PM, R (on the application of) v Hertfordshire County Council

Factual and Procedural Background

On 24 November 2008, the Claimant, an Afghan national who arrived in the United Kingdom claiming to be a child asylum seeker aged 14, was placed in accommodation and support by the Defendant local authority ("the Council") under child welfare provisions. The Council initially assessed his age as likely to be between 16 and 19 years, later assigning a birth date of 15 November 1991. A dental age assessment conducted in June 2009 suggested the Claimant was approximately 19 years and 8 months old. The Claimant's asylum claim was refused in July 2009, with the Secretary of State asserting he was an adult based on the dental evidence. The Claimant appealed the refusal to the First-tier Tribunal (Immigration & Asylum Chamber) ("the FTT"), which, in March 2010, found the Claimant was over 18 years old and dismissed his appeal.

Following the FTT's age finding, the Council decided on 14 April 2010 to withdraw section 20 accommodation and support previously provided to the Claimant on the basis that he was no longer a child under the Children Act 1989. The Claimant challenged this decision, contending that the Council had failed to conduct a proper re-assessment of his age before withdrawing support. The Council defended the decision on grounds including that the FTT's finding was binding on them, that it would be an abuse of process for the Claimant to deny the FTT finding, and that the Council could lawfully adopt the FTT's age finding without further assessment.

Legal Issues Presented

1. Whether the FTT's determination that the Claimant was over 18 years old constitutes a judgment in rem binding on the Council and others beyond the parties to the asylum appeal.
2. Whether it is an abuse of process for the Claimant to dispute the FTT's age finding in subsequent proceedings.
3. Whether the Council may lawfully adopt the FTT's age finding without conducting its own full age assessment before withdrawing support.
4. Whether the Council lawfully fulfilled its statutory obligations under the Children Act 1989 by withdrawing support without a proper age reassessment.

Arguments of the Parties

Defendant's Arguments

• The FTT's finding that the Claimant was over 18 was a judgment in rem, binding on the world, including the Council, based on the Supreme Court decision in R (A and M) v LB Croydon.
• It would be an abuse of process for the Claimant to deny the FTT's age finding in other proceedings, relying on principles from Bradford & Bingley Building Society v Seddon.
• The Council could lawfully adopt the FTT's age finding without conducting a further full age assessment, as it was made by a competent tribunal on all evidence including that presented by the Claimant.

Claimant's Arguments

• The Council breached its statutory obligations by withdrawing accommodation and support without conducting a proper and reasoned reassessment of the Claimant's age.
• The FTT's finding was not binding on the Council, who must independently assess age for the purposes of section 20 of the Children Act 1989.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (A and M) v London Borough of Croydon; R (M) v London Borough of Lambeth [2009] UKSC 8	Age is a matter of objective fact, not opinion; the court has jurisdiction to determine age in judicial review of local authority assessments.	Confirmed that age assessments by local authorities are subject to judicial review and that age is an objective fact, but did not confer binding in rem status on FTT age findings.
Thoday v Thoday [1964] P 181	Explains estoppel by judgment, preventing re-litigation of facts or causes of action already decided between parties.	Used to distinguish between judgments in personam and judgments in rem and to explain estoppel principles.
Munir v Jang Publications Ltd [1989] ICR 1	Estoppel by judgment applies to tribunals as well as courts.	Supported the application of estoppel principles to tribunal decisions.
Wakefield Corporation v Cooke [1904] AC 31	Statutory jurisdiction may empower magistrates to make determinations in rem binding on all persons.	Illustrated the rarity and specificity required for judgments in rem binding beyond parties.
Hollington v F Hewthorn & Co Ltd [1943] KB 587	Judgments in personam are not evidence of truth for strangers to the proceedings.	Applied to show that the Council, being strangers to FTT proceedings, are not bound evidentially by the FTT's age finding.
Bradford & Bingley Building Society v Seddon [1999] 1 WLR 1482	Collateral attack on a judgment in other proceedings may amount to abuse of process.	Considered and rejected the Council's abuse of process argument in this case.
Pattni v Ali [2006] UKPC 51	Discusses the nature and jurisdictional foundation of judgments in rem.	Supported the analysis of when judgments bind beyond parties.
Stone v Levett [1947] AC 209	Estoppel principles cannot confer jurisdiction that a court or tribunal does not have.	Used to reject the argument that estoppel could make the FTT's finding binding in rem.
North Wiltshire Borough Council v Secretary of State for the Environment (1993) 65 P&CR 137	Principle of consistency in public decision making and the requirement to give reasons for departure from earlier decisions.	Referenced in relation to the Council's ability to consider FTT findings as material but not determinative.
Miller v North Yorkshire County Council [2009] EWHC 2172 (Admin)	Distinguishing cases and exercising judgment in public decision making.	Supported the principle that decision makers must exercise independent judgment even when considering previous decisions.

Court's Reasoning and Analysis

The court analyzed whether the FTT's finding that the Claimant was over 18 years old constituted a judgment in rem binding on the Council and others beyond the parties to the asylum appeal. It concluded that the FTT lacked jurisdiction to make a determination of age that binds the world at large, as its jurisdiction is limited to deciding immigration appeals on statutory grounds and does not extend to declaring age as a status against all persons.

The court distinguished between judgments in personam, which bind only parties to the proceedings, and judgments in rem, which bind the world. It found that the FTT's age finding was an incidental fact in the context of its in personam determination on the Claimant's asylum appeal, not a substantive determination in rem.

The court rejected the Council's abuse of process argument, reasoning that the Claimant's denial of the FTT's age finding in this claim did not amount to a collateral attack on the FTT decision, which the Claimant has not sought to appeal.

Regarding the Council's adoption ground, the court held that while the Council may consider the FTT's findings and reasoning as material, it must exercise its own judgment in reassessing the Claimant's age for the purposes of its statutory obligations under the Children Act 1989. The Council erred in treating the FTT finding as determinative and failing to conduct a proper, reasoned reassessment before withdrawing support.

The court emphasized the differences in evidential material and decision-making contexts between the FTT and the Council, noting the Council's access to more comprehensive evidence, including observations of the Claimant's behavior and circumstances.

Consequently, the Council's decision to cease support without a lawful reassessment was unlawful, and the matter was remitted to the Council for a proper age reassessment.

Holding and Implications

The court's final decision is to ALLOW the Claimant's application, quashing the Council's decision dated 14 April 2010 to cease providing accommodation, support, and schooling.

The Council is directed to continue providing these services based on its September 2009 age assessment pending a lawful reassessment of the Claimant's age, and for a further 14 days after notifying the Claimant of the reassessment outcome and any consequent changes in support.

This decision clarifies that findings of age by the FTT in immigration appeals are not binding judgments in rem on local authorities with statutory duties under the Children Act 1989. Local authorities must independently reassess age when making decisions about support, taking into account tribunal findings as relevant material but not determinative. The ruling does not establish new precedent beyond the facts but reinforces the statutory obligations of local authorities to conduct proper assessments before withdrawing support.