Age disputes and interim accommodation

May 11th, 2017

What happens young people whose age is questioned approach a local authority as homeless? Must they be accommodated as children, or can they be accommodated in temporary adult accommodation until their age is determined by the local authority?

The background is an increasingly challenging legal framework for local authorities contesting the age of young people arriving from abroad. For example, cases have held that in the absence of documentary evidence, the starting point should be the credibility of the young person’s evidence; that there should be a ‘sympathetic assessment of the evidence’ provided; that there is no burden of proof on a claimant to establish their claimed age; and that almost all evidence of physical characteristics and short term observations by social workers are to be of limited value: see R (CJ) v Cardiff CC [2011] EWCA Civ 1590, R (AM) v Solihull MBC [2012] UKUT 00118 (IAC), R (AE) v LB Croydon [2012] EWCA Civ 547.

The latest case of R (S) v London Borough of Croydon [2017] EWHC 265 (Admin) adds further to this picture, requiring local authorities to provide accommodation and support to asylum seekers claiming to be children, pending their age assessment.

The claimant in this case was an asylum seeker from Iraq who, upon arrival in the UK, claimed to be 15 years old. The defendant local authority, Croydon, did not believe him, and accommodated him pending his age assessment in a hostel for adult asylum-seekers. This assessment was delayed due to health problems of the young person, and in the meantime he brought a judicial review claim contending that Croydon’s refusal to provide him with child-appropriate accommodation was unlawful.

The claimant relied on sections 17 and 20 of the Children Act 1989, which place on local authorities a general duty to safeguard and promote the welfare of children in their area who are in need, and to provide accommodation to children who require it. The key issue was whether these statutory duties applied to local authorities when the age of an asylum seeker was disputed.

Mr Justice Lavender held that the children Act duties did apply at this initial pre-decision stage. He relied on relevant statutory guidance (‘Care of unaccompanied and trafficked children’) and guidance issued by the Association of Directors of Children’s Services (‘Age Assessment Guidance’).

The former is statutory guidance and states that ‘where a person’s age is in doubt, they must be treated as a child unless, and until a full age assessment shows the person to be an adult’. Mr Justice Lavender held that authorities are required to follow this statutory guidance, unless there are cogent reasons to depart from it: applying section 7 of the Local Authority Social Services Act 1970. This conclusion was bolstered by the non-statutory guidance.

In the present case, there were no cogent reasons for departing from the guidance. Concerns about the resource implications for the defendant were not sufficiently evidenced. Nor was it a sufficient reason to depart from the guidance that the Home Office’s initial screening process had assessed the claimant to be an adult. In undertaking to carry out an age assessment, the local authority had cast that finding in doubt. Finally, there was no evidence that safeguarding concerns, such as the placement of someone who might be an adult with children in accommodation, required the claimant to be denied appropriate accommodation.

As a result of this case, local authorities need to treat young persons arriving from abroad and claiming to be children as such, pending the conclusion of the local authority’s age assessment.

Jonathan Auburn

ja@11kbw.com

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