[2024] UKUT 128 (AAC)

It is common ground that the decision in R(L) is no longer good law and that the effect of the amendment to regulation 2(4) of the Belonging Regulations has the effect that those Regulations do not apply to s. 24 of the 2014 Act, but it is important to understand what it was that R(L) actually decided and how the legislation actually effected the reversal of that decision.

The dispute in R(L) was as to which local authority was responsible for maintaining the child’s statement of special educational needs. Rabinder Singh QC (as he then was) explained that

“9.

The main dispute before me focused upon the words in subsection (3) of section 321 "responsible for a child if he is in their area". There was some debate at the hearing about whether JL fell within any of the paragraphs in subsection (3) but there was not,
as I understood it, any serious dispute that a statement of special educational needs does have to be maintained in respect of JL by some Local Education Authority. The only dispute between the defendants relates to which of them is responsible. Waltham Forest is entitled to point out that in a physical sense JL is no longer in their area. But, submits counsel for Staffordshire, that is not the end of the matter.

He went on to say

“11.

I turn next to section 569 of the 1996 Act. Subsection (1) provides that any power of the Secretary of State to make regulations under that Act shall be exercised by statutory instrument. Subsection (2) provides that such an instrument is to be subject to the annulment procedure in either House of Parliament. Subsection (4) provides:

"Regulations under this Act may make different provision for different cases, circumstances or areas and may contain such incidental, supplemental, saving or transitional provisions as the Secretary of State thinks fit."

Before I leave this provision, it should be noted that this is a very broadly drafted power to make regulations.

12.

Finally in the context of the 1996 Act, I should turn to section 579, which is the general interpretation provision in the Act. Subsection (4) reads:

"(4)

For the purposes of this Act a person shall be treated as belonging, or as not belonging, to the area of a particular local education authority in accordance with regulations; and any question under the regulations shall, in the case of a dispute, be determined by the Secretary of State."

The regulations which are there referred to are The Education (Areas to which Pupils and Students Belong) Regulations 1996. These have conveniently been referred to at the hearing as "the Belonging Regulations" and I will refer to them as such.”

He set out the relevant parts of regulation 3 and 4 and went on

“Regulation 7 is critical to the submission in particular of counsel for Staffordshire and provides:

"(1)

This regulation shall apply to the exclusion of any other regulation which would otherwise apply to such a person.

(2)

This regulation shall apply in the case of a child who is looked after by a local authority..."

[I interpose there that it is common ground before me that JL is a child who is looked after by the London Borough of Waltham Forest for this purpose.]

"(a)

for whom a statement of special educational needs is maintained under Part III of the Education Act 1993, [I interpose, as I have mentioned, that has been superseded by subsequent legislation and the reference today would be to Part IV of the 1996 Act] or

(b)

who is registered as a pupil at a special school, or

(c)

who is a patient in hospital, and receives education either in a special school established in a hospital or education referred to in section 298(1) of the Education Act 1993 otherwise than at school, or

(d)

who is a further education student.

(3)

Such a person shall be treated as belonging to the education authority area which coincides with or includes the area of the local authority which looks after him."

It is clear that, if regulation 7 is applicable in the present case, then by paragraph (3) it would follow that JL is to be treated as belonging to the education authority area of the London Borough of Waltham Forest which "looks after him".

After that statutory excursus he concluded that

“16.

Counsel for Waltham Forest submitted that regulation 23 of the 2001 Regulations was applicable in this case and could not be clearer. He also submitted that the Belonging Regulations, when properly understood in the light of the legislative history to which I
have referred, were concerned solely with determining the question of recoupment as between local education authorities and not wider questions as to which local education authority, for example, bears responsibility for maintaining a statement of special educational needs.

17.

I was referred to a number of authorities by counsel on each side but they were concerned with different statutory provisions. As far as counsel can discern, the precise issue which I have to decide has not been the subject of any previous authority directly on point. I therefore approach it in accordance with well established principles of statutory interpretation.

18.

In essence, I prefer the submissions of counsel for Staffordshire, which were supported by counsel for JL. My first reason is that the plain words of regulation 7 of the Belonging Regulations apply to this case. Those 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. In any event, the question of recoupment is now governed by a different Act, the 2002 Act and in particular section 207. Although section 492 of the 1996 Act was repealed, section 579(4) was not. Secondly, as the opening words of regulation 7 make clear in paragraph 1, that regulation applies to the exclusion of any other regulations. If it were necessary to read regulation 23 of the 2001 Regulations as being in some way in conflict with regulation 7, it would follow that regulation 7 takes priority. Thirdly, it is not in truth necessary to read the regulations as being in conflict in that way. It is possible to read the legislation as a coherent whole in the following way. (1) Regulation 7 governs the question of to which area a child belongs and this helps to determine which local education authority is responsible for maintaining a statement of special educational needs and associated duties. (2) If and when that antecedent question has been determined and a child is to be regarded as belonging to a new education authority, he or she will have moved to that new area and so regulation 23 will become applicable. As counsel for Staffordshire submitted, regulation 23 provides the machinery for transferring the documentation to the new local education authority and also for giving notice to the parents. This is why it lays down quite a short timetable for doing these things. (3) The recoupment regulations operate within their own important but limited sphere to govern financial responsibilities as between local education authorities. This does not affect the antecedent question of which local education authority is responsible for maintaining a statement of special educational needs.

19.

The fourth reason for arriving at the interpretation which I have is that that interpretation sits well, as it seems to me, with the structure of the 1996 Act, in
particular section 579(4) which provides for machinery of settlement of disputes between local education authorities by the Secretary of State. It seems sensible that Parliament should have envisaged that there should be machinery to avoid the kind of dispute that has arisen in the present case, which can only be detrimental to the interests of children. My fifth reason is that this interpretation will also serve a useful purpose in that the same authority which is responsible for a child's social services needs would be responsible for maintaining the statement of special educational needs, allowing for co-ordination between relevant officials, though no doubt in practice working closely with those who are on the ground in the area where the child is physically present.”

In the subsequent DCFS consultation paper dated 19 January 2009 on Amendments to the Belonging Regulations, the Department explained that the purpose of the proposed amendments was inter alia 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”.

In the Executive Summary it was explained that the proposed amendments

“1.1

… amend regulation 7 (“Children looked after by a local authority”) to make clear that the regulation applies to the exclusion of other regulations within the Belonging Regulations rather than all other regulations; and, most importantly, amend regulation 2 to provide that the Belonging Regulations do not apply for the purpose of determining the education authority responsible for identifying, assessing, making and maintaining statements and the performance of other functions under Part IV of the Education Act 1996 relating to children with special educational needs (SEN)”.

Of the judgment in R(L) the Department explained that

“1.2

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”.

As to the background the paper stated that

“2.1

The Education (Areas to which Pupils and Students Belong) (England) Regulations 1996 (commonly known as the “Belonging Regulations”) were made under the powers conferred on the Secretary of State by sections 569(2), 569(4) and 579(4) of the Education Act 1996. The then Department for Education and Employment’s guidance Circular 1/96 said that: “The Belonging Regulations 1996 determine to which areas pupils and students belong for the purposes of determining claims relating to inter-authority recoupment and which LEA [local education authority] is responsible for considering an application for a mandatory award”. They work in conjunction with The Education (Inter-authority Recoupment) Regulations 1994 for this purpose.

…

2.3 The case of R (on the application of L) v (1) the London Borough of Waltham Forest and (2) Staffordshire County Council concerned a LAC with an SEN statement who was placed by Waltham Forest in Staffordshire in a non 52 week placement. The case was to determine which authority was responsible for maintaining the child’s statement. The judgement said that regulation 7 of the Belonging Regulations, which says that LAC “shall be treated as belonging to the education authority area which coincides with or includes the area of the local authority which looks after him” and that “this regulation shall apply to the exclusion of any other regulation which would otherwise apply to such a person”, did not mean that it should apply to the exclusion of any other regulation in the Belonging Regulations, as the Department had intended, but to all regulations which might apply to a LAC. In effect the judgement said that the Belonging Regulations had a wider remit than just determining which authority is financially responsible in inter-authority recoupment cases and that they also determine which authority is responsible for carrying out the duties to identify a child’s SEN and, where necessary, assess, draw up and maintain the child’s statement. The effect of the judgement was that it should be the placing authority in all cases of LAC placed out of authority which should carry out these SEN functions and not just in 52 week placement cases.

2.4 Section 321 of the Education Act 1996 says that a local education authority is responsible for a child “for the purposes of this Part” [Part IV, Special Educational Needs] “if he is in their area” but does not define this. Section 207 of the Education Act 2002, construed as if it was contained in the Education Act 1996, says that: Regulations may provide, in relation to cases where any provision for education to which this section applies is made by a local education authority (in this section referred to as the ‘providing authority’) in respect of a person who belongs to the area of another local education authority [emphasis added], for requiring or authorising the other authority (in this section referred to as the ‘home authority’) to pay the providing authority [agreed amounts]. The Department’s view is that ‘belonging’ is a separate recoupment concept. The forthcoming Children, Skills and Learning Bill will address the meaning of the term “in their area”. 187. The DFCS therefore explained that the mischief at which the proposed amendment was aimed was that

“3.2

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. The Department’s view is that its guidance that in non 52 week placements it should be the authority where the child is placed which should carry out these functions and in the case of 52 week placements it should be the placing/home authority is in the best interests of LAC. Some LAC are placed out of authority at an early age before their SEN are identified. Some LAC are placed hundreds of miles from their home/placing authority making, for instance, identification or attendance at annual reviews of statements difficult for the home authority. The Department’s view is that it is better, in non-52 week placement cases, for the authority where the child is placed to identify and assess the child and decide, with its knowledge of provision in the local area, at which school the child might have their needs met, or which ‘education otherwise’ provision might be suitable, rather than the placing authority which may be far distant from where the child is. Where a child with a statement is placed in residential independent or non-maintained schools for 52 weeks a year the Department’s view is that the SEN functions are best carried out by the placing authority as the authority where the child is placed is likely to have very little or no contact with the child.”

The proposed amendment to the Belonging Regulations to give effect to that purpose was the insertion in regulation 2, after paragraph (3) of the words

“(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”.

The proposed amendment to regulation 7 to prevent it from having the overarching effect whichR(L)had found was to insert in regulation 7(1) after the words “other regulation” the words “in these Regulations”, so that regulation 7(1) now reads

In my judgment Mr Gillie is right to contend (as set out in paragraphs 139 to 141 above) that the effect of regulation 2(4) of the Belonging Regulations means 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 is clear from the Explanatory Memorandum to the 2009 Regulations which explains that:

“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”.

Thus, regulation 2(4) therefore has the effect of nullifying the earlier conclusion 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””.

However, I also accept his submission that the legal effect of regulation 2(4) is no wider than that nullification. It simply has the effect that the provisions of the Belonging Regulations do not apply to s.24 of the 2014 Act, or to put it another way, the Belonging Regulations do not dictate the meaning of s.24 of the 2014 Act.

Crucially in my judgment, however, the provision in regulation 2(4), whether in its original 2009 form or its amended 2013 version, does not say that a presence test applies nor does it say that an ordinary residence test does not apply. Indeed, it does not in terms say what test is to apply at all because it was envisaged that the meaning of the term “in their area” was to be addressed in the forthcoming Children, Skills and Learning Bill, which was never enacted.

The concept of “belonging” is a separate recoupment concept and the Belonging Regulations therefore concern inter-authority recoupment and have no wider function or remit (see R(G) at [124]).

As Mr Line put it, the Belonging Regulations are therefore not relevant to the meaning of s.24 of the 2014 Act, but that still leaves open the question of how s.24 should be interpreted.

The highwater mark of Mr Line’s submission was as I have set out in paragraph 125 above, namely that in the Council’s submission it would be inappropriate 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.