R (on the application of A) v London Borough of Croydon and one other action

Facts

A and M were asylum seekers who arrived in England without reliable documents and said they were under 18. A approached Croydon and M approached Lambeth for accommodation and support as children in need under the Children Act 1989. Each authority carried out its own age assessment, concluded that the claimant was an adult, and declined to treat the claimant as a child. The claimants brought judicial review proceedings.

History

The Court of Appeal had held that the assessment of age was for the local authority, challengeable only on ordinary public law grounds such as irrationality, so that the court did not itself decide the claimant's true age. The claimants appealed to the Supreme Court.

Issue

Whether the question whether a claimant is a child, on which the duties of a local authority under the Children Act 1989 depend, is an objective question of precedent fact for the court to decide on the evidence, or a matter for the authority reviewable only on conventional public law grounds.

Held

Appeals allowed. Whether a person is a child is an objective question of fact which the court must determine for itself when the authority's conclusion is challenged by judicial review.

Ratio

• Where a statutory duty or power depends on an objective factual condition, such as being under 18, the existence of that condition is a precedent fact which the reviewing court decides on the evidence, not a matter on which the authority has a margin of judgment.
• The Administrative Court may hear oral evidence and make its own finding of age; the authority's assessment is evidence and the basis of its decisions, but it does not bind the court.

The judgments

Key reasoning

• The statutory definition of a child as a person under 18 admits of no degree: the claimant either is or is not a child, so the question is one of fact rather than of evaluative judgment for which Parliament gave the authority a discretion.
• The House of Lords had already treated an analogous question, whether a person was an illegal entrant, as a precedent fact for the court in Khawaja v Secretary of State for the Home Department [1984] AC 74, and the same logic applied where the consequence of a wrong finding is that a child is denied the support the Act confers.
• The objection that the courts are ill equipped to decide age was not a reason to deny a judicial determination: courts routinely resolve disputed facts, social worker assessments remain valuable evidence, and the claimant is entitled to have the fact established by a body able to reach a final decision.

Where it fits in the module

On the FHS Administrative Law list under error of fact. The case is the clearest modern statement that where a power turns on an objective fact the reviewing court decides that fact, rather than asking whether the decision-maker acted rationally. It frames the broader debate whether mistake of fact is an independent ground of review, as the Court of Appeal suggested in E v Secretary of State for the Home Department [2004] EWCA Civ 49, and how that sits with the general rule that the courts do not substitute their own findings of fact. Good answers ask which statutory conditions are objective and why age qualifies when need, homelessness or suitability do not.

Criticisms

• The line between objective precedent facts, decided by the court, and evaluative judgments left to the authority is drawn by reference to the statutory wording and the perceived importance of the right at stake, not by a clear test, so the doctrine is unpredictable.
• Court fact-finding on age is slow, costly and resource intensive, and the court has less expertise in assessing age than experienced social workers, so the decision may delay support to the young people it is meant to protect.
• The approach treats age as a binary fact determinable on the balance of probabilities, although the evidence of age is often inherently uncertain and consists of a range, so a precise finding may give a false sense of certainty.