{"id":563042,"date":"2026-04-15T00:43:06","date_gmt":"2026-04-14T22:43:06","guid":{"rendered":"https:\/\/kohenavocats.com\/jurisprudences\/london-borough-of-hillingdon-v-ap-anor\/"},"modified":"2026-04-15T00:43:06","modified_gmt":"2026-04-14T22:43:06","slug":"london-borough-of-hillingdon-v-ap-anor","status":"publish","type":"kji_decision","link":"https:\/\/kohenavocats.com\/zh-hans\/jurisprudences\/london-borough-of-hillingdon-v-ap-anor\/","title":{"rendered":"London Borough of Hillingdon v AP & Anor"},"content":{"rendered":"
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Lord Justice Cobb : Introduction 1. This is an appeal from a decision of the Upper Tribunal (\u2018UT\u2019), which was itself considering an appeal from the First Tier Tribunal (Special Educational Needs And Disability) (\u2018FTT\u2019). The appeal concerns the provision of Special Educational Needs (\u2018SEND\u2019) provision for a young person, who for the purposes of this appeal has been given the initials AA. The Appellant is the London Borough of Hillingdon (\u2018the Local Authority\u2019); the Respondents are AA\u2019s parents (\u2018the parents\u2019). 2. Permission to appeal was given by Zacaroli LJ on 6 June 2025 on three of the four Grounds of Appeal. In that regard, we have had the benefit of detailed argument from Joseph Thomas, counsel for the Local Authority, and Katherine Anderson and Jim Hirschmann, counsel for the parents, to whom we are grateful. 3. For the reasons set out below, I am of the view that this appeal should be dismissed. The appeal is, in my judgment, academic. This point was flagged by Ms Anderson and Mr Hirschmann in their written skeleton argument. During the oral argument, the point was acknowledged, albeit not entirely conceded, by Mr Thomas in circumstances which I discuss below. 4. For that reason, I do not propose to rehearse the more detailed arguments on the three substantive Grounds of Appeal. Background 5. It is necessary for me briefly to set the scene. 6. AA is now 17 years of age. She has a chromosomal abnormality which has resulted in global development delay and significant physical disabilities which impact all areas of her development and learning abilities, including her mobility, speech and language, independent and self care skills. She has bilateral hearing impairment, visual impairment and epilepsy. It is accepted that she has profound and multiple learning difficulties which significantly impact on all areas of her development and learning. AA is non-verbal and unable to communicate her needs and wishes, and is entirely reliant upon adults. 7. AA is a young person with special educational needs to whom the duties for special educational provision under Part 3 of the Children and Families Act 2014 (\u2018CFA 2014\u2019) are owed: see in particular sections 20 and 21 CFA 2014. For some years, she has had an Education, Health and Care Plan (\u2018EHC plan\u2019) (see sections 33, 37 to 44 inclusive, together with sections 61 and 63 CFA 2014). 8. The current proceedings commenced when the parents lodged an appeal to the FTT under section 51 of the CFA 2014 in relation to the 2023 EHCP. This document, prepared in accordance with the CFA 2014, follows the conventional format, in line with regulation 12 of the Special Educational Needs and Disability Regulations 2014; the plan was to cover provision for AA from September 2023. 9. We know little of the previous history of educational provision for AA, save that the FTT in its reasons referred to \u201cthe accepted failings of [AA]\u2019s previous school, overseen by the same Trust\u201d. There had plainly been (as the FTT later found) a breakdown of trust between the parents and the previous school. By the time of the FTT hearing, AA had not been in education for some months; it was also a matter of record that AA\u2019s current accommodation was unsuitable for her needs; AA did not have a social worker. 10. Prior to the appeal in the FTT three sections of the 2023 EHCP were challenged by the parents; however, in pre-court discussions (prior to the FTT hearing) the parents and the Local Authority agreed the contents of one of the disputed sections (i.e., section B: the child or young person\u2019s\u202fspecial educational needs). Thus, two sections remained in dispute before the FTT, namely section F (the\u202fspecial educational provision\u00a0required to meet the special educational needs of AA) and section I (the\u202ftype or the name and type of the educational setting to be attended by the child or young person). The FTT heard evidence from an occupational therapist, an educational psychologist, the heads of the two schools under consideration, which I shall call Eliot School (proposed by the parents) and Milton School (proposed by the Local Authority) (not their real names). The FTT briefly met with AA. 11. The position of the parties before the FTT can be summarised thus: i) The parents, supported by expert evidence, proposed that AA\u2019s needs were such that she required educational provision which extended beyond the normal school day; they identified a suitable placement (albeit not of a type listed in section 41 CFA 2014) at Eliot School, and opposed the choice of school advanced by the Local Authority. ii) The Local Authority, also supported by expert evidence (though not in the FTT\u2019s finding, either comprehensive or up to date), disputed AA\u2019s need for educational provision beyond the confines of the school day; it identified Milton School as suitable. It argued that Eliot School would \u2018over provide\u2019 for AA\u2019s needs, albeit it would in other respects be \u2018suitable\u2019 for her. The Local Authority argued that there would be a significant difference in the cost to the Local Authority of the two schools, and for the FTT to name it in accordance with parental preference would not be compatible with its duty to consider avoiding unreasonable public expenditure, given the significant costs differential. 12. It is unnecessary for present purposes for me to discuss in any significant detail the findings or conclusions of the FTT. It is sufficient for me to record that the FTT: i) Preferred the evidence (including the expert evidence) adduced by the parents; ii) Considered that AA required educational provision which extended beyond the school day; the Local Authority\u2019s argument that her needs could be met within the school day was \u201cnot sustainable\u201d; iii) Considered that Milton School would not meet her needs; the FTT recorded that the head of Milton School had accepted that it could not provide for AA if (as the FTT found) she required an extended day curriculum; iv) Considered that AA required residential provision; v) Rejected the argument that Eliot School would \u2018over provide\u2019 for her needs; vi) Put Eliot School in to the EHCP in Section I as the chosen placement. 13. The Local Authority appealed this decision to the UT. The UT dismissed the appeal in November 2024, and confirmed the FTT\u2019s decision. It found that the FTT had not erred in law. 14. With the permission of Zacaroli LJ, the Local Authority appealed to this court against the UT\u2019s dismissal of the earlier appeal. In short, it argued that the FTT: i) Had wrongly conflated extended day curriculum with the provision of residential placement (Ground 1); ii) Had failed to approach the issues in the correct logical sequence: i.e., need, provision, placement (Ground 2); iii) Had failed to deal appropriately, or at all, with the need to have regard to the avoidance of unreasonable public expenditure (section 9 Education Act 1996: \u2018EA 1996\u2019) (Ground 3). It further argued that the UT had failed to correct these errors of law. 15. The parents opposed the appeal before this Court as it had before the UT and sought to uphold the decisions of the FTT and UT. Relief sought on this appeal 16. By its Appellant\u2019s Notice dated 11 March 2025, the Local Authority indicated that it sought an order setting aside the order of the UT, which had in turn dismissed the Local Authority\u2019s appeal against the FTT\u2019s determination. This would have left the FTT decision intact. In his Skeleton Argument in support of the appeal, Mr Thomas clarified that he would invite this Court to quash the decision of the FTT, and direct that the case is heard by a freshly constituted tribunal. In oral argument, he refined the position yet further, by indicating that in quashing the FTT decision, this Court should make a \u201cdeclaration that the FTT applied the law incorrectly\u201d. 17. In presenting his claim for relief, Mr Thomas nonetheless accepted that: i) The decision of the FTT was made now two years ago; ii) Even if (as he argued) the decision was unlawful, there would be little purpose in this court directing a reconsideration, given that the Local Authority has, in fulfilment of its statutory duties (under section 44(1)(b) CFA 2014), had cause to review AA\u2019s EHCP at least once (if not twice) since the FTT hearing; it will do so again in January 2027; iii) As a matter of fact, in January 2025 AA moved to Eliot School; Mr Thomas confirmed that she has settled there well, and there is no plan to move her at least until the end of the academic year in which she turns 18 (i.e., at least 18 months from now). When she is 18, there will be a further review of her needs; iv) The Local Authority has not, in the meantime, identified any alternative extended day provision for AA (which the FTT has decided AA requires), and has not been able to show that this could or should be provided otherwise than in a residential placement; v) In the meantime, the Local Authority has not identified any alternative more cost-effective placement for her. 18. Mr Thomas argued that the appeal was not academic, as it was important that: i) There should be a legally sound basis for all decisions in respect of AA\u2019s EHCP; ii) Given the prevalence of cases in which parents seek prohibitively expensive provision for their children under EHCPs there is a need for clarification from this Court as to how to approach section 9 EA 1996 in light of the decision in IM v Croydon [2010] UKUT 205 (AAC), especially at [9]. 19. Ms Anderson argued that the appeal was indeed academic, largely for the reasons set out at \u00a717(i)-(v) above. Academic appeal 20. It is a long-established principle that a court, whether first instance or appellate, will only make determinations on matters which are truly in dispute between the parties; Lord Bridge commented in Ainsbury v Millington [1987] 1 WLR 379 at 381 that courts do not \u201cpronounce on abstract questions of law where there is no dispute to be resolved\u201d. An exception is recognised for arguments on points of law (especially in public law cases) which, although \u201cacademic\u201d or \u201chypothetical\u201d, are points of general public interest. Even if it were such a case, the court\u2019s discretion to hear such an appeal would always be exercised with caution, and the jurisdiction to proceed is a narrow one (R v Secretary of State for the Home Department Ex p. Salem [1999] 2 W.L.R. 483, HL). 21. The approach to academic appeals has been discussed numerous times at appellate level; there is no need to rehearse the caselaw here. Each decision emphasises the exceptionality of hearing academic appeals even in public law cases. In Hutcheson v Popdog Ltd (Practice Note) [2011] EWCA Civ 1580; [2012] 1 W.L.R. 782 (\u2018Hutcheson\u2019) Lord Neuberger MR (not apparently distinguishing between public law or private law cases) said that usually three requirements have to be satisfied before an appeal, which is academic as between the parties, may (the word \u2018may\u2019 was emphasised) be allowed to proceed: they are (1) the court is satisfied that the appeal would raise a point of some general importance; (2) the respondent to the appeal agrees to it proceeding, or is at least completely indemnified on costs and is not otherwise inappropriately prejudiced; (3) the court is satisfied that both sides of the argument will be fully and properly ventilated. 22. It is appropriate on these facts to observe that the court has no jurisdiction to make a declaration in respect of a hypothetical question or about a future issue concerning future events (i.e., AA\u2019s future needs) which cannot be foreseen with any confidence (Naylor v. Wrotham Park Settled Estates (1987) The Times, March 26(\u2018Naylor\u2019). Discussion 23. At the appeal hearing, we heard full argument on behalf of the Local Authority on all of the Grounds of Appeal; we heard a response on Ground 3 only (we did not require a response on Grounds 1 and 2). 24. As earlier mentioned, three complaints were raised about the manner in which the FTT set about its decision-making (see \u00a714 above). That decision was reached two years ago. Much water has flowed under the bridge since then, and the decisions made by the FTT (upheld by the UT) have been acted upon by the Local Authority, to AA\u2019s apparent benefit. How the FTT formulated its approach to setting the special educational provision for AA in the 2023 EHCP has become completely disconnected from the actuality of AA\u2019s current life in 2026. The FTT\u2019s formulation has no impact on the current exercise of the statutory duties owed by the Local Authority to her. There has been at least one (possibly two) further review of AA\u2019s EHCP since the FTT decision. AA is currently well-settled at Eliot School, and no alternative provision has been considered or, so far as we know, proposed for AA. As I referenced in \u00a717(ii) above, her EHCP will be reviewed again in January 2027 in accordance with section 44(1)(b) CFA 2014. 25. Therefore, it is unnecessary for me to consider, let alone discuss, the specific Grounds of Appeal and\/or the arguments in support, because I am satisfied that there is in fact no dispute of substance for this court to determine. In short, whatever the result of this appeal on the merits (i.e., even if the Local Authority were to succeed in demonstrating that the UT was wrong to uphold the FTT\u2019s decision), it would not affect either (a) the current statutory obligations of the Local Authority towards AA under the CFA 2014 and the EA 1996, and the means by which they are exercising them, nor (b) AA\u2019s current placement at Eliot School (which the Local Authority told us it had no intention to disturb for the time being), nor (c) the position of AA\u2019s parents.\u00a0 26. No order or declaration made by this court would be of any real practical benefit to the parties, or either of them. Furthermore, I am not satisfied that this case satisfies the test of wider public interest as to justify the grant of such relief. As it happens, and for perfectly understandable reasons, the parents do not agree to us doing so (see Hutcheson above). Insofar as it was tentatively suggested that a declaration may be of value to these parties in considering future EHCP or similar determinations for AA, it seems to me that this court would have no proper jurisdiction to engage with this prospective and somewhat hypothetical exercise having regard to the decision of Naylor above (\u00a722). 27. No-one is under any illusion about the significant cost of specialist education for young people with special educational needs, nor \u2013 as it happens \u2013 the current shortage of specialist school places. In these circumstances, it is a matter of regret that the Local Authority elected to devote limited resources to pursuing an appeal to this Court which has, ultimately, yielded no substantive benefit Lord Justice Stuart-Smith 28. I agree. Lord Justice Phillips 29. I also agree.<\/p>\n<\/div>\n

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Sources officielles :<\/strong> consulter la page source<\/a><\/p>\n

Open Justice Licence (The National Archives).<\/em><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Lord Justice Cobb : Introduction 1. This is an appeal from a decision of the Upper Tribunal (\u2018UT\u2019), which was itself considering an appeal from the First Tier Tribunal (Special Educational Needs And Disability) (\u2018FTT\u2019). The appeal concerns the provision of Special Educational Needs (\u2018SEND\u2019) provision for a young person, who for the purposes of this appeal has been given…<\/p>\n","protected":false},"featured_media":0,"template":"","meta":{"_crdt_document":""},"kji_country":[7608],"kji_court":[7943],"kji_chamber":[],"kji_year":[7610],"kji_subject":[7612],"kji_keyword":[7705,7664,9797,8061,7721],"kji_language":[7611],"class_list":["post-563042","kji_decision","type-kji_decision","status-publish","hentry","kji_country-royaume-uni","kji_court-court-of-appeal-civil-division","kji_year-7610","kji_subject-fiscal","kji_keyword-appeal","kji_keyword-authority","kji_keyword-educational","kji_keyword-local","kji_keyword-school","kji_language-anglais"],"yoast_head":"\nLondon Borough of Hillingdon v AP & Anor - Ma\u00eetre Hassan Kohen, avocat en droit p\u00e9nal \u00e0 Paris<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/kohenavocats.com\/zh-hans\/jurisprudences\/london-borough-of-hillingdon-v-ap-anor\/\" \/>\n<meta property=\"og:locale\" content=\"zh_CN\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"London Borough of Hillingdon v AP & Anor\" \/>\n<meta property=\"og:description\" content=\"Lord Justice Cobb : Introduction 1. 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