H, R (on the application of) v Essex County Council

SIR GEORGE NEWMAN: This application for judicial review has involved consideration of a preliminary point advanced by Essex County Council. The basis for the preliminary objection to the continuation of the proceedings, is that the matters now raised in the application for judicial review have become academic. So far as the arguments are advanced and depend upon other local authorities who may have had, or continue to have, a policy in issue in this application when it was first advanced, it is said the court should not deal with it; and that so far as issues of backdating are concerned, which the claimants had sought to raise, it is said they are way outside a time of which this court should contemplate considering them.

The short position can be stated as follows: by the time permission was granted on 29th January 2008, by Mr Justice Forbes, a challenge was being advanced to the refusal by Essex County Council of an application by the grandparents of H for a residence order allowance to assist them with the cost of the care and accommodation and so forth they were providing for H. Fundamentally, they were fulfilling the role of parent for the welfare of H.

The challenge which Mr Justice Forbes had to consider was to the policy then in operation. In my judgment, quite rightly, he granted relief because on any view it was strongly arguable that the terms of the policy were unlawful. The content of the policy can be shortly stated. It was as follows, under a heading CF2 in the document, "Procedure for Applying for Resident Order Allowance." The following policy statement was made:

That policy, as I understand it, was operated not simply so as to deny retrospectivity, in the sense that an application for a residence order allowance would not be granted backdated to the date of the residence order, but it was operated so as to refuse projectively an entitlement to an allowance being granted. The law required, paragraph 15.1 schedule 1 of Children Act 1989, that a local authority should exercise a discretion. The material parts being:

Just a mere recital of the breadth of the discretion makes it plain that it was obvious that a case could arise where children were alreaday living with a person who was making a claim for an allowance and not simply that the power was to be exercised in respect of a child who was to live with somebody. I repeat, "where a child lives, or is to live..."

More than that, it seems to me that Mr Justice Forbes reached the right conclusion when concluding that it was arguable that this policy was unlawful, because there can be no sensible rationale for refusing an application where the applicant for an allowance has a child who is already living with the applicant simply because no application for an allowance was made at the date of the application for the residence order was made. A local authority faced with such an application has all the powers which it needs to have to inquire into the merits of the application, to apply any means test that is relevant, and to consider all the circumstances; and of course, is entitled, so it would seem, although there may be argument about it but I am not concerned with that detail, to have regard to his own resources.

The important thing which I observe at this stage is that, if it be the case that there are in existence policies in local authorities elsewhere, where a form of restraint upon the exercise of discretion is being operated, simply because no application is made at the time of the residence order, then it seems to me that those authorities in fulfilling that policy do so at their peril of it being determined that they are operating an unlawful policy. It is not my role, and indeed the reason why I have rejected further consideration of this application today is that it is not my role to determine the lawfulness of any particular local authority's policy, other than the authority before the court in this application. It is for the local authorities to consider their position in the light of whatever information that they consider has a bearing on it.

The reason why it has become, in my judgment, academic to this claimant is because the policy of Essex has been superseded by a new policy. The new policy appears at section F14 of the bundle and it is, in its main part, in the following terms:

There follow other matters which I need not refer to, other than by way of summary, in relation to withdrawal or cessation which refer to the means tested limit being exceeded.

As I observed when we were looking at this new policy, it seems to me that the use of the phrase, "only in exceptional circumstances," does not quite marry up with the breadth of the discretion, and the breadth of the policy, which the local authority is formulating. Each and every application is to be assessed on its individual merits and that seems to me to be an appropriate way forward. It does not seem to me that there will be cases in which, as the policy suggests, the need for review or reconsideration of the position, or for an application to be made when none was originally made, are in anyway likely to be limited by the brief statement of some of the examples. Plainly there can be circumstances in which somebody, at the time that the residence order is made, does not need an allowance, but the circumstances have changed and financial need arises. There can be endless circumstances which will, as I understand it under this policy, be relevant which will require each case to be given appropriate consideration on its merits. I can see can that there may be reasons why the local authority, Essex, might want to take a rigorous approach to the investigation to claim for an allowance which had not originally been made, and that may be what is in truth reflected by the expression, "exceptional circumstances".

That being the case, as it happens, the grandparents of H now are in receipt of a residence order allowance. There has been an application for backdating and it has been backdated. It has been backdated to the date of the first refusal in respect of that application in July 2007. It was suggested that that was an arbitrary date. I do not see it as an arbitrary date, it seems to be an understandable date to take the date when the application was made. It is not rendered, in my judgment, arbitrary because there were earlier applications in April 2004 and 2006 which were refused under the old policy. Those applications and the refusals are not before this court, and they could not be before this court, bearing in mind the passage of time since they were made. It is no part of this court to accept the task involved in going back to those refusals and investigate those, when complaint was not made, as it could have been at the material time and within the rules applicable to judicial review applications.

So, nothing, it seems to me, arises in connection with the new policy. There is nothing in connection with the backdating. There is nothing in the suggestion that this matter should proceed because it will be a declaratory case in respect of other local authority's policies. Other local authority's policies are not before the court. Such observations which I have made generally about the policy which did prevail in Essex are available. Those who wish to do so can form a view about where they stand in the light of those observations.

So, for all those reasons, this is not a case which I shall permit to proceed, by way of a substantive application for judicial review. I uphold the preliminary submission, by Mr Sharland for Essex, that the matter should not continue. Thank you both very much.

MR JOHNSON: My Lord, obviously as there always is, there is the issue of costs. It is quite a difficult one to determine where the success or otherwise lies, it seems to me. I think perhaps whilst we can have some discussion about it, perhaps the most pragmatic way forward is a no order as to costs. I do not know whether my learned friend accepts that?

MR SHARLAND: I do, my Lord.

SIR GEORGE NEWMAN: Well, then you are both very sensible and reasonable men.

MR JOHNSON: The only other thing, my Lord, would be is that I would ask for detailed assessment of the publicly funded costs.

SIR GEORGE NEWMAN: Yes, of course.

MR JOHNSON: My Lord, I would ask, as I am required to do, for permission to appeal.

SIR GEORGE NEWMAN: To appeal what?

MR JOHNSON: The decision on the preliminary point as to whether or not --

SIR GEORGE NEWMAN: Why are you asking for permission for that? It is a discretionary matter.

MR JOHNSON: Yes, my Lord.

SIR GEORGE NEWMAN: Are you instructed to do that?

MR JOHNSON: I am my Lord.

SIR GEORGE NEWMAN: Are you on legal aid?

MR JOHNSON: Yes, my Lord. I accept the reality would be that --

SIR GEORGE NEWMAN: No, this just sets in train more costs. I have to write out a form stating why I refuse leave. That means that yet further time is taken, it means that the court office is involved, and the administrative costs in dealing with a case which is potentially going to go on as you are going to make an application to the Court of Appeal. I mean, I simply do not understand why you make an application for permission, when there is no reality in it.

MR JOHNSON: If I can turn my back very briefly, it may be I can shortcut this.

SIR GEORGE NEWMAN: I think you better. Otherwise, I shall rapidly withdraw the complimentary remarks I made about common sense a little earlier.

MR JOHNSON: My Lord, I withdraw the application.

SIR GEORGE NEWMAN: Thank you all very much.