H v Essex County Council

Judgment

Sir David Keene:

This is an appeal from Sir George Newman, sitting in the Administrative Court, permission to appeal having been granted by Elias LJ. The grandparents of the appellant, H, applied in April 2007 to Essex County Council for a Residence Order allowance in order to assist with the costs of the care and accommodation which they provided for H, H being a young child.

There had been earlier applications, a matter to which I shall return. In July 2007 the county council refused the application because at that time they had a policy that they would not make such an allowance retrospectively, not merely in the sense of covering past costs but actually requiring the application for an allowance to have been made before the Residence Order itself was made. Such an order of course would be made by a court under the Children Act 1989. The judge seems to have regarded the policy in the terms in which it then stood as probably being an excessive constraint on the counsel’s exercise of discretion, discretion certainly which existed under the 1989 Act Schedule 1.

However, before the application for judicial review came to be heard by Sir George Newman, the County Council had changed its policy. The new policy allows the exercise of discretion on the merits of the individual application, although only exceptionally will an allowance be granted after the Residence Order has been made.

H’s grandparents had, by the time of the hearing in the court below, been granted the allowance backdated at that stage to the date of the decision challenged in the claim form, namely July 2007. Sir George Newman held that the judicial review proceedings had in consequence become academic and he dismissed the claim with no order as to costs. Permission to appeal was granted on two of the grounds in the appellant’s notice. The first was that the proceedings were not academic, in that there had been earlier decisions in 2004 and 2006 made under the original policy in respect of H’s grandparents, and if that policy were declared to have been unlawful then they could potentially obtain a benefit.

That, Elias LJ noted, was interlinked with the other ground upon which he gave permission to appeal, namely that the issue of backdating payments to earlier than July 2007 could and should have been determined. On this the judge below noted that the earlier decisions to refuse payment had not been challenged by judicial review and would now be out of time. Elias LJ, I observe