R (ota JS) and R (ota YK) v Birmingham City Council (AAJR)

R (ota JS) and R (ota YK) v Birmingham City Council (AAJR) [2011] UKUT 00505 (IAC)

Local Authorities owe certain duties to children under the Children Act 1989 and other legislation.� As the Supreme Court decided in R (A) v Croydon LBC [2009] UKSC 8 , those duties are owed to those who are in fact under the age of eighteen, not only those who the Local Authority reasonably considers to be under the age of eighteen.�

If the Local Authority refuses to provide benefits to a young person on the ground that he is not a child, the remedy is by challenge to the Local Authority�s decision by way of Judicial Review.� In addition to the normal grounds on which Judicial Review lies, the notion of illegality in this context encompasses a wrong assessment of age.� Thus, in a case of this sort, it is open to a claimant to establish that, as a matter of fact, the Local Authority�s assessment was wrong.� The Court has, in other words, the task of assessing the claimant�s age.

Unfortunately, however, settlement of the issue between the claimant and the Local Authority may not be the end of the matter.� Even a judicial decision on the issue between the claimant and the Local Authority may not be the end of the matter.� The reason for that is as follows.

But the Tribunals, Courts and Enforcement Act 2007 was passed at a time when the appeals process for immigration and asylum matters had recently been reformed; and it was no doubt considered inconceivable that such causes would ever come before the new Tribunals established by that Act. A consequence is that one of the conditions of the transfer of a Judicial Review application to the Upper Tribunal is, as specified in section 31A (7) of the Senior Courts Act 1981: