Greater flexibility for local authorities in age assessments; but no more short-form assessments as a special class

25 July 2022

Joshua Swirsky represented the local authority in R(HAM) v LB Brent - a challenge on 8 grounds to the lawfulness of its short-form age assessment of a young Sudanese refugee (HAM).

The local authority successfully resisted the challenge on 7 of the grounds. However, it was found to have acted unlawfully on the facts by not conducting a ‘minded-to’ session.

Despite this, Swift J refused HAM’s application to quash the assessment. Instead, he made a declaration and transferred the case to the Upper Tribunal for a fact-finding hearing.

What does the judgment mean for local authorities?

There is no longer a hard line between what are sometimes called ‘full Merton compliant assessments’ and ‘short-form assessments’. Indeed, short-form assessments will no longer exist as a separate type of assessment.

Nevertheless, all assessments must be fair and what constitutes fairness will depend on the facts of the case.

To justify what they do, local authorities will need to record carefully why particular safeguards were or were not put in place.

Review of how age assessments have evolved

In his judgment Swift J analysed the history of age assessments and the concept of Merton compliance. He found that there was no legal basis for the ever-expanding checklists of safeguards that had grown up following the case of R(B) v LB Merton [2003] 4 AER 280.

Indeed, the judge held that there was no justification for any checklists at all. What Merton compliance required was a fair procedure and there were no hard and fast rules as to what constituted this procedure.

Swift J made the point that there was no legal basis for the widely held views that:

  • an age assessment required 2 social workers in every case to be lawful, and
  • that to be fair, it was necessary to have an appropriate adult.

In HAM’s case there was no appropriate adult at the interview but that did not render the process unfair as he was able to take part effectively in the assessment.

The judge also held that the much-cited concepts of ‘benefit of the doubt’ and ‘margin of error’ meant nothing more than that age assessment was difficult and that assessors should be aware of that. The question for assessors remained: is X under 18? That question had to be answered.

Assessors did not have to make allowances to reflect the so-called ‘margin of error’ which the judge described as legally irrelevant.

Age assessments in the future

Local authorities now have greater flexibility in how they conduct age assessments and the resources they allocate to them. They are no longer ‘hobbled’ by the technicalities of the checklists.

However, the decision does not mean that all the old safeguards have been abandoned or that local authorities can do the bare minimum in all cases.

Time will tell how it works in practice.

Read the full judgment in R(HAM) v LB Brent [2022] EWHC 1924 Admin