Remedying past injustices: local authorities’ discretion to treat young people as former relevant children following flawed assessments

Thursday 16 November 2023

Blog post by Tessa Buchanan of the Garden Court Chambers Community Care Team.

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Young people who have been looked after by local authorities do not magically became self-sufficient on the morning they turn 18, any more than do young people who have grown up within their own families. They need ongoing support, and to meet this need Parliament has imposed a series of duties and powers on local authorities to continue to provide assistance to young people who had been looked after as children: ss23C-E Children Act 1989. Such young people are known as former relevant children: s23C Children Act 1989.

But what of young people who did not become looked after because of some error on the part of the local authority? The Courts have confirmed that local authorities have a discretion to treat such young people as if they were former relevant children. In R (GE (Eritrea)) v Secretary of State for the Home Department [2014] EWCA Civ 1490, [2015] 1 WLR 4123 the local authority had wrongly assessed the claimant, an unaccompanied asylum-seeker, as being over 18 years of age and had therefore not accommodated her under s20 CA 1989 as it should have done. The Court accepted that the authority had a discretion to remedy this by treating her as a former relevant child.

The nature of this discretion was examined by Fordham J earlier this year in the case of R (HP) v Greenwich London Borough Council [2023] EWHC 744 (Admin), [2023] PTSR 1499. This case also concerned a flawed age assessment. The claimant had been assessed as 20 by the defendant local authority and had been placed in asylum support accommodation. The Upper Tribunal had subsequently concluded, based on fresh evidence, that he was in fact 17 when he entered the UK. The defendant refused to exercise its discretion to treat the claimant as a former relevant child on the basis that it had not been culpable in wrongly assessing the claimant’s age. Fordham J upheld the claimant’s challenge to that refusal on the grounds that, when deciding whether or not to exercise its discretion, the authority had been obliged to take into account information about the present needs of the claimant, which it had not done: §§33, 43-45.

The decision is particularly useful for its analysis of the principles which govern the exercise of the discretion, as set out at §§23-24 of the judgment:

i. If there has been a flawed assessment which has denied the young person the status of former relevant child, there is no general rule requiring the authority to treat him or her as if he or she was a former relevant child.

ii. However, such an assessment would constitute an unlawfulness.

iii. The denial of former relevant child status amounts to an injustice. That injustice will be aggravated if the assessment was unreasonable, unfair, or blameworthy. Alternatively, it could be mitigated by delay on the part of the young person.

iv. The power to treat the young person as a former relevant child is “in the nature of a remedial power to “remedy”, and for “correcting”, the present “injustice”…arising from the past “unlawfulness””.

v. If the assessment was “relevantly flawed” and resulted in the denial of former relevant child status, that would engage the discretionary power. An age assessment would be “relevantly flawed” if it was objectively incorrect, in that the claimant was found to be a different age from the age the authority had assessed him or her to be. A needs assessment was “relevantly flawed” if it was flawed on conventional judicial review principles.

vi. The obligation to consider exercising the discretion would be triggered by a request by the young person.

vii. When deciding whether to exercise its discretion, the authority should have regard “to all the circumstances of the case, with relevance and weight being matters for the local authority’s reasonable judgment”.

viii. Specific relevant considerations could include:
a) Any delay in making the request for the authority to exercise its discretion.
b) The degree to which the local authority had been at fault or blameworthy in its assessment.
c) The promptness with which the young person challenged the assessment and whether or not he or she had applied for interim relief.
d) The nature of the services sought by the young person.
e) The fact that there will not have been continuity of services between what the young person received as a child and what he or she was seeking as an adult.
f) The flexibility of the power.

ix. It may be that the case involves “matters of such obvious seriousness”, or the degree of fault on the local authority’s part was such, that the only lawful outcome is for the power to be exercised in the young person’s favour. If the “sole justifiable outcome” is for the discretion to be exercised favourably, then “the discretion hardens into a duty”.

x. The local authority should consider what is at stake for the young person. The needs of the young person are relevant to this.

Children who were not, but should have been, looked after may well be even more vulnerable than those who were looked after, having been deprived as children of the care and support to which they were entitled. The discretion on the part of the local authority to treat the young person as a former relevant child is an important corrective to the injustice arising from a flawed assessment which has deprived the young person of the support which he or she should have received. Requests for the discretion to be exercised should be carefully considered, and in certain situations the circumstances of the young person – or the unlawfulness on the part of the local authority – may be so serious that the power becomes a duty.

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