Hampshire County Council v GC & Anor

The material provisions of the 2014 Act are as follows:

Reg.31 provides that:

The SEND Code of Practice provides:

The Armed Forces Act 2006 provides:

It should be noted that s.343AA did not come into force until 22 November 2022, some months after the FTT decision. The Council had, however, in June 2011 signed the Armed Forces Covenant whose obligations were not materially different from the later statute. On its website the Council stated:

Andrews LJ granted permission to appeal on three grounds:

The Appellant Council submitted that the Upper Tribunal had made an error of law and extended the jurisdiction of the Tribunal beyond its statutory remit. The Council did not deny that it failed to consult with the parents and headteacher in accordance with reg.31. Mr Line submitted, however, that there are situations where mandatory procedural obligations are imposed on local authorities but are not always completed, in practice, before an appealable decision is made.

The Appellant cited Lord Steyn in R v Soneji [2006] 1 AC 340 at [14] in support of this: “A recurrent theme in the drafting of statutes is that Parliament casts its commands in imperative form without expressly spelling out the consequences of a failure to comply”. At [23] Lord Steyn stated that: “……the question [is] whether Parliament can be fairly taken to have intended total invalidity. That is how I would approach what is ultimately a question of statutory construction.”

The Appellant submitted in its skeleton argument that the failure to consult happened before the decision to cease to maintain. If the parents wished to invalidate the Appellant’s decision because of a failure to consult, the correct route would have been to pursue a quashing order from the High Court through a judicial review claim.

The Appellant argued before us that the Tribunal’s jurisdiction on appeal is in relation only to the decision to cease to maintain, not the process leading to such a decision. The Tribunal has a de novo inquisitorial jurisdiction and engages with the merits of the case at the time of the hearing. The nature of the Tribunal’s jurisdiction is further illustrated by its powers in a cease to maintain context. The Tribunal may order a local authority to continue to maintain an EHCP in its existing form, or an amended form, but has no power to determine a complaint regarding a procedural breach. Such a system puts a parent or young person at no disadvantage.

The Respondents argued that the jurisdiction of the Tribunal is defined by reference to the subject matter, not by reference to a legal regime. Further, the ordinary meaning of the phrase “against the matters” in s.51(2) is wide enough to include the question of whether a decision is invalid because a local authority has failed to comply with the mandatory regulations governing that decision. There is nothing in the language of s.51(1) or s.51(2) that confines the Tribunal’s jurisdiction in the manner that the Appellant submits.

The Respondents submitted that reg.31 creates a duty on the local authority to consult parents, children and teachers in the course of its decision, and that the regulation is integral to the local authority’s exercise of its power.

Mr Gillie submitted that there is a public benefit for each of two reasons in the Tribunal having the power to decide that a s.51(2) decision is invalid where a local authority has not complied with mandatory regulations governing the decision. First, the Tribunal should uphold the rule of law in this specialist area over which it has been given primary jurisdiction. Second, it avoids the duplicated costs, delay and confusion created by requiring proceedings in the High Court alongside those in the Tribunal.

The Respondents cite, by way of analogy, the House of Lords decision in Chief Adjudication Officer and another v Foster [1993] AC 754. The House considered the jurisdiction of the Social Security Commissioner in an appeal against the social security appeal tribunal on the ground that the latter had been erroneous in point of law by determining the vires of regulations promulgated by the Secretary of State. The House of Lords found that the Commissioner’s jurisdiction to determine a statutory appeal on the basis of an error of law extended to determining a challenge to the vires of a provision in secondary legislation. The Respondents argue that if a tribunal may set aside a decision because it is based on ultra vires regulations, there is no good reason why the FTT may not set aside a decision because the procedure required by the relevant regulations has not been followed.

The Respondents argue that: “the practical effect of what the Appellant is now advocating is that local authorities can treat the mandatory nature of Reg 31 (and others) as a dead letter, because it does not matter whether the local authority complies with them or not, given the general appeal jurisdiction. That cannot be right, or what Parliament intended.”. They cite the speech of Lord Browne-Wilkinson in R v East Sussex CC ex p. Tandy [1998] A.C. 714 at 749:

“Parliament has chosen to impose a statutory duty, as opposed to a power, requiring the local authority to do certain things. In my judgement the courts should be slow to downgrade such duties into what are, in effect, mere discretions over which the court would have very little real control.”

The Appellant submits that the Upper Tribunal erred in concluding that an ordinary / habitual residence test applied to deciding whether a child or young person is in a local authority’s area. Mr Line points out that there is no reference to an ordinary / habitual residence test in ss.24 or 45 of the 2014 Act. Section 24 uses the term “in the authority’s area” instead, which creates a physical presence test.

Furthermore, even on an ordinary residence test, T was not present within the Appellant’s area and did not practically benefit from his EHCP whilst abroad for two years.

The Appellant also criticises the Upper Tribunal’s reasoning at [201]-[202] where it relied on s.83(6) of the CFA 2014 – where the material aspect of the provision was only appliable to Wales. It gives no insight into how s.24 should be generally interpreted.

The Appellant notes that regulation 15 of the SEND Regulations, which concerns the transfer of EHCPs from one Local Authority area in England to another, does not use the language of ordinary / habitual residence. It is possible to be ordinarily resident in more than one place, but the 2014 Act clearly envisages that only one local authority ought to be responsible for an EHCP; hence the process for transfer and the physical presence approach.

With regard to the Armed Forces Act 2006, the Appellant accepts that these obligations apply to Hampshire (either via the operation of the 2006 Act or via the Armed Forces Covenant). The Appellant submits, however, that the Upper Tribunal was wrong to reason that their obligations to Service families with SEN children can only be met by the local authority’s maintenance of an EHCP throughout long periods of absence.

The Respondents submit that the Appellant’s physical presence construction would have significant detrimental consequences at odds with the purpose of the legislation. It would particularly impact children who are looked after by local authorities, and the children of Service families.

The physical presence construction, in the submission of the Respondents, would also create confusion in circumstances of temporary absence (for school holidays, temporary residential placements, or moving between separated parents). By contrast, the factors that go to the question of ordinary / habitual residence are well established (see A v A and another (Children: Habitual Residence) (Reunited International Child Abduction Centre and others intervening)[2013] UKSC 60; [2014] A.C. 1 at [54]).

Furthermore, guidance produced by the Department for Education has since 2009 consistently applied a test of ordinary residence. This guidance is not binding, but the Respondents submit that it is persuasive.

The Respondents note that s.83(6) of the 2014 Act states that:

“(6)

a reference in this Part to a child or young person who is “in the area” of a local authority in England does not include a child or young person who is wholly or mainly resident in the area of a local authority in Wales […]”

This suggests that the concept of temporary absence is possible within the 2014 Act. A child may be mainly resident in Wales but sometimes resident in an English local authority, but the responsibility of the Welsh local authority. For the purposes of the equivalent statute in Wales a child may be ‘in the area of the authority’ despite being temporarily absent in England. The Respondents submit that it would be surprising if the reverse were not true as well.

The Appellant submits that the Upper Tribunal erred, in particular at [244]-[250] in its approach to s.42(2) of the 2014 Act by concluding that a local authority must maintain an EHCP in cases where the child or young person is absent from its area. S.42(2) creates an absolute and non-delegable duty, where a local authority maintains an EHCP, to secure the special educational provision specified within it.

At [244] the Upper Tribunal held that: “what the tribunal was saying was that, in the circumstances of T’s case, the Council could maintain the EHCP, but that it was not obliged to take steps to secure the provision specified within it.” The Appellant argues that if the Appellant was not able to secure provision because T was abroad for a significant period in Dubai, the Appellant acted lawfully in ceasing to maintain the EHCP by applying s.45 of the CFA 2014.

The Appellant argues that the Upper Tribunal’s judgment creates difficulties for local authorities. It leaves uncertain whether a local authority must facilitate special education provision abroad; how annual review obligations can be performed effectively; whether school or college places need to be kept open during lengthy periods of absence at a cost to the local authority and to the detriment of other pupils. Furthermore, such concerns are not unique to Service families, but to any families where one parent faces secondment abroad in the course of their employment.

The Respondents submit that it does not follow from the fact that the s.42(2) duty is absolute and non-delegable that a local authority has no choice but to cease to maintain an EHCP if a person is temporarily absent from its area. There are two mechanisms within the statute which permit a local authority to maintain an EHCP in circumstances where a person is temporarily absent. S.42(5) disapplies the authority’s s.42(2) duty where a parent (or young person) has made suitable alternative arrangements. The Respondents submit that this is the case here. Alternatively, s.44(3) gives a local authority the power to secure a reassessment of a child’s needs if it thinks it necessary. If a child were moving to a place where it would be impossible for the authority to secure the EHCP provision, then it could reassess the child’s needs accordingly.

The Respondents highlight that not being able to secure provision for an EHCP is not a ground for ceasing to maintain it. The only lawful grounds for ceasing to maintain an EHCP are found in s 45(1) of the 2014 Act and regs 29 and 30 of the 2014 Regulations.

Hampshire did not argue before us, as they appear to have done before the Upper Tribunal, that T’s parents had to bring proceedings for judicial review in the Administrative Court to quash the Council’s decision to cease to maintain their son’s EHCP before appealing to the FTT. I agree with the Judge that no such requirement exists and Mr Line was in my view correct not to pursue the point in oral argument in this court. A requirement that a challenge based on reg. 31 could only be brought and determined in the High Court would entail precisely the duplication of proceedings which Lord Bridge deprecated in Foster. It would be impractical, disproportionate and time-consuming for a parent or young person to have to bring High Court proceedings in parallel to or even before embarking on an appeal to the FTT. Parliament established the FTT in order to give appellants ready access to a specialist tribunal in a field where, in the words of Collins-Rice J in R(Kumar) v Hillingdon LBC [2021] PTSR 686 at [31], “there is a fundamental and frightening inequality of power”.,

The gap between the parties on the jurisdiction question is not as wide as it at first appeared to be. Mr Line contends:

“The decision to cease to maintain the EHCP stood notwithstanding the error of process and was subject only to the outcome of the s.51 statutory appeal.”

That submission is correct as far as it goes, so long as one bears in mind that the powers of the FTT on a statutory appeal are very wide.

For his part, Mr Gillie does not contend that the serious procedural deficiencies criticised by the tribunals below resulted in automatic invalidity of the decision. The Respondents’ skeleton argument states:-

“The correct delineation is between a breach of a regulation governing a decision [listed] in s.51(2) CFA 2014, over which the tribunal’s jurisdiction extends; and a free-standing breach that is not directly relevant to a matter s.51(2), over which it does not. Thus, the section does not preclude a Tribunal form determining that a local authority’s decision is invalid because the authority has breached mandatory regulations governing the decision to cease to maintain. This does not mean that such a breach will inevitably lead to the setting aside of a decision. That is a matter for the tribunal under Reg. 43of the 2014 Regulations on the facts of each case.”

This is in my view an entirely accurate statement of the FTT’s jurisdiction in a case of this kind. (It makes it unnecessary in this case to consider the numerous authorities on automatic invalidity.)

I would accordingly amend the Judge’s statement of the law in paragraph 162 of his judgment to read as follows:

“A decision to cease to maintain an EHCP under s.45(1) of the 2014 Act will be liable to be held invalid and set aside by the FTT if it is taken in breach of the mandatory requirements of Reg. 31 of the 2014 Regulations.” [emphasis added]

Consultation with the child or young person, the child’s parents and the child’s school is of fundamental importance to the fair and proper operation of the system. Nevertheless, as the Judge pointed out, there may be cases where there has been significant consultation and the breach of reg. 31 is not material. Plainly this case, where there was a total lack of consultation, is not one of them. The breaches were, as the Judge held, “wholesale and egregious”. The procedural error cannot be separated from the decision to cease to maintain the EHCP. Each was integral to or intertwined with the other.

The answer to the jurisdiction question is therefore “yes”. But in the present case this is only the prelude to the critical issue of whether, while T and his parents were temporarily in Dubai, he was nevertheless “in the area” of the local authority. If he was, then (subject to ground 3) the local authority were in breach of their duty to him. If, however, on a proper interpretation of s.24 he was not “in the area” of the Council, then the procedural issues are academic.

Section 51 of the 2014 Act provides, so far as material, that:

“(1)

A local authority in England is responsible for a child or young person if he or she is in the authority's area and has been—

(a)identified by the authority as someone who has or may have special educational needs, or

(b)brought to the authority's attention by any person as someone who has or may have special educational needs.

(2)

This section applies for the purposes of this Part.”

Section 24(1) makes a local authority responsible for a child with special educational needs who is in the authority’s area. The Council first suggests that whether T was in Hampshire’s area for s.24 purposes was a question of fact for decision by the local authority, again only challengeable by judicial review.

In the present case, the determination of whether he was in the authority’s area is a question of mixed fact and law. The Appellant Council argues that on a proper interpretation of s.24(1) the essential criterion is physical presence in Hampshire. Physical presence on a given date is a simple concept, but as a test for legal responsibility of an authority under s.24(1) it does not withstand scrutiny.

Many obvious examples spring to mind. The family may take a short holiday or pay a visit to relatives, whether elsewhere in this jurisdiction or abroad. The father might be deployed abroad for a fixed term of three months - in effect for one school term – and the mother and children might accompany him. Or the child concerned may have parents who are divorced or separated, one living in the local authority’s area and one in a neighbouring county, and the child moves regularly between the two in accordance with arrangements agreed between the parents or ordered by a court.

In the case of looked-after children these issues may be particularly acute. Mr Gillie gave the following example:-

“A child with SEN is looked after by a local authority (A) who is the child’s corporate parent. There is a shortage of available care placements in Local Authority A’s area. The local authority has to place the child in several different placements over the course of a six month period, all outside Local Authority A’s area. The child is placed in Local Authority [B then C, then D]. At the end of that six month period a longer-term foster placement becomes available in local authority A and the child moves back to Local Authority A’s area. In this scenario the child is deemed ordinarily resident in Local Authority A, who has responsibility to look after the child.”

In his valiant submissions on this issue Mr Line conceded that a simple test of physical presence or absence on a particular date is inadequate. He accepted that there must be a de minimis exception for very short holidays and the like. He argued that where to draw the line was a matter of discretion with the decision challengeable only by judicial review.

Given the inadequacies of the physical presence test, the obvious alternative is to use the test of “ordinary or habitual residence”, as it was described in the judgment of the Upper Tribunal. Mr Line is right to point out that the two terms are not quite interchangeable, but I do not think it is necessary in this case to explore the distinctions between them. Ordinary residence, the more usual term in the law relating to children, is sufficient for present purposes.

As Lord Carnwath JSC said in R (Cornwall Council) v Secretary of State for Health [2015] UKSC 46; [2016] AC 137, the ordinary residence test has proved resilient. The Supreme Court held in that case that the policy of the Children Act 1989 and the National Assistance Act 1948 was to leave the ordinary residence of a person provided with accommodation by a local authority unaffected by the location of the particular placement, in order to prevent authorities from exporting their responsibilities. In the context of children or vulnerable adults to whom a local authority has statutory duties it was common ground in the Cornwall case that the subject could be ordinarily resident in the area of only one local authority. Otherwise the test would not be an effective tool for allocating responsibility for services or their cost.

The applicability and utility of the ordinary residence test in SEN cases is confirmed by the guidance provided by the Department for Education and its predecessors over many years. As long ago as 2009 the Department set out in its Guidance on Looked After Children with Special Educational Needs placed out-of-authority that:

“The term ‘in their area’ is not defined in the legislation. In line with established practice, the Department construes this phrase to mean ‘ordinarily resident in their area’. This means that an SEN assessment must be carried out by the authority where the child is ordinarily resident.”

The 2015 statutory guidance promulgated under the CFA 2014, the Special educational needs and disability code of practice: 0 to 25 years, also continues to adopt a test of ordinary residence. Neither of these guidance documents is binding on the court, but Mr Line did not persuade me that they were legally erroneous or that the test was too difficult to apply in practice, at least in the great majority of cases.

Use of the ordinary residence test is also in my view consistent with public policy and in particular with the Armed Forces Covenant to which Hampshire has subscribed for some years. On the Appellant’s construction, Hampshire might cease to maintain the EHCP whenever T accompanies his father abroad on deployment. Upon T’s return to this country there would be no SEN provision in place and the process to obtain a new EHCP would have to begin from scratch. Assurances that the case would be expedited do not take the matter much further and might prove impossible to enforce. Far better that on T’s return to the UK, with the EHCP still in place, he can continue to have SEN support without any gaps and without the family having to grapple with a new assessment process.

I accept also that the Respondents’ case is supported by the wording of s.83(6) of the 2014 Act which states that references to a child “in the area” of a local authority in England do not include a child or young person who is wholly or mainly resident in the area of a local authority in Wales. The inclusion of “or mainly” is significant. If a child is mainly resident in Wales but sometimes resident in England, s.83(6) states that he will be the responsibility of the Welsh local authority. He will therefore be “in the area of the authority” in Wales for the purposes of the equivalent of s.24 set out in the Additional Learning Needs and Education Tribunal (Wales) Act 2018, despite being temporarily absent in England from time to time. It would be surprising and inconsistent, as Mr Gillie submits, if in the opposite scenario the statutory scheme had the result that a child mainly resident in England but sometimes resident in Wales was not in the English local authority’s area for the purposes of s.24 of the 2014 Act. However, this point is hardly central to the Respondents’ case.

I agree with UTJ West that the important features of the present case are that:

Not every move of a family abroad will have a factual background pointing to a child’s ordinary residence remaining in an English local authority. If a family relinquish ownership or the tenancy of their home in England and move abroad together because one of the parents has obtained a permanent job abroad, it may be very difficult to argue successfully that the child remains ordinarily resident in England for s.24 purposes. Less straightforward may be a situation where the family move for what is intended to be a trial period. As time then passes, it will be increasingly difficult to argue that the child remains ordinarily resident in the area. Such cases will have to be considered on the facts as and when they arise.

This can be dealt with briefly. The statutory scheme contains two mechanisms by which a local authority may maintain an EHCP even if the provision specified within it cannot, or need not, be implemented. Section 45(5) of the 2014 Act allows a local authority to maintain an EHCP without implementing its contents where parents arrange alternative provision which the local authority considers suitable. A local authority also has a power to reassess what provision is necessary in an EHCP under s.44(3) of the 2014 Act. Where a child is temporarily abroad such that current EHC provision cannot be implemented, there is nothing to stop a local authority from amending the contents of an EHCP to reflect a change in what is necessary for the child; but that does not justify ceasing to maintain the EHCP. Here, suitable alternative provision was found by the Respondents, facilitated by the Ministry of Defence. The Council, because of their failure to consult as they should have done, were unaware of this. But if they had made proper enquiries they could quite properly have decided to maintain the EHCP without implementing its contents as s.45(5) permits: or, in the apt words of the FTT, effectively to “freeze” or “pause” the provision of education themselves.

I would dismiss this appeal. By agreement between the parties there will be no order as to costs.