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Court of Appeal says judge should have decided issue over statutory construction about timetable for producing amended EHC plans

An Administrative Court judge should have decided a point of statutory construction about the timetable for producing amended education health and care (EHC) plans instead of declining to do so since it was academic, the Court of Appeal has ruled.

The case of L, M and P v Devon County Council [2021] EWCA Civ 358 was brought by children L, M and P through litigation friends against Devon County Council.

Lady Justice Elisabeth Laing said their applications for judicial review arose from a hearing by HHJ Allan Gore on the 'short point' of statutory construction.

Eady J gave permission to apply for judicial review and rejected an argument that the claims were academic.

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HHJ Gore nevertheless declined to decide the point because he thought the claims were academic.

The appellants argued that on the facts of this case the judge should not have reconsidered Eady J’s view that question was not academic and was then wrong to decide that it was.

They also argued that if the judge was right to decide that the claims were academic, he erred in principle in refusing to exercise his discretion to decide them.

L and M’s cases involved challenges to the speed with which Devon issued their plans, while for P there was a dispute over consultation.

Laing LJ said the parties incurred costs preparing for a hearing and Devon did not suggest in its skeleton argument that the construction issue should not be decided because it was academic.

“In those circumstances, the overriding objective would have been furthered by deciding the claims, and frustrated by declining to do so,” she said.

HHJ Gore had discretion to decide the claims, even if they were academic, and his reasons for refusing to exercise that discretion “are circular…either, an argument that he had no discretion, or reasons which would apply to every academic claim and would, if valid, mean that the court could never exercise its discretion to hear an academic claim”.

Laing LJ said: “The…judge fundamentally misunderstood the nature of this discretion. There is nothing in the authorities about the exercise of the discretion which compelled him to conclude that he should not decide the issue of construction.”

She said the issue of statutory construction potentially affected many children who have EHC plans and the local authorities responsible for devising them.

“The issue concerns a short period in a longer process, so it is unlikely ever to be live by the time an application for judicial review reaches a substantive hearing, and, therefore, unlikely to be decided unless in these claims,” she said.

“There are three cases before the court, and the facts of those cases are not in dispute. It follows that there are good reasons in the public interest for the claims to be heard.”

The issue was remitted to the Administrative Court.

Mark Smulian

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