11/05/2009

Age Assessment and Medical Reports

Apologies for not getting this one out on Friday or over the weekend. It was on my list, but, frankly, the details of this were off my usual turf and it took an hour or several to digest and fit in place. So, only a day or so late…

A v London Borough of Croydon [2009] EWHC 939 (Admin) is a significant case in a long and convoluted saga. The issue is age assessment of unaccompanied asylum seekers who are or claim to be children (USAC), thereby falling under s.20 Children Act so that the Local Authority has the full duty to them.

The specific issue is the status of medical reports, often obtained by the USAC’s representatives and what, if any import these reports should have on the Local Authorities’ decision . A v Croydon and M v Lambeth, a related case, had previous had a hearing on the issue of whether the absence of any right to appeal or make representations on the LA’s assessment of age was a breach of Art 6. This issue went to the Court of Appeal in A, R (on the application of) v London Borough of Lambeth [2008] EWCA Civ 1445, which found no breach of Art 6. That decision is now been appealed to the Lords, to be heard in July 2009.

However, the High Court decided that was no reason not to continue with the JR hearings, with the issue being, as Lambeth had posed it

For the purpose of assessing whether a child is a child, is paediatric evidence of the sort produced by Dr Michie and/or Dr Birch in these cases scientifically ill-founded and of no evidential value?

In fact the issue is very properly more broadly dealt with – the value of medical evidence as to age for the LA age assessment and what regard the LA should have to it.

While all this was going on, a related case had been heard, apparently by accident, in A (By His Litigation Friend, Valbona Mejzninin), R (on the application of) v London Borough of Croydon [2008] EWHC 2921 (Admin). In that, Mr Stephen Morris QC had made some findings on procedure that Collins J expressly ‘corrects’ in this case.

This is a very long and very detailed judgment. But the upshot is quite simple, if very disappointing for representatives of UASCs.

1. There is no reliable medical means of assessment of age at present. Following Dr Stern’s view, Dr Birch’s methodology and reports (or any medical assessment at present) cannot be taken as carrying more weight than the opinion of a trained and experienced social worker.

2. An LA or Secretary of State cannot simply ignore a medical report, particularly if it arrives at different conclusions, but it is for the LA or SoS to decide how much weight to attach to an individual report, and it is open to them to attach no weight to it.

3. Reasons should be given for any conclusions reached on the weight to be given to the report but:

“in many, probably most cases all that will be needed is to say that the report has been considered but that the authority is not persuaded that there is anything in it which shows that its experienced social workers’ conclusion is or may be wrong. If there is some specific matter, such as a credibility finding which for good reason is regarded as erroneous or an observation which cannot be accepted, that can and should be identified.” [para 37]

4. As Para 38 states:

All this presupposes that the authority’s decision is made by properly trained and experienced social workers in accordance with the guidelines approved by Stanley Burnton J in B v Merton. Problems have arisen because of the belief that without obtaining the claimant’s written permission details of the age assessment cannot be disclosed to the Home Office. Since the system involves the decision being made by the LA and the Home Office accepting its decision provided that it is Merton compliant [R(B) v London Borough of Merton [2003] EWHC 1689 (Admin)], it seems to me that it is essential that the Home Office receives a full report. Only with such a report can it judge whether the assessment is reliable, particularly if there is a paediatrician’s report served which contradicts it or some other evidence which points in the other direction is provided.

5. In A v Croydon, at para 31, Mr Morris QC had stated:

As regards the particular issue of medical opinion in age assessment, the current position is as follows:

(a) Whilst it is not necessary for the local authority to obtain a medical report, a medical opinion will always be helpful:

(b) reliable medical opinion on the issue can only be got from one of the few paediatricians with experience in the area, but they may be of limited help (as in that case Michie was):

(c) When conducting or reviewing an age assessment, the local authority is under a duty to consider any medical report submitted:

(d) Where a local authority decides not to follow the views in a medical report, it is under a duty to give reasons for not following those views:

(e) A local authority should not ‘rubber stamp’ medical opinion, whether obtained by it or by an applicant: R v Wandsworth Borough Council ex parte Banbury (1987) 19 HLR 76 at 84-85. Osmani v Camden LBC [2004] EWCA Civ 1706 at para. 38(8). On the other hand, local authorities cannot be expected to make their own critical evaluation of applicants’ medical evidence and should have access to independent specialist advice, if they wish to disagree on medical grounds: Shala v Birmingham City Council [2007] EWCA Civ 624 per Sedley LJ at para. 19. In my judgment, this passage supports the preposition that, in such circumstances, the local authority is not only entitled, but is required to, obtain its own specialist advice.

In view of the above conclusions, Collins J finds that Mr Morris was wrong in a) and b). Medical Paediatric opinion would be difficult to obtain outside a very few individuals and, as stated, no more reliance can be placed on them than the opinion of the experienced social worker. Nor is e) correct. The LA will not be disagreeing on medical grounds as medical grounds cannot provide an answer. Shala distinguished for that reason. [para 47]

6. It may be that a medical report will highlight issues that have not been adequately decided, have been wrongly decided or simply omitted from the LA assessment. Judicial Review will be available, on Wednesbury grounds, but the issue is the LA failing to address the deficiency of the decision in itself, albeit highlighted by the medical report, rather than the issue being a simple difference in findings where the LA assessment was adequately conducted.

Kent’s contention in the conjoined case that medical evidence, and specifically that of Dr Birch, was of no value and could be ignored, was rejected. Croydon’s view that the LA should have regard to medical evidence submitted but it was entitled to decide what weight to attach to it was accepted.

Both claims, taken in detail, were dismissed as there was no significant failure or unreasonableness in the LAs’ decisions.

Given that there are over 70 Judicial Review claims on similar grounds outstanding, this is going to be a difficult time for a lot of claimants. Longer term, a lot will depend on the House of Lords decision on the Art 6 issue after the hearing in July.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

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