SB, R (On the Application Of) v Royal Borough of Kensington & Chelsea

Factual and Procedural Background

This appeal arises from an order allowing an application for judicial review by the Respondent ("R") against a decision made by the Appellant local authority ("the Council") on 11 June 2021. The Decision assessed R's age as "at least 25 years old" with a date of birth of 25 May 1996, based on an interview conducted by two social workers who assessed R's physical appearance and demeanour. R challenged the fairness of the process leading to the Decision, particularly the absence of an interpreter and an appropriate adult during the interview, and the lack of opportunity to respond to adverse conclusions. The Judge quashed the Decision on grounds of procedural unfairness. The Council appealed with permission, disputing the Judge's findings and the quashing of the Decision.

Legal Issues Presented

1. Whether the Judge was wrong to hold the Decision unlawful on the basis that the process leading to it was unfair.
2. Whether procedural challenges to age assessments should be considered in isolation from substantive challenges, and whether this practice aligns with the overriding objective.
3. Whether the absence of an interpreter and an appropriate adult during the interview rendered the process unfair.
4. Whether the Council was required to give R an opportunity to address adverse findings during the interview.
5. The appropriate standard and process for local authorities in conducting age assessments, including the applicability of the Merton principles.

Arguments of the Parties

Appellant's Arguments

• The Judge mischaracterised the social workers' views, understating their certainty that R was over 25 years old.
• The Judge imposed inappropriate procedural requirements for what was considered a clear case of adulthood.
• The absence of an interpreter did not prejudice R, as the social workers reasonably concluded he was proficient in English.
• The Judge erred in holding that an appropriate adult was necessary for fairness in the interview.
• The Judge wrongly quashed the Decision and refused to consider the Council's application for disclosure of the age assessment materials to any new local authority.
• The appeal raised an issue of law of general importance warranting the court's exercise of discretion to hear the appeal despite its academic nature.

Respondent's Arguments

• The appeal is academic as R is now an adult and has been assessed as a child by another local authority, which has provided him with appropriate services.
• Minimum standards of fairness require both the presence of an appropriate adult and an opportunity for R to address any concerns arising from the interview.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by acknowledging the unusual nature of judicial review in age assessment cases, where the court has jurisdiction to decide the person's age as a jurisdictional fact. This contrasts with the usual supervisory role of judicial review. The court noted that procedural challenges to age assessments may lose significance once the court decides the substantive age dispute on the merits.

The court expressed concern about the practice of separating procedural challenges from substantive challenges, suggesting this may lead to unnecessary costs and delays. It recommended that procedural and substantive issues be considered together, preferably in the Upper Tribunal, to better assess the significance of any procedural flaws.

Regarding the specific procedural fairness issues, the court found that the Judge erred in substituting his own view for the experienced social workers' clear and detailed reasoning on why the interview could fairly proceed without an interpreter. The Judge's conclusion that the absence of an interpreter rendered the process unfair was rejected.

Similarly, the court agreed with recent authority that there is no absolute legal requirement for the presence of an appropriate adult in every age assessment interview. Whether fairness requires an appropriate adult depends on the circumstances. The social workers' judgment that it was not necessary in this case was upheld, and the Judge was wrong to find otherwise.

The court also considered the Judge's finding that R should have been given an opportunity to respond to adverse findings during the interview. Given the social workers' strong and experienced view that R was clearly an adult based primarily on his appearance and demeanour, the court found that such an opportunity was unnecessary in this case. The Judge had understated the force of the social workers' conclusions.

Finally, the court criticised the Judge's approach to supplementing and questioning the contemporaneous reasons given by the social workers with additional material, finding this unprincipled in judicial review.

Accordingly, the court concluded that the Decision was not unlawful for procedural unfairness and that the Judge was wrong to quash it on those grounds.

Holding and Implications

The appeal is allowed.

The court overturned the order quashing the Council's Decision assessing R's age as at least 25 years old. It held that the procedural fairness requirements were met, including the adequacy of the interview without an interpreter or an appropriate adult, and the absence of a requirement to give R an opportunity to respond to adverse findings in this clear case.

The decision clarifies that in age assessment judicial review cases, procedural challenges should not be considered in isolation from substantive challenges, especially given the court's jurisdiction to decide the age on the merits. The ruling emphasizes deference to the professional judgment of experienced social workers in determining the necessity of procedural safeguards such as interpreters and appropriate adults, subject to the facts of each case.

No new precedent was set beyond the application and clarification of existing principles, and the decision primarily affects the parties by reinstating the validity of the Council's age assessment Decision.