Court rules that social worker’s assessment that teenage asylum seeker is an adult was false

A person who has entered the United Kingdom to claim asylum is treated differently depending on whether they are an adult or a minor. A minor’s claim is treated more delicately by the Home Office with respect to the asylum process, decision making, and support provided by a Local Authority.

Below, we look at a case where an asylum seeker’s age was disputed by a Local Authority, with the social worker involved concluding that the asylum seeker was an adult instead of a child.

R (on the application of HAM) v Brent London Borough Council

The Claimant was a Sudanese national who entered the UK in May 2021. On arrival he made a claim for asylum and claimed to be aged 17 and therefore should be treated as a child. The local authority did not believe the Claimant and therefore treated the Claimant’s claim as an adult.

A month later, a social worker undertook an age assessment on the Claimant and concluded that the claimant was 23 years old.

The Claimant instructed legal representatives who wrote a pre-action letter to the local authority criticising how the age assessment had been conducted and provided evidence from a charity organisation who confirmed that they believe that the Claimant’s age is 17. The Local Authority maintained their decision and the Claimant’s legal representatives filed a claim for Judicial Review.

Judicial Review Proceedings

The Claimant contented that the local authority had undertaken the age assessment unfairly. The Claimant raised the following points in relation to fairness of the assessment:

the interpreter should have been present in person, not by phone.
the assessors had not conducted the interviews with an open mind.
the interview was conducted without an appropriate adult.

The following arguments were raised in relation to the local authority reaching the wrong conclusion:

the assessors placed too much reliance on their opinion of the claimant’s appearance and demeanour and not enough weight was given to aspects of the claimant’s appearance that suggested he was a child.
the assessors incorrectly concluded that the claimant was ‘reticent’ as part of an attempt to avoid saying anything that might hinder his application.
the assessors had failed to realise that if the claimant was reticent that reticence could be because he did not wish to say anything that might prejudice his asylum claim, and not because of any matter relevant to the age assessment.
there was no ‘minded to’ process, the claimant was not given the opportunity to meet the assessors’ concerns about his credibility; and
the assessors had not recognised the need to give the claimant the benefit of the doubt on unclear matters or recognise ‘a margin of error’.

The judgement

The Administrative Court considered the case, stating that a fair interview would permit the person who was being assessed a genuine opportunity to explain his position to answer questions that might be put to him and to respond to matters adverse to his case.

The Court held that the Local Authority came to their conclusion as they had concerns with the Claimant’s credibility, and therefore these concerns should have been put forward to the Claimant. Accordingly, the Court held that the Claimant’s claim succeeds on the basis that he was not given the opportunity to meet the assessors’ concerns about his credibility.

The Court made a declaration that the age assessment was unlawful, however a substantive decision in relation to the Claimant’s age would be transferred to the Upper Tribunal to decide.

Our comments

The above case shows the importance of seeking legal representation and challenging decisions made by the Local Authority when an incorrect decision is made. Age assessments are done in person and are subject to human error. Should the Claimant in the above case have not contested the Local Authority’s decision, then it would have had a significant impact on the support he receives and on his asylum claim.

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Supreme Court says part-year workers entitled to proportionally same holiday pay as full-time workers

A new ruling (Harpur Trust v Brazel) by the Supreme Court has favoured part-year workers and casual workers, opening the door to thousands of claims for compensation. The ruling says that these workers are entitled proportionally to the same holiday pay as full-time workers. It also found that the methods of calculating pro-rated annual leave for part-time workers ran contrary to the Working Time Regulations 1998.

The Supreme Court upheld a decision made by the Court of Appeal that a music teacher on a zero hours contract, Lesley Brazel, should receive an average week’s pay for each week of statutory leave from her employer, Harpur Trust.

Previously, employers would generally prorate holiday pay at 12.07% of wages for the hours worked. As a result of dismissing Harpur Trust’s claim to use the 12.07% standard, this opens the door for potentially hundreds of workers to claim for historical underpayment. However, it is unlikely to result in a change in the law. Nevertheless, from now on businesses should calculate holiday pay for part-time workers based on average earnings over 52 weeks, rather than by the hours they have worked.

Keep reading to learn more about the case.

What is a part year worker and what industries will this ruling affect?

Part-year workers are workers who, perhaps unsurprisingly, only work part of the year. They are often seasonal or temporary workers. There is no specified number of hours that a part year worker works per week, and this can vary depending on their role.

This decision will have a profound impact on businesses who employ workers on zero hours, term-time or on a seasonal basis. This primarily affects industries such as education, care and the healthcare sector. These industries often employ a proportionally higher number of temporary workers.

Harpur Trust v Brazel

Lesley Brazel is a music teacher who works at a school run by the Appellant, Harpur Trust. Ms Brazel works part time and is only paid for the hours she teaches during term time, working a variable number of hours per week. According to Brazel, this resulted in her receiving less holiday pay than she did before.

Through the Working Time Directive, the majority of UK workers are provided with four weeks per year. They are also granted 1.6 weeks through the Working Time Regulations 1998, totalling 5.6 weeks overall. The latter is granted through the UK’s implementation of the EU legislation, which defines a week’s pay as an employee’s average pay over 12 weeks before a period of leave.

In 2011, the Trust changed the way that it calculated her holiday pay in with the Acas guidance of the time. Before 2011, they would calculate Brazel’s pay for the 5.6 weeks by calculating her average week’s pay in accordance with the Employment Rights Act 1996 and multiplying it by 5.6. After 2011, they amended this by multiplying the hours Brazel worked by 12.07% and then multiplied this by the hourly rate of pay, in line with the government guidance.

Brazel subsequently brought a claim before the Employment Tribunal for underpayment of holiday pay through unlawful deductions of her wages. While the Employment Tribunal dismissed her claim, the Employment Appeal Tribunal allowed her appeal and held that the statutory regime required the use of the calendar week method. The Court of Appeal dismissed the appeal made by the Harpur Trust, as did the Supreme Court.

The Supreme Court’s judgement

The Supreme Court rejected the arguments made by the Trust in a unanimous verdict. They found that the model left employees with irregular part-time hours out of pocket.

The Harpur Trust accepted that Brazel is a worker, meaning that she is entitled to 5.6 weeks of paid annual leave, which she takes during the school holidays. However, because she isn’t required to work at all during the school holidays, there are more than 5.6 weeks each year where she doesn’t work at all.

Harpur Trust suggested two alternative methods of calculating holiday pay, making the argument that while Brazel would be better off under the Calendar Week Method proposed by the Supreme Court, other hypothetical workers would be worse off compared with Harpur Trust’s suggested methods.

The Supreme Court rejected this, putting forward three main points of contention with the proposed methods proposed by the Harpur Trust:

The proposed methods are contrary to the Working Time Regulations, which determined that holiday pay should be calculated in accordance with a 12-week period which ignores the weeks in which the worker hasn’t received pay.
The two methods would require employers and workers to keep detailed records of every hour worked, even if the worker wasn’t paid at an hourly rate. These complicated calculations were seen as problematic as a result.
The Supreme Court rejected the idea put forward by Harpur Trust that the Calendar Week Method of calculating holiday pay is not appropriate. They decided that a worker in Brazel’s situation receiving holiday pay which represented a slightly higher proportion of their annual pay didn’t justify the Harpur Trust’s alternative method of revising the statutory scheme.

The judgement confirms the entitlement to 5.6 weeks holiday for full and part-time workers, without pro-rating.

Our thoughts

Following this outcome, employers should immediately look to rectify annual leave entitlements for part-year workers by moving from the 12.07% calculation method to the 5.6 weeks pay method. This calculates holiday pay by multiplying the average week’s pay for the part-year worker by 5.6.

It is important to clarify that 5.6 weeks does not necessarily equate to 28 days holiday, which is the amount a worker working five days a week would receive. For example, a part time worker who works three days a week is entitled to 16.8 days of holiday per year.

As mentioned previously, this will primarily impact those in the education and healthcare sectors, where seasonal and temporary work is more common.

Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

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Company administrators cleared of breach of duty despite deficiency during sale of properties

By Yitong Guo

Today’s article comes from one of our solicitors, Yitong Guo, who specialises in property law. The article is about a dismissal application in the Chancery Division of the High Court concerning allegations of breach of duty by company administrators in relation to two companies (“the Companies”) whose business involved the development and sale of two properties (“the Properties”) in London.

In 2015, the properties were eventually sold to two different purchasers respectively, with the sale amounting to approximately £62 million.

As a result of the sales, Barclays Bank PLC, the primary secured funder to the Companies, recovered the whole of the principal amount totalling around £51.5 million, plus fees and interest. There was still a shortfall in the region of £10 million, however.

The case in question is Swiss Cottage Properties Limited (in liquidation); Fitzroy Street Capital Inc and another v Manning and another. It shows that deficiency does not necessarily amount to breach of duty when it comes to property, where loss is not proved.

The application

The Applicants in this proceeding, being an unsecured and junior secured creditor of the Companies, received nothing from the Administrations.

The Applicants averred that insufficient value was realised from the Properties, and made a number of the allegations of wrongdoing against the Administrators under two grounds:

1. The Administrators had acted ultra vires by entering into contractual arrangements with one of the purchasers; such arrangements were said to involve disposition of the Properties, which were subject to fixed charge securities in favour of the junior secured creditors but without first obtaining the permission of the court pursuant to Schedule B1, Paragraph 71 of the Insolvency Act 1986 (IA 1986).

2. The Administrators had breached their duty in that the Administrators had ignored or paid insufficient regard to the interests of the junior secured creditors, and that the efforts undertaken to market the Properties were inadequate with the result that they were sold for below market value.

Under this head of claim, the Applicants alleged the following specific breaches of duty, namely that the Administrators (see Judgement para 5):

“a) failed to understand the market value of the Properties;

1. b) failed to understand the identity and interests of the creditors with fixed charge securities over the Properties and the value of the interests secured;

2. c) failed to perform their functions in the interests of the creditors as a whole and to act impartially in balancing the competing interests of individual creditors;

3. d) failed to provide creditors with sufficient information to allow them to participate in the collective administration regime in a meaningful way;

4. e) failed to take reasonable care to obtain the best price for the Properties which the circumstances of the case permitted.”

Mr Justice Adam Johnson presented an in-depth inspection into the Administrators’ conduct on marketing, valuation and sale process of the Properties before giving his legal argument.

The legal arguments

The Applicants’ primary claim relies on Insolvency Act 1986, Sch B1, para. 71: that the Administrators acted unlawfully and/or in breach of their custodial or stewardship duty by disposing of the Properties which were subject to fixed charge securities in favour junior secured creditors, as if they were not subject to those securities and without obtaining the permission of the Court.

This argument was rejected by the Judge who considered that entering the said contractual arrangement did not in fact involve any disposal of the property by the Administrators as if not subject to the Applicants’ security. As in the ordinary course, Administrators have no power to dispose of property in a manner which overrides a creditor’s security interest, at least not without the creditor’s consent.

The Judge shrewdly pointed out the obvious: “Administrators are agents for the company over which they are appointed and have no greater power to make a disposal free of such an interest than the company itself would have. Any attempt to do so would be bound to fail: the purchaser would be bound by the security interest, and if the company (or the Administrators) had contracted on the basis that the security interest was overridden, then it (or they) would be in breach of contract.

…. it seems to me that the Administrators contracted on the basis that they would cause one of three things to happen at completion: (i) they would procure consent of secured creditors who would deliver the Land Registry DS1 forms; (ii) they would make an application to the Court under Sch. B1, para. 71; or (iii) they would procure that Barclays sold as mortgagee in possession. None of these alternatives, however, contemplated that the Companies would transfer a beneficial interest in the Properties free from the second-ranking charge prior to completion. On the contrary, each contemplated that an act from a third party independent of the Administrators would be needed in order for completion to take place. That structure, as it seems to me, is quite inconsistent with the idea that there was any immediate disposal of an interest in the Properties not subject to the existing security interests.”

Previous cases cited

On the alternative claim under the breach of duty claim, shortcomings and deficiencies in the conduct of the Administrators had been admitted and identified. Several legal standards and principles on standard of care and duty of administrators were cited and considered in assessing the conduct of the Administrators and their duty of care.

The basic legal standard on the relevant standard of care Re Charnley Davies (No. 2)[1990] BCLC 760 (at 775e-776a):

“It is to be observed that it is not an absolute duty to obtain the best price that circumstances permit, but only to take reasonable care to do so; and in my judgment that means the best price that circumstances as he reasonably perceives them to be permit. He is not to be made liable because his perception is wrong, unless it is unreasonable.”

The overall position Davey v Money[2018] Bus LR 1903:

“An administrator must be a professional insolvency practitioner. A complaint that he has failed to take reasonable care in the sale of the company’s assets is, therefore, a complaint of professional negligence and in my judgment the established principles applicable to cases of professional negligence are equally applicable in such a case. It follows that the administrator is to be judged, not by the standards of the most meticulous and conscientious member of his profession, but by those of an ordinary, skilled practitioner. In order to succeed the claimant must establish that the administrator has made an error which a reasonably skilled and careful insolvency practitioner would not have made.”

On the general duty to act with reasonable care and skill Brewer v Iqbal [2019] EWHC 182

“Failure to understand the nature of the intangible asset, and the true value of the EPGs, led to a failure to properly market the EPGs. These constituted a failure to act with reasonable care and skill.”

On the court’s position that it will generally not question the administrator’s commercial judgment unless it is under the grounds of wrongly applying the law or is conspicuously unfair to a particular creditor. Lightman & Moss:

“…a broad judicial understanding of the nature of the administrator’s task and the challenges that he faces on appointment; an appreciation, in particular, that the administrator will invariably be operating at pace in difficult and urgent circumstances which dictate the need for quick decision-making, often based on less than perfect information, if value is to be preserved. It also reflects an institutional judgment that licensed professionals are better placed than the court to formulate and implement commercial strategy according to the circumstances in which they find themselves.”

The principle that an administrator is entitled to rely on appropriate professional advice in carrying out his duties and will not be liable in negligence if the advice relied on appears to be competent: Davey v. Money. It is up to the administrators to establish that such reliance was reasonable in the circumstances: One Blackfriars.