the factors mentioned in that subsection does not give rise to a “civil right” within the meaning of article 6(1) of the Convention.

Given her conclusion Lady Hale went on to consider what Art 6 required, if it was engaged.  She said that:

[44] I would be most reluctant to accept, unless driven by Strasbourg authority to do so, that article 6 requires the judicialisation of claims to welfare services of this kind. Unlike the arguments based upon statutory construction and jurisdictional fact, Mr Howell’s [counsel for A] argument cannot sensibly distinguish between the determination of age and the determination of the other criteria of entitlement. Every decision about the provision of welfare services has resource implications for the public authority providing the service. Public authorities exist to serve the public. They do so by raising and spending public money. If the officers making the decisions cannot be regarded as impartial, and the problem cannot be cured by the ordinary processes of judicial review based upon the usual criteria of legality, fairness and reasonableness or rationality, then tribunals will have to be set up to determine the merits of claims to children’s services, adult social services, education services and many more. Resources which might be spent on the services themselves will be diverted to the decision-making process. Such a conclusion would be difficult, if not impossible, to reconcile with the decision of this House in Runa Begum. The degree of judicialisation required of an administrative decision, in the view of Lord Hoffmann in Alconbury, depends upon the “nature of the decision”.

[45] If this is a civil right at all, therefore, I would be inclined to hold that it rests at the periphery of such rights and that the present decision-making processes, coupled with judicial review on conventional grounds, are adequate to result in a fair determination within the meaning of article 6.

Lord Walker acknowledged the force of Lord Hope’s reasoning on Article 6, but preferred to leave the point open.  Lords Scott and Neuberger agreed with Lady Hale.

I think that this result must be right, it is the one that gives effect to what must have been the intention behind the Act.  Make no mistake though, this is going to leave the Admin Court with some difficult decisions to deal with.  If you doubt this then look back at the Guidelines for Paediatricians quoted at [5] in the CA’s judgment, or see the difficulties that Collins J identified at [15]-[32] in the connected case (reported by us here).

While at first blush I find the idea that this is not a civil right quite a difficult one to accept, I must admit that the argument is quite compelling.  This does seem to be the correct interpretation of the Strasbourg case law. It will be interesting to see whether this will affect the appeal in Ali v Birmingham which the Supreme Court finished hearing two days before this judgment was handed down.  In the CA Ward LJ had been comforted by the decision in Ali that JR did provide compliance with the standard required by Art 6.  Apparently both Lord Hope and Lady Hale heard the appeal in that case (it’s shown with Tomlinson as the lead case, but Tomlinson dropped out of proceedings at the CA stage).  Of course the present case was heard before judgment in Crompton v UK, but I’m not sure that that case takes the argument any further.

1. The courts can review whether a person is a “child” for the purposes of the Children Act 1989, this is a separate question to whether they are “in need”;
2. Ordinary domestic judicial review can be adapted to deal with this where necessary;
3. If s.20(1) does give rise to a “civil right” for Art 6 purposes it is close to the boundary of that concept (per Baroness Hale); or
4. The duty of a LA under s.20(1) does not give rise to a “civil right” (per Lord Hope);
5. If it is a civil right conventional judicial review is enough to comply with Art 6.

The appeal was therefore allowed.  Points 3, 4 and 5 are obiter.

Our report on the Court of Appeal decision is here.

M and A arrived in the UK from Libya and Afghanistan respectively.  Both applied for aslyum – M to Lambeth and A to Croydon.  Both applicants said that they were under 18, but social workers decided that they were over 18.  The decision on age is an important one – if an individual is under 18, and therefore a child, responsibility lies with the local authority (see ss. 17 & 20 of the Children Act 1989).  For adults the responsibility lies with the Home Office, previously administered by NASS, now carried out by UK Border Agency.

Three issues were identified in these cases: the precedent fact issue, the Art 6 issue and the Art 8 issue.

Precedent fact

It was argued on behalf of A and M that the question of whether or not they were children involved establishing a fact precedent to the local authority’s exercise of its powers.  As the local authority could not be the judge of the extent of its own powers, its decision could not be conclusive, but must be subject to investigation and decision by the courts.

As Lord Scarman said in R v Home Secretary ex p. Khawaja [1984] 1 AC 74 “where the exercise of executive power depends upon the precedent establishment of an objective fact, the courts will decide whether the requirement has been satisfied”.

In Ward LJ’s judgment this argument could not succeed.  The question to be determined was not whether the applicant was a “child”, but whether they were a “child in need”.  This transformed it into a subjective judgement, not an objective one.

Art 6

This was split into five sub-issues (although 1 & 2 are hard to separate):

1. Is there a right to accommodation?
2. Is it a civil right?
3. Has there been a determination of it?
4. Were the social workers independent and impartial?
5. Does judicial review constitute sufficient compliance?

Ward LJ stated straight away at [36] that he was happy that JR was sufficient compliance, as s. 204 appeals were in Runa Begum, but that he felt “obliged to be foolhardy and deal with the first three questions, happy in the knowledge that my meanderings can be treated as obiter if it is thought that I have gone wrong.”

Is there a right to accommodation?

All parties accepted that there was no doubt that there was duty to provide accommodation once it had been decided that an applicant was a child.  There was an absolute right to accommodation where the subjective evaluative criteria are satisfied.  The debate was whether A and M had any rights if the criteria are not satisfied and the claim for accommodation is rejected.  Ward LJ agreed with the submission of John Howell QC (on behalf of the interveners Liberty):

The relevant right under section 20 is the right to accommodation. There are a number of conditions which have to be satisfied before the duty to provide it arises. But any dispute about whether one or more of those conditions is satisfied is one directly determinative of whether the relevant right exists.

In light of the doubts expressed about this finding, the whole of [37]-[49] are worth careful consideration.

Is there a civil right to accommodation?

Ward LJ considered what kind of accommodation a child was entitled to under s. 20.  In his judgment “looking at the process as a whole, beginning with the assessment under section 20 but ending with the allocation under section 23, the decision-making process has the character of exercising a discretionary power which destroys the notion that a right is involved.” [53]

Ward LJ concluded at [59] that:

the right of accommodation given by section 20 read with section 23 cannot be classified as a civil right because:

(1) too much discretion is given to the local authority to decide what kind of accommodation is to be provided, and
(2) the accommodation can range from, at one extreme, a flat which the child is licensed to occupy – which does have the character of a private law right – to at the other end of the spectrum, the family home which smacks entirely of a social services public law provision.

 Was there a determination of a civil right?

Clearly not, as there was no civil right, but assuming that there had been a civil right Ward LJ felt that there had not been a determination as there were so many other questions still to be resolved before the entitlement to accomodation arises (is the applicant in need, is the applicant within the LA’s area, do they appear to require accommodation, etc).

Were the social workers independent and impartial?

No – they were employed by the LAs and were therefore not independent, so Art 6(1) was breached.

Does the availability of JR comply with the requirements of Art 6?

As already noted above Ward LJ felt that it did.  The present case was “indistinguishable in kind from Runa Begum and easily distinguishable from Tsfayo.” [81]

He concluded at [84] that:

age determinations, being part of broader questions relating to the provision of accommodation, and being but one of the many responsibilities for local authorities to provide support for children and families under Part III, are decisions which fall squarely within the social field of child care and are, therefore, customarily and properly entrusted to the social workers to decide. It follows that judicial review does comply with the standard set by Article 6.

Ward LJ was “comforted” by the similar conclusions in Ali v Birmingham.

Art 8

The Art 8 issue, which was only raised on behalf of A, was whether the assessment of his age enaged his Art 8 rights to respect for his private life.  While Ward LJ accepted at [88] that a decision as to whether someone was an adult or a child could be covered by Art 8 (as interpreted in Pretty v UK), the assessment in question was only a staging post on the way to the consideration of a broader question.  It did not affect A’s physical or psychological integrity, his personal development or his personal autonomy.

Additionally, the procedural aspect of Art 8 could not add anything when Art 6 had not been breached.  In this respect Ward LJ noted a correlation between Arts 6 and 8 in Gilboy.

Conclusion & Doubts

Ward LJ concluded that although the procedures did comply with Art 6 there was an urgent need for a better system.

 Maurice Kay LJ and Sir John Chadwick expressed doubts as to whether Ward LJ was right that s. 20 provided a right to accommodation before the local authority had made their decision, but agreed that it was not necessary to decide this to determine the appeal.