[2024] UKUT 128 (AAC)

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.