Case No: C1/2009/0331
Neutral Citation Number: [2009] EWCA Civ 1504
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN’S BENCH DIVISION 
ADMINISTRTIVE COURT
(SIR GEORGE NEWMAN)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 13th October 2009
Before:

LORD JUSTICE MUMMERY
LORD JUSTICE RICHARDS
SIR DAVID KEENE

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Between:

	H	
Appellant	
	- and -		
	
ESSEX COUNTY COUNCIL	
Respondent	

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Ms Lindsay Johnson and Ms Lottie Harris   (instructed by Children’s Legal Centre) appeared on behalf of the Appellant.
Mr A Sharland (instructed by Essex County Council) appeared on behalf of the Respondent.
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Judgment
Sir David Keene:

1.	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. 

2.	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.  

3.	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.   

4.	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.  

5.	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, refused permission to appeal on a ground which relied upon the fact that other local authorities had somewhat similar policies which were still operational.  That aspect is therefore not before this court.

6.	It is of course axiomatic that the granting of remedies in judicial review is a matter of discretion, albeit one to be exercised judicially.  That, in a case like this, may well turn on whether the proceedings truly were academic or not.  It seems to me, as it did to Elias LJ, that the two grounds upon which permission to appeal have been granted are very much intermingled.  Subject to the issue of backdating -- that is to say, the issue of the date from which payment should have been made -- the appellant had, by the time of the hearing, achieved what it was that she had sought on her claim form.  She had got payment as from the date of the decision under challenge, namely July 2007.  In my view, it should more appropriately have been from the date of the application to which that decision related, namely 27 April 2007, but that indeed has recently been recognised by the respondent counsel, which has decided to make the payment as from that date in April 2007.  That was something notified by a letter dated 1 December 2009.  

7.	Putting that detailed aspect on one side for the moment, the appellant had been awarded what she had sought in the claim, both the payment of the allowance and a change in the council’s policy.  What she had not got was payment of the allowance from the date of her earlier applications, which had been the subject of those refusals in 2004 and 2006.  That is the real point about backdating. 

8.	The grounds for seeking judicial review were in fact amended in draft on 11 September 2008, an amendment permitted by the judge, so as to assert that the failure of the County Council to backdate payment to the date of the first application, which was in March 2003, was unlawful.  That draft amendment followed very shortly after a letter to similar effect from the appellant’s solicitors dated 9 September 2008, seeking an explanation for not backdating to 2003.  It seems that the only response to that letter came in the form of a witness statement filed in December 2008 on behalf of the County Council and made by one of their officers, Ms Christine Hill.  That noted that the most the claim form could have achieved was payment from the date of the application which led to the refusal being challenged -- that is to say, a date in 2007.  

9.	A subtler variant on this argument about backdating has come this morning from Mr Johnson, who appears for the appellant.  Having initially contended that payment should have been backdated to 2003, he had gone on to argue also that the error on the part of the respondent council lies in its failing to consider the possibility of such a back payment to that date.  He relies upon the decision of this court, unreported save briefly in the Times Newspaper of 4 April 1986, of which we have a transcript: Cheung v Hertfordshire County Council, where the then Master of the Rolls, Sir John Donaldson, referred to the power and indeed the duty of local education authorities to reconsider earlier decisions in certain circumstances to refuse grants where a subsequent court decision had shown that those decisions had proceeded on a legally erroneous basis.  That was a case where there was a mandatory obligation on local education authorities to pay such grants when certain conditions were met.  It is to be observed that the court held that only certain applications needed to be reconsidered, those being ones which had been made during the period after an application (which became a test case) had been lodged.  

10.	The problem about raising this more subtle argument, as I have described it, based on a failure to consider whether or not to backdate to 2003 as opposed to failing actually to backdate payment, is that that was not the basis of the claim for judicial review in either the original or the amended grounds.  It was not an allegation of failing to apply their minds to whether to backdate or not which was said to be the error on the part of the county council, but the failure to backdate itself.  Had the proceedings below been directed towards an alleged failure to reconsider the earlier decisions, there might well have been additional evidence about the extent to which the council had applied its mind to that issue.  

11.	What the appellant was in reality seeking to do in the proceedings below was to set aside the earlier refusals of 2004 and 2006 on the basis that they were automatically unlawful once the policy had been held to be unlawful.  That was the claim which was being advanced, even though the appellant was long out of time to seek to challenge those earlier decisions by means of judicial review.  There is of course a requirement under the Civil Procedure Rule 54.5 that applications for permission to seek judicial review be filed promptly, and in any event not later than three months after the grounds to make the claim first arose.  Those earlier decisions of the respondent had not been challenged and remained lawful.  Moreover, they would remain lawful even if the respondent’s policy were declared ultra vires.  Such a declaration by itself would not render those earlier decisions unlawful.  That actually can be seen from the case of Cheung, to which I have referred earlier, at page 10 and in a number of other decisions which are cited and briefly summarised in the sixth edition of De Smith’s Judicial Review, paragraph 4-061.

12.	To render those earlier decisions unlawful would have required a decision of a court of appropriate competence to that effect, and because of the delay on the part of the appellant such a decision was not available to her and indeed formed no part of the relief claimed in these proceedings.  Consequently, subject to the very limited point about the precise date in 2007 from which payment was to be calculated, April or July, Sir George Newman was, in my view, right to regard the proceedings as having become academic by the time of the hearing before him, and he was therefore entitled to exercise his undoubted discretion by dismissing the claim.  

13.	The limited point to which I have referred might have caused me more concern had the respondent not met it since the hearing below.  In the light of the council’s recent recognition of the point I would not, for my part, interfere with the judge’s decision, and indeed it is not submitted on behalf of the appellant that that would form any basis by itself for allowing this appeal.  It may have some relevance when we come to the issue of costs.  Nonetheless, for the reasons which I have set out, I, for my part, would dismiss this appeal. 

Lord Justice Mummery:  

14.	I agree.

Lord Justice Richards:  

15.	I agree.

Order: Application refused