[2024] UKUT 128 (AAC)

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).