London Borough of Enfield v Teegan Edwards & Anor

TE was aged 19 at the time of the First-tier Tribunal decision under appeal. He has complex social, emotional and mental health needs. He has had an EHC Plan for some time.

TE’s mother lives in Haringey and he used to live with her. However, according to his EHC plan, from about 2020/2021 TE began to have significant difficulties both in and out of school and as a result he has moved through a number of schools and social care placements. By September 2024, TE was living with other young people in supported living accommodation in the London Borough of Waltham Forest (Waltham Forest).

TE appealed to the First-tier Tribunal under section 51(2)(c)(ii) and (iii) of the CFA 2014 against the special educational provision specified in Section F of his EHC plan and the institution named Section I. The EHC plan against which he appealed had been issued by Waltham Forest and so Waltham Forest was named as the first respondent to the appeal.

In December 2024 the First-tier Tribunal ordered that the London Borough of Barking and Dagenham (Barking and Dagenham) be substituted as respondent. The reason given in the direction was that the First-tier Tribunal was “satisfied that the London Borough of Waltham Forest is no longer the appropriate respondent to the appeal as [TE] no longer resides in its area.”

In January 2025 the First-tier Tribunal substituted Enfield as the respondent because “the documents provided by the parties confirm that the London Borough of Barking and Dagenham is no longer responsible for maintaining [TE’s] EHCP and that responsibility has been transferred to the London Borough of Enfield”.

In February 2025, the First-tier Tribunal added Haringey as a second respondent to the appeal and directed a hearing for the purposes of determining who was the proper respondent to the appeal. The parties prepared submissions for that hearing. At that stage, Enfield argued that Haringey was the proper respondent, while Haringey made a pragmatic proposal, to avoid duplication of costs, that Enfield should be sole formal respondent to the proceedings, but Haringey would co-operate and assist and the local authorities would seek to resolve between themselves who was responsible.

The First-tier Tribunal (Judge Lom) on 8 April 2025 decided that that TE was ordinarily resident in Enfield, so that Enfield was the appropriate respondent to the appeal and Haringey was removed as respondent. The First-tier Tribunal’s reasons for so concluding included the following:

On 6 May 2025, Enfield applied for permission to appeal against the decision. On 10 July 2025, the First-tier Tribunal (Judge Eden) granted permission to appeal to the Upper Tribunal, nominally solely on the ground that the First-tier Tribunal’s reasons were arguably inadequate. However, Judge Eden also invited the Upper Tribunal to provide guidance on:

On 8 August 2025, Haringey wrote to the First-tier Tribunal stating that it would agree to take responsibility for TE’s EHC plan and to name an agreed placement in Section I, without prejudice to the question of which local authority was legally responsible.

In September 2025, TE started at the new placement, but it broke down before the end of the month.

By order of 10 September 2025 Upper Tribunal Judge Jacobs joined Haringey as a respondent to the Upper Tribunal appeal and directed an oral hearing.

By letter of 26 September 2025 Haringey again agreed to take responsibility for TE’s EHC plan pending formal determination of the issue of legal responsibility.

On 1 October 2025, TE was detained under section 2 of the Mental Health Act 1983 (MHA 1983). From then until March 2026, TE was detained (possibly not continuously, but for periods) under either section 2 or section 3 of the MHA 1983 at hospitals in Haringey, Enfield and Camden.

By order of 19 November 2025, the First-tier Tribunal substituted Haringey for Enfield as the respondent to the appeal and directed a case management hearing for 2 December 2025.

The First-tier Tribunal proceedings were then stayed in view of TE’s detention under the MHA 1983, while the Upper Tribunal proceedings were stayed pending the outcome of the appeal to the Court of Appeal in Hampshire.

On 31 December 2025 Enfield wrote to Haringey confirming that it would accept responsibility for the YP’s aftercare following discharge under section 117 of the MHA 1983.

On 23 January 2026 the Court of Appeal handed down judgment in the Hampshire case.

Care Act assessments have been completed by Enfield upon TE’s discharge from care under the MHA 1983. These concluded that TE did not have a continuing need for aftercare under section 117 of the MHA 1983 as his needs can be met under the CA 2014.

As noted above, the First-tier Tribunal only granted permission on Enfield’s challenge to the adequacy of the First-tier Tribunal’s reasons, but simultaneously invited the Upper Tribunal to give guidance on the two issues that I have identified in paragraph 1 of this judgment as being the principal concerns of this appeal. The question of whether Enfield should be given permission to argue these additional grounds was deferred for consideration at this hearing. At the start of the hearing, I asked the parties whether there was any objection to dealing with all the issues. There was none, so I indicated that I was content to grant permission on all issues that the parties had dealt with in their skeleton arguments.

The issues for consideration were therefore threefold:

Provision in relation to children and young people in England with special educational needs or disabilities is made in Part 3 of the CFA 2014. Part 3 of the CFA 2014 superseded Part IV of the Education Act 1996 (EA 1996).Section 24 of the CFA 2014 is in Part 3 of that Act and provides:

Section 36 of the CFA 2014 imposes an obligation on a local authority, where a request is made to it, or it otherwise becomes responsible for a child or young person, to consider whether it may be necessary to make an EHC plan for that child or young person and, if so, to carry out an EHC needs assessment. The material provisions are:

The reference in section 36(3) to a local authority “otherwise” becoming responsible for a child or young person allows for the possibility of the child or young person’s needs being brought to the local authority’s attention by someone other than a parent, the young person or a school or other institution, as envisaged in section 24(1).

Section 37(1) then places a duty on the local authority, where it is necessary in the light of the EHC needs assessment, to make and maintain an EHC plan:

Section 42(1) and (2) place a duty on the local authority that maintains the EHC plan for a child or young person to secure that the specified educational provision for the child or young person is made, unless (see section 42(5)) the child’s parent or the young person has made suitable alternative arrangements.

Section 47 of the CFA 2014 makes provision in relation to the transfer of EHC plans as follows:

Regulation 15 of the SEND Regulations is made under that section and provides as follows:

It is also convenient to set out here the legislative provisions dealing with the circumstances in which a local authority may cease to maintain an EHC plan for a child or young person, as those provisions were the focus of the Court of Appeal decision in the Hampshire case, behind which this appeal was stayed. Section 45 of the CFA 2014 provides as follows:

Regulations 29 to 31 of the SEND Regulations make provision as permitted by section 42(5):

The provisions of the CFA 2014 and SEND Regulations that I have set out above are drafted somewhat differently to their predecessor provisions in the EA 1996, and the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001 (SI 2001/3455) (the 2001 Regulations), but not in any respect that the parties or I have identified to be material in the context of the issues that arise on this appeal.

Under section 24, a local authority will be responsible for a child for the purposes of Part 3 of the CFA 2014, if two conditions are fulfilled: (i) the child or young person is “in the authority’s area”; and (ii) the local authority is aware that they have, or may have, special educational needs.

It might be thought that the remainder of Part 3 should be read as if it only placed obligations on a local authority in respect of a child or young person if they are the local authority’s responsibility as defined in section 24, but that is not quite how the legislation works.

The duty on the local authority under section 42 to secure the provision specified in the EHC plan is tied to the duty to maintain the EHC plan in section 37(1)(b), which is in turn tied to the duty to assess in section 36. None of those sections refer to the local authority having ‘responsibility’ for the child or young person. On the face of the legislation, the obligation to prepare and maintain a plan, and secure the provision specified in it, fall on the local authority who has assessed the child or young person. Further, section 36 itself could be read as placing a duty on a local authority to consider making an assessment just because a person identified in section 36(1) makes a request, even if they are not the local authority ‘responsible’ within the meaning of section 24. Whether it does have that surprising effect does not arise for determination on this appeal, and I proceed on the assumption that it is implicit in section 36 that a request to a local authority to make an EHC needs assessment will only have legal effect if it is a request made to the local authority that is responsible for the child or young person as defined in section 24.

What is important for this appeal, though, is that, once an assessment is complete, a local authority’s duties in respect of making and maintaining an EHC plan for a child or young person are not tied to the notion of ‘responsibility’ in section 24, but to the fact that the local authority carried out the assessment and prepared the EHC plan. Moreover, it is to be noted that section 45(1)(a) only gives a local authority a discretion and not a duty to cease to maintain an EHC plan when it ceases to be responsible for a child or young person. Further, the process by which a local authority may cease to maintain a plan are circumscribed by regulation 31 of the SEN Regulations, as set out above.

Once a local authority has come under a duty to maintain an EHC plan, and thus to secure the provision specified in it, it remains under that duty even if it ceases to be ‘responsible’ for the child or young person unless: (i) it lawfully ceases to maintain the EHC plan under section 45; or (ii) the duty is transferred to a new authority under regulation 15 of the SEND Regulations. This was also the position under the predecessor legislation, as is apparent from the quotation from Auld J’s judgment in R v Dorset County Council and Further Education Funding Council ex parte Goddard [1995] ELR 109 at [123] of the judgment of Nicol J in JG and MG v Kent County Council and ors [2016] EWHC 1102 (Admin), [2016] ELR 396 (Kent), to which I return below.

As already noted, regulation 31 provides a process to be followed before a local authority may cease to maintain an EHC plan under section 45(1)(a), and the EHC plan must be maintained pending the outcome of an appeal to the First-tier Tribunal. A transfer under regulation 15 of the SEND Regulations is not automatic either. The fact that the child or young person has ‘moved’ from one local authority’s area to another local authority’s area needs to have come to the attention of the ‘old’ local authority, and that local authority then comes under a duty to take action and notify the ‘new’ local authority in order for the transfer to occur.

Regulation 15 of the SEND Regulations does not on its face use the concept of ‘responsibility’ from section 24 of the CFA 2014. However, in order to be intra vires, it must be read consistently with the enabling power in section 47, which only permits regulations to make provision for the transfer of an EHC plan “where [an]other authority becomes responsible for the child or young person”, and that means ‘responsible’ as defined in section 24.

There is a degree of circularity in the operation of these legislative provisions, but (as can be seen) the mere fact that a child or young person has ‘moved’ into a local authority’s area is not sufficient to make that local authority ‘responsible’ for them as defined by section 24. They must also have come to the ‘new’ authority’s attention. The effect of regulation 15(2) is to place an obligation on the ‘old authority’, once it becomes aware of ‘the move’, to bring the child or young person to the attention of the new authority by actively transferring the EHC plan to them within 15 days. That act of bringing the child or young person to the attention of the new authority is what in turn means that the new authority becomes ‘responsible’ for them as defined in section 24.

Once that has been done, then regulation 15(3)(a) comes into effect, so that, from the date of the transfer under regulation 15(2), “the EHC plan is to be treated as if it had been made by the new authority on the date on which it was made by the old authority and must be maintained by the new authority”.

The legislation provides no further assistance as to what it means for a child or young person to be ‘in’ a local authority’s area for the purposes of section 24 of the CFA 2014 or regulation 15 of the SEND Regulations, or what it means for a child or young person to have ‘moved’ between two local authority areas for the purposes of regulation 15(2).

The Kent case was the first to consider what these terms mean. So far as material to the present appeal, the Kent case concerned a child with a statement of special educational needs under the EA 1996. The child and his family lived in Kent but, in response to escalating behaviour by the child and a family crisis, his father took him on what is described as an “extended holiday” to stay with grandparents in Sunderland. Kent County Council took the view that he had ‘moved’ to Sunderland within the terms of regulation 23 of the 2001 Regulations (the predecessor to regulation 15 of the SEND Regulations) and transferred his statement of special educational needs to Sunderland County Council. On a claim for judicial review (raising a number of issues as regards the local authority’s exercise of its social care functions as well as educational issues), Nicol J held as follows, so far as is material to this appeal:

The Kent case was considered in detail by Upper Tribunal Judge West in the Hampshire case ([2024] UKUT 128 (AAC)). Although apparently referred to in argument by the parties, it was not referred to in the judgment of Bean LJ in the Court of Appeal ([2026] EWCA Civ 20) (with which King LJ and Stuart-Smith LJ agreed).

The Hampshire case concerned a child with an EHC plan whose father was a member of the armed forces. Hampshire County Council decided to cease to maintain his EHC plan upon the family relocating to Dubai for a period of what was expected to be three years as a result of the father’s service (but which was in the end two years). The Council took the decision without following any of the requirements as to notice and consultation required by regulation 31 of the SEND Regulations.

The parents appealed to the First-tier Tribunal under section 51(2)(f) of the CFA 2014 against the decision to cease to maintain the EHC plan. The First-tier Tribunal upheld their appeal on the basis that the local authority had failed to comply with what it described as the mandatory procedural requirements of regulation 31 of the SEND Regulations.

The first issue considered in the Hampshire case was the local authority’s argument that the First-tier Tribunal had erred in upholding the appeal on the basis of a failure to comply with procedural requirements in regulation 31 rather than confining itself to considering whether the legislative criteria for ceasing to maintain a plan were met. Upper Tribunal Judge West rejected that argument and the Court of Appeal agreed with him. The Court of Appeal held (at [63]) that a decision to cease to maintain an EHC plan would be “liable to be held invalid and set aside” by the First-tier Tribunal if it was taken in breach of the mandatory requirements of regulation 31 of the SEND Regulations. (Since the First-tier Tribunal has no power to declare an act “invalid” or “set aside” a decision of a local authority, what the Court of Appeal said here must be understood as a decision that a failure to comply with regulation 31 could provide the First-tier Tribunal with a basis for upholding an appeal and ordering the local authority to “continue to maintain” the EHC plan in the exercise of the First-tier Tribunal’s powers in regulation 43(2)(e) or (f) of the SEND Regulations.)

In reaching that conclusion, the Court of Appeal made some observations about the nature of the First-tier Tribunal’s jurisdiction that are relevant to the jurisdictional issue that is raised on this appeal:

In the Hampshire case, the local authority also argued that the question of whether the child was in Hampshire’s area for the purposes of section 24(1) was a question of fact for the local authority, challengeable only on judicial review. The local authority’s argument reflected the law as it had been held to be by Nicol J in the Kent case. In the Upper Tribunal, Judge West rejected that argument, holding at [175] that the decision as to whether the child had ceased to be Hampshire’s responsibility was a matter for the First-tier Tribunal to determine on the merits as part of the parents’ appeal under section 51(2)(f) of the CFA 2014. The Court of Appeal in its judgment noted the local authority’s submission at [67] but did not address it in detail. At [68], the Court of Appeal held that: “In the present case, the determination of whether he was in the authority’s area is a question of mixed fact and law.” The Court of Appeal then went on to determine the question for itself.

The principal issue in the Hampshire case concerned the test to apply when determining whether a child or young person is ‘in’ the authority’s area for the purposes of section 24 of the CFA 2014 and, in particular, whether it was physical presence or ordinary or habitual residence. The issue arose because it was argued by the local authority that it was entitled to cease to maintain the EHC plan because it was no longer responsible for the child as a result of his departure to Dubai with his family. As noted, cessation of responsibility is a ground on which a local authority may (but is not obliged) to cease to maintain an EHC plan under section 45(1)(a) of the CFA 2014.

In the Upper Tribunal, Judge West concluded that section 24 of the CFA 2014 “imports an ordinary or habitual residence test … rather than a presence test” ([199]). I discuss below at paragraph 74 and following the implications of Judge West’s references to the ‘habitual residence’ test. For present purposes, I focus on his conclusion as regards the ‘ordinary residence’ test. His reasons for reaching that conclusion, and/or the matters he considered supported that conclusion, may be summarised as follows:

The Court of Appeal upheld Judge West’s decision that ‘ordinary residence’ was the test, but for somewhat different reasons. The Court of Appeal did not refer to the Belonging Regulations, or regulation 15 of the SEND Regulations, or Nicol J’s decision in Kent. Instead, it held that the test could not simply be physical presence because that could “not withstand scrutiny” given that there were all sorts of reasons why a child or young person might be temporarily out of the geographical area of the local authority (see [68]-[69]). The Court of Appeal noted that a physical presence test would cause particular difficulties for looked-after children. At [70] the Court quotes in its judgment an example given by counsel for the parents in that case about how ‘ordinary residence’ works for looked-after children as regards a local authority’s social care functions:

“A child with SEN is looked after by a local authority (A) who is the child’s

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

The purpose of this example appears to have been to illustrate that a mere physical presence test would result in the responsibility for the child’s EHC plan moving with the child between authorities A, B, C and D, notwithstanding that the child’s ‘ordinary residence’ did not move from local authority A. It may have been assumed by the Court that the result of deciding that ‘ordinary residence’ was the test would mean that responsibility for special educational needs would then be the same as for social services. However, as will be seen below, application of an ‘ordinary residence’ test may also result in responsibility for a child’s EHC plan moving between authorities in the circumstances described in the example. As Mr Greatorex observed in his submissions in this case, this point does not appear to have been drawn to the Court of Appeal’s attention. Bean LJ reasoned as follows:

As to the application of the ‘ordinary residence’ test to the facts of the Hampshire case, the Court of Appeal agreed with Upper Tribunal Judge West that:

On those facts, the Court of Appeal concluded that Judge West had been right that the child T remained ordinarily resident in Hampshire notwithstanding the family’s relocation to Dubai. The Court of Appeal added:

The Court of Appeal also went on at [79] to hold that there was in any event no need for the local authority to have ceased to maintain the EHC plan. As suitable arrangements had been made for the child to receive educational provision abroad, the local authority could have treated the case as one to which section 45(5) of the CFA 2014 applied so that the local authority was relieved of its duty to make the provision specified in the EHC plan while the child was abroad.

The classic statement of the law on ‘ordinary residence’ is that in R v Barnet LBC, ex p Shah [1983] 2 AC 309 (Shah). That case concerned students who were refused grants for tertiary education by their local education authorities. Each student sought judicial review of their respective local authority’s decision that they did not fulfil the legislative condition of being “ordinarily resident in the United Kingdom” for three years prior to the course within the meaning of the relevant legislation. Lord Scarman, with whom the other members of the House of Lords agreed, held at 343G-H that:

There are thus two key elements to Lord Scarman’s definition: (a) that the residence should be “voluntary”; and (b) that it should be for a “settled purpose”. What it means for residence to be “voluntary” has been further explored in subsequent case law, which I consider below. In Shah itself, Lord Scarman at 344D to 345B elucidated what he meant by “settled purpose”, emphasising that “purpose” may relate to any number of factors (including education, business, employment, health, family or love of the place). He held the residence may be “settled” even if it is only “for a limited period”. He considered that “Education in adolescence or early adulthood can be as settled a purpose as a profession or business in later years”. He held that the assessment should be as objective as possible, and did not require a deep enquiry into the mind of the individual concerned. It was not a question of ascertaining someone’s “real home”. Lord Scarman’s only significant caveats were: (i) that temporary absences did not affect a person’s ordinary residence; and (ii) unlawful residence could not be ‘ordinary’.

In order to answer the question that arises in the current appeal, it is necessary to consider two subsequent decisions of the Supreme Court on the meaning of ‘ordinary residence’ in different statutory contexts: (i) R (Cornwall Council) v Secretary of State for Health [2015] UKSC 46, [2016] AC 137 (Cornwall); and (ii) R (Worcestershire County Council) v Secretary of State for Health and Social Care [2023] UKSC 31, [2023] 1 WLR 2790 (Worcestershire).

Cornwall was concerned with the meaning of ‘ordinary residence’ for the purposes of section 24(1) of the National Assistance Act 1948 (NAA 1948). The case involved a young person (P) who had been born with multiple disabilities and who at all times lacked mental capacity. He was cared for in Wiltshire by his parents until about the age of 5, and then placed by Wiltshire Council with long-term foster carers in South Gloucestershire. P’s parents moved to Cornwall but P continued to live with his carers in South Gloucestershire until he reached the age of 18. They remained involved in decisions affecting him, and they visited him, and he visited them. After P reached the age of 18 a placement was found for him in a care home in Somerset. Wiltshire, South Gloucestershire and Cornwall asked the Secretary of State to determine who was responsible for providing him with support and accommodation pursuant to section 21(1)(a) of the NAA 1948.

The majority of the Supreme Court (Baroness Hale giving the judgment with whom other members of the majority agreed) concluded that P had remained ‘ordinarily resident’ in Wiltshire throughout. However, as the Supreme Court explained it in the subsequent Worcestershire case (see below), this conclusion was not based on an application of Shah, but on the basis of considering the particular statutory context of the CA 1989 and the NAA 1948 and adopting a purposive approach to the interpretation of ‘ordinary residence’ for the purposes of section 24(1) of the NAA 1948.

The Supreme Court in Cornwall considered previous case law on ‘ordinary residence’ as regards children and persons who lack mental capacity to decide where they will live, in particular In re P (GE) (An Infant) [1965] Ch 568 and R v Waltham Forest London Borough Council, ex p Vale (Times, 25 February 1985): see [44]-[48]. The Supreme Court considered that the notion used in those cases of such children and persons having a ‘base’ with their parents that remained their ‘ordinary residence’ was unhelpful: it was necessary to consider where the child or incapacitated person had actually lived. Accordingly, in general, where a person is unable through mental incapacity to decide his place of ordinary residence for himself, the Supreme Court held the proper approach is to assess the duration and quality of his actual residence in the places which he had lived. In that case, as P had not lived with his parents, Cornwall was not his place of ‘ordinary residence’ just because that was where his parents lived. The Supreme Court observed that, for an adult who lacks capacity, “the seat of the decision-making power … is the authority making the placement, not the parents” ([51]). On an objective view, applying Shah properly for a person who lacked capacity, the Supreme Court noted that it might be thought that P had been, prior to his 18^th birthday, ordinarily resident in South Gloucestershire with his foster carers ([52]).

However, at [53]-[55] and [58]-[60], the Supreme Court held that P could not be regarded for the purposes of the NAA 1948 as ordinarily resident in South Gloucestershire because both the CA 1989 (section 105(6)) and the NAA 1948 (section 24(5)) expressly provide that placements by the local authority should not change a child’s or adult’s place of ordinary residence. The ‘export’ by local authorities of care responsibilities was thus prevented both under the children’s services regime in the CA 1989, and in the adult social care regime under the NAA 1948. The Supreme Court considered it would run counter to the policy of both Acts if there was a hiatus at the moment that a child moved to adult care services, so that, on a child’s 18^th birthday, responsibility for the (now) adult would be ‘exported’ to the local authority in whose geographical area they had been placed as a child. The Supreme Court considered that section 24(1) of the NAA 1948 had to be interpreted to avoid that consequence and maintain the policy of both Acts. Wiltshire Council’s placement of P in South Gloucestershire under the CA 1989 had not therefore effected any change in his ordinary residence for the purposes of section 24 of the NAA 1948. Wiltshire therefore remained responsible for him as an adult.

It is important to note that the Supreme Court in the Cornwall case recognised that the test for ‘ordinary residence’ is different in different statutory contexts. Thus, although it was agreed between the parties in that case that, for the purposes of the social care functions under the CA 1989 and NAA 1948, a person could be ‘ordinarily resident’ only in the area of one local authority at any one time (see [36]), the Supreme Court observed that is not the case in some other contexts, such as tax: see [39]-[40]. At [56], the Supreme Court also noted that the position was different as regards after care services under section 117 of the Mental Health Act 1983 (MHA 1983). The position as regards the MHA 1983 was considered further by the Supreme Court in the Worcestershire case.

The Worcestershire case concerned responsibility for the provision of after-care services under section 117 of the MHA 1983. Section 117 of the MHA 1983 makes provision for after-care services in respect of persons who are compulsorily detained in hospital under section 3 of the MHA 1983 or certain other statutory provisions. Section 117(2) of the MHA 1983 places a duty on (among others) the local authority to provide or arrange for the provision of after-care services on release from detention. Section 117(3) provides that the responsible local authority is the local authority:

The patient in the Worcestershire case was compulsorily detained for treatment under section 3 of the MHA 1983 twice. There was no dispute that, prior to the first detention, she was ordinarily resident in Worcestershire and so Worcestershire was responsible for her after-care services by virtue of section 117(3)(a). It was decided that it was in the patient’s best interests for her to be provided with after-care services closer to her daughter in Swindon and she was placed by Worcestershire in a care home in Swindon. She was then detained again under section 3 of the MHA 1983 at a hospital in Swindon. The dispute in the Worcestershire case was as to responsibility for her after-care services following her second discharge. The Supreme Court held that Worcestershire’s responsibility for the patient had ended on her second detention. Section 117(3) then had to be applied afresh on her second discharge. Unlike in section 24(5) of the NAA 1948, section 117 of the MHA 1983 contained no deeming provision that had the effect of requiring a placement by a local authority pursuant to its functions under that section to be ignored for the purposes of determining ‘ordinary residence’. Accordingly, the Supreme Court held ‘ordinary residence’ fell to be given its ordinary meaning, applying the Shah test. Once Worcestershire had placed her in the care home in Swindon, acting on her behalf in her best interests, Swindon became her ‘ordinary residence’. It followed that, on release from the second period of detention, Swindon was the local authority responsible for her after-care services.

The Supreme Court specifically rejected the argument that the result in the Cornwall case should be applied to section 117 of the MHA 1983. The Supreme Court noted that section 39(1) of the CA 2014 had re-enacted the deeming provision in section 24(5) of the NAA 1948, but the Supreme Court noted that both statutory provisions were specifically limited in effect by being “for the purposes of this Act” in the NAA 1948, and “for the purposes of this Part” in the CA 2014. The Supreme Court further noted that section 39(4) of the CA 2014 specifically envisaged that ‘ordinary residence’ for the purposes of section 117 of the MHA 1983 might be different. The Supreme Court concluded as follows:

The Supreme Court also gave guidance about the application of the Shah test of ‘ordinary residence’ in the context of legislation that does not contain deeming provisions of the sort found in section 105(6) of the CA 1989 and section 24(5) of the NAA 1948. The Supreme Court held that, in general, in the absence of such deeming provisions, a person provided with accommodation by a local authority otherwise than on a temporary basis will generally become ‘ordinarily resident’ in that accommodation, even if they had no effective choice as to where they live or lack the capacity to choose. Referring to Lord Scarman’s judgment in Shah, the Supreme Court held:

In the previous section of this judgment, I have set out the principal relevant authorities on ‘ordinary residence’. However, there was also reference in both the Upper Tribunal and Court of Appeal decisions in Hampshire to ‘habitual residence’. Judge West in the Upper Tribunal framed his decision by reference to both the concepts of ‘ordinary residence’ and ‘habitual residence’, although at [208] he held that, to the extent there was a difference between the two, the approach to ‘habitual residence’ taken by the Supreme Court in A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60, [2014] AC 1 (A v A)was to be preferred. In contrast, the Court of Appeal in Hampshire at [72] held:

The Court of Appeal thus based its decision on ‘ordinary residence’, and the parties in this appeal have accordingly framed their arguments by reference to ‘ordinary residence’. I consider that to be the appropriate approach, not just because it has the endorsement of the Court of Appeal, but also because ‘ordinary residence’ is a domestic law concept, whereas ‘habitual residence’, at least in the context that it was addressed in A v A,is an international law concept. ‘Habitual residence’ is the test that applies for deciding which court has jurisdiction, and what should happen, in cases of international child abduction/removal. The Supreme Court in A v A held that ‘habitual residence’ was to be given the same interpretation in the Family Law Act 1986 as in Council Regulation (EC) No 2201/2003 (the Brussels II revised Regulation) and the Hague Child Abduction Convention.

It seems to me that it is important in this case, and may be important in future cases in which this issue arises, to recognise that the ‘ordinary residence’ and ‘habitual residence’ are, as the Court of Appeal put it, “not quite interchangeable”, and what the differences are between the two.

The Supreme Court in A v A held that the Shah ‘ordinary residence’ test of residence “voluntarily and for settled purposes” does not apply when considering ‘habitual residence’: see per Baroness Hale DPSC at [37]-[38] and [54(v)]. The Supreme Court considered that it was inappropriate to apply a “voluntarily and for settled purposes” test in relation to cases of children because (at [38]):

“the reference to adopting an abode “voluntarily and for settled purposes” is not readily applicable to a child, who usually has little choice about where he lives and no settled purpose, other than survival, in living there. If this test is adopted, the focus inevitably shifts from the actual situation of the child to the intentions of his parents”

The Supreme Court in A v A went on to set out the approach that should be taken to the ‘habitual residence’ test. The key passages from the judgments of Baroness Hale DPSC and Lord Hughes JSC were set out by Judge West at [222] and [223] of his judgment in Hampshire. As can be seen from those passages, the essence of the ‘habitual residence’ test involves considering the degree of integration by the child in a social and family environment in the country concerned. The focus is on the links between the child and the country concerned, taking account of the family’s reasons for being there.

While it is easy to understand why the ‘habitual residence’ test appeared relevant to the Hampshire case, which was concerned with a child whose family had temporarily relocated outside of the United Kingdom, the Supreme Court’s guidance in that case seems less relevant to the question that arises in this case as to division of responsibility between local authorities for children and young people who are in the United Kingdom.

At [224] of his judgment, Judge West drew the following conclusions as to the approach to be taken to ‘habitual residence’:

It seems to me that there is arguably some tension between Judge West’s conclusions in that paragraph and the approach taken to ‘ordinary residence’ in the Shah, Cornwall and Worcestershire cases. In particular, the emphasis on what is in the mind of the parents, rather than on objective assessment, and the suggestion that there needs to be an intention “of a lasting character” to establish the residence as “the permanent or habitual centre of his interests” is arguably at odds with what Lord Scarman said in Shah about the ‘ordinary residence’ test not being a quest to identify a person’s ‘real home’, there being no need for a deep enquiry into the mind of the individual, and it sufficing if there was a settled intention to reside in the place as part of the “regular order of his life for the time being”. I return to this point below when dealing with Issue (2) in this case (see paragraph 100 and following).

As the Court of Appeal noted in the Hampshire case, government education policy has for some time stated that, as the special educational needs legislation does not define what it means for a child or young person to be ‘in’ a local authority’s area, the concept of ‘ordinary residence’ should apply.

The 2009 Guidance on Looked After Children with Special Educational Needs placed out-of-authority stated at page 4:

However, as Mr Greatorex has observed in this case, what does not appear to have been drawn to the Court of Appeal’s attention in Hampshire is that government policy has assumed that ‘ordinary residence’ may be different for the purposes of a local authority’s special educational needs and social services functions.

Thus, the 2009 consultation paper in relation to the amendment to the Belonging Regulations following the decision in the Waltham Forest case (see above paragraph 56(c)) explained the government’s policy as follows:

Paragraph 10.8 of the Special Educational Needs and Disability Code of Practice 2015 (the Code of Practice) provides:

The current guidance on High needs funding: 2026 to 2027 operational guide (updated 5 June 2026) (the High needs funding guidance) shows that it remains government policy and understanding that ‘ordinary residence’ is the test for the purposes of section 24 of the CFA 2014, but that this does not mean that the same local authority is responsible for a child or young person for both their social services needs and special educational needs. Section 17 / Annex 5 deals with “responsibility for children and young people who move between local authorities”. The relevant part of the guidance is set out below. It will in particular be noted that for looked-after children provided with accommodation by a local authority in another local authority’s area, the ‘parent’ local authority will remain responsible for the child’s social services needs, but it is envisaged the local authority in which the child is living will be responsible for their special educational needs. The guidance explains that this is because it is preferable for the local authority with the relationship with the local schools to be responsible for determining and making the provision for children with special educational needs:

The guidance continues by referring to arrangements currently in place for requiring the ‘parent’ local authority to reimburse the authority in which the child is placed for the costs of their special educational provision, and a plan to extend that for young people aged 16 and 17:

Finally, the guidance recognises that the position may be different for young people aged 19-25, whose ‘ordinary residence’ for all purposes is likely to be the local authority in which they are living, even when they are placed in that accommodation by a different local authority:

Before the First-tier Tribunal, the parties were in agreement that the First-tier Tribunal had jurisdiction to determine which local authority was responsible for TE, as part of its case management powers. Prior to the decision of Judge Lom that has been appealed in this case, the First-tier Tribunal had already thrice exercised its power under rule 9(1) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008/2699) (the FTT Rules) to substitute Barking and Dagenham for Waltham Forest, then Enfield for Barking and Dagenham and then exercised its power under rule 9(2) to add Haringey as a second respondent for the purposes of a hearing at which to consider which authority was the proper respondent to the appeal.

On this appeal, Enfield has sought to argue that the First-tier Tribunal does not have jurisdiction to determine that question, on the basis of what was said by Nicol J in the Kent case at [143] (see above paragraph 48). It has done so because Judge Eden, when granting permission to appeal, identified this as an issue on which the Upper Tribunal’s guidance was required.

Counsel for TE have argued that Enfield is ‘estopped’ from running this argument on appeal. However, a party may be permitted on appeal to withdraw a concession made below if it is in the interests of justice to allow them to do so. In this case, it was helpful to the Upper Tribunal that Enfield presented the arguments against the First-tier Tribunal having jurisdiction to determine this issue as it has enabled me to consider the issue on which the First-tier Tribunal sought guidance with the benefit of full argument. There is no prejudice to TE because I have decided that the parties and the First-tier Tribunal were correct in their initial view that the First-tier Tribunal does have jurisdiction to determine this issue.

Nicol J in Kent was correct that there is no right of appeal to the First-tier Tribunal against the merits of a decision by a local authority that it is, or is not, responsible for a child or young person. Nor is there any right of appeal to the First-tier Tribunal against a decision by a local authority under regulation 15 of the SEND Regulations to transfer, or not to transfer, or not to accept a transfer of, an EHC plan from one authority to another. However, as the Hampshire case shows, the First-tier Tribunal may need, as part of considering an appeal under section 51(2)(f) against a decision to cease to maintain an EHC plan, to deal with the question of whether the local authority is lawfully able to do so on the basis that it is no longer responsible for the child or young person under section 45(1)(a) of the CFA 2014.

In my judgment it is also clear that the First-tier Tribunal has jurisdiction to decide who is the appropriate respondent to any appeal brought under section 51 of the CFA 2014. The right of appeal under that section lies against the decisions and actions of “a” local authority in relation to the assessment of a child or young person’s EHC needs or their EHC plan, and the First-tier Tribunal’s powers on such an appeal (set out in regulation 43 of the SEND Regulations) are powers to order “the” local authority to take various steps in relation to the child or young person or their EHC plan. The First-tier Tribunal can only do justice in the particular case if it has as respondent to the appeal the local authority that is responsible for that aspect of the child’s or young person’s needs or provision that is engaged by the appeal, i.e. for the assessment of that child’s or young person’s EHC needs, or for the maintenance of their EHC plan. I put it like that, rather than simply saying that the respondent to the appeal must be the local authority who is ‘responsible’ for the child or young person for the purposes of section 24 of the CFA 2014 because, as I have explained at paragraphs 38-46 above, the fact that a local authority is ‘responsible’ under that section 24 does not necessarily mean that they are the local authority upon whom the various duties in the Act fall.

If the First-tier Tribunal were to proceed with an appeal with a local authority named as respondent who was not actually responsible for the child or young person (in the relevant sense), any decision taken would be liable to be set aside as unfair on the basis that a person affected by it did not have a fair opportunity to participate in the proceedings. Moreover, this may not be a simple formality: a change in responsible authority will often change the factual picture so far as the appeal is concerned. Services available to a child or young person as part of the Local Offer in one local authority may not be available in another, or the costs of a placement or transport may be different. It is therefore very important that the ‘right’ local authority is at all times named as the respondent to the appeal, and able to participate in it.

That is not to say, of course, that a local authority who is, or becomes, responsible for a child or young person during the course of an appeal, or shortly after an appeal is decided, is able to ‘unpick’ decisions taken earlier in the proceedings on the basis that they were not then named as respondent. That is inherent in the notion that the First-tier Tribunal’s power under regulation 9(1)(a) is to “substitute” a respondent, i.e. replace one with another so that the new respondent stands in the previous authority’s shoes. It is also consistent with the scheme under the CFA 2014 and the SEND Regulations that a local authority that acquires responsibility for a child or young person is generally bound by what was done by the previous local authority. In particular, that is the effect of regulation 15(3)(a) of the SEND Regulations (albeit that regulation 15(3)(b) also recognises that there may be a need for re-assessment of need or amendment of the EHC plan on transfer because of the different circumstances of the new local authority). However, a decision taken by the First-tier Tribunal at a time when the ‘wrong’ local authority was named as respondent would be liable to be set aside if not ‘adopted’ or accepted by the ‘right’ local authority, unless on the facts there was no material unfairness (compare UW v Cheam Academies Trust (SEN) [2026] UKUT 53 (AAC)at [29]).

It is thus clear that the First-tier Tribunal does have power to determine which local authority is the proper respondent to the proceedings as a necessarily implicit element of its jurisdiction under section 51 of the CFA 2014, regulation 43 of the SEND Regulations, and rule 9 of the FTT Rules. The jurisdiction is implicit because the First-tier Tribunal must conduct proceedings fairly, giving the relevant parties an opportunity to be heard and making orders at the end of the proceedings against the local authority that has the responsibility to carry them out.

I am also satisfied that the First-tier Tribunal must decide for itself who is the proper respondent to the appeal at any particular time. The First-tier Tribunal is not merely reviewing the decision of the local authority. I reach that conclusion because that seems to me to be a necessary consequence of my foregoing analysis of the First-tier Tribunal’s powers and duties. My conclusion is also consistent with what the Court of Appeal said in the Hampshire case about the First-tier Tribunal necessarily having jurisdiction to determine whether Hampshire had complied with regulation 31 of the SEND Regulations and/or was the responsible authority for the purposes of section 45(1)(a) of the CFA 2014 in the context of that appeal. Such a conclusion also avoids the obviously undesirable alternative result of First-tier Tribunal proceedings needing to be further delayed while parties seek judicial review in the High Court on such issues.

In cases such as the present where what is in issue is whether responsibility for the maintenance of a child or young person’s EHC plan has transferred from one local authority to another, the specific task for the First-tier Tribunal will be to decide, by reference to regulation 15 of the SEND Regulations, read together with section 24 of the CFA 2014, whether the ‘old’ local authority has properly (or properly should have) transferred responsibility to the ‘new’ local authority under that regulation. That will depend on whether the child or young person has ‘moved’ within the meaning of regulation 15, which in turn depends on whether their ‘ordinary residence’ has changed. That is because: (i) as explained at paragraph 44 above, to be intra vires the enabling Act, regulation 15 only provides for a transfer between local authorities where responsibility under section 24 has changed; and (ii) the Court of Appeal’s decision in Hampshire is binding authority that whether or not a child or young person is ‘in’ a local authority’s area for the purposes of section 24 is to be determined by reference to an ‘ordinary residence’ test.

Although the parties agree, in the light of the Court of Appeal’s decision in Hampshire, that ‘ordinary residence’ is the test, they are not agreed as to what that test is or whether the judge erred in her application of it in this case.

Ms Hadfield, on behalf of Enfield, argues that ‘ordinary residence’ must be given essentially the same meaning for the purposes of section 24 of the CFA 2014 as it is for the purposes of the local authority’s social services functions under the CA 2014, the NAA 1948 and the CA 1989. She argues that it cannot have been intended that a child or young person’s education file should change hands as often as TE’s has in this case. She submits that if ‘ordinary residence’ means different things for social services and education functions, this is a recipe for confusion that leads to inconsistent decision-making and gaps in provision for children and young people as they are passed between authorities. She points out that it means that local authorities can ‘export’ their responsibility for a child or young person’s special educational needs, which is contrary to policy as the Supreme Court held in Cornwall. She submits that, in line with the Supreme Court’s decision in Cornwall, in general any accommodation provided by a local authority in the exercise of its social care functions should be ignored when it comes to determining a child’s ‘ordinary residence’ for the purposes of the CFA 2014. She submits that the First-tier Tribunal accordingly erred in deciding that Enfield was responsible for TE’s EHC plan when it is Haringey who has always been responsible for his social care needs and who has taken all the decisions about where he should live since he ceased living with his mother.

Mr Greatorex for Haringey (with whom Mr Coyle for TE broadly agrees) submits that ‘ordinary residence’ does not mean the same thing under the CFA 2014 as it does under the social care legislation. He submits that it is clear from the Cornwall and Worcestershire cases that ‘ordinary residence’ can have different meanings in different statutory contexts. The decision in Cornwall was policy-driven and did not establish a general rule. In the absence of those policy factors, the Worcestershire case shows that the ‘ordinary residence’ of an adult may change from one local authority to another if they are provided with accommodation in a different authority. Although government policy cannot determine the meaning of legislation, government policy in relation to special educational needs has been clear that ‘ordinary residence’ for the purposes of education and social care functions may be different and that, in general, a child or young person’s ‘ordinary residence’ will correspond to the geographical area in which they are living, even if they were placed in that area by a different local authority which is their ‘ordinary resident’ for the purposes of the local authority’s social care functions. Accordingly, Mr Greatorex submits that there was no material error in the First-tier Tribunal’s decision. At the time that the decision under appeal was made, the First-tier Tribunal was right that Enfield was the responsible authority.

I agree with the parties that the Court of Appeal’s decision in Hampshire means that ‘ordinary residence’ is the test that applies under section 24 of the CFA 2014. Although the parties have not suggested it does, I have considered carefully whether the Court of Appeal’s decision could be said also to have determined the issue that I need to decide about what the ‘ordinary residence’ test is in this context. I noted at paragraph 58 above that it is possible that the Court of Appeal assumed that adopting an ‘ordinary residence’ test would result in responsibility for special educational needs being the same as for social services. However, the Court’s judgment does not actually say that and the issue that arises on this appeal was not raised in the Court of Appeal. There also does not appear to have been any reference, either in the Upper Tribunal or the Court of Appeal, to the Worcestershire case. This means in my judgment that, not only has the Court of Appeal not determined the issue that arises in these proceedings, but also little weight can be given to what was said about the Cornwall case in the Court of Appeal’s judgment. That is because the Cornwall case takes on a very different complexion when read together with the Supreme Court’s judgment in Worcestershire.

I have set out my analysis of the Supreme Court decisions in Shah, Cornwall and Worcestershire above at paragraphs 62-73 above. It seems to me that, once those decisions are properly understood, the answer to the question that arises in this case is clear. In short, ‘ordinary residence’ for the purposes of section 24 of the CFA 2014 is to be determined by reference to the Shah test, as further developed and explained in the Worcestershire case.

I reach this conclusion for the following reasons:-

It follows that the question of whether a child or young person is “in” a local authority’s area for the purposes of section 24 of the CFA 2014 is to be determined by reference to what I shall term the ‘ordinary’ ‘ordinary residence’ test from Shah, as further developed and explained in the Worcestershire case. In summary, translating that approach to the special educational needs context, that means the following principles apply:

It follows in my judgment that the First-tier Tribunal in this case did not materially err in law. In particular, Judge Lom was right not to assume that TE’s ordinary residence for the purposes of the CFA 2014 was the same as it was for the CA 2014, and she was right that his ordinary residence could be the supported accommodation provided for him in Enfield. There has been no challenge to the judge’s finding of fact that it was not the intention that TE’s accommodation in Enfield should be temporary or transitory. I must therefore proceed on the basis that finding of fact was correct and, if it was, then Judge Lom was right to find that TE was ‘ordinarily resident’ in Enfield. There was no material error of law in her approach.

I add this: I acknowledge that in TE’s case a series of placement breakdowns has apparently resulted in repeated changes of ‘ordinary residence’ and thus repeated moves of his education file. Such rapid changes are unlikely to be in the interests of any child or young person, but the fact that the law as I find it to be results in what may be perceived by some as an undesirable outcome in this case and other cases like it is an issue for the legislature to address if it wishes. Likewise, any funding implications are not matters for the Upper Tribunal.

In the light of my conclusion on Issue (2), I add only these further, brief, observations about the First-tier Tribunal’s reasons. As I have indicated, despite not having had the benefit of the Court of Appeal’s decision in Hampshire, the First-tier Tribunal in substance properly directed itself as to the relevant legal principles and applied those correctly to the facts before it. The appellant is right to point out that the First-tier Tribunal’s reasons also mention the irrelevant consideration that Enfield had “most recently engaged with the appeal as the respondent”. This is irrelevant to the question of ‘ordinary residence’ because that is a question of law and fact to be determined in accordance with the principles set out in this judgment. Administrative convenience and pragmatism cannot change the legal position, although that is not to say that in an appropriate case it might be permissible for two local authorities to agree that one will act as respondent to an appeal and the other will be bound by the result regardless of who is responsible in law. In such an event, it would be a matter for the First-tier Tribunal to decide whether it considered it appropriate to proceed on that basis. In the event of a dispute, however, as there was in this case, the First-tier Tribunal must determine the question itself.

In this case, as I read the decision, Judge Lom referred to Enfield’s recent role by way of a recital of the history of the matter and did not give it any weight in her assessment of ‘ordinary residence’. As such, there was no error of law. Even if I am wrong and she did give the factor weight, it is plain the outcome would have been the same in any event. Any error was not therefore material.

It follows that I must dismiss the appeal against Judge Lom’s decision, which was correct when she made it. The position may now be different. If so, if the parties are unable to agree what the current position is, applying the principles set out at paragraph 106 above, then the First-tier Tribunal will need to determine the issue at the next case management hearing.