L, M and P v Devon County Council

A court may decide an academic public-law claim where there is a good public-interest reason to do so. Relevant considerations include whether the claim raises a discrete issue of statutory construction, affects a wider class, arises on established facts, and is unlikely to remain live until a substantive hearing. The discretion must not be reduced to a requirement that determination be unavoidable or necessary.

An appellate court may re-exercise that discretion where the lower court applied the wrong test or confused academic claims with the separate doctrine of alternative remedies. A decision on an academic claim made against concrete facts may still have a ratio and may be capable of binding later courts.

The appellants were children and young people for whom Devon County Council maintained education, health and care plans. Their judicial review claims concerned the timetable for proposed and final amendments following annual reviews, particularly the interaction between notices under the Special Educational Needs and Disability Regulations 2014 and the eight-week period for issuing a final plan.

By the substantive hearing, the Council had issued the final amended plans. HHJ Allan Gore QC, sitting in the Administrative Court, treated the claims as academic and declined to determine the statutory construction issue. The appeal concerned whether, assuming the claims were academic, the judge should nevertheless have exercised the discretion to decide that short and potentially recurring public-law question.

1. Appeal allowed. The construction issue was remitted to the Administrative Court. Lady Justice Elisabeth Laing held, with whom the other members of the court agreed, that it was unnecessary to decide conclusively whether the claims were academic.

2. Judicial review remedies, including declarations, are discretionary. The discipline of declining academic claims helps to control access to the court where a claimant has obtained the practical relief sought. But the Administrative Court has a discretion to decide an academic public-law claim. The applicable approach is that in R v Home Secretary ex p Salem [1999] AC 450, not a rule that determination must be unavoidable or necessary.

3. There were strong public-interest reasons to decide the construction issue. It was a short issue of statutory construction, potentially affecting many children, parents and local authorities. It arose on three established and undisputed factual situations, and was unlikely to remain live long enough to be decided at a substantive judicial review hearing. The parties had also obtained permission, prepared fully, and argued the issue at the hearing.

4. The judge erred in principle by applying the wrong test and by conflating the distinct questions whether a claim was academic and whether an academic claim should nonetheless be decided. His reliance on concepts of alternative remedy, necessity and unavoidability did not justify refusing to exercise the discretion. The Court of Appeal therefore exercised the discretion afresh and concluded that the issue should have been decided.

5. Lord Justice Peter Jackson added that a claim is academic where its outcome does not directly affect the parties’ rights or obligations, though that assessment is fact-sensitive. He further observed that a decision made against concrete, undisputed facts may have a ratio even if the claim is academic; it is not automatically obiter or immune from appeal.

• Court of Appeal (Civil Division): Allowed the appeal and remitted the statutory construction issue to the Administrative Court: [2021] EWCA Civ 358.
• Administrative Court: HHJ Allan Gore QC declined to determine the construction issue, treating the claims and requested relief as academic.