[2024] UKUT 128 (AAC)

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

“Grounds 1 and 4

9.

The LA submits that it is only responsible for children in its area (section 24 of the Children and Families Act 2014 (“the Act”)). Accordingly, as T is no longer in the LA’s area, it was entitled to cease to maintain his EHC Plan pursuant to section 45(1)(a) of the Act regardless of any procedural failures in determining whether or not to exercise that power.

10.

In any event, the LA says that there is no mechanism in the statutory framework to pause or freeze an EHC Plan in the way the panel suggested. Such an approach would be inconsistent with the absolute duty to maintain an EHC Plan pursuant to section 42(2) of the Act. Given that the LA cannot maintain T’s EHC Plan while he is in Dubai the panel’s decision places the LA in breach of that statutory duty.

11.

Three questions of law arise which the panel either failed to consider altogether or the panel determine[d] without a sufficiently clear analysis of the legislative framework. It is therefore likely that there has been an error of law in the panel’s decision.

12.

The first question is whether or not an LA remains responsible for a service child with special educational needs who has moved abroad temporarily. The legislative framework appears to be as follows.

13.

Regulation 3 of The Education (Areas to which Pupils and Students Belong) Regulations 1996 states that the general principle is that a person shall be treated as belonging to the area of the education authority in which he is ordinarily resident. Regulation 2 defines “ordinarily resident” as a reference to the address where that person is habitually or normally resident apart from a temporary absence.

14.

Temporary absences are therefore permitted. Given that [his father] was posted to Dubai on a finite basis it appears to be arguable that T’s absence from the LA’s area was temporary. However, from the evidence available to me, it does not appear that the Appellants retained an address in the LA’s area. Therefore, on a strict interpretation of the regulation cited above, T does not appear to meet the definition of being ordinarily resident in the LA’s area.

15.

The Send Code of Practice offers guidance which cannot, of course, displace or alter the legislative framework. However, it nevertheless merits mention. In particular, paragraphs 10.53 to 10.59 of the Code of Practice clearly envisages circumstances in which local authorities remain responsible for service children with SEN who either move between local authority areas or who are provided education by Service Children’s Education in overseas locations.

16.

I also note that paragraph 9.201 of the Code of Practice outlines the circumstances where a LA is no longer responsible for a child as including when a child moves to another local authority area. This paragraph is silent on a temporary move abroad of service children, which further bolsters the apparent intention of paragraphs 10.53 to 10.59 cited above.

17.

It is also important to highlight, as the panel correctly identified, that the LA’s power to cease to maintain an EHC Plan under section 45 is discretionary. It follows that Parliament envisaged that there may be circumstances in which an LA can continue to maintain an EHC Plan even if it is no longer responsible for a child. As stated above, paragraphs 10.53 to 10.59 of the Code of Practice intimate that service children abroad can remain the responsibility of a local authority.

18.

There therefore appears to be an incompatibility between The Education (Areas to which Pupils and Students Belong) Regulations 1996 and the Send Code of Practice which requires the Upper Tribunal’s guidance. I am aware that in these circumstances the law overrides the Code of Practice. However, the Upper Tribunal may wish to give guidance about whether this apparent incompatibility is an unintended consequence given the Government’s support of service personnel.

19.

The second question is whether the LA is able to exercise its power to cease to maintain an EHC Plan if it has breached the relevant procedural requirements when deciding to do so.

20.

Section 45(5) of the Act expressly refers to the fact that regulations may make provision for the procedure to be followed when determining whether to cease to maintain an EHC Plan. The applicable procedure in this appeal, as identified by the panel and accepted by the LA, is outlined at Regulation 31 of The Special Educational Needs and Disability Regulations 2014. The appellants were not consulted in accordance with that procedure. They also say that they contacted T’s previous primary school and the school had also not been consulted.

21.

Regulation 31 is couched in mandatory terms which is further reinforced by paragraph 9.205 of the Send Code of Practice. Therefore, given the express reference to regulations in section 45(5), it is certainly arguable that the LA’s power to cease to maintain an EHC Plan, and by extension the power of the Tribunal standing in the shoes of the LA, can only arise if the correct procedure has been followed.

22.

As an aside, I also note that there is no evidence that the LA sought the advice of The Children’s Education Advisory Service before deciding to cease to maintain the EHC Plan which would have, arguably, been good practice pursuant to the Send Code of Practice.

23.

The third question is whether the LA is able to pause or freeze an EHC Plan. If it cannot, then whether the panel’s determination arguably places the LA in breach of its statutory duty.

24.

There is no direct answer to this in either the legislative framework, regulations, case law or the Code of Practice. However, I note that paragraphs 9.132 to 9.133 of the Code of Practice offers guidance that the LA can be relieved of its duty to secure the special educational provision in an EHC Plan if a child’s parents have made suitable alternative arrangements. It therefore appears that there may be circumstances in which that LA’s duty can, in effect, be paused without the need to cease to maintain an EHC Plan.

25.

The Code of Practice is silent on whether or not T’s circumstances of being abroad would fall into a similar category of alternative arrangements for special educational provision and thereby temporarily relieving the LA of its statutory duty until he returns to the UK. This is therefore a further area that properly falls to the Upper Tribunal to resolve and it would be an error for the First-tier Tribunal to usurp that role.

Ground 2

26.

The LA is right in stating that when considering an appeal the Tribunal ought to re-determine the decision afresh based on the evidence available. However, an appeal is based on both facts and law. Therefore, if the Tribunal determines that the LA applied the law incorrectly to a decision it made then it is within the Tribunal’s discretion to review and replace that decision. I do not consider that this would amount to a quasi-judicial review approach.

27.

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. I have already addressed that question under Ground 1 above and it will remain for the Upper Tribunal to consider and determine.

Ground 3

28.

The relevance, or otherwise, of the LA’s procedural failings and whether or not an EHC Plan can be paused or frozen will be necessarily dictated by the Upper Tribunal’s determination of Grounds 1 and 4 above. I do not, therefore, address these issues further under this heading as they amount to repetition.

29.

The panel’s findings in relation to why it concluded that T would be disadvantaged, including its comparison between children moving to another local authority area and moving abroad, were factual findings that were entirely within its discretion to make based on the evidence available to it. The LA’s submissions in this regard therefore amount to mere disagreement which does not constitute an error of law.

30.

Finally, the submission in relation to the panel’s incorrect assumption about the EHC Plan continuing on an ongoing basis if transferred to another local authority area is misconceived. It is clear from paragraph 25 of the panel’s decision that it was not stating that an EHC Plan would continue indefinitely if transferred. The point the panel was clearly making is that if T had moved to another local authority area, as opposed to moving abroad, then the LA would have transferred his EHC Plan pursuant to section 47 of the Act as opposed to ceasing to maintain it.

31.

For these reasons, I grant permission to appeal to the Upper Tribunal on a point of law pursuant to Section 11(1) of the Tribunals Courts and Enforcement Act 2007. The points of law arise primarily in relation to Grounds 1 and 4 for the reasons I have given above. However, given the overlap with Grounds 2 and 3 both in terms of law and fact, I grant permission to appeal on all of the LA’s grounds.”

Accordingly she granted permission to appeal on all 4 grounds, but refused the Council’s request to suspend the panel’s decision in the meantime because it was under a duty to maintain the EHCP until the appeal was finally determined (s.45(4)(b)). The effect of the panel’s decision therefore remained effective even whilst under challenge and the Council was obliged to continue to maintain T’s EHCP until the Upper Tribunal’s final determination.

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.