[2024] UKUT 128 (AAC)

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:

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

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

“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. As Ms Hannett and Mr Harrop-Griffiths agreed, there can only be one local authority which is responsible for a child's special educational needs. I also agree with Ms Hannett, that the procedures envisaged in regulation 23 [now regulation 15 of the 2014 Regulations] would be excessively cumbersome to cater for a purely temporary, short-term absence of the child from the original authority's area …”.

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 agree as well that it is of assistance to see whether there has been an alteration of the child's ordinary residence to reach a decision as to whether the child has 'moved' for the purposes of regulation 23. The features which have been identified in other contexts for deciding a person (and especially a child's) ordinary residence may be helpful.”

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

“The features identified in the ordinary residence cases are therefore no more than indirect pointers in deciding whether in this case TG had 'moved' to Sunderland at the time that KCC took its decision which the OS challenges on 19^th October 2015”,

nevertheless those indirect pointers all lead to the conclusion that T had not moved for the purposes of regulation 15 and that he was still in the local authority’s area for the purposes of s.24 of the 2014 Act (as to which see paragraphs 221 to 228 below as to the application of the principles of ordinary/habitual residence to the facts of this case).

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

“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’.”

It is also the case therefore that there is no conflict between the Belonging Regulations and the SEND Code of Practice such as Judge Ozen had feared in her remarks in granting permission to appeal.

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.