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

A local authority exercising a statutory discretion to make residence order allowances must consider each application on its individual merits. A policy that prospectively excludes applications merely because no allowance was sought when the residence order was made unlawfully fetters that discretion. A later policy may address applications made after the order, provided it allows proper consideration of the individual circumstances. Where the claimant’s circumstances have been resolved and the challenge has become academic, the court may decline to entertain a substantive judicial review. The court will not determine the lawfulness of policies operated by other authorities when those policies are not before it.

The claimant challenged Essex County Council’s policy for residence order allowances. The original policy stated that applications would not be considered retrospectively, and was said to prevent applications after the residence order had been made. Permission was granted by Mr Justice Forbes on the basis that the policy was strongly arguably unlawful.

By the time of the substantive hearing, Essex had replaced the policy. The claimant’s grandparents were receiving an allowance, and the allowance had been backdated to the date of the first refusal in July 2007. The issues were whether the claim remained justiciable, whether the backdating issue could proceed, and whether the court should address policies operated by other local authorities.

1. Preliminary issue and disposition. The court upheld Essex County Council’s preliminary objection. The claimant’s challenge had become academic because the original policy had been superseded, the grandparents were receiving a residence order allowance, and the allowance had been backdated to July 2007. The substantive judicial review was therefore not permitted to proceed.
2. Statutory discretion. Paragraph 15.1 of Schedule 1 to the Children Act 1989 conferred a broad discretion to make contributions where a child lived, or was to live, with a person as a result of a residence order. That wording plainly included cases where the child was already living with the applicant. A policy refusing consideration solely because no application had been made when the residence order was sought was strongly arguable to be unlawful. The authority retained power to investigate the merits, apply any relevant means test, and consider all the circumstances, including the applicant’s resources.
3. Replacement policy. The new policy stated that applications made after a residence order would be considered only in exceptional circumstances, but also required each application to be assessed on its individual merits. The court considered that approach appropriate, while observing that the phrase exceptional circumstances did not fully reflect the breadth of the discretion. The examples in the policy were illustrative and not exhaustive.
4. Backdating and other authorities. Backdating to July 2007, when the relevant application was made, was not arbitrary. Earlier refusals in 2004 and 2006 were outside the permissible scope of this judicial review because they had not been challenged within the applicable time. The court would not determine the lawfulness of other local authorities’ policies, although its observations might assist those authorities. There was no order as to costs, and publicly funded costs were subject to detailed assessment. The application for permission to appeal was withdrawn.

The judgment describes the earlier procedural stage:

• High Court (Administrative Court): Mr Justice Forbes granted permission on 29 January 2008, considering the challenge to the original policy strongly arguable.
• High Court (Administrative Court): Sir George Newman upheld the preliminary objection and declined to permit the substantive judicial review to proceed because the issues had become academic.