Hampshire County Council v GC & Anor

Judge Ozen granted permission to appeal on all four grounds. In her decision she stated that

On 22 June 2023 I made directions for the oral hearing of the appeal, but again refused the Council’s application for suspension of the decision because s.45(4)(b) of the Children and Families Act 2014 required the Council to maintain the EHCP until the appeal was determined.

I heard the appeal on the morning of 5 October 2023. The Council were represented by Mr Tom Gillie and the Respondents by Mr Alex Line, both of counsel, to both of whose able and concise submissions I am indebted. It subsequently became necessary to ask for further submissions, which I received in January and February, and which were followed by a further round of submissions, as I shall explain below.

It is important to remember that an appeal to the Upper Tribunal lies only against a decision of the First-tier Tribunal. The reasons given for refusing permission to appeal are not part of that decision. The Upper Tribunal does not review those reasons: CIS/4772/2000 at [2]-[11]. Nor may they be used to show that a point of law arises (or does not arise) from the decision: Albion Water Ltd v Dŵr Cymru Cyf [2008] EWCA Civ 536, [2009] 2 All ER 279 at [67]. To the extent that Judge Ozen’s comments have been adopted by the Council as part of its grounds of appeal, I deal with them hereafter, but it must be borne in mind that the appeal is against the decision of the Tribunal on 30 March 2023 and that the remarks of Judge Ozen (who was not a member of the panel which reached the decision under appeal) on 14 June 2023 do not form part of that decision.

So far as material, the Children and Families Act 2014 (“the 2014 Act”) provides that

The Special Educational Needs and Disability Regulations 2014 (“the 2014 Regulations”), so far as material, provide that

The Education (Areas to which Pupils and Students Belong) Regulations 1996 (“the 1996 Regulations” or “the Belonging Regulations”) provide that

Subject to regulations 4 to 10 below, a person shall be treated as belonging to the area of the education authority in which he is ordinarily resident or, where he has no ordinary residence, the area of the authority in which he is for the time being resident”.

The Explanatory Note to the 1996 Regulations (which is not part of the Regulations) states that

The Armed Forces Act 2006 (“the 2006 Act”) provides that

Again so far as is material, the SEND Code of Practice provides that

On its website the Council states, with regard to the Armed Forces Covenant

The factual background is set out in paragraphs 5 to 12 of the Tribunal’s statement of reasons, but for the sake of clarity it is worth reiterating that T has special educational needs arising from his diagnoses of Autistic Spectrum Disorder (“ASD”) and Global Developmental Delay (“GDD”). In August 2021 he and his family moved to Dubai due to his father’s deployment there with the Royal Navy. At that time the deployment was expected to last for three years.

On 1 April 2021 Ms Sawka, one of the Council’s case workers suggested that T’s EHCP would be “paused” until his return in summer 2024 and would be resumed when they returned, endorsing a comment made by his school’s SENCO. The view was subsequently taken by the Council that the case worker had mis-advised T’s parents on that point, of which they were subsequently informed.

On 19 November 2021, the Council gave notice of its decision to cease to maintain T’s EHCP. The reason given was that he no longer resided in the local authority’s area and that, if he returned, he would be subject to re-assessment. That was confirmed by a brief letter to the same effect on 19 January 2022. His parents appealed against that decision on 22 May 2022, although it took until 20 March 2023 for a hearing of the appeal to take place.

On 2 February 2022 the Council’s Assistant SEN Manager wrote to T’s parents to the effect that

At the time of the hearing before the Tribunal, the family were still based in Dubai. Late evidence was admitted at the hearing which indicated that the deployment would end about a year early in July 2023, but it was not completely clear where T’s father would next be deployed. It is not in dispute that the family did subsequently return to Hampshire, but that could not be known definitively at the date of the hearing.

At the hearing it was conceded by the Council that it had not fully complied with the 2014 Regulations when it ceased to maintain T’s EHC Plan. Nevertheless its position at the hearing was that the Tribunal should conclude that it was entitled to cease to maintain the ECHP because it was not able to carry out its non-delegable duties to maintain the EHCP whilst he was in Dubai and thus outside the Council’s area.

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

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.

On 26 September 2023, shortly before the hearing, Clifford Chance, who were acting pro bono on behalf of the parents, sought to adduce fresh evidence in the form of a witness statement of even date from T’s father, pursuant to Rule 15(2)(a) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the 2008 Rules”).

T’s parents submitted that, pursuant to rule 15(2)(a), the Tribunal could admit further evidence whether or not it was available to a previous decision maker or would be admissible in a civil trial in the UK. They wished to introduce the witness statement to correct an error in the decision of the Tribunal, namely that T did not meet the definition of being ordinarily resident in the Council’s area. That error failed to take account of the fact that their absence from the Council’s area was as part of a naval deployment, how the residency of the family of naval personnel on deployment was treated by the Navy and UK authorities and, consequently, how that understanding of their residency was relied upon by T’s parents themselves. The Council’s case was that T was not resident in its area and that error was of material importance to the case. Evidence on that point was therefore clearly material to the proper determination of the case, which required a determination of ordinary residence as it pertained to T’s parents, as naval personnel. (In fact, to be strictly accurate, the question or ordinary residence was not raised in the decision of the Tribunal under appeal, but in the grant of permission to appeal by Judge Ozen.) They submitted that the case was likely to be of importance and interest to other service personnel families and to local authorities with duties towards children and young people of such families. As such, a case with such importance should not be decided without reference to facts which were material to the Tribunal's determination. They submitted that they did not have the benefit of legal advice in front of the Tribunal at first instance and had only been in receipt of legal advice on a pro bono basis relatively recently. The application was therefore being made at the earliest opportunity. Whilst material to the matters in front of the Upper Tribunal, the factual information contained within the witness statement was straightforward and factual and its admission would not prejudice the Council. It would, however, significantly prejudice T’s parents and any other service personnel families who might be impacted by the determination of the Upper Tribunal in this case, should the evidence not be admitted and duly considered.

What T’s father said in that statement was that

The Council opposed the introduction of the new evidence.

However, at the outset of the hearing, I told the parties that in my view, given that both sides sought to have the appeal heard as in essence a test case with wider ramifications for the families of service personnel and local authorities, the additional evidence should be admitted since otherwise the case might have to be decided only on the narrow point on which the Tribunal below determined the appeal, namely the Council’s admitted failure to apply regulation 31 of the 2014 Regulations properly. In particular, what lay at the heart of the appeal was the question of whether the responsibility for the maintenance of an EHCP under s.24 of the 2014 Act if the child or young person “is in the authority’s area” and the question of whether an authority might cease to maintain an EHCP under s.45 if “the authority is no longer responsible for that child or young person” was governed by a test of ordinary or habitual residence or some other test. To determine what was being treated by both sides as a test case without the admission of obviously relevant evidence which bore on the subject of ordinary or habitual residence would have defeated the very object of the exercise since the Tribunal below had not heard any oral evidence and had not made any determination as to the question of residence.

On that basis, after a short adjournment to take instructions, Mr Line, albeit with some reluctance, agreed that the further witness statement from T’s father should be admitted and I have proceeded and determined the appeal on that basis. For the avoidance of doubt I make clear that I admit the witness statement of T’s father pursuant to rule 15(2)(a) of the 2008 Rules in accordance with the overriding objective.

In his submissions on behalf of the Council, Mr Line made four preliminary points:

the s.42(2) duty had been described as absolute and non-delegable: R(M) v Harrow LBC [1997] ELR 62, R(N) v North Tyneside BC [2010] EWCA Civ 135 at [27], R(ZK) v Redbridge LBC [2020] EWCA Civ 1597 at [13], R(BA) v Nottinghamshire CC [2021] EWHC 1348 (Admin) at [27].

regulation 2(4) of the 1996 Regulations was clear that the definition in regulation 2(2) was confined to the application of the 1996 Regulations and had no bearing on the question of which local authority was responsible for a child or young person under Part 3 of the 2014 Act or the predecessor legislation. Therefore, the general principle that a person should be treated as belonging to the education authority in which he was ordinarily resident, as per regulation 3, was not a permissible aid to the construction of s.24 of the 2014 Act. That had been confirmed in case law pertaining to equivalent provisions of the predecessor legislation: R(G) v Kent CC [2016] EWHC 1102 (Admin) at [124]-[144].

the Code of Practice was but guidance and did not create or override law:

the role of the Tribunal in an appeal was to stand in the local authority’s shoes as at the date of the hearing. It performed an inquisitorial function and remade the decision, as opposed to performing a review of it: Bromley LBC v SENT [1999] ELR 260, W v Gloucestershire CC [2001] EWHC 481 (Admin) at [15], DH and GH v Staffordshire CC [2018] UKUT 49 (AAC) at [19].

In his skeleton argument, Mr Line had rearranged the order of his submissions to reflect the order in which Judge Ozen had dealt with them, but for the purposes of exposition in this judgment I have reverted to the original order of the grounds of appeal.

Mr Line submitted that at paragraphs 24-25 the Tribunal held that the Council was not entitled to cease to maintain, because (which was not in dispute) there had been no consultation in accordance with regulation 31 of 2014 Regulations.

As was clear from s.24 of the 2014 Act, the duties under Part 3 of the Act only applied to a local authority in relation to a child or young person where that individual was “in the authority’s area”. S.45(1)(a) correspondingly stated that a local authority might cease to maintain an EHCP where it was no longer responsible for a child or young person. Those provisions were interrelated, such that, if an individual were no longer in a local authority’s area, then the local authority was no longer responsible for him and that created a lawful basis on which it might exercise discretion to cease to maintain his EHCP.

In T’s situation, he ceased to be in the Council’s area when he moved to Dubai. The above analysis applied and that created a lawful basis on which the Council could cease to maintain his EHCP. As at the time of the hearing in March 2023, when the Tribunal was standing in the Council’s shoes, T remained in Dubai, where he had been situated since around August 2021. He was not due to return until July 2023, but it was not clear where he would return. Thus the circumstances which applied when the Council took its decision to cease to maintain also applied when it heard the appeal.

For the Tribunal to conclude that the Council was not entitled to cease to maintain the EHCP because of procedural defect prior to that decision and that decision was thereby invalidated was circular. If that were right, then then there would not have been a decision against which to appeal and the Tribunal would not have had jurisdiction to determine the appeal either.

Moreover, the Tribunal had no jurisdiction to determine whether there had been a public law breach in relation to compliance with the 2014 Regulations. Although the Council made no admission in relation to the point, procedural impropriety might, depending on circumstances, be capable of invalidating a cease to maintain decision made by a local authority under s.45 of the 2014 Act. However, to establish that, an affected person would need to commence judicial review proceedings and obtain a declaration and/or quashing order from the High Court. In circumstances where that had not been done (as here), then the decision to cease to maintain the EHCP stood as lawful because it had not been overturned by the High Court, but instead the parents had submitted an appeal under s.51 of the 2014 Act.

As to s.45(4) of the 2014 Act, that was a protective provision which merely delayed the implementation of a local authority’s decision to cease to maintain until such point as the time for appealing had expired or, if there had been an appeal, until the appeal was finally determined. That did not give scope for the Tribunal to order that the maintenance of an EHCP should be paused or frozen after the determination of an appeal in an appellant’s favour. Nor did it provide a basis for the Tribunal to uphold the appeal in a situation where, as here, s.24 of the 2014 Act did not apply, thus justifying the Council’s decision to cease to maintain.

S.45(5) was an enabling provision which permitted the making of regulations inter alia in relation to the procedure to be followed by a local authority when determining whether to cease to maintain an EHCP. It did not create a freestanding mandatory duty in relation to the procedure created by regulation 31 pursuant thereto. It was accepted that regulation 31(1) stated that there “must” be a consultation before a cease to maintain decision was made, but, as above, there was no public law challenge to the non-compliance with that provision and the prior procedural failing could not invalidate a decision which had then been appealed.

In the circumstances, prior procedural failings could not create a basis for the Tribunal to conclude that the Council’s decision was invalidated or for the appeal to be determined in the parents’ favour. The only proper conclusion for the Tribunal to reach was that, notwithstanding the admitted procedural failings, the Council had ceased to maintain T’s EHCP and it was for the Tribunal to determine the appeal against that decision in the ordinary way as at the date of the hearing. As T was residing in Dubai, then s.45(1)(a) was still engaged, meaning that the appeal should have been dismissed.

Mr Line submitted that the Tribunal approached its task as if it were subjecting the Council’s decision to a review, as opposed to a de novo merits appeal. At paragraph 22 it stated that it did not hear oral evidence and at paragraphs 23-28 there is no reference to documentary evidence. Paragraph 24 and the first sentence of paragraph 25 showed that the Tribunal was prepared to allow the appeal on procedural impropriety grounds, rather than in relation to the substantive merits. The Tribunal then went on at paragraphs 25-27 to determine that the EHCP could be paused or frozen after its decision allowing the appeal – which was in error for the reasons stated in relation to Ground 4.

That approach, which was closely linked to the arguments in Ground 1, obscured the approach which should be taken in a statutory appeal, which was to stand in the decision maker’s shoes and remake the decision as at the date of the appeal hearing. The fact that the Tribunal relied on procedural impropriety as a basis for upholding the appeal was a strong indication that it was performing a review (in a quasi-judicial review sense), which was not its role.

If, in properly exercising its jurisdictional function, the Tribunal had simply evaluated whether the EHCP should be ceased for the reason relied on by the Council (i.e. under s.45(1)(a), linked with s.24), then the clear answer was that the EHCP should be ceased and the appeal should be dismissed, because T had been residing (and at the time of the hearing was still residing) abroad. In altering the scope of its approach, as per the arguments above, the Tribunal did not perform its function properly or lawfully and therefore erred.

Moreover, for reasons stated in relation to Ground 1, the procedural failing in question (a failure to consult pursuant to regulation 31 of the 2014 Regulations) was not of such a kind to vitiate the decision to cease to maintain and, even if in principle it could have been, it would need a decision of the High Court to quash that decision. It was not for the Tribunal, which had no jurisdiction to determine breaches of the 2014 Regulations, to substitute the function of the High Court in an appeal where its jurisdiction is limited by statute (s.51(2)(f) of the 2014 Act).

In any case, Judge Ozen noted that “the error here, however, is that the panel failed to give clear reasons as to why it decided that the LA’s procedural failings meant that it could not cease to maintain the EHC Plan”. The Council submitted that the errors in the Tribunal’s approach went beyond that, but at the least Judge Ozen was correct that Tribunal’s decision had not been adequately reasoned.

Thirdly, Mr Line submitted that the Tribunal’s decision was erroneous because it was influenced by irrelevant considerations, which were:

as per Grounds 1 and 2, it wrongly determined the appeal in the parents’ favour because of an admission by the Council that it had not consulted in accordance with regulation 31.

at paragraph 25-26, it made a comparison between children or young people who were abroad and those who moved between local authority areas. The two situations were not analogous. Regulation 15 of the 2014 Regulations catered for transfer of EHCPs where a child or young person moved to a different local authority area. It had no relevance to a situation where a child or young person moved abroad - beyond the territorial scope of the 2014 Act. The Tribunal essentially concluded that it was “unfair” that there were protections afforded to families in an inter-local authority transfer case, but not when families moved abroad, but fairness or equity was not a relevant consideration. Parliament had created protection in one situation, but not the other. It was for the Tribunal to apply the law as it stood, not to reach a decision which it thought equitable even though it did not reflect the law (i.e. pausing or freezing the s.42(2) duty). In any event, T’s situation was not unfair. Local authorities could not be expected to have legal obligations in relation to EHCPs which were impracticable to maintain because a child or young person was abroad for a lengthy period. If the child or young person returned to the local authority area, then s.24 of the 2014 Act would apply again and the identification and assessment duties in ss.22 and 36 would “bite”.

further as to paragraphs 25-26, the Tribunal wrongly assumed that regulation 15 of the 2014 Regulations guaranteed continuity of EHC provision for children or young people when they moved between local authority areas. That was incorrect, because the “new” local authority retained the power to re-assess or review and change the content of the EHCP (regulations 15(3)(b), (4)(b)-(c) and (5)). It would also be open to a new local authority to cease to maintain under s.45.

the Tribunal wrongly concluded that T would encounter detriment if he were required to undergo a new EHC needs assessment upon his return. However, his EHCP could not reasonably be subject to annual review whilst he was abroad for two years. During that period the EHCP inevitably became out of date. It would always have been necessary to re-assess him and produce a new EHCP on his return anyway. Pausing or freezing his EHCP thus did not actually create any benefit to him. Furthermore, the Council had put in place adjustments for T because he was a service child. As the Tribunal noted at paragraph 27 of the decision, the Council was committed to providing funding equivalent to that catered for in his old EHCP when he returned, pending a fresh EHC needs assessment. It had also given assurances that it would complete the assessment expeditiously.

as per Ground 4, the Tribunal erroneously concluded that an EHCP could be paused or frozen.

In support of his final ground of appeal Mr Line submitted that at paragraphs 26-27 the Tribunal concluded that the EHCP could, and should, be “paused” or “frozen” pending T’s anticipated return to the United Kingdom.

That conclusion was contrary to the nature of the s.42(2) duty and was wrong in law. That duty, as recognised in the relevant case law cited above was absolute. It could not be paused or frozen. It either applied or it did not apply. It was not a matter of proportionality. Nor could it be delegated.

The effect of the Tribunal’s decision was to place the Council in breach of statutory duty. It wrongly overrode the lawful basis on which the decision to cease to maintain was made under s.45(1)(a).

The terminology of “pausing” the EHCP came from a case worker, adopting the language initially used by a school SENCO – from which the Council later distanced itself from upon realising that it did not correctly reflect the law. That language had now filtered its way into the Tribunal’s decision, but those terms were not used in the primary or secondary legislation, or the Code of Practice. They mischaracterised the s.42(2) duty. The Tribunal should not have adopted that terminology (and the Council did not invite it to do so).

Dealing with additional points related to this ground which arose from Judge Ozen’s decision on permission and the response to the appeal:

although the power to cease to maintain under s.45(1) was discretionary, in the circumstances of this case there was a lawful exercise of discretion because T was not residing in the Council’s area. The fact that the discretion was capable of being exercised in a different way did not mean that it must be, or that the s.42(2) duty could be paused or frozen. Circumstances where a child or young person was abroad would vary. At one end of the spectrum they would be absent for a short period because of a family holiday. The Council was not suggesting that, in that situation, it would be reasonable for a local authority to conclude that s.24 of the 2014 Act ceased to apply, thereby invoking a cease to maintain situation. However, T’s situation was at the opposite end of the spectrum. He was due to be abroad for three years, and in fact was abroad for two years, during which time there would ordinarily be either two or three annual review cycles and likely change to the content of an EHCP. That clearly was a situation where s.24 did not apply and a local authority could cease to maintain under s.45(1)(a).

Judge Ozen considered that it was relevant to ask whether the Council remained responsible for T during his time in Dubai. She cited the 1996 Regulations as being relevant to that question, a position adopted by the parents in their response to the appeal. That was a misconceived position in the light of regulation 2(4) of the 1996 Regulations and R(G) v Kent CC. The Council submitted that the 1996 Regulations were irrelevant to the issues in the appeal and that the question of whether a local authority was responsible for a child or young person under s.24 of the 2014 Act was not governed by ordinary or habitual residence principles which applied in different legal contexts, as confirmed in R(G) at [134]. Accordingly, the reliance by the parents on A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60 at [54], was misplaced. It was also to be noted that in R(G) at [143] the High Court held that whether a child permanently lived in an area was a question of fact for the local authority, which could only be challenged by way of judicial review: “[m]any other decisions relating to special educational needs can be the subject of a merits appeal to the First-tier Tribunal, but a decision that a child with a statement [now an EHCP] has moved to another authority is not one of them.”

the facts known to the Tribunal were that T had been absent from the Council’s area since around August 2021. The initial period of the deployment was due to be three years, but it was understood that it would be ending early in July 2023. There was not a clear evidential picture as to where the family would next be deployed, save that it was his father’s preference to be drafted in the same area as the family home when he returned.

as at the date of the hearing, it was not in dispute that T was not in the Council’s area, and had not been for a considerable period of time. It was agreed that he was not living in Hampshire. As noted by Judge Ozen, there was no evidence before the Tribunal that T’s family had retained an address in the United Kingdom during the deployment. As per the parents’ response to the appeal, what was now known was that the property was rented out so that the family could retain an income from it, demonstrating that their relationship to the property during the period of deployment was principally financial. Thus, even if that had been information put before the Tribunal, it would not have formed a valid basis for a finding that s.24 of the 2014 Act applied whilst the family were abroad. Moreover, the length of the posting and uncertainly as to where the next deployment would be (even in March 2023), further supported the contention that the absence was not of a sufficiently temporary nature for s.24 to be engaged.

in any event, in R(G) it was held that it was for a local authority to determine whether an individual lived in its area (for the purposes of a provision in the predecessor legislation which was equivalent to s.24 of the 2014 Act). There had been no public law challenge to that determination by the parents, or any relevant change of circumstances showing that T was in the Council’s area by the time of the hearing. It was, therefore, not appropriate for the Tribunal to proceed on any basis other than that T was not in the Council’s area and the Council did not owe any duty to him because of s.24 of the 2014 Act. Importantly, the Tribunal did not make any finding of fact that T was in the Council’s area (whether by reference to ordinary or habitual residence principles or otherwise). At paragraph 16 of her decision Judge Ozen highlighted that paragraph 9.201 of the Code of Practice, which referred to situations where a local authority ceased to be responsible for children or young people with SEN, did not refer to families moving abroad. That might be so, but the paragraph was not drafted in exhaustive fashion and in any event was not a binding statement of law.

the Tribunal referred to paragraph 10.55 of the Code of Practice. Judge Ozen also cited paragraphs 10.54-10.59. The parents also relied on those paragraphs of the Code of Practice in their response to the appeal. The Council disputed that those aspects of the Code of Practice supported a conclusion that an EHCP could be paused or frozen – they simply did not say that at paragraph 10.57 (which was the part of the section of the Code which was directed specifically to local authorities) or elsewhere. If the Upper Tribunal considered that the Code of Practice stated otherwise (whether expressly or by inference), then the Council submitted that it mischaracterised the s.42(2) duty as interpreted in case law – which the Code of Practice could not override because it was not a source of law. It could not render a local authority responsible for a child or young person when, by operation of law, it did not owe duties to him.

the parents relied on s.42(5) of the 2014 Act, but the Council did not make any decision as to the school in Dubai being a suitable alternative arrangement. The decision to move to Dubai and find an alternative school for T, was made unilaterally by the parents, although of course it was acknowledged that deployment abroad was a feature of his father’s employment. Paragraphs 9.132-133 of the Code of Practice stated that it was for a local authority to determine if alternative arrangements were suitable, in the absence of which it was not relieved of its duty under s.42(2) (see White v Ealing LBC [1998] ELR 2303 at pp.223H-224A.36 In this case, the Council made no such determination. Accordingly, s.42(5) did not apply in this case, nor did the Tribunal make any finding that it did. It was also, in any event, far from clear if the consequence of s.42(5) applying would be that the s.42(2) duty was paused or frozen – as opposed to be discharged altogether (which, the Council suggested, was the more likely conclusion).

it was not clear what the purpose of maintaining the EHCP (even in a paused or frozen state) would be in T’s circumstances. His absence from Hampshire was for a period of two years. His SEN would obviously need to be re-assessed upon his return after this period, with the EHCP under appeal being significantly out of date by that point and a new school would need to be found for him (as indeed transpired). There was no dispute that, upon returning to Hampshire, s.24 of the 2014 Act applied again to T’s circumstances. On the facts of the case, the Council was also committed to providing additional support to T when he returned, to mitigate or remove any disadvantage caused by his absence.

the parents cited the Armed Forces Act 2006. That was not referred to by the Tribunal in its decision, nor was it raised at the hearing before it; it was therefore irrelevant to the appeal. In any event, The Council submitted that s.343AA(1) of the Act did anything more than create a “have regard duty”, in relation to which the Tribunal had no jurisdiction.

The Council’s primary submission was that the Tribunal’s decision contained clear error of law. If the Upper Tribunal agreed, it was invited to set aside and remake the decision in accordance with s.12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”). Should the appeal succeed, the Upper Tribunal should remake the decision because there was only one possible answer – T was out of the country at the time of the cease to maintain decision and the appeal hearing; therefore the appeal should have been dismissed.

For the avoidance of doubt, the Council did not accept that the appeal was academic because:

at the time of the hearing, and when permission to appeal was granted, T was still in Dubai.

whilst he was now back in Hampshire, the nature of his father’s work was such that he (and his family) might be deployed abroad again, with the same issues arising.

his father’s situation was not unique – there would be other families, in and outside of Hampshire, who had service personnel in them who, similarly, could be deployed abroad.

there might be other situations, outside of a service personnel context, where for work reasons families moved abroad, to which the present case could also be relevant.

Therefore, this was not a situation in which the Upper Tribunal should exercise discretion not to set aside the decision upon finding that an error of law existed, as per s.12(2)(a) of the 2007 Act.

As the Upper Tribunal was aware, T’s circumstances as of the hearing date were that he was back in Hampshire and was registered at a local school. In the event that the Upper Tribunal declined to set aside the decision and re-make it, contrary to the Council’s submissions, it was still invited to find that the Tribunal’s decision contained error of law in accordance with s.12(1).

It will be apparent from what I have said in paragraphs 24 to 31 above that I was satisfied that it was proper to hear and determine the appeal, even though in my judgment the appeal as between the parties had subsequently become academic by virtue of T’s return to the UK and the creation of his new EHCP.

S.45 of the 2014 Act (“the statutory procedure issue”)

With regard to the first ground of appeal, Mr Gillie submitted that the primary conclusion of the Tribunal was that that the Council had not followed the mandatory procedure required to exercise its discretion to cease maintaining T’s EHCP. Therefore, the Council’s decision was invalid and it could not cease to maintain the EHCP. That conclusion was dispositive of the s.51 appeal before the Tribunal. The Council had to demonstrate that that particular conclusion was wrong in law; if it did not, then none of its other grounds of appeal was relevant. The Tribunal’s reasoning on the issue was set out in its judgment at paragraph 24 and the first line of paragraph 25.

The parents submitted that the Tribunal’s reasoning was entirely right. The proper construction of the legislation led inexorably to a conclusion that a decision pursuant to s.45(1) of the 2014 Act would be invalid unless the mandatory provisions of that section, and the mandatory regulations made under it, were followed.

S.45(1) of the 2014 Act provided the only relevant circumstances under which the Council might cease to maintain an EHC plan. S.45(2) had the effect of suspending a decision to cease to maintain an EHCP while an appeal to the Tribunal against that decision was pursued (B & M v Cheshire East Council [2018] UKUT 232 (AAC) at [58]). S.45(5) was an enabling power for regulations to be made about the procedure which a local authority must follow when determining whether to cease to maintain an EHCP.

The regulations made pursuant to s.45(5) were the 2014 Regulations which “supplement the procedural framework established by Part 3 of the CFA 2014” (R (on the application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207 at [39]). Regulation 31 established a mandatory procedure which local authorities must follow when determining whether to cease to maintain an EHCP. It mandated that a local authority must undertake a consultation and, thereafter, provide mandatory information to the parents or child, including information about the right to appeal.

The Tribunal correctly identified the relevant statutory provisions (i.e. s.45 and regulation 31 at paragraphs 32–33 of its judgment. It found that “having failed to comply with the mandatory requirements of reg. 31, the LA cannot cease to maintain T’ s EHCP, even at the conclusion of this appeal”. The parents submitted that that analysis was correct for the following reasons.

First, there was no reason to depart from the plain, mandatory language of the legislation. S.45(5) rendered the discretion in s.45(1) of the 2014 Act subject to the 2014 Regulations. The use of the words “to be followed by a local authority” in s.45(5)(c) denoted a mandatory step; if it were otherwise, permissive language would have been used.

That submission was supported by the Explanatory Memorandum to the 2014 Regulations at paragraph 2.1, which stated that the purpose of the Regulations was to set out “the detailed requirements on local authorities for assessing children and young people’s education, health and care needs and where necessary drawing up Education, Health and Care plans”. The provisions of regulation were written in mandatory terms (“must”). All the relevant legislative provisions therefore pointed in the same direction: the local authority might take the decision to cease to maintain an EHCP, but only a decision taken on mandated grounds according to a mandated process would be valid.

Second, the steps set out by regulation 31 (consultation, notification and the provision of information about how to appeal) were all integral to the effectiveness of the decision itself. That strongly suggested that the local authority’s compliance with regulation 31 was a condition precedent for a valid exercise of its decision pursuant to s.45(1):

“the process of consulting the child and obtaining their views is integral to the decision-making processes of the local authority” under s.45(1), see R(Milburn) at [45].

upon the presentation of an in-time appeal, the ceasing decision was suspended and had no legal effect until the appeal was determined. The requirements of notification and information imposed by regulation 31 ensured that all parents knew of their right to appeal and could trigger the suspension of the local authority’s decision. In that respect the procedure mandated by regulation 31 went to the very heart of the effectiveness of a decision under s.45(1) and was integral to it.

In the instant case, the Council took the decision to cease maintaining the EHCP without any consultation and notified the parents without alerting them to their right to appeal to the Tribunal (see the letters of 19 November 2021 and 19 January 2022).

Third, the protective nature of the legislative regime also supported the parents’ submission. The purpose of the legislation was the welfare of children and the purpose of s.45 was to protect children with SEN from having their special educational provision withdrawn without proper consideration by the local authority. That tended towards a protective construction of s.45(1) and (5): proper consideration by the local authority was secured by the fact that, without it, its decision would be invalid.

For those reasons alone, the parents submitted that the Tribunal should dismiss the appeal: it was incapable of disturbing the primary conclusion of the Tribunal.

Without prejudice to that position, they set out their submissions on the rest of the grounds of appeal below. In summary, the judgment below disclosed no error of law and the Council’s challenge was, in reality, nothing more than a disagreement with the Tribunal’s secondary conclusions.

S.24 of the 2014 Act (“the local authority area issue”)

The central issue in the remainder of the grounds of appeal was whether the children of servicemen remained “in the local authority’s area” for the purposes of s.24 while they were temporarily absent accompanying their parents on deployment abroad.

The Council sought to vitiate the conclusion of the Tribunal that it was not entitled to cease maintain T’s EHCP. The Council’s in essence was that T was not “in the local authority’s area” as required by s.24 because he was abroad in Dubai. T’s parents submitted that the challenge on that ground was wrong, principally for two reasons:

first, a child might be deemed to be in a local authority’s area, notwithstanding a temporary absence, because the local authority was the place of his ordinary residence.

second, military personnel were deployed abroad temporarily to fulfil their duties to the country. The deployment was compulsory and their children might accompany them. In respect only to this narrow category of children, the time-limited, temporary absence abroad for reasons of deployment ordered by the State should be construed as a temporary absence which did not displace the fact of a child’s ordinary residence in a local authority area.

It was important at the outset to recognise the parameters of the Council’s appeal. At no point has the ground of appeal been founded (nor given permission to proceed) on the Tribunal exceeding its jurisdiction by determining whether T was in the local authority’s area or not. It was now suggested by the Council that (1) whether a child permanently lived in an area was ultimately a question of fact for the local authority, subject only to challenge by judicial review and thus not within the jurisdiction of the Tribunal, on the authority of R(G) and (2) the Tribunal made no finding of fact that T was living within the Council’s area for legal purposes whilst he was in Dubai, but in any case, even if it had, that would not have been within its gift for the reasons stated in R(G). The Council’s decision that he was not in its area was a matter which could only be challenged through judicial review. It was therefore wrong for the Tribunal to proceed on any basis other than that, being resident in Dubai, T was not living within the local authority’s area.

The parents submitted that those jurisdictional contentions were misconceived for the following reasons:

R(G) was not authority for the proposition that the question whether a child lived in a local authority’s area could only be challenged by judicial review. That case simply stated that the question was only reviewable in accordance with public law principles (at [144]), which was unsurprising given that the case was a judicial review claim.

the Tribunal plainly was empowered to determine whether a child was or was not in the local authority’s area as part of its jurisdiction under the 2014 Act. That was a necessary and natural corollary of its power to determine appeals against a ceasing decision, as well as “a decision of a local authority not to secure an EHC needs assessment for the child or young person” pursuant to s.51(2)(a) and (f). Those appeals would often (though not always) lie against a decision that the local authority was not responsible for the child because he did not meet the threshold criteria in s.24. S.45(1) provided expressly that an appeal could be brought in the Tribunal against a decision that the local authority was not responsible for a child.

it was the Council which was suggesting, as a matter of law, that the duty it owed towards T ended when he moved out of its area and relocated to Dubai. His parents were simply responding to that contention and submitted that the Council had identified no error of law.

The starting point was s.24(1) of the 2014 Act. That provision mandated that a local authority was responsible for a child if he were in the authority’s area and had been identified by the authority as someone who had, or might have, special educational needs.

The phrase “a person in the authority’s area” included a person who was ordinarily resident in that area, but temporarily absent. That construction was well within the statutory purpose of the 2014 Act and concordant with the relevant legislative framework for several reasons.

The purpose of the legislation was the welfare of children: (R(D and others) v Hackney LBC [2019] PTSR 1947 at [54]). That purpose tended towards a protective approach to s.24.

The statute itself envisaged a permissible degree of absence from the local authority area. That must mean that mere presence was not the correct test to apply. S.83(6) (“interpretation”) provided that:

The inclusion of the word “mainly” in that section demonstrated that a person might be partly resident in Wales and nevertheless be “in the area” of a local English authority. That was consistent with the test under s.24 as being one of ordinary residence and not presence.

The Code of Practice provided, in respect of looked-after children, that that “the authority that carries out the assessment is determined by Section 24 of the Children and Families Act 2014. This means that the assessment must be carried out by the authority where the child lives (i.e. is ordinarily resident)” (at 10.8 page 210). That guidance in the Code of Practice was concordant with the test under s.24 being one of ordinary residence.

A related concept was whether a child had “moved” from a local authority’s area (s.23). A temporary or transitory move did not relieve a local authority from its responsibility to the child, see R(G) at [133]: “I agree that it is necessary to distinguish a situation where there has been a permanent move from one which is temporary or transitory”. That also supported the submission that ordinary residence was the test for whether a child was in a local authority’s area pursuant to s.24.

Regulation 5(3) of the 1996 Regulations governed the allocation of financial responsibility for meeting a child’s SEN needs. Regulation 5(3) provided that

the regulation determined residence expressly according to a test of ordinary residence. That was consistent with the other legal provisions set out above. It was further evidence that s.24 imposed a test of ordinary residence rather than simple presence.

the residence of a child would almost always be aligned with the residence of his primary carer (save for some very narrow exceptional circumstances). It would be illogical for the question of residence of a parent under the 1996 Regulations to be determined according to ordinary residence, but the question of his child’s residence under s.24 to be determined according to a test of mere presence.

it was right that regulation 5 of the 1996 Regulations expressly did not apply for the purpose of determining which authority's area a child was in under s.24, but that took the Council’s arguments no further. It was plain that the statutory material and the Code of Practice all pointed towards a test of ordinary residence. In other words, the 1996 Regulations were part of a legal framework which relied on a test of ordinary residence for the purposes of determining who could properly be said to be in a local authority’s area.

A temporary absence from the local authority’s area did not defeat the ordinary residence test required by s.24. A temporary absence included an absence by reason of deployment in the armed forces.

First, there was an important distinction to be made between a permanent and a temporary move away from a local authority area. A permanent move might relieve a local authority from responsibility for a child, but a temporary move will not (R(G) at [133]).

Second, the features which had been identified in other contexts for deciding a child’s ordinary residence were helpful (R(G) at [133]). The judgment of the Supreme Court in A v A at [54] also provided a helpful pointer.

In the instant case, T was integrated into a social and family environment in Hampshire. He was not integrated into a family and social environment in Dubai. The only reason he was present in Dubai at all was because he was the dependent of his father, who was serving in the Royal Navy and who was deployed to Dubai by the Royal Navy on a temporary basis. T should, therefore, be seen as habitually resident at all material times in Hampshire for the purposes of s.24. The witness statement of his father supported that submission:

the only place where T and his family had lived was Hampshire: “We went to Dubai with a very clear understanding that Hampshire remained home and we would be returning to Hampshire after the end of the deployment, because it is the only place my family has lived in and is where we intend to continue to live upon return” (paragraph 18)

the Navy acknowledged that T’s home and family remained in Hampshire: “The Navy also shared the same understanding that my family and I would return to Hampshire. The Navy offers all personnel on deployment a "get you home" allowance. My family and I were offered one free round-trip flight each from Dubai to London every year so we could visit our family in Hampshire” (paragraph 19)

T’s family and social network was in Hampshire: “Hypothetically, in the case of any emergency requiring deployed personnel to vacate the country they are deployed to, the Navy would be responsible for providing us with suitable temporary accommodation while we find more permanent housing for relocation. The Navy would have to move us back to our place of work or where our family networks are. For us, that is and has always been Portsmouth, it is very clear that the Navy agrees” (paragraph 20)

the Navy recognised that T’s home area was Hampshire and had arranged for replacement accommodation there for him on return from Dubai: “Ultimately we did return early and our house will not be available until at least next summer. The Navy therefore arranged military service accommodation in our home area in Hampshire, which is a rental property arranged by the Navy” (paragraph 22).

In circumstances where a child’s family network was in a local authority area, the child was only temporarily absent due to his parent’s military deployment in the Navy and the Navy itself recognised that the child’s home area was in the local authority’s area, it would be undesirable as a matter of public policy to construe the child as anything other than ordinarily resident in that area.

Mr Gillie argued that ground 2 disclosed no error of law. The Tribunal was entitled to assess whether the Council applied the law incorrectly and it was entitled to review and replace the Council’s decision.

The Tribunal was entitled to assess whether the local authority came to the correct conclusions of matters of fact and law, see DH and GH v Staffordshire CC [2018] UKUT 49 (AAC) at [19]. The Tribunal’s judgment fell well within the permissible approach in DH:

the judgment below had to be considered holistically: it was clear that the Tribunal considered all the documentation before it and turned its mind to questions of law and fact. It formed its own view about the appropriateness of the decision in light of the facts and the law. It did not exceed its statutory function. That was simply another instance of the Council disagreeing with the Tribunal’s conclusions on the basis of narrow textual analysis, which was to be deprecated (Volpi v Volpi [2022] EWCA Civ 464 at [2]).

the Tribunal was entitled to determine whether the Council came to the correct conclusion on matters of law. That was what the Tribunal was doing. The Council’s contentions were simply wrong. In focusing on the Council’s procedural failings the Tribunal was considering a matter of law and a matter of fact; it was entirely open to it to do so on a general appeal.

the Tribunal did not, in any event, make a finding of unfairness. However, what it was doing was assessing the facts to determine whether the local authority came to the correct conclusion. That was a permissible approach. It did not amount to a review akin to judicial review.

the Tribunal did not find that the Council was prevented from maintaining the plan abroad; it found that the “LA cannot comply with its duty to secure the provision in Section F of T’s EHCP whilst he attends school in Dubai”. That was a permissible consideration of the facts and judgment relevant to the Council’s decision. It was not akin to a judicial review.

The Tribunal’s decision was not vitiated by a lack of clear reasoning. It was perhaps true that the judgment below might have been worded better, but that was not a ground to depart from it in the instant case, because the central conclusions of the Tribunal and the reasons for them were clear:

the primary conclusion was that the provisions of regulation 31 were stated to be mandatory so that the Council’s (conceded) failure to comply with it invalidated its ceasing decision; or

as a secondary conclusion, the Council should make adjusted provision for T as the child of a serviceman because he faced a disadvantage not faced by others in different circumstances and the Council could maintain the EHCP without breaching its duty to secure the educational provision in Dubai.

In the alternative, the Upper Tribunal should determine for itself that the Council was not entitled to cease to maintain the EHCP and the appeal should be dismissed.

Mr Gillie submitted that ground 3 was parasitic on grounds 1 and 4 and repeated the submissions made in respect of those grounds.

Ground 3 was an impermissible attempt to disagree with the findings and reasons of the Tribunal. The specific factors raised by the Council had been traversed earlier in his skeleton argument, but by way of a brief summary:

the “procedural failings” were not irrelevant; they were a failure to comply with a mandatory and integral part of the legislation.

the Council’s contentions about “comparisons” were misplaced. The Tribunal was entitled to find that T would be prejudiced compared to the children of civilian families. That comparative disadvantage was precisely why the Armed Forces Covenant existed at all. The Tribunal did not make findings of “unfairness”. The Council’s contentions simply amounted to a different analysis of the facts before the Tribunal. That was insufficient to found an error of law.

the Tribunal did not assume that transferring an EHCP guaranteed continuity of provision, but in any event, that again was an impermissible attack based on an overly narrow textual analysis of the judgment.

the Tribunal’s conclusions about prejudice were entirely open to it. The Council simply disagreed with them. That was insufficient to vitiate the Tribunal’s findings, but in any event, it was quite right to conclude that prejudice was a relevant matter in this case.

The Council had not even begun to get over the high hurdle of perversity. The parents relied on the reasoning of the Tribunal, the reasons and factual findings of which were neither irrational nor perverse; the Council’s challenge under that ground was misconceived for the reasons set out by the Court of Appeal in Volpi v Volpi at [2].

As to the last ground of appeal, Mr Gillie submitted that, although the Council challenged the Tribunal’s findings at paragraph 26 of the judgment, the conclusions there set out were entirely open to it as a matter of fact and law for the following reasons.

It was open to the Tribunal to find that not maintaining the plan while T was abroad, by reason of the military deployment, put him at a disadvantage compared to children who simply moved between local authorities in the UK. The particular disadvantage which the Tribunal identified was set out in the penultimate sentence of paragraph 34, namely the risk that: “to require T to commence the process of applying for an EHCP afresh on the family’s return to the UK, may well result in T being without the provision he requires for a considerable portion of that academic year”. The Council’s challenge to that finding was simply an instance of it disagreeing with the facts found by the Tribunal and disclosed no basis to vitiate the finding:

the Council asserted that “Contrary to the Tribunal’s analysis, it is not ‘unfair’ that individuals in the latter scenario lose their right to an EHC Plan – that is just a consequence of them moving out of the United Kingdom”. That was simply irrelevant. The Tribunal did not find that it was “unfair” that individuals lose their right to an EHCP. It made a finding that there was a risk that T might be without the provision which he required for a significant period on his return. That, on any view, was a risk which amounted to prejudice.

the Council asserted that the “Tribunal appears to have assumed that transferring an EHC Plan under regulation 15 procedure guarantees continuity of provision in the terms of the inherited EHC Plan”. It did no such thing. It simply identified the risk that there would be no continuity of provision in the instant case should the EHCP cease. That was plainly a risk which it was entitled to find. In any event, the fact that “a receiving local authority could also cease to maintain the EHC Plan” was neither here nor there because the undisputed circumstances before the Tribunal were that there was no receiving local authority. The Tribunal was dealing with a certainty that, if the local authority ceased the plan while T was in Dubai, there would be no prospect of a receiving local authority continuing it.

the Council was simply attempting to disagree with the finding of prejudice made by the Tribunal because it had a different assessment of the evidence. The factor identified by the Council was the stuff of pure conjecture. Fundamentally, the finding about prejudice by the Tribunal was not one which no reasonable tribunal could have made (and the Council did not suggest that it was a perverse finding on the evidence).

The Tribunal’s finding that the EHCP could be frozen or paused so as to sit consistently with para 10.55 of the Code of Practice was permissible and open to it for the following reasons.

First, it was correct to identify that the unique position of members of the armed forces and their children required local authorities to exercise their duties differently from the norm. That was necessary to mitigate the disadvantages which children faced by reason of their parents’ enormous sacrifices to the nation and the special circumstances which arose from their commitment to military service. That principle was clearly reflected in the legal and policy framework in issue:

the Code of Practice provided, inter alia, that local authorities should ensure that their provision did not disadvantage children because of their parents’ lifestyle, including deployment and to consider how any service-related issue might affect the child’s needs and how provision might be made to meet the service-related issue (paragraphs 10.54, 10.55 and 10.57)

the Armed Forces Covenant contained in the 2006 Act required the local authority, when exercising that discretionary power, to have due regard to:

the unique obligations of, and sacrifices made by, the armed forces

the principle that it was desirable to remove disadvantages arising for service people from membership, or former membership, of the armed forces

the principle that special provision for service people mighty be justified by the effects on such people of membership, or former membership, of the armed forces

the Council itself had signed up to the Armed Forces Covenant and had committed to an “approach based on the following principles: No disadvantage - this ensures members of the armed forces community experience no disadvantage as a result of their service in the armed forces”.

Second, contrary to what the Council contended, the 2014 Act permitted it to maintain the EHCP without breaching its statutory duty:

s.45(1) bestowed a discretion on a local authority to cease to maintain an EHCP: “a local authority may cease to maintain an EHC plan for a child”. That was also, apparently, the view of the Secretary of State for Education which was referred to before the Tribunal.

the local authority did not need to “secure the specified special educational provision” in the EHCP if “the child's parent has made suitable alternative arrangements”: s.42(5).

The Council had seized on the words “freezing” or “pausing” as having some special significance and being outwith the legislative framework, but that was the sort of over analysis of a Tribunal judgment’s linguistic exposition which should be deprecated. The Tribunal was plainly saying that, in the circumstances, the Council could maintain the plan, but not take steps to secure the provision specified within it. That conclusion was correct as a matter of law for the reasons stated above.

The Council contended that it was for the local authority to satisfy itself that suitable alternative provision had been made and the authority in the present case had not done so. The parents did not dispute that that was the case; nevertheless, it does not defeat their submission:

the question before the Tribunal was whether the Council came to the correct conclusion that “T is no longer in full-time education or training in England from September 2021. Accordingly, T’s Education, Health and Care (EHC) plan will cease from this date”, which was the rationale provided by the Council. That question necessarily fell to be answered with reference to the Council’s actual conclusions.

the Council precluded itself from answering the question of suitable alternative provision by (i) contravening regulation 31 of the 1996 Regulations by failing to consult with the parents and (ii) by erroneously stopping its analysis prematurely at the mere fact that T had been transferred to Dubai. It would not be just for the Council to benefit from its own failures.

If it were accepted as a matter of law that there were circumstances in which an EHCP might be maintained, but temporarily not implemented, the Council’s argument to the contrary must fail and the Tribunal’s conclusion should be upheld. The question of whether there was suitable alternative provision was properly a secondary question which could either be determined by the local authority upon review or assessment of the EHCP or by the Tribunal pursuant to its power to amend the educational provision in the EHCP and make any other consequential amendments under regulation 43(2)(f) of the 2014 Regulations.

In the course of writing the judgment, an issue arose on which I sought further submissions.  The matter was not raised by either side in argument (in saying this I was not being critical of either side), but given that the case had taken on the nature of a test case with wider ramifications for local authorities and service personnel and their families, it seemed to me that it would be inappropriate to perfect and promulgate the decision without giving both sides the opportunity to make submissions on it. Accordingly on 18 January 2024 I directed sequential submissions from the parties on the matter (there were to be yet further sequential submissions, which were not originally anticipated, as I explain below.) In the light of those additional submissions it was not necessary to convene a further hearing, although the option of holding one was left open by my directions if requested by the parties.

The issue concerned the genesis and effect of regulation 2(4) of the 1996 Regulations (or the Belonging Regulations), as inserted in 2009 and amended in 2014. The particular matters on which I sought the further submissions were as follows:

the decision of Rabinder Singh QC in R(L) v (1) Waltham Forest LBC and (2) Staffordshire CC [2007] EWHC 2060 (Admin)

the consultation paper issued by the Department for Children, Families and Schools (“DCFS”) on 19 January 2009 on amendments to the Belonging Regulations

the effect of the amendment effected by the insertion of regulation 2(4) in light of that background

the statement in paragraph 2.4 of the consultation paper to the effect that “The forthcoming Children, Skills and Learning Bill will address the meaning of ‘in their area’”, which appeared not to have been followed through

the position given that that legislative amendment was apparently not made good

the DCFS 2009 “Guidance on Looked After Children with Special Educational Needs placed out-of-authority”.

So far as the legislative history of the relevant Belonging Regulations is concerned, the interpretation provision in the Regulations in their original form stated that

Regulation 2 was amended by regulation 2(3) of the Education (Areas to which Pupils and Students Belong) (Amendment) (England) Regulations 2009 which provided (with effect from 24 June 2009) that

The new regulation 2(4) was itself amended by regulation 5(2) of the Special Educational Needs (Consequential Amendments to Subordinate Legislation) Order 2014 (with effect from 1 September 2014) to the effect that

My directions were not a general invitation to reargue what had already been argued and to the extent that paragraphs 3 to 13 of the Council’s supplementary submissions and paragraph 4 of the parent’s supplementary submissions seek to reargue the respective cases by way of summary I have not set them out here.

R(L) concerned a looked after child based in one local authority area attending a residential placement in another.

By reference to paragraph 7 of the decision, it could be seen that s.321(3) of the Education Act 1996 (“the 1996 Act”) was not drafted in directly equivalent terms to s.24 of the 2014 Act, in that the 1996 definition partially referred to registration of the pupil at a school. S.24 removed the reference of the term ‘pupil’, replacing it with ‘child’ or ‘young person’ and did not incorporate any reference to ‘school’ – in a sense streamlining the statutory language.

Paragraph 11 of the decision referred to s.579(4) of the 1996 Act, which stated that

Paragraph 12 of the decision cited regulations which came into force in 2001 under the 1996 Act which dealt with the transfer of responsibility for a statement of special educational needs between local authorities. In broad terms, that was a predecessor to what was now contained in regulation 15 of the 2014 Regulations.

At paragraph 15 of the decision, it could be seen that Waltham Forest argued that the Belonging Regulations were concerned solely with financial recoupment and not with any wider question of which local authority was responsible for a statement of special educational needs. However, at paragraph 17 the Court preferred the submissions of Staffordshire, giving a wider interpretation to their relevance. The effect of the decision was that Waltham Forest was responsible for the child, even though he resided at a placement in Staffordshire.

The Council submitted that the Court’s approach in R(L) to the Belonging Regulations was wrong, but, in any event R(L) had been overtaken by events and/or could be distinguished from the present case:

in R(L) the Court at paragraph 17 expressly found that regulation 7 of the Belonging Regulations applied on the facts. (Footnote: ¹) However, in the present case, the parents were not able properly to point to any substantive provision within the Belonging Regulations which was applicable to their circumstances.

the decision was inconsistent with R(G), a later authority. It was evident from the judgment in R(G) that the High Court heard full argument about ordinary/habitual residence principles and cited relevant case law. It did not appear that that happened in R(L).

the Belonging Regulations had been amended since the decision in R(L) by insertion of regulation 2(4). The case of R(G) considered the Belonging Regulations in their amended form, which was another reason to attach greater weight to it over R(L). Over and above that, R(L) was not a reliable authority because the main reason for amending the Belonging Regulations was to reverse the R(L) decision. The analysis provided by the High Court in R(L) was therefore no longer reliable or sustainable because of regulation 2(4). (Footnote: ²)

Therefore the Council submitted that no weight should be attached the decision in R(L).

The DCFS explained in the consultation document that it was not the intention for the Belonging Regulations to apply generally, but that they should apply only to recoupment cases. On the first page of the consultation document, it stated that the proposals inter alia would

Paragraph 1.1 of the document stated that this was the “most important” aspect of the proposals. Paragraph 1.2 stated that the reason for the proposal to amend was the R(L) decision (see further paragraph 2.3):

Paragraphs 2.1-2.4 supported the Council’s submissions previously (consistent with the R(G) case) that the Belonging Regulations were concerned only with financial recoupment, not any wider issues. To ‘belong’ to a local authority did not bear the same meaning as being ‘in the area’ of a local authority.

Paragraph 3.2 stated that the purpose of amending regulation 2 was to “re-establish” the policy intention behind the Belonging Regulations that they

The R(L) case (which concerned a looked after child) prompted the DFCS consultation. That eventually led to the insertion of regulation 2(4) into the Belonging Regulations. However, regulation 2(4) restricted the application of the entire Belonging Regulations in relation to s.24 – not just regulation 7 (which concerned looked after children). That was the obvious interpretation of regulation 2(4) arising from the wording used:

The Upper Tribunal must apply the plain and literal meaning of those words, which in the Council’s submission was clear – the Belonging Regulations were irrelevant to the approach under s.24 of the 2014 Act and any reliance on them as an interpretative aid would be a clear error. That still left open the question of how s.24 should be interpreted, but in the Council’s submission it would be inappropriate for the Upper Tribunal to apply an ordinary/habitual residence principles to the s.24 “area issue” because:

the wording of s.24 of the 2014 Act did not support that approach.

the case law (R(G)) did not support that approach.

the intention, but in any event certainly the form, of the amendment to the Belonging Regulations implemented through regulation 2(4) was completely at odds with that approach.

The amendment came into effect in 2009 following R(L). The effect of regulation 2(4) was as set out above. The ordinary/habitual residence approach which applied to the Belonging Regulations was irrelevant to the question of what area the child was in for the purposes of s.24 of the 2014 Act. At best, an ordinary/habitual residence approach might, in a given case and depending on the circumstances, provide some ‘indirect pointers’ to how any question arising in relation to s.24 should be answered, but it could be taken no higher than that for the reasons stated in R(G) and ultimately that was an area of discretional decision making for the local authority with which, subject to judicial review, there should be no interference.

The statement at paragraph 2.4 of the consultation document was made in the context of the consultation rationale more generally, i.e. to reverse the effect of R(L). To the Council’s knowledge, the definition of “in the authority’s area” in s.24 of the 2014 Act was not subject to any further definition, save except for s.83(6):

Given that (i) the Belonging Regulations expressly applied a test of ordinary/habitual residence, (ii) the clear effect of regulation 2(4) was that the Belonging Regulations (and, thus, the ordinary residence test applied in them) was not relevant to the approach under s.24 of the 2014 Act and (iii) the ordinary/habitual residence approach was rejected by the High Court in R(G), the only safe conclusion which the Upper Tribunal could reach was that an ordinary/habitual residence test was not applicable to any question arising under s.24 of the 2014 Act.

The fact that Parliament might not have followed through on a possible intention to define the term ‘in the Local Authority’s area’ more specifically was, ultimately, irrelevant to the present appeal, because the Upper Tribunal must apply the statutory language which Parliament chose to adopt in s.24 of the 2014 Act as it found it. But it was certainly reasonable to infer that, if Parliament had wanted to use the terminology of ordinary/habitual residence in s.24, it could have done so in clear and unambiguous terms. Therefore, the absence of such wording must be taken to be deliberate. It would not be appropriate for the Upper Tribunal to impose a test on s.24 which went against the grain of what could be reasonably ascertained of Parliamentary intention.

There was nothing further to add to that question beyond what had already been stated immediately above.

The Guidance was cited in R(G) at paragraph 132-133. It was noted that ‘in their area’ was construed by the DCFS in the guidance as “ordinarily resident in their area” in accordance with established practice, despite that not being defined in the legislation (see page 4). The High Court stated, in response to that, “I agree that it is necessary to distinguish a situation where there has been a permanent move from one which is temporary or transitory”. The Council did not disagree with that, but submitted that that was a matter for a local authority to decide on, subject only to judicial review.

It was clear from the High Court’s conclusions in R(G) that it did not treat the guidance as being determinative of whether an ordinary/habitual residence test was applicable to the question of which local authority area a child was in (quite the opposite, in fact, given the High Court’s overall conclusion in the case). In the Council’s submission, neither should the Upper Tribunal.

The guidance (which appeared to have been drafted shortly after the amendment to the Belonging Regulations was made in 2009 – see p.9) appeared to be non-statutory guidance. It did not hold binding status. It also only applied to looked after children, to which particular considerations applied; therefore it could not be given any wider application. T was not a looked after child.

The Council submitted that the guidance was of limited, if any, assistance and that no weight should be attached to it.

In all the circumstances of this case, it was submitted that the parents’ move abroad had a sufficient degree of permanence, in the sense that it was not short-term or sufficiently temporary. The family was absent for a period of years not weeks or months (therefore it was not “short term”). They also took steps to rent their property to tenants, demonstrating that they had no intention to return for the duration of the lengthy period of deployment. Without any consultation with the Council, they made their own alternative arrangements for T’s education in Dubai, in relation to which the Council did not (and was not reasonably able to) make any determination of suitability. (Footnote: ³) The Council’s decision to cease to maintain because T was not in its area, in those circumstances was reasonable, lawful and rational. The Tribunal made no finding that T was in the Council’s area whilst he was abroad in Dubai. It was not now open to the Upper Tribunal on an appeal against that decision to find otherwise.

The Council submitted that the new points raised by the Upper Tribunal did not change the general position taken by it in the appeal. The Council continued to invite the Upper Tribunal to uphold the appeal for the reasons given and those previously stated.

The Tribunal’s directions went to the question of how s.24(1) of the 2014 Act should be interpreted, and, in particular, the meaning to be ascribed to the words “in the authority's area”.

The parents submitted that:

s.24(1) of the 2014 Act should be interpreted as denoting a test of ordinary residence

the judgment in R(L) was no longer good law. The legal effect of regulation 2(4) of the Belonging Regulations was simply that they did not dictate the meaning of s.24 of the 2014 Act. Thus, mere disapplication of the Belonging Regulations to s.24 did not mean that s.24 could not be interpreted as denoting an ordinary residence test

The Department’s guidance was a persuasive external aide to the construction of s.24 of the 2014 Act. Both the 2009 Guidance and the SEND Code of Practice set out a test of ordinary residence. The statutory scheme should be interpreted in a coherent way. The Belonging Regulations were not drafted in conflicting terms to the 2014 Act. There was no reason why s.24 should not be read concordantly with the definitions in the Belonging Regulations and the guidance, all of which specified an ordinary residence test.

The parents accepted that regulation 2(4) of the Belonging Regulations meant that those Regulations did not apply for the purpose of determining the education authority responsible for identifying, making and maintaining statements pursuant to the 2014 Act. That was the clear intention of regulation 2(4) as set out in the Explanatory Memorandum to the 2009 Regulations:

Regulation 2(4) therefore had the effect of nullifying the earlier legal conclusion of the High Court in R(L) that the Belonging Regulations

The legal effect of regulation 2(4) was no wider than that nullification. It simply meant that the provision of an ordinary residence test in regulation 5 did not apply to s.24 of the 2014 Act. To put it another way, the Belonging Regulations did not dictate the meaning of s.24 of the 2014 Act.

The 2009 consultation paper appeared to be the consultation related to the 2009 Regulations. The consultation paper might be an admissible aid to the construction of the 2009 Regulations which introduced regulation 2(4) of the Belonging Regulations (see R (Maughan) v Her Majesty's Senior Coroner for Oxfordshire [2020] UKSC 46 at [27]). The mischief at which the 2009 Regulations was aimed was that:

Crucially, however, none of this meant that s.24 of the 2014 Act did not entail an ordinary residence test. Quite the opposite, in the parents’ submission:

had Parliament or the relevant Minister wished the interpretation of s.24 of the 2014 Act or its antecedent legislation to preclude an ordinary residence test, they would have set that out in terms in the Education (Areas to which Pupils and Students Belong) (Amendment) (England) Regulations 2009/1301, or in the 2014 Act itself, or the Special Educational Needs (Consequential Amendments to Subordinate Legislation) Order 2014/2103 (which amended regulation 2(4) of the Belonging Regulations to make reference to the s.24 after the passage of the 2014 Act).

the consultation paper was not an admissible aid to the construction of s.24 and its antecedent legislative provisions in the Education Act 1996. That must be so on normal principles of statutory interpretation, but in addition the consultation paper itself stated that it was not relevant to the meaning of the phrase “in their area” in s.24’s antecedent legislative provisions; the meaning of those words would instead be left to different legislation: “The forthcoming Children, Skills and Learning Bill will address the meaning of the term “in their area”.

guidance from a public authority about the interpretation to be given to a statutory term might be persuasive authority: Hyman and another v Revenue and Customs Commissioners [2022] EWCA Civ 185, [2022] STC 358 at [31]. The Guidance produced by the Department repeatedly provided for an ordinary residence test. Thus, the 2009 Guidance on Looked After Children with Special Educational Needs placed out-of-authority at p.4 set out 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”. That was repeated in The SEND Code of Practice: “the authority that carries out the assessment is determined by Section 24 of the Children and Families Act 2014. This means that the assessment must be carried out by the authority where the child lives (i.e. is ordinarily resident)”.

s.24 of the 2014 Act should be interpreted coherently with the rest of the statutory scheme. The Belonging Regulations were certainly not in conflict with s.24 of the 2014 Act. The Belonging Regulations, the 2009 Guidance and the SEND Code of Practice all referred to a test of ordinary residence. It would be right to interpret s.24 of the 2014 Act concordantly with that so that the statutory scheme was coherent overall.

The parents submitted that the Council’s additional contentions were misguided.

First, it is said by the Council that “The wording of s.24 of the CFA 2014 does not support” an ordinary residence test. No authority had been provided to support that submission, nor to explain why s.24 should be construed restrictively in light of its protective purpose.

Second, R(G) was not authority for the proposition that the question whether a child lived in a local authority’s area could only be challenged by judicial review. The Council submitted that “The High Court stated … “I agree that it is necessary to distinguish a situation where there has been a permanent move from one which is temporary or transitory”. The [Council] does not disagree with this but avers that this is a matter for a local authority to decide on subject only to judicial review”. Once the Council’s jurisdictional point fell away, it was left with its submission that s.24(1) involved a distinction between permanence and transience. That was precisely what a test of ordinary residence engendered.

On 29 February 20244 the parents made a further supplementary submission following new guidance from the Department of Education on that day entitled ‘Guidance for local authorities on the treatment of education, health and care plans when a child or young person moves out of or into their area’ (“the 2024 Guidance”). (Footnote: ⁴) They submitted that the new guidance supported their previous submissions and that counsel was bound to bring it to the attention of the Upper Tribunal. Although I had not made any directions for further supplementary submissions, in the light of the fact that this has taken on the nature of a test case, it seemed to me that it was appropriate to accept the further submissions by both parties.

The parents relied on the following paragraph in the new Guidance

They submitted that the 2024 Guidance was entirely concordant with their position:

contrary to the Council’s contention, it was not bound to cease to maintain the plan once a child moved abroad. Instead, it had discretion to maintain it

the relevant legislation should be construed as having a test of ordinary residence with a distinction between temporary and permanent absence

they submitted that the 2024 Guidance supported their contention that the Council ought to have followed the statutory consultation procedures before reaching any decision (which it failed to do) and, further, that it therefore failed to consider material considerations before making its decision. The 2024 Guidance provided that:

For the reasons set out in their supplementary submissions, they submitted that the 2024 Guidance was a legitimate external aid to the construction of the 2014 Act and they invited the Upper Tribunal to interpret the 2014 Act concordantly with the 2024 Guidance.

For its part the Council submitted that the new Guidance was not a definitive statement of law. It appeared to be non-statutory guidance (although it purported to summarise what statutory guidance expected). It was not referred to in the proceedings below, the decision from which was the subject of this appeal before the Upper Tribunal. Nor could it have been, because it did not exist at that time. Whilst the parties had provided their views on it, it was at a very late stage in the appeal after detailed submissions had already been made at a point when the new Guidance did not exist. Therefore the Upper Tribunal should treat it with caution.

However, to the extent that the new Guidance was taken into account by the Upper Tribunal, it supported the Council’s position in the case in several material ways:

there was no reference to the Belonging Regulations – supporting the Council’s position that they were irrelevant

there was no reference to an ordinary/habitual residence test – supporting the Council’s position that that was not the correct approach to take in the situation arising in this case. If the Department wanted to affirm a position that an ordinary/habitual residence test applied, the new Guidance would have been an opportune time to state that unequivocally

the Department supported the Council’s contention that the decision to cease to maintain was discretionary and could arise in situations where a family moved abroad (page 4 of the Guidance). Consistent with submissions which the Council had previously made, the Department had confirmed that that was a matter of discretion which should be “taken on a case-by-case basis” and that “local authorities are best placed to decide what factors they need to consider” (ibid)

the new Guidance did not say that s.42(2) could be ‘paused’ or ‘frozen’ or ‘suspended’. In fact, it suggested, for example, that the duty to carry out annual reviews continued, supporting the Council’s position that the s.42(2) duty would continue to apply if a local authority did not cease to maintain (page 5).

The new Guidance stated that a local authority might in its discretion exercise a power to maintain an EHCP when a child/young person moved abroad. That might be the case, but a local authority was not required to do so. The Council’s position remained that, if a local authority decided to exercise that power, the s.42(2) duty, which was to secure the special educational provision set out in any EHCP which it maintained, which was recognised in case law as being absolute, would apply.

A local authority might therefore properly exercise its discretion to cease to maintain in order to avoid the effect of s.42(2). In this case, the Council properly did so, because T was due to be abroad for a significant period of time, which was not deemed to be sufficiently temporary, and because it would not properly have been possible or practicable to maintain the EHCP in such circumstances. To the extent that the Upper Tribunal found that the new Guidance suggested that that was not a lawful approach for a local authority to take, the Council took issue with it.

The parents said that the new Guidance was “entirely concordant” with their case. The Council disagreed - the material aspects of the new Guidance which both parties had cited could be shown to support the Council’s position. Furthermore the Council’s position was that the decision to cease to maintain was an entirely lawful exercise of discretion.

The new Guidance added nothing to the consultation issue arising in the present appeal. The issue in the appeal was whether the Tribunal was entitled to uphold the appeal before it because of procedural non-compliance arising before the appeal was issued (failure to consult). That had been addressed elsewhere, but in summary the Council contended that the answer to that was straightforwardly “No”. Any failure on which the parents wanted to rely in relation to a failure to consult should have been challenged in the proper forum – through an application for judicial review. The new Guidance did not assist with that point.

I am satisfied that the Council committed egregious and manifest breaches of regulation 31 of the 2014 Regulations in that

it did not consult with T’s parents as required by regulation 31(1)(b)

it did not consult with the head teacher of the C Primary School which was named in T’s EHCP as required by regulation 31(1)(b)

neither the letter of 19 November 2021 nor the brief letter to the same effect of 19 January 2022 notified T’s parents or the head teacher of the school of

their right to appeal that decision;

the time limits for doing so;

the information concerning mediation, set out in regulation 32; and

the availability of—

disagreement resolution services; and

advice and information about matters relating to the special educational needs of children and young people; and

the First-tier Tribunal's power to make recommendations under the Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017,

Although, once the Council had determined to cease to maintain T’s EHCP, it was obliged to notify his parents, the school named in the EHCP and the responsible commissioning body of that decision, that notification under regulation 31(2) could only be made following the consultation required by regulation 31(1), which had never happened.

It is difficult to conceive of a more obvious and blatant case of a failure to comply with the requirements of regulation 31.

The language of regulation 31 is clearly mandatory (emphasis added):

In that respect I therefore accept Mr Gillie’s submissions as set out in paragraphs 66 to 74 above as to the mandatory nature of the obligations imposed by regulation 31 and the consequences of a failure to comply with those obligations.

It follows that a decision to cease to maintain an EHCP under s.45(1) of the 2014 will be invalid if it is taken in breach of the mandatory requirements of regulation 31 of the 2014 Regulations. I leave open for another case the question whether, in circumstances where the parents have participated in a significant consultation process and have been provided with substantially all of the requisite information and have therefore suffered no prejudice, minor infringements of regulation 31 might not invalidate the subsequent s.45(1) decision, but that is plainly not this case.

I am therefore satisfied that the Tribunal was correct to hold as it did in paragraph [24] of its decision that

Mr Line nevertheless submitted that the Tribunal had no jurisdiction to determine whether or not there had been a breach of regulation 31. To establish that, an affected person in his submission would need to commence judicial review proceedings and obtain a declaration or a quashing order from the High Court. In circumstances where that had not been done (as here), the decision to cease to maintain the EHCP stood as lawful because it had not been overturned by the High Court and instead T’s parents had submitted an appeal under s.51 of the 2014 Act. In that context he relied on the decision in R(G).

This decision formed one of the mainstays of Mr Line’s submissions, although as I pointed out to him in argument, and as he accepted, I am not bound by High Court decisions.

The background to R(G) was that the child, who lived with his parents in Kent, had special educational needs and had become significantly violent towards his parents, siblings, teachers and other pupils, resulting in cautions for battery and common assault. The father decided to take his son with him to stay with his parents who lived near Sunderland. He described this as an “extended holiday” until Kent CC either arranged for a residential school placement for the child or provided some alternative accommodation in Kent for him and his son. On 2 October 2015 Kent CC took the view that the child had now moved to Sunderland, closed its social services file on him and on 19 October 2015 passed the educational file (including his statement of special educational needs) to Sunderland. Sunderland initially agreed to take over responsibility for his education, but subsequently took the view that the child and his father were in their area only temporarily and, in consequence, responsibility in Sunderland’s opinion remained with Kent CC.

On the child’s behalf, the Official Solicitor endorsed the parents' claim (which I do not need to consider further), but also raised what was in reality a second claim for judicial review. In that second claim it was alleged that Kent CC had been in breach of various obligations to the child and his parents in its capacity as the local education authority. These included obligations which it owed to him as a child of compulsory school age and as the beneficiary of a statement of special educational needs. In particular, the Official Solicitor alleged that Kent CC acted unlawfully on 19 October 2015 in treating Sunderland as responsible thereafter for seeing that he received the education which the statement required.

The Court held that the decision of Kent CC that the child had moved to Sunderland should be quashed.

It is important to note that R(G) was in effect two applications for judicial review in the High Court, of which the second is the relevant one for present purposes. Judicial review is not, of course, usually concerned with the resolution of conflicts of fact. Moreover, the case was not an appeal to the First-tier Tribunal under s.51(1), (2) of the 2014 Act or its predecessor. Nothing was said or appears to have been argued about the interrelationship between the judicial review jurisdiction of the High Court and the First-tier Tribunal jurisdiction under the 2014 Act or its predecessor.

Nor was the judge’s attention drawn to the predecessor provision to s.51(2)(f), in the form of Schedule 27 paragraph 11 of the Education Act 1996 which provided that

It is in that context that one must understand what Nicol J said in paragraph [143] to the effect that

It was also in that context that counsel for the applicant was constrained to submit that at paragraph [138] that

By contrast, what was argued in R(G) was that

It was against that background that Nicol J decided that

It follows from this that I do not agree with Nicol J at paragraph [143] that the question of whether a child who has been ordinarily resident with a local authority remains so ordinarily resident (notwithstanding a temporary absence abroad) cannot be the subject of a merits appeal to the First-tier Tribunal under s.51(2)(f) of the 2014 Act in the event of the local authority purporting to cease to maintain his EHCP under s.45 of the Act. If Mr Line were correct, it would involve a parent who was faced with a decision to cease to maintain an EHCP under s.45 not invoking the obvious statutory appeal under s.51(2)(f), but instead having to resort to a judicial review, notwithstanding the clear words of s.51(2)(f).

The actual decision in R(G) may nevertheless be justifiable in that the Court went on to find that, although the decision that the applicant had moved to Sunderland was challengeable only on traditional public law principles, it was nevertheless unlawful and the local authority’s decision did not survive scrutiny [at 146].

It is also worthy of note that the departure of the applicant for Sunderland could not be isolated from earlier breaches of duty on the part of the authority. As Nicol J went on to explain

It is common ground that the decision in R(L) is no longer good law and that the effect of the amendment to regulation 2(4) of the Belonging Regulations has the effect that those Regulations do not apply to s. 24 of the 2014 Act, but it is important to understand what it was that R(L) actually decided and how the legislation actually effected the reversal of that decision.

The dispute in R(L) was as to which local authority was responsible for maintaining the child’s statement of special educational needs. Rabinder Singh QC (as he then was) explained that

He went on to say

He set out the relevant parts of regulation 3 and 4 and went on

After that statutory excursus he concluded that

In the subsequent DCFS consultation paper dated 19 January 2009 on Amendments to the Belonging Regulations, the Department explained that the purpose of the proposed amendments was inter alia that

In the Executive Summary it was explained that the proposed amendments

Of the judgment in R(L) the Department explained that

As to the background the paper stated that

The proposed amendment to the Belonging Regulations to give effect to that purpose was the insertion in regulation 2, after paragraph (3) of the words

The proposed amendment to regulation 7 to prevent it from having the overarching effect which R(L) had found was to insert in regulation 7(1) after the words “other regulation” the words “in these Regulations”, so that regulation 7(1) now reads

In my judgment Mr Gillie is right to contend (as set out in paragraphs 139 to 141 above) that the effect of regulation 2(4) of the Belonging Regulations means that those Regulations did not apply for the purpose of determining the education authority responsible for identifying, making and maintaining statements pursuant to the 2014 Act.

That is clear from the Explanatory Memorandum to the 2009 Regulations which explains that:

Thus, regulation 2(4) therefore has the effect of nullifying the earlier conclusion in R(L) that the Belonging Regulations

However, I also accept his submission that the legal effect of regulation 2(4) is no wider than that nullification. It simply has the effect that the provisions of the Belonging Regulations do not apply to s.24 of the 2014 Act, or to put it another way, the Belonging Regulations do not dictate the meaning of s.24 of the 2014 Act.

Crucially in my judgment, however, the provision in regulation 2(4), whether in its original 2009 form or its amended 2013 version, does not say that a presence test applies nor does it say that an ordinary residence test does not apply. Indeed, it does not in terms say what test is to apply at all because it was envisaged that the meaning of the term “in their area” was to be addressed in the forthcoming Children, Skills and Learning Bill, which was never enacted.

The concept of “belonging” is a separate recoupment concept and the Belonging Regulations therefore concern inter-authority recoupment and have no wider function or remit (see R(G) at [124]).

As Mr Line put it, the Belonging Regulations are therefore not relevant to the meaning of s.24 of the 2014 Act, but that still leaves open the question of how s.24 should be interpreted.

The highwater mark of Mr Line’s submission was as I have set out in paragraph 125 above, namely that in the Council’s submission it would be inappropriate to apply an ordinary/habitual residence principles to the s.24 “area issue” because:

the wording of s.24 of the 2014 Act did not support that approach.

the case law (R(G)) did not support that approach.

the intention, but in any event certainly the form, of the amendment to the Belonging Regulations implemented through regulation 2(4) was completely at odds with that approach.

I have already dealt with the decision in R(G) in paragraphs 165 to 177 above. I deal with the construction of s.24 immediately below. It will be seen from what I have said in paragraphs 178 to 196 above that I do not consider that either the intention or the form of the wording of regulation 2(4) of the Belonging Regulations has the effect for which Mr Line contends. As I have found in paragraph 193 above, the legal effect of regulation 2(4) is no wider than the nullification which it effects. It simply has the effect that the provisions of the Belonging Regulations do not apply to s.24 of the 2014 Act, or to put it another way, the Belonging Regulations do not dictate the meaning of s.24 of the 2014 Act.

I am satisfied that the provision in s.24 of the 2014 Act which stipulates that, when a local authority is responsible for a child “in the authority’s area” who has been identified by the authority as someone who has, or may have, special educational needs, that includes a person who is ordinarily or habitually resident in that area, but is temporarily absent by virtue of as parent’s overseas deployment as a part of the armed forces of the Crown. It follows that if a child or young person is ordinarily or habitually resident “in the authority’s area”, notwithstanding such temporary absence elsewhere, the local authority remains responsible for the child or young person and may not therefore cease to maintain the child’s EHCP on the basis that it cannot comply with s.45(1)(a) and demonstrate that it “is no longer responsible” for the child or young person. In summary, s.24 of the 2014 Act imports an ordinary or habitual residence test, as Mr Gillie contended, rather than a presence test, as Mr Line contended. I reach that conclusion for the reasons set out in the immediately following paragraphs.

I accept the submissions of Mr Gillie as set out in paragraphs 82 to 84 and 86 above. The purpose of the 2014 legislation is the welfare of children: (R(D and others) v Hackney LBC [2019] PTSR 1947 at [54]). That purpose tends towards a protective approach to s.24.

Moreover, the statute itself envisages a permissible degree of absence from the local authority area. That must mean that mere presence is not the correct test to apply. S.83(6) (“interpretation”) provides that:

The inclusion of the word “mainly” in that section demonstrates that a person might be partly resident in Wales and nevertheless be “in the area” of a local English authority. That is consistent with the test under s.24 being one of ordinary (or habitual) residence and not presence.

A related concept is whether a child has “moved” from a local authority’s area (under what is now regulation 15(1) of the 2014 Regulations – which was previously regulation 23 of the Education (Special Educational Needs) (England) (Consolidation Regulations 2001). A temporary or transitory move does not relieve a local authority from its responsibility to the child, see R(G) at [133]. To that extent I agree with Nicol J that

That also supports the submission that ordinary residence is the test for whether a child was in a local authority’s area pursuant to s.24.

Nicol J went on to say in that paragraph that

I would go further. In my judgment, on the correct interpretation of the statute, ordinary (or habitual) residence is the test for whether a child is in a local authority’s area pursuant to s.24 of the 2014 Act. To that extent I do not agree with Nicol J in what he went on to say in paragraph [134] of R(G).

However, if Nicol J was right at the end of paragraph [134] that

I reach the conclusion above as a matter of the construction of the statutory provisions without regard to the departmental Guidance on Looked After Children with Special Educational Needs placed out of authority (on pages 3 and 4 thereof, subject to the caveat that the test in A v A – as to which see below - should be preferred to that in ex p. Shah to the extent that there is any conflict between them) or the SEND Code of Practice, but I note that the conclusion which I have reached accords with both that Guidance and the Code of Practice (at paragraph 10.8). In my judgment, the Department was therefore correct to say in the Guidance on Looked After Children that

I accept Mr Line’s point that the both the departmental Guidance and the Code of Practice are but guidance and cannot create or override the law which otherwise exists, but that does not militate against the decision which I have reached.

I should add that I derived no assistance in this context from the decision of Beatson J in R (on the application of Stewart) v Wandsworth LBC & anor [2001] EWHC 709 (Admin), on which Mr Line sought to rely.

In that case the court was concerned with the duty under s.17(1) of the Children Act 1989 which provided that

The background to the case, which concerned the duty of a housing authority to provide accommodation for homeless persons, in circumstances where her children were in need, but had some connection to several local authorities, was that

In the context of s.17 of the 1989 Act, Beatson J held that the phrase “within their area” had a geographical meaning, but it is important to note that the statutory context in which reached that conclusion was altogether different from the circumstances of T and his family and that it arose in the context of an altogether different statutory code. As he explained

It was in that context that he went on to hold at [22] that the clear meaning of the words “within their area” in s.17 was that physical presence was required. It was for that reason that he explained of the contrary argument at [25] that

In my judgement it is not legitimate to seek to read across the definition of “within their area” from the altogether different factual context and the different statutory code in R(Stewart) relating to the duty of a housing authority to provide accommodation for homeless persons to the very different circumstances of the treatment of T’s EHCP when his parents were living with him overseas as part of his father’s service deployment.

Mr Gillie sought to rely on the principles underlying the Armed Forces Covenant, which are now enshrined in law by s.343AA of the Armed Forces Act 2006. I note, however, that s.343AA did not come into force until 22 November 2022 and that the decision of the local authority under appeal in this case was made on 19 November 2021 and/or 19 January 2022. (By way of explanation, ss. 343AA-343AF were inserted by s.8(3) of the Armed Forces Act 2021. They came into force on 1 May 2022 for limited specified purposes: regulation 3 of The Armed Forces Act 2021 (Commencement No. 1) Regulations 2022, SI 2022/471, namely “for the purpose only of conferring power to make subordinate legislation or issue guidance”; and on 22 November 2022, insofar as not already in force: regulation 3 of The Armed Forces Act 2021 (Commencement No. 4) Regulations 2022, SI 2022/1161.) (And see generally The Armed Forces Covenant and status in law, House of Commons Library, 24 November 2022 which can be found at:

Were the facts of this case to arise now, it would be incumbent on the local authority (s.343AA(3)(a)), in exercising a relevant education function (s.343AA(2)(c)), which means any provision in Part 3 of the 2014 Act (which encompasses ss.19 to 83 thereof) so far as it deals with special educational provisions, to have due regard to

Although the obligation is to have regard to the unique obligations and sacrifices made by the armed forces and the principles that (i) it is desirable to remove disadvantages arising for service people (ii) special provision for service people may be justified by the effects on them of membership of the armed forces, I am satisfied that the obligation to have such regard must encompass the effect of those unique obligations and sacrifices on members of their immediate families as well as one the service personnel themselves.

The fact that the relevant provisions of s.343AA of the 2006 Act were not yet in force at the time of the decision does not, however, assist the Council which had already signed up to the Armed Forces Covenant in June 2011 (see paragraph 17 above), which the Council explained on its website to the effect that

The obligations imposed on the Council at the material time on 19 November 2021 and/or 19 January 2022 were not therefore materially different from those imposed now by s.343AA of the 2006 Act (as amended) with effect from 22 November 2022.

On the basis that the correct test is that of ordinary or habitual residence, the speeches of Lady Hale DPSC and Lord Hughes JSC in A v A are of signal relevance in the present context, particularly that of the latter at paragraph [80] and the principles set out at (iv)-(vii), with particular reference to the decision in the case of Mercredi v Chaffe, although it is useful to set out the relevant extracts from both judgments.

Lady Hale DPSC said that

For his part Lord Hughes JSC stated that

As a general rule, a child will share the habitual residence of his parents with whom he lives and there is no reason why that general rule should not apply in the present case. In particular, I note to what Lord Hughes said at (vii) in relation to paragraph [51] of Mercredi v Chaffe, namely that, in order to distinguish habitual residence from mere temporary presence, the former must as a general rule have a certain duration which reflects an adequate degree of permanence, although the law does not lay down any minimum duration. However, before habitual residence can be transferred to the host state, it is of paramount importance that the person concerned has it in mind to establish there the permanent or habitual centre of his interests, with the intention that it should be of a lasting character. Accordingly, the duration of a stay can serve only as an indicator in the assessment of the permanence of the residence and that assessment must be carried out in the light of all the circumstances of fact specific to the individual case.

In this case it is clear from what T’s father has said in his witness statement that the family lived in Fareham and that T went to school in Fareham until the family moved to Dubai consequent upon his father’s deployment by the Royal Navy, which was anticipated to be for a term of 3 years. It is also clear from paragraph [18] of that statement that the family did not intend to settle permanently in Dubai, that they kept their house in Fareham, albeit that it was rented out (so Judge Ozen’s statement to the contrary was materially incorrect on that point) and that they were offered a return flight to the UK each year to keep in touch with their family during the deployment overseas.

Although T and his family were physically present in Dubai, the other relevant factors which require to be taken into account to determine his ordinary or habitual residence demonstrate on the contrary that that presence was only temporary or intermittent and of a strictly limited and circumscribed duration and that T’s residence with his family in Dubai did not mean that he was not ordinarily or habitually resident in Hampshire. The duration, conditions and reasons for the stay in Dubai and for the family's move there on service deployment all demonstrate that he remained ordinarily or habitually resident in Hampshire, and thus with the Council’s area. The Royal Navy provided housing and education for the family, his father remained a UK taxpayer and T himself continued to be paid UK benefits and disability living allowance.

I therefore agree with the analysis set out in Mr Gillie’s skeleton argument which is set out in paragraphs 91 to 92 of this judgment.

The consequence therefore is that, although under s.45(1) of the 2014 Act, there is a discretionary power to cease to maintain an EHCP, in the circumstances of this case there was no lawful exercise of that discretion because T was still in the local authority’s area because he was still ordinarily resident in that area (and in any event the decision to cease to maintain was unlawful because it was carried out in manifest and egregious breach of the mandatory requirements of regulation 31 of the 2014 Regulations).

I do not accept that the Tribunal was approaching its task as if it were subjecting the Council’s decision to a review as opposed to a de novo appeal. What it was plainly doing was deciding an appeal which had been brought before it as the appropriate statutory tribunal pursuant to s.51 of the 2014 Act against one of the matters listed in subsection (2), namely (f) a decision by a local authority under s.45 to cease to maintain an EHCP for a child or young person.

It is apparent from paragraph [23] of the decision that the Tribunal considered all of the written material put before it. It is also apparent that the Tribunal in performing that task was entitled to assess whether the Council came to the correct conclusions of matters of fact and law, see DH and GH v Staffordshire CC [2018] UKUT 49 (AAC) at [19] where Upper Tribunal Judge Jacobs said that

The argument that the fact that the Tribunal relied on procedural irregularity as the basis for upholding the appeal does not mean that it was illegitimately performing a quasi-judicial review outside the scope of its jurisdiction. On the contrary, the short point was that, if a case fails on a preliminary point in any event (as the Tribunal decided), there is no need to have to go on to consider the substantive merits. As the Tribunal shortly found in paragraph [24]

As to the argument that the Tribunal failed to give clear or adequate reasons for its conclusion, I am satisfied that paragraph [24] of the decision perfectly adequately set out its conclusions and the reasons for its decision.

The reliance on the remarks of Judge Ozen in granting permission to appeal (as set out in paragraph 52 above) about the Tribunal’s alleged inadequacy of reasons was misplaced. As I explained in paragraph 10 above, the appeal is against the decision of the Tribunal on 30 March 2023 and the remarks of Judge Ozen on 14 June 2023 do not form part of that decision.

Moreover, it is important in this context to remember what Upper Tribunal Judge Wikeley said in Basildon DC v. AM [2009] UKUT 113 (AAC)

As Mr Commissioner Temple said in R(A) 1/72 at paragraph 8

To that I would add what Lord Hope said in Shamoon v. Chief Constable for the Royal Ulster Constabulary [2003] UKHL 11, [2003] ICR 337 at [59]:

As he also said in R (Jones) v. First-tier Tribunal (Social Entitlement Chamber) & Criminal Injuries Compensation Authority [2013] 2 AC 48 at [25]:

The short point is that what is said in the third ground of appeal does not vitiate the decision of the Tribunal because what was said in paragraphs [25-27] of its decision was obiter and not part of the ratio of the case, the Tribunal having made it clear at the outset of paragraph [25] that, given its conclusions in paragraph [24] of the decision, it need go no further in deciding the merits of the appeal.

However, in the event that those paragraphs do form an additional part of the ratio of the case, I am nevertheless satisfied that the challenge of the third ground of appeal fails for the following reasons:

for the reasons stated above in relation to the first ground of appeal, the Tribunal was not wrong to determine that failure to comply with the mandatory provisions of regulation 31 of the 2014 Regulations was fatal to the Council’s decision

there was no finding of “unfairness” on the part of the Tribunal in paragraphs [25] and [26] nor was the Tribunal suggesting that “fairness” or “equity” was a relevant consideration. What the Tribunal was doing in paragraph [25] of the decision was accurately illustrating the potential difference in treatment between a family moving to a different local authority in the country (when the EHCP would be transferred to another local authority) and one being posted overseas with the armed forces (when, on the Council’s argument, the EHCP would cease to be maintained). That would run counter to paragraph 10.55 of the Code of Practice which stated that

It was not therefore inappropriate for the Tribunal to flag up the difference in treatment as it thus did. What it said was that

the Tribunal did not suggest or assume that transferring an EHCP guaranteed continuity of provision. I accept what is said by Mr Line as set out in paragraph above 53(3) above, namely that the new local authority would retain the power to reassess or review and change the content of the EHCP, but the Tribunal never stated in paragraph [26] that transferring an EHCP guaranteed continuity of provision.

the findings in paragraph [27] were open to the Tribunal to make on the material before it and in the circumstances as at the date of the decision. The Tribunal rightly recorded that the Council had made an offer that it would commit to providing T with the funding previously in place under his EHCP until a new EHCP process could be completed. However, at that time, and before the family’s early return to the UK, that would potentially have placed T at significant disadvantage in the event that his father, as a serviceman, might yet be posted to a different local authority areas within the UK, whereupon T would have had to start the EHCP application process in the new local authority area with no guarantee of funding in the meantime. In the circumstances which happened, the family returned to the same area and the Council completed the assessment for his new EHCP expeditiously, so that the problem did not in fact arise, but that situation was only resolved after the family’s return to the UK some time after the decision of the Tribunal on 30 March 2023.

I will deal with this point under Ground 4 below (though as will be seen I also reject the fourth ground as a ground of challenge).

The submission that the Tribunal’s decision should be struck down for perversity I regard as hopeless. The decision comes nowhere near the threshold for a finding of perversity. As Lewison LJ explained in the Court of Appeal in Volpi v Volpi

So far as the fourth ground of appeal is concerned, I accept Mr Gillie’s submissions as set out in paragraph 101 above that the conclusions which the Tribunal reached about the significant disadvantage to T in paragraph [26] of its decision were entirely open to it as a matter of fact and law for the reasons which he gave, namely that not maintaining the EHCP while T was abroad, by reason of his father’s naval deployment, put him at a disadvantage compared to children who simply moved between local authorities in the UK. The particular disadvantage which the Tribunal identified (and which it was entitled to identify) was set out in the penultimate sentence of paragraph 34, namely the risk that

It is true that the Council had sought to ameliorate that position by virtue of the assurances which it gave as to providing funding equivalent to that catered for in his old EHCP when he returned, pending a fresh EHC needs assessment, but as the Tribunal noted in paragraph [27] that still placed him at a significant disadvantage due to the fact that his father might yet be posted to a different area in the UK and T would have to start the EHCP application process in that new local authority area with no guarantee of funding in the meantime. By contrast, if the Council simply maintained the status quo, T’s EHCP would be transferred to the new local authority pursuant to regulation 15 of the 2014 Regulations. Moreover, there would be no guarantee if similar cases arose with other service families in other local authority areas in the future that another local authority would commit to providing additional support to a returning service child on his return to the UK to mitigate or remove any disadvantage caused by his absence.

As to the question of “freezing” or “pausing” the EHCP, I agree with Mr Line that those words do not appear in either the 2014 Act or any of the subordinate Regulations, but that does not assist him. What the Tribunal was plainly 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.

I accept that the s.42(2) duty is an absolute one (in the sense that it is not merely a “best endeavours” duty laid on a local authority) and that the duty is non-delegable, but I am satisfied that the 2014 Act permits a local authority in circumstances such as these to maintain an EHCP without breaching its statutory duty. Mr Line raised the spectre of the local authority being placed in breach of statutory duty by the Tribunal’s decision, but it seems to me that the reality is that no action would, or could sensibly, be taken by a child’s parents against the local authority in circumstances such as these if it simply maintained the status quo pending the family’s return to the UK at the end of the deployment and that the problem which Mr Line sought to raise was in reality something of a chimera.

The provisions of s.45(1) bestow a discretion on the authority to cease to maintain an EHCP, not an obligation on it to cease to maintain it. As the Department of Education itself observed, rightly in my judgment (see the email of 25 April 2022)

Moreover, by virtue of s.42(5) of the 2014 Act, the Council was not obliged to “secure the specified special educational provision” in the EHCP if “the child's parent has made suitable alternative arrangements”. Mr Line contended, which I accept, that it was for the local authority to satisfy itself that suitable alternative provision had been made and the Council in the present case had not done so (see paragraph 58(7) above).

Nor did Mr Gillie dispute that, but I agree with him that that does not assist the Council for the reasons which he gave as set out in paragraph 106 above, not least because the Council had precluded itself from considering and answering the question of suitable alternative arrangements, firstly by contravening regulation 31 of the 1996 Regulations by failing to consult with the parents and secondly by erroneously stopping its analysis prematurely at the mere fact that T had been transferred to Dubai. In those circumstances it would not be permissible or proper for the Council to rely on its own breaches of duty to benefit from its own failure.

If therefore there are circumstances in which an EHCP might be maintained, but temporarily not implemented, the Council’s argument to the contrary must fall.

The question of whether there was suitable alternative provision has now fallen by the wayside in any event, but if it had been a live issue at the time of the hearing, it could either have been determined by the Council on review or assessment of the EHCP or by the Tribunal pursuant to its power to amend the educational provision in the EHCP and to make any other consequential amendments under regulation 43(2)(f) of the 2014 Regulations.

For these reasons the appeal is dismissed.

Finally, I should not conclude this decision without commending both Mr Line and Mr Gillie for the excellence of their written and oral submissions, which have made my task immeasurably easier.