SB v RBKC: Catherine Rowlands secures win at the Court of Appeal

[2023] EWCA Civ 924
31 Jul 2023

Public Law and Judicial Review, Local Government

In SB v Royal Borough of Kensington & Chelsea, the Court of Appeal considered the approach to be taken to a claim for judicial review of a decision that SB was clearly and obviously an adult.

The local authority had met with SB and reached the view that his appearance and demeanour were clearly those of an adult. They had a brief interview with him in the course of which they found that he lacked credibility. SB is from South Sudan; he speaks Nuer, a minority language. The local authority, the Refugee Council (and subsequently SB’s solicitors) all tried in vain to find an interpreter for that language, but SB spoke good English and was interviewed in that language.

The High Court Judge, Bennathan J, took the view that the decision should be quashed because of his view that there should have been an interpreter and an appropriate adult, as well as a “minded to” session.

The Court of Appeal disagreed. They considered that the Judge had substituted his own views for the reasons expressed by the social workers, which he should not have done when conducting judicial review of the decision. The social workers had explained why they considered that it was appropriate to interview SB without an interpreter, and the Judge was wrong not to take into account the express reasoning of the experienced social workers on this issue. Further, there is no rule of law that a young person must have an appropriate adult in any age assessment interview. Whether an interview will be unfair in the absence of an appropriate adult will depend on a range of factors. The social workers had decided in this case that it was appropriate to carry on without an appropriate adult, and again, the Judge was wrong to substitute his own view.

As to a “minded to” process, the assessors had founded their view primarily on how he looked and behaved. They took a history from him, but that was of limited impact on the assessment. The Judge had significantly understated the force of the social workers’ conclusion that SB was not a child.

The court took the opportunity to comment on two further matters. The first is that this appeal was technically academic as far as the dispute between SB and Royal Borough of Kensington and Chelsea was concerned. He is now 18 even on his own account. Another local authority had accepted his claimed age. Nonetheless, the Court agreed to hear the appeal as it raised issues of wider importance. That was the chilling effect the judgment below would have had on the ability of a local authority to carry out a less elaborate assessment in what, in the expert judgment of social workers, is an obvious case.

The Court also strongly recommended that the Administrative Court should not normally hear a procedural challenge to a decision separately. The issues of procedural fairness should be part and parcel of the decision of the Upper Tribunal, determining the age of an applicant in a full hearing.

In light of this case, a local authority should feel confident in assessing someone as being clearly an adult – so long as they can be satisfied that they have followed a fair procedure, and have taken into consideration the margin of error that applies when assessing someone’s age predominantly on the basis of their appearance. The suggestion that there is a “checklist” of elements that must be followed in every case has fallen away – what matters is the individual facts of the case. A social worker’s assessment, properly reasoned and substantiated, should not lightly be overruled by the court.

Catherine Rowlands appeared for the Appellant local authority.