[2024] UKUT 128 (AAC)

This decision formed one of the mainstays of Mr Line’s submissions, although as I pointed out to him in argument, and as he accepted, I am not bound by High Court decisions.

The background to R(G) was that the child, who lived with his parents in Kent, had special educational needs and had become significantly violent towards his parents, siblings, teachers and other pupils, resulting in cautions for battery and common assault. The father decided to take his son with him to stay with his parents who lived near Sunderland. He described this as an “extended holiday” until Kent CC either arranged for a residential school placement for the child or provided some alternative accommodation in Kent for him and his son. On 2 October 2015 Kent CC took the view that the child had now moved to Sunderland, closed its social services file on him and on 19 October 2015 passed the educational file (including his statement of special educational needs) to Sunderland. Sunderland initially agreed to take over responsibility for his education, but subsequently took the view that the child and his father were in their area only temporarily and, in consequence, responsibility in Sunderland’s opinion remained with Kent CC.

On the child’s behalf, the Official Solicitor endorsed the parents' claim (which I do not need to consider further), but also raised what was in reality a second claim for judicial review. In that second claim it was alleged that Kent CC had been in breach of various obligations to the child and his parents in its capacity as the local education authority. These included obligations which it owed to him as a child of compulsory school age and as the beneficiary of a statement of special educational needs. In particular, the Official Solicitor alleged that Kent CC acted unlawfully on 19 October 2015 in treating Sunderland as responsible thereafter for seeing that he received the education which the statement required.

The Court held that the decision of Kent CC that the child had moved to Sunderland should be quashed.

It is important to note that R(G) was in effect two applications for judicial review in the High Court, of which the second is the relevant one for present purposes. Judicial review is not, of course, usually concerned with the resolution of conflicts of fact. Moreover, the case was not an appeal to the First-tier Tribunal under s.51(1), (2) of the 2014 Act or its predecessor. Nothing was said or appears to have been argued about the interrelationship between the judicial review jurisdiction of the High Court and the First-tier Tribunal jurisdiction under the 2014 Act or its predecessor.

Nor was the judge’s attention drawn to the predecessor provision to s.51(2)(f), in the form of Schedule 27 paragraph 11 of the Education Act 1996 which provided that

“11(1) A local authority may cease to maintain a statement only if it is no longer necessary to maintain it.

(2)

Where the local authority determine to cease to maintain a statement—

(a)

they shall give notice in writing of that fact to the parent of the child, and

(b)

the parent of the child may appeal to the Tribunal against the determination”

(although that is perhaps not surprising since he was concerned with a judicial review in the High Court, not a statutory appeal under the 1996 Act; cf. the reference to paragraph 7(2) in paragraph [117] of the decision).

It is in that context that one must understand what Nicol J said in paragraph [143] to the effect that

“ … this is a statutory scheme which entrusts to local authorities the power to make judgments and assessments on a great many issues. There is no indication that in respect of this one, Parliament or the drafter of the regulation expected the Court to conduct the unusual exercise of an investigation of the facts.”

It was also in that context that counsel for the applicant was constrained to submit that at paragraph [138] that

“While judicial review is not usually concerned with resolving disputes of fact, Ms Hannett argued, it would be wrong to allow this to dictate the issue for the court to decide”,

but the judge was not faced with a dispute under s.51(1), (2) of the 2014 Act – and in particular an appeal brought against a decision under s.51(2)(f) of the Act in relation to a decision to cease to maintain an EHCP. Nor was he considering the width of the jurisdiction thereby conferred on the First-tier Tribunal as explained, for example, in DH and GH v Staffordshire CC, namely whetherthe local authority came to the correct conclusions on matters of fact, law and judgment, as to which the Tribunal is free to form its own view on any matters covered by the decision.

By contrast, what was argued in R(G) was that

“135.

Ms Hannett submits that it is for the Court to decide whether TG had moved to Sunderland by 19^th October 2015. She argues that it is only if this precedent fact exists that KCC will have ceased to be responsible for providing TG's special educational needs. It is, she argues equivalent to the issue of whether a person is a 'child' for the purposes of Children Act 1989 s.20 and which the Supreme Court said was likewise an issue of precedent fact – see R (A) v Croydon LBC [2009] 1 WLR 2557. Whether a child had 'moved' was not a question of judgment or discretion, still less one which called for professional assessment. It was a straightforward question of fact which the Court was as well equipped to answer as the Defendant.

…

138.

While judicial review is not usually concerned with resolving disputes of fact, Ms Hannett argued, it would be wrong to allow this to dictate the issue for the court to decide. Besides, the better the quality of the initial decision-making the less likely there will be a dispute for the court to resolve, or come to any different conclusion if there is litigation – see R (A) v Croydon LBC at [33].

139.

Mr Harrop-Griffiths argued that the Court should adopt the conventional public law methods of review and not treat the issue of whether TG had moved as a question of precedent fact. He noted that in Shah Lord Scarman had taken this course with the very question of whether a student was 'ordinarily resident' - see p.341, although in the Croydon case Lady Hale said at [24] that it was not necessary for the Supreme Court to decide whether the same decision would be made today.”

It was against that background that Nicol J decided that

“141.

In my judgment, Mr Harrop-Griffiths's position is to be preferred on this issue.

142.

It is clear that ultimately the nature of the Defendant's duty (and the consequential character of the Court's function when the Defendant is alleged to have breached that duty) is a matter of statutory construction and deciding Parliamentary intention, so far as the statute is concerned, and, so far as the regulation is concerned, the intention of the drafter of the regulation – see the Croydon case at [26] and [31].

143.

While it is true that neither the statute nor the regulation (in this context) uses an expression such as 'if the authority considers…', this is a statutory scheme which entrusts to local authorities the power to make judgments and assessments on a great many issues. There is no indication that in respect of this one, Parliament or the drafter of the regulation expected the Court to conduct the unusual exercise of an investigation of the facts. Many 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 has moved to another authority is not one of them.

144.

I have said that the interpretation of 'ordinary residence' in other contexts may provide helpful indirect pointers in the present one. For what it is worth, therefore, Mr Harrop-Griffiths can take some support from the views of Lord Scarman in the Shah case that a decision as to ordinary residence in the context of student grants was reviewable only in accordance with conventional public law principles.”

It follows from this that I do not agree with Nicol J at paragraph [143] that the question of whether a child who has been ordinarily resident with a local authority remains so ordinarily resident (notwithstanding a temporary absence abroad) cannot be the subject of a merits appeal to the First-tier Tribunal under s.51(2)(f) of the 2014 Act in the event of the local authority purporting to cease to maintain his EHCP under s.45 of the Act. If Mr Line were correct, it would involve a parent who was faced with a decision to cease to maintain an EHCP under s.45 not invoking the obvious statutory appeal under s.51(2)(f), but instead having to resort to a judicial review, notwithstanding the clear words of s.51(2)(f).

The actual decision in R(G) may nevertheless be justifiable in that the Court went on to find that, although the decision that the applicant had moved to Sunderland was challengeable only on traditional public law principles, it was nevertheless unlawful and the local authority’s decision did not survive scrutiny [at 146].

It is also worthy of note that the departure of the applicant for Sunderland could not be isolated from earlier breaches of duty on the part of the authority. As Nicol J went on to explain

“159.

In my judgment, Ms Hannett's submissions are to be preferred on this issue. KCC's decision that TG had 'moved' to Sunderland for the purposes of Regulation 23 was unlawful.

160.

The decision itself simply states the conclusion that TG had moved to Sunderland. I agree that Ms Flanagan's reliance on the 'Belonging' Regulations was misplaced. So far as KCC took them into account, it misdirected itself.

161.

From the contemporary documentation, it is clear that MG saw his departure from Kent as temporary. Since it involved separation from his wife and other children, it is understandable that he would have wished it to be as short as possible. It was plainly prompted by a fear that, unless TG was removed from the family home, WG or TwinG would suffer further violence. MG took with him TG's medicine to last for 3 months and said that he expected to be away for at least that period. However, in context that could only have meant that MG predicted it would take at least that period to resolve either alternative housing in Kent for himself and TG or a residential placement for TG. Any other conclusion would have been irrational.

162.

The departure of MG and TG for Sunderland cannot be isolated from the earlier breaches of duty by KCC. I have in mind in particular the following:

i)

KCC did not inform the Claimants in writing and within 7 days of its decision on 5^th May 2015 to refuse to amend TG's statement of special educational needs in line with the parents' request. This was contrary to s.328A(6). Furthermore, in breach of s.328A(5), the parents were not told of their right to appeal against that decision to the First-tier Tribunal. There was not, therefore, the opportunity, for the Tribunal to review the merits of the decision.

ii)

At the time when KCC considered the matter on 5^th May 2015, it was unaware of the events which were taking place on that same day. Those events led Goldwyn to decide that TG could no longer attend the school (whether for health and safety reasons or because of his own health). That was plainly a significant development and, in accordance with the statutory Code of Practice, ought to have led to an emergency review taking place. It is far from clear as to whether KCC ever confronted the issue of whether such a review should take place. Certainly no reason is apparent from the documentation as to why it was not.

iii)

Until TG's statement of special educational needs was amended, KCC was obliged to see that he received education in accordance with the statement. After 5^th May, TG was not educated at the school identified in the statement and the statement was not amended.

iv)

If it was the case that TG was unable to attend Goldwyn because of illness, s.19(1) of the Education Act required it to provide him with suitable education. That meant full-time education (see s.19(3A)) unless (see s.19(3AA)) there were reasons which related to TG's physical or mental health which meant that KCC considered full-time education would not be in TG's best interests. There was no evidence that TG's physical or mental health precluded him receiving full time education, nor, for that matter, does there appear to have been any decision by KCC that his best interests precluded him from receiving full time education. Nonetheless arrangements were only made for TG to receive part time tutoring and that only for a few weeks at the end of July 2015 and at the beginning of September 2015.

v)

Because of KCC's internal procedures, the decision of Ms Coombs on 17^th June 2015 that Social Services would not jointly fund a residential placement operated as an effective veto. Thereafter JRAP would not agree to such a placement. Yet, as Mr Harrop-Griffiths accepted, JG and MG were led to believe that residential placement was still under active consideration by KCC. MG's decision to take TG to Sunderland was made on that false basis.

vi)

There were also the breaches of the Children Act 1989 to which I have already referred.

For all of these reasons, I also agree that it would be conspicuously unfair for KCC now to rely on MG and TG's departure for Sunderland.

163.

It follows that I agree the decision of KCC that TG had 'moved' to Sunderland for the purposes of Regulation 23 should be quashed.”