[2024] UKUT 128 (AAC)

The starting point was s.24(1) of the 2014 Act. That provision mandated that a local authority was responsible for a child if he were in the authority’s area and had been identified by the authority as someone who had, or might have, special educational needs.

The phrase “a person in the authority’s area” included a person who was ordinarily resident in that area, but temporarily absent. That construction was well within the statutory purpose of the 2014 Act and concordant with the relevant legislative framework for several reasons.

The purpose of the legislation was the welfare of children: (R(D and others) v Hackney LBC [2019] PTSR 1947 at [54]). That purpose tended towards a protective approach to s.24.

The statute itself envisaged a permissible degree of absence from the local authority area. That must mean that mere presence was not the correct test to apply. S.83(6)(“interpretation”) provided 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 demonstrated that a person might be partly resident in Wales and nevertheless be “in the area” of a local English authority. That was consistent with the test under s.24 as being one of ordinary residence and not presence.

The Code of Practiceprovided, in respect of looked-after children, that that “the authority that carries out the assessment is determined by Section 24 of the Children and Families Act 2014. This means that the assessment must be carried out by the authority where the child lives (i.e. is ordinarily resident)” (at 10.8 page 210). That guidance in the Code of Practice was concordant with the test under s.24 being one of ordinary residence.

A related concept was whether a child had “moved” from a local authority’s area (s.23). A temporary or transitory move did not relieve a local authority from its responsibility to the child, see R(G) at [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”. That also supported the submission that ordinary residence was the test for whether a child was in a local authority’s area pursuant to s.24.

Regulation 5(3) of the 1996 Regulations governed the allocation of financial responsibility for meeting a child’s SEN needs. Regulation 5(3)provided that

“Where the person responsible for such a pupil is ordinarily resident in the area of an education authority the pupil shall be treated as belonging to that area.”

As to that: