Interim relief and the 'status quo ante' in relation to termination of support

On 7 July 2017, the High Court handed down judgment in the case of KA & NBV v Croydon LBC [2017] EWHC 1723 (Admin) (made available on Lawtel yesterday).

The case concerned a challenge to Croydon's practice of terminating accommodation and support provided to asylum seekers they have assessed to be adults on the day that the age assessment decision is made (previously, full reasons were not given until later, though this practice is said to have changed since April).

The claimants contended that the practice breached their common law right of access to justice and/or their rights under Article 8 ECHR, as it denied them the opportunity to seek interim relief before Croydon terminated their accommodation and support, and before they were dispersed to NASS accommodation outside London.

The Court dismissed the claim holding that:

1. The right of access to justice is not an absolute right to be protected from the risk suffering any potential injustice (paras 42-44). Instead it has two facets, namely: "a right to apply to the court, in accordance with the court's relevant procedures, to have the Council's decision corrected, if that is wrong" (para 44); and a right to apply for interim relief, but again only in accordance with the court's relevant procedures. (para 45)

2. Following the decision of the Court of Appeal in R (A) v Croydon [2008] EWCA Civ 1445 (in an aspect not reversed by the Supreme Court [2009] UKSC 8), an assessment by a local authority that a person is an adult is not a judgment in rem and does not interfere with the applicant's Article 8 rights (paras 34-36, 52). In any event, any interference would be a proportionate means of achieving a legitimate aim (paras 53-58).

There are a number of points which are not fully explained in the judgment, for example:

1. Why the case did not fall within the protection against "not having enough time in which to seek legal advice and apply to the court in order to prevent a serious interference with rights" (para 42), especially where the Court described the risk of injustice in age assessment cases as "particularly acute" (para 43).

2. Why, simply because a local authority's assessment of age is not in itself an interference with the applicant's Article 8 rights, the consequences of associated withdrawal of support could not constitute an interference (para 52), where this involves the disruption of the applicant's support networks, schooling, friendships and relationships with foster parents.

3. How the issue of the safeguarding concerns that would be presented by Croydon continuing to accommodate an applicant after assessment as an adult (para 55) is affected by (a) the fact that the applicant will already have been living in the accommodation for many months and (b) the safeguarding concerns presented by the applicant being dispersed to adult NASS accommodation but subsequently being found to be a child.

However, one area in which the judgment provided welcome clarity was in relation to the approach to assessing any application for interim relief in such circumstances. In support of the argument that Croydon's practice interfered with their right of access to justice, the claimants submitted that "a young person is more likely to get mandatory interim relief if he applies for it while he is still receiving services, rather than after a decision has been made to stop providing them" (para 47). The Court rejected this submission, commenting (at para 47):

"In my judgment, unless there has been unexplained and inexcusable delay in applying for interim relief, in most, if not all cases, the 'status quo ante' in a case like this is the status quo ante the impugned decision, not the status quo ante the application for interim relief ... So, in my judgment, where the application for interim relief is made as soon as reasonably practicable (taking into account delays in obtaining legal said) the 'status quo' is likely to be that the young person was receiving support from the local authority."

Although this point worked against the claimants in the present case, in others should serve as a useful statement of the principle that an applicant for interim relief who has acted promptly should face no higher hurdle to reverse a termination of services than to prevent a termination that has not yet taken effect. Of particular note is the Court's comment that delays attributable to legal aid should not prejudice the applicant's position in this regard (cf. R (Kigen) v SSHD [2015] EWCA Civ 1286).

Jane Elliott-Kelly of Doughty Street Chambers appeared for the KA and NBV.