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LOCAL AUTHORITY: R (H) v Essex County Council [2009] EWHC 353 (Admin)

Date:27 JAN 2009

(Queen's Bench Division (Administrative Court); Sir George Newman; 27 January 2009)

The grandparents had applied for a residence order allowance to assist them with the cost of the care and accommodation they were providing for the child. The local authority policy stated that such allowances would not be considered in retrospect, which the authority interpreted as meaning that no allowance would be granted if the child were already living with the applicant under a residence order when the application was made. The grandparents made a number of applications, all of which were rejected. The grandparents sought judicial review of the most recent rejection of the application. A judge concluded that it was strongly arguable that the policy in question was unlawful, because the discretion granted by Children Act 1989, Sched 1, para 15.1 extended to situations in which a child 'lives or is to live with a person as a result of a residence order'. A new policy was introduced, and the grandparents were awarded an allowance under that new policy. The grandparents sought to have the allowance backdated to their original application, instead of to the date of the first refusal of their most recent application, and persisted with the judicial review.

The judicial review should not continue, because no issues arose in connection with the new policy. The court noted some concerns about the new policy's use of the term 'exceptional circumstances', but stated that such issues had no bearing on this case, as the grandparents had now been granted an allowance under the new policy. If there were policies in other local authorities similar to the original policy in this case, those other local authorities should be aware that in operating a bar on applications for residence order allowances after the granting of the residence order, they ran the risk of a determination that they were operating an unlawful policy. Backdating the allowance in this case to the refusal of the most recent application for the allowance was not arbitrary; the earlier applications and refusals were not before the court. It was no part of the court's function to investigate earlier refusals, about which there had been no complaint at the time.