[2024] UKUT 128 (AAC)

The DCFS explained in the consultation document that it was not the intention for the Belonging Regulations to apply generally, but that they should apply only to recoupment cases. On the first page of the consultation document, it stated that the proposals inter alia would

“… mean that the Regulations will no longer determine which local authority is responsible for identifying children's special educational needs (SEN), assessing them, drawing up SEN statements and maintaining those statements in respect of looked after children placed outside their home local authority areas.”

Paragraph 1.1 of the document stated that this was the “most important” aspect of the proposals. Paragraph 1.2 stated that the reason for the proposal to amend was the R(L)decision (see further paragraph 2.3):

“The decision to amend the Belonging Regulations follows the judgement in the case of a looked after child (LAC) with an SEN statement placed by Waltham Forest in Staffordshire (R (on the application of L) v the (1) London Borough of Waltham Forest and (2) Staffordshire County Council). The judgement said that the Belonging Regulations had wider application than just for assigning which authority had financial responsibility in inter-authority recoupment cases and, in particular, were applicable when deciding which authority is responsible for identifying a child’s SEN, assessing the child, and drawing up and maintaining an SEN statement. The Department’s view has been that the Belonging Regulations do not apply for this purpose and its guidance is that it should be the authority where the LAC is placed rather than home/placing authority that should carry out these SEN duties, recouping the costs from the home authority.”

Paragraphs 2.1-2.4 supported the Council’s submissions previously (consistent with the R(G)case) that the Belonging Regulations were concerned only with financial recoupment, not any wider issues. To ‘belong’ to a local authority did not bear the same meaning as being ‘in the area’ of a local authority.

Paragraph 3.2 stated that the purpose of amending regulation 2 was to “re-establish” the policy intention behind the Belonging Regulations that they

“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”.

As such, that was not a new policy focus arising after R(L). It reflected the underlying intention behind the Belonging Regulations from the outset, with which the decision in R(L)was considered to be at odds.

The R(L)case (which concerned a looked after child) prompted the DFCS consultation. That eventually led to the insertion of regulation 2(4) into the Belonging Regulations. However, regulation 2(4) restricted the application of the entire Belonging Regulations in relation to s.24 – not just regulation 7 (which concerned looked after children). That was the obvious interpretation of regulation 2(4) arising from the wording used:

“(4)

These Regulations do not apply for the purpose of determining which authority's area a child is in for the purposes of section 321(3) of the Education Act 1996 and section 24 of the Children and Families Act 2014.”

The Upper Tribunal must apply the plain and literal meaning of those words, which in the Council’s submission was clear – the Belonging Regulations were irrelevant to the approach under s.24 of the 2014 Act and any reliance on them as an interpretative aid would be a clear error. That still left open the question of how s.24 should be interpreted, but in the Council’s submission it would be inappropriate for the Upper Tribunal to apply an ordinary/habitual residence principles to the s.24 “area issue” because:

the wording of s.24 of the 2014 Act did not support that approach.

the case law (R(G)) did not support that approach.