London Borough of Hillingdon v AP & Anor

An appellate court should not determine an appeal where intervening events have removed any substantive dispute and no order would confer practical benefit. An academic appeal may exceptionally proceed on a point of general public importance, but the discretion is narrow and must be exercised cautiously. Relevant considerations include the point’s importance, the respondent’s consent or protection from costs and prejudice, and full ventilation of both sides’ arguments. The court also lacks jurisdiction to grant declaratory relief concerning hypothetical future issues that cannot be foreseen with sufficient confidence.

The Local Authority appealed against the Upper Tribunal’s dismissal of its appeal from the First-tier Tribunal concerning AA’s Education, Health and Care Plan. The proposed grounds alleged errors concerning extended-day and residential provision, the sequence of assessing need, provision and placement, and the duty to consider avoiding unreasonable public expenditure under section 9 of the Education Act 1996.

By the time of the appeal, the First-tier Tribunal’s decision had been acted upon. AA was settled at the placement selected by the tribunal, the Local Authority had no present intention to disturb it, and later statutory reviews had occurred or were forthcoming. The central issue was whether the court should determine an appeal which had become academic.

1. Appeal dismissed. The appeal had become academic. The First-tier Tribunal’s decision, upheld by the Upper Tribunal, had been acted upon, and the alleged errors could not affect AA’s current statutory position, placement or the parents’ position.
2. Following Ainsbury v Millington, courts do not determine abstract questions of law where there is no dispute requiring resolution. Although an academic or hypothetical point of general public interest may exceptionally justify an appeal, the jurisdiction is narrow and must be exercised with caution, as explained in R v Secretary of State for the Home Department, ex p Salem.
3. The three usual requirements identified in Hutcheson v Popdog Ltd (Practice Note) are: the appeal raises a point of general importance; the respondent agrees, or is fully protected against costs and inappropriate prejudice; and both sides’ arguments are fully and properly ventilated. The parents did not agree to the appeal proceeding, and the court found no sufficient wider public interest.
4. The court had no proper jurisdiction to issue a declaration concerning AA’s future needs or future Education, Health and Care Plan decisions, because those matters were prospective and could not be foreseen with adequate confidence, applying Naylor v Wrotham Park Settled Estates.
5. The court therefore declined to consider the substantive grounds, including the proposed guidance on section 9 of the Education Act 1996. No order or declaration would provide real practical benefit to either party.

• Court of Appeal (Civil Division): The appeal from the Upper Tribunal was dismissed as academic: [2026] EWCA Civ 216.
• Upper Tribunal (Administrative Appeals Chamber): The Local Authority’s appeal from the First-tier Tribunal was dismissed in November 2024, and the First-tier Tribunal’s decision was confirmed.
• First-tier Tribunal (Special Educational Needs and Disability): Determined the parents’ appeal concerning sections F and I of the 2023 Education, Health and Care Plan and named Eliot School as the placement.