[2024] UKUT 128 (AAC)

Judge Ozen considered that it was relevant to ask whether the Council remained responsible for T during his time in Dubai. She cited the 1996 Regulations as being relevant to that question, a position adopted by the parents in their response to the appeal. That was a misconceived position in the light of regulation 2(4) of the 1996 Regulations and R(G) v Kent CC. The Council submitted that the 1996 Regulations were irrelevant to the issues in the appeal and that the question of whether a local authority was responsible for a child or young person under s.24 of the 2014 Act was not governed by ordinary or habitual residence principles which applied in different legal contexts, as confirmed in R(G)at [134]. Accordingly, the reliance by the parents on A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening)[2013] UKSC 60 at [54], was misplaced. It was also to be noted that in R(G)at [143] the High Court held that whether a child permanently lived in an area was a question of fact for the local authority, which could only be challenged by way of judicial review: “[m]any other decisions relating to special educational needs can be the subject of a merits appeal to the First-tier Tribunal, but a decision that a child with a statement [now an EHCP] has moved to another authority is not one of them.”

the facts known to the Tribunal were that T had been absent from the Council’s area since around August 2021. The initial period of the deployment was due to be three years, but it was understood that it would be ending early in July 2023. There was not a clear evidential picture as to where the family would next be deployed, save that it was his father’s preference to be drafted in the same area as the family home when he returned.

as at the date of the hearing, it was not in dispute that T was not in the Council’s area, and had not been for a considerable period of time. It was agreed that he was not living in Hampshire. As noted by Judge Ozen, there was no evidence before the Tribunal that T’s family had retained an address in the United Kingdom during the deployment. As per the parents’ response to the appeal, what was now known was that the property was rented out so that the family could retain an income from it, demonstrating that their relationship to the property during the period of deployment was principally financial. Thus, even if that had been information put before the Tribunal, it would not have formed a valid basis for a finding that s.24 of the 2014 Act applied whilst the family were abroad. Moreover, the length of the posting and uncertainly as to where the next deployment would be (even in March 2023), further supported the contention that the absence was not of a sufficiently temporary nature for s.24 to be engaged.