![[2024] UKUT 128 (AAC)](https://backend.juristeca.com/files/emisores/logo_3a2BKne.png){kind=logo}
Submissions
Submissions
The parents accepted that regulation 2(4) of the Belonging Regulations meant that those Regulations did not apply for the purpose of determining the education authority responsible for identifying, making and maintaining statements pursuant to the 2014 Act. That was the clear intention of regulation 2(4) as set out in the Explanatory Memorandum to the 2009 Regulations:
“Regulation 2(3) amends regulation 2 of the Principal Regulations to provide that those Regulations do not apply for the purpose of determining the education authority responsible for identifying, assessing, making and maintaining statements and performance of other functions under Part 4 of the Education Act 1996 relating to children with special educational needs”.
Regulation 2(4) therefore had the effect of nullifying the earlier legal conclusion of the High Court in R(L)that the Belonging Regulations
“are relevant for the purpose of section 579(4) which begins with the words "for the purposes of this Act". Those are general words and are not confined to the question of recoupment””.
The legal effect of regulation 2(4) was no wider than that nullification. It simply meant that the provision of an ordinary residence test in regulation 5 did not apply to s.24 of the 2014 Act. To put it another way, the Belonging Regulations did not dictate the meaning of s.24 of the 2014 Act.
The 2009 consultation paper appeared to be the consultation related to the 2009 Regulations. The consultation paper might be an admissible aid to the construction of the 2009 Regulations which introduced regulation 2(4) of the Belonging Regulations (see R (Maughan) v Her Majesty's Senior Coroner for Oxfordshire[2020] UKSC 46 at [27]). The mischief at which the 2009 Regulations was aimed was that:
“The policy intent of amending regulation 7 of the Belonging Regulations and regulation 2 is to re-establish the Department’s position that the Regulations do not apply for the purposes of determining which local authority is responsible for identifying children’s SEN and, where necessary, assessing, drawing up and maintaining a statement for a child, and performing other functions under Part IV of the Education Act 1996. The judgement in the Waltham Forest/Staffordshire case means that the placing/home authority would be responsible for performing these functions in every case of LAC with statements placed out of authority”.
Crucially, however, none of this meant that s.24 of the 2014 Act did not entail an ordinary residence test. Quite the opposite, in the parents’ submission:
had Parliament or the relevant Minister wished the interpretation of s.24 of the 2014 Act or its antecedent legislation to preclude an ordinary residence test, they would have set that out in terms in the Education (Areas to which Pupils and Students Belong) (Amendment) (England) Regulations 2009/1301, or in the 2014 Act itself, or the Special Educational Needs (Consequential Amendments to Subordinate Legislation) Order 2014/2103 (which amended regulation 2(4) of the Belonging Regulations to make reference to the s.24 after the passage of the 2014 Act).
the consultation paper was not an admissible aid to the construction of s.24 and its antecedent legislative provisions in the Education Act 1996. That must be so on normal principles of statutory interpretation, but in addition the consultation paper itself stated that it was not relevant to the meaning of the phrase “in their area” in s.24’s antecedent legislative provisions; the meaning of those words would instead be left to different legislation: “The forthcoming Children, Skills and Learning Bill will address the meaning of the term “in their area”.
- Heading
- Introduction
- Background
- The Tribunal’s Decision
- Permission to Appeal
- Ground 1: the Tribunal erred by concluding that the Council was not entitled to cease to maintain T’s EHC Plan. T was no longer in the Council’s area; therefore the decision to cease to maintain was c
- The Legislative Framework
- “ Interpretation
- The SEND Code Of Practice
- The Armed Forces Covenant: the Council
- The Factual Background
- The Extent of the Issue
- The New Evidence
- the s.42(2) duty had been described as absolute and non-delegable: R(M) v Harrow LBC [1997] ELR 62, R(N) v North Tyneside BC [2010] EWCA Civ 135 at [27], R(ZK) v Redbridge LBC [2020] EWCA Civ 1597 at
- regulation 2(4) of the 1996 Regulations was clear that the definition in regulation 2(2) was confined to the application of the 1996 Regulations and had no bearing on the question of which local autho
- the role of the Tribunal in an appeal was to stand in the local authority’s shoes as at the date of the hearing. It performed an inquisitorial function and remade the decision, as opposed to performin
- The First Ground of Appeal
- The Second Ground of Appeal
- The Third Ground of Appeal
- as per Ground 4, the Tribunal erroneously concluded that an EHCP could be paused or frozen The Fourth Ground of Appeal
- 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
- 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 equiv
- the parents relied on s.42(5) of the 2014 Act , but the Council did not make any decision as to the school in Dubai being a suitable alternative arrangement. The decision to move to Dubai and find an
- Disposal
- at the time of the hearing, and when permission to appeal was granted, T was still in Dubai
- S.45 of the 2014 Act (“the statutory procedure issue”)
- The legislative provisions governing an authority’s decision to cease maintaining an EHCP
- The decision below
- “the process of consulting the child and obtaining their views is integral to the decision-making processes of the local authority” under s.45(1) , see R(Milburn) at [45] upon the presentation of an in-time appeal, the ceasing decision was suspended
- S.24 of the 2014 Act (“the local authority area issue”)
- Purported jurisdictional issue
- R(G) was not authority for the proposition that the question whether a child lived in a local authority’s area could only be challenged by judicial review. That case simply stated that the question wa
- the Tribunal plainly was empowered to determine whether a child was or was not in the local authority’s area as part of its jurisdiction under the 2014 Act . That was a necessary and natural corollary
- Ordinary residence test
- the regulation determined residence expressly according to a test of ordinary residence. That was consistent with the other legal provisions set out above. It was further evidence that s.24 imposed a
- the residence of a child would almost always be aligned with the residence of his primary carer (save for some very narrow exceptional circumstances). It would be illogical for the question of residen
- Temporary absence
- the only place where T and his family had lived was Hampshire: “ We went to Dubai with a very clear understanding that Hampshire remained home and we would be returning to Hampshire after the end of t
- the Navy acknowledged that T’s home and family remained in Hampshire: “ The Navy also shared the same understanding that my family and I would return to Hampshire. The Navy offers all personnel on dep
- T’s family and social network was in Hampshire: “ Hypothetically, in the case of any emergency requiring deployed personnel to vacate the country they are deployed to, the Navy would be responsible fo
- the Navy recognised that T’s home area was Hampshire and had arranged for replacement accommodation there for him on return from Dubai: “ Ultimately we did return early and our house will not be avail
- The Second Ground of Appeal
- the judgment below had to be considered holistically: it was clear that the Tribunal considered all the documentation before it and turned its mind to questions of law and fact. It formed its own view
- The Third Ground of Appeal
- The Fourth Ground of Appeal
- Finding of prejudice was permissible
- the Council asserted that “ Contrary to the Tribunal’s analysis, it is not ‘unfair’ that individuals in the latter scenario lose their right to an EHC Plan – that is just a consequence of them moving
- the Council asserted that the “ Tribunal appears to have assumed that transferring an EHC Plan under regulation 15 procedure guarantees continuity of provision in the terms of the inherited EHC Plan ”
- Pause of EHCP
- the Code of Practice provided, inter alia, that local authorities should ensure that their provision did not disadvantage children because of their parents’ lifestyle, including deployment and to cons
- the Armed Forces Covenant contained in the 2006 Act required the local authority, when exercising that discretionary power, to have due regard to the unique obligations of, and sacrifices made by, the armed forces
- s.45(1) bestowed a discretion on a local authority to cease to maintain an EHCP: “a local authority may cease to maintain an EHC plan for a child”. That was also, apparently, the view of the Secretary
- the question before the Tribunal was whether the Council came to the correct conclusion that “T is no longer in full-time education or training in England from September 2021. Accordingly, T’s Educati
- the Council precluded itself from answering the question of suitable alternative provision by (i) contravening regulation 31 of the 1996 Regulations by failing to consult with the parents and (ii) by
- The 1996 Regulations/The Belonging Regulations
- the effect of the amendment effected by the insertion of regulation 2(4) in light of that background the statement in paragraph 2.4 of the consultation paper to the effect that “The forthcoming Children, Skills and Learning Bill will address the mean
- the position given that that legislative amendment was apparently not made good the DCFS 2009 “Guidance on Looked After Children with Special Educational Needs placed out-of-authority”
- The Council’s Further Submissions
- in R(L) the Court at paragraph 17 expressly found that regulation 7 of the Belonging Regulations applied on the facts. (Footnote: 1 ) However, in the present case, the parents were not able properly t
- the decision was inconsistent with R(G) , a later authority. It was evident from the judgment in R(G) that the High Court heard full argument about ordinary/habitual residence principles and cited rel
- the Belonging Regulations had been amended since the decision in R(L) by insertion of regulation 2(4). The case of R(G) considered the Belonging Regulations in their amended form, which was another re
- The 2009 consultation paper
- the intention, but in any event certainly the form , of the amendment to the Belonging Regulations implemented through regulation 2(4) was completely at odds with that approach The effect of the amendment effected by the insertion of regulation 2(4)
- The statement in paragraph 2.4 of the consultation paper
- The DCFS 2009 Guidance
- Conclusion
- The Parents’ Submissions
- s.24(1) of the 2014 Act should be interpreted as denoting a test of ordinary residence the judgment in R(L) was no longer good law. The legal effect of regulation 2(4) of the Belonging Regulations was simply that they did not dictate the meaning of s
- Submissions
- guidance from a public authority about the interpretation to be given to a statutory term might be persuasive authority: Hyman and another v Revenue and Customs Commissioners [2022] EWCA Civ 185 , [20
- The Parents’ Further Submissions
- The Council’s Further Submissions
- there was no reference to the Belonging Regulations – supporting the Council’s position that they were irrelevant
- the Department supported the Council’s contention that the decision to cease to maintain was discretionary and could arise in situations where a family moved abroad (page 4 of the Guidance). Consisten
- it did not consult with T’s parents as required by regulation 31(1)(b)
- disagreement resolution services; and advice and information about matters relating to the special educational needs of children and young people; and
- Jurisdiction
- R(G)
- The Belonging Regulations
- the intention, but in any event certainly the form , of the amendment to the Belonging Regulations implemented through regulation 2(4) was completely at odds with that approach
- A Child “in the Authority’s Area”
- R(Stewart)
- The Armed Forces Act 2006
- https://researchbriefings.files.parliament.uk/documents/CBP-9072/CBP-9072.pdf .)
- Application of the Ordinary/Habitual Residence Test
- The Second Ground of Appeal
- The Third Ground of Appeal
- The Fourth Ground of Appeal
- Conclusions