H v Essex County Council

Judicial review remedies are discretionary, but the discretion must be exercised judicially. Proceedings may properly be treated as academic where the claimant has obtained the relief sought, subject to any genuinely live issue.

A declaration that a policy was ultra vires does not itself invalidate earlier decisions made under it. Those decisions remain lawful unless set aside by a court of appropriate competence. An indirect challenge cannot circumvent the requirement for judicial review proceedings to be brought promptly.

H’s grandparents applied to Essex County Council for a Residence Order allowance. The council initially refused under a policy requiring an application before the Residence Order was made. Before the judicial review hearing, the policy changed and the allowance was granted retrospectively to July 2007.

Sir George Newman dismissed the claim as academic, with no order as to costs. H appealed, arguing that earlier refusals in 2004 and 2006 should be treated as unlawful and that payment should be backdated to 2003. An alternative argument alleged a failure to consider whether earlier decisions should be reconsidered.

The Court of Appeal unanimously dismissed the appeal. Sir David Keene gave the judgment, with Lord Justice Mummery and Lord Justice Richards agreeing.

1. Academic proceedings. Judicial review remedies are discretionary, although the discretion must be exercised judicially. By the hearing, H had obtained the allowance and a change in policy. The remaining issue concerned payment from the dates of earlier applications.
2. Earlier refusals. H was in substance seeking to set aside the 2004 and 2006 refusals indirectly. Under Rule 54.5 of the Civil Procedure Rules 1998, an application for permission to seek judicial review must be made promptly and in any event within three months after the grounds first arose. The earlier decisions had not been challenged and were out of time.
3. A declaration that the council’s policy was ultra vires would not, by itself, render those earlier decisions unlawful. A decision of a court of appropriate competence setting them aside would have been required. That relief was unavailable in the proceedings.
4. Unpleaded alternative. The argument that the council had failed to consider whether to backdate payment to 2003 was different from an allegation that it should have backdated payment. It had not been advanced in the original or amended grounds. Had it been raised below, further evidence might have been required.

The council had accepted that payment should run from 27 April 2007, rather than July 2007. That limited issue provided no basis for interfering with the decision. Order: application refused.

• Court of Appeal (Civil Division): dismissed the appeal. Permission had been granted on two grounds.
• Administrative Court: Sir George Newman dismissed the judicial review claim as academic, with no order as to costs.