[2024] UKUT 128 (AAC)

Given that by the time of the hearing of the appeal, T had returned to the UK and had been issued with a new EHCP, I raised with the parties in advance of the hearing whether I should proceed to determine the appeal.

Although by the time of the hearing before me, T and his family had returned to the UK with effect from 16 July 2023 and a new EHCP had been issued for T at his new mainstream junior school in September 2023, both sides were agreed that I should nevertheless hear the appeal because the issues involved were likely to be of general importance in other cases involving service personnel families and to local authorities with duties towards the children and young persons of such families.

To that end, I asked Mr Line whether the Council had any figures to demonstrate how many cases raising such issues it currently had on its books or had had in the previous 5 to 10 years and whether it had figures for any other local authorities.

Mr Line was not able to provide any figures going back over a 10 year period nor was he in a position to provide any information relating to other local authorities, but on the basis of enquiries which had been made from census and pupil premium data, he had been given the following information relating to the Council:

In response to a question from me during the hearing, as to whether the Council was able to explain how many, within those numbers, were service families living abroad, Mr Line was subsequently in a position to tell me that there were not at present any service families living abroad who had an EHCP maintained by the local authority and that in the past, where service families had moved abroad, the Council had ceased to maintain the EHCP, as it did in the present case. The local authority had not been able to quantify how many times that had happened in the past. The Council would have been able to identify how many EHCPs it had ceased to maintain in a given year, but within that parameter it would not be possible to know what the reasons and circumstances were leading to that decision without reviewing individual case files. I did not require the Council to undertake any further such review.

Although by the time of the hearing before me, T and his family had returned to the UK with effect from 16 July 2023 and a new EHCP had been issued for T at his new mainstream junior school in September 2023, I am satisfied that it was correct to hear the appeal and to determine it on the basis of the arguments addressed to me and not merely on the narrow basis of the Council’s admitted failure to comply with regulation 31 of the 2014 Regulations, given that the issues involved are likely to be of general importance in other cases involving service personnel families and to local authorities with duties towards the children and young persons of such families.

The Court of Appeal recently considered this question in its decision in HMRC v Arrbab[2024] EWCA Civ 16 where Falk LJ (with whom Snowden and Baker LJJ agreed) said

“Whether to consider an academic appeal

28.

In R v Secretary of State for the Home Department Ex p. Salem[1999] 1 AC 450, 456-7 Lord Slynn recognised the existence of a discretion to hear an appeal on an issue of public law involving a public authority, even if by the time the appeal is heard its outcome will not directly affect the rights and obligations of the parties inter se, but added:

"The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future."

29.

The conditions that will generally need to be met before this court may exercise its discretion to entertain an academic appeal were summarised by Lord Neuberger MR in Hutcheson v Popdog Ltd (News Group Newspapers Ltd, third party)[2011] EWCA Civ 1580, [2012] 1 WLR 782 at [15]:

"(i)

the court is satisfied that the appeal would raise a point of some general importance; (ii) the respondent to the appeal agrees to it proceeding, or is at least completely indemnified on costs and is not otherwise inappropriately prejudiced; (iii) the court is satisfied that both sides of the argument will be fully and properly ventilated."

More recently, the principles have been considered by this court in R (L) v Devon County Council[2021] EWCA Civ 358, [2021] ELR 420 and R (on the application of SB) v Kensington and Chelsea RLBC[2023] EWCA Civ 924.

31.

HMRC's position is that the appeal raises a point of law that has implications for other cases, such that if it is not resolved now it is likely that they would seek to raise it in another case. Further, Mr Arrbab's legal team were content on his behalf for the appeal to proceed, subject to an undertaking as to costs which was provided following a brief adjournment for that purpose. We were also satisfied that both sides of the argument would be (and indeed were) fully ventilated. In the circumstances, we concluded that this is a case where the court should exercise its exceptional discretion to hear an academic appeal.”

Both sides were agreed that the appeal raised points of law which had implications for other cases, such that if they are not resolved now it is likely that local authorities or parents would seek to raise it in another case. Further, the parents’ legal team, who were acting pro bono, were content on their behalf for the appeal to proceed. I am also satisfied that both sides of the argument would be (and indeed were) fully ventilated. In the circumstances, I conclude that this is a case where the Upper Tribunal should exercise its exceptional discretion to hear an academic appeal.