In R (MA) v SSHD (2022) EWCA Civ 1663 the Court of Appeal holds that the SSHD’s Guidance relating to short-form age assessments conducted in a Kent intake unit for asylum seekers was lawful. The Guidance could be operated consistently with the Merton requirements for age assessments.

Guidance can be set aside only if it permits or encourages unlawful conduct. Permitting means something akin to sanctioning or positively approving, not merely that an action is not forbidden. The question is whether a policy authorised or approved unlawful conduct.

A public authority promulgating a policy is not required to include a detailed and comprehensive statement of the law in the area.

In McCue’s Guardian v Glasgow City Council ((2023) UKSC 1 the Supreme Court held that the Council, in assessing the charge to be levied on a person in receipt of community services had not discriminated against the person by reason of his disability by refusing to allow deduction of certain items of expenditure, which he classed as disability related expenditure, when assessing his available means. The Supreme Court addressed unfavourable treatment, Section 15 of the Equality Act 2010, and Section 20 of  the Equality Act, reasonable adjustments. The appeal was concerned with the effect of the Equality Act in relation to the provision of community case services to disabled persons and the providing local authority’s entitlement to charge for those services. Lord Sales considered Section 15 at paras 54-63 inc and Section 20 at paras 64-76 inc.

In every case, when deciding whether an age assessment has been conducted consistent with the requirement of fairness, there is no substitute for testing the matter against the basic principle, by reference to (1) the circumstances of the case under consideration, and (2) whether (a)  the decision rested on reasonable investigation and (b) the investigation was undertaken fairly. So emphasized Swift J in HAM v Brent LBC (2022) EWHC 1924 ( Admin ). He added that the investigation requirement is likely to focus on whether any interview with the person was conducted to permit him  (i) properly  to contribute, and (ii) properly to respond to matters going to his credibility which the local authority considers weigh against his contention to be a child.

On unregulated accommodation for “looked after” children under 16, and Regulation 27A of the Care Planning and Place Review (England) (Amendment) Regs 2021, S.I.2021/161, and an unsuccessful challenge in relation to irrationality, the PSED and consultation, see R (Article 39) v SoS (2022) EWHC 589 (Admin).

Section 1 of the Care Act 2014 (the Act) creates a general duty for local authorities to promote individual well-being (not defined in the Act) when exercising a function under Part 1 of the Act. Section 9 creates a duty to assess an adult’s needs for “care and Support”. . . Section 13 imposes a duty to determine whether any assessed needs meet the relevant eligibility criteria under Regulations. Section 18 imposes a duty to meet the needs of disabled adults for both “care” and “support”. Section 19 confers a power to meet an individual’s needs for “care and support” in circumstances where the Section 18 duty does not arise. By Sections 24 & 25 a Care and Support Plan must be prepared.

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The Court of Appeal in SoS for Justice v A Local Authority (2021) EWCA Civ 1527 addresses the question whether care workers are in peril of committing a criminal offence under Section 39 of the Sexual Offences Act 2003 (care workers: causing or inciting sexual activity) when they make the practical arrangements for a 27 year old man to visit a sex worker in circumstances where he has capacity within the meaning of the Mental Capacity Act 2005 to consent to sexual relations and to decide to have contact with a sex worker but not make the arrangements himself. The answer given is that the care workers risk committing the offence.

The Court of Appeal also says that it’s interpretation of Section 39 does not infringe the ECHR. The Court of Protection cannot endorse an act that would be unlawful. The motive of the care workers is irrelevant.

The situation is entirely different from situations such as a care worker arranging private time for a long married couple when it is known that this will likely include sexual activity.

Following the decision of the Supreme Court in Re T (2021) UKSC 35, the High Court in Tameside MBC v AM (2021) EWHC 2472 ( Fam) holds that, notwithstanding the subsequent amendment of the Care Placement etc Regulations , it is open to the Court under its inherent jurisdiction to authorise the deprivation of liberty of a child in a placement that the amended Regulations prohibited. The Judge addresses the protective inherent jurisdiction generally and the importance of anticipating and preventing harm from para 47. The inherent jurisdiction may be used notwithstanding the existence of a statutory
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On the fair conduct of age assessment processes and the weight to be attributed to dental and height evidence, see R (Nanton) v Waltham Forest LBC (2021) EWHC 2241 (Admin).

There are insufficient places available in registered secure children’s homes. That is the context of T (A Child) (2021) UKSC 35. The Supreme Court holds that the High Court has inherent jurisdiction to grant an application by the local authority to deprive a child of his or her liberty in other accommodation.

In R (Birmingham City Council) v Croydon LBC (2021) EWHC 1990 (Admin) Morris J reviews the role and duties of the Home Office and local authorities when presented with a person who claims to be an Unaccompanied Asylum Seeking Child. The starting point for local authorities is that they have duties under the Children Act 1989. They must provide accommodation and support to children in need in their area. There is no specific duty to carry out an age assessment.

What there is is a duty to decide to assess a child’s needs under Section 17. The authority has to take reasonable steps to investigate whether the person concerned is a child. When there is doubt then there is a duty to carry out an age assessment.