[2024] UKUT 128 (AAC)

The Tribunal correctly identified the relevant statutory provisions (i.e. s.45 and regulation 31 at paragraphs 32–33of its judgment. It found that “having failed to comply with the mandatory requirements of reg. 31, the LA cannot cease to maintain T’ s EHCP, even at the conclusion of this appeal”. The parents submitted that that analysis was correct for the following reasons.

First, there was no reason to depart from the plain, mandatory language of the legislation. S.45(5) rendered the discretion in s.45(1) of the 2014 Act subject to the 2014 Regulations. The use of the words “to be followed by a local authority” in s.45(5)(c) denoted a mandatory step; if it were otherwise, permissive language would have been used.

That submission was supported by the Explanatory Memorandum to the 2014 Regulations at paragraph 2.1, which stated that the purpose of the Regulations was to set out “the detailed requirements on local authorities for assessing children and young people’s education, health and care needs and where necessary drawing up Education, Health and Care plans”. The provisions of regulation were written in mandatory terms (“must”). All the relevant legislative provisions therefore pointed in the same direction: the local authority might take the decision to cease to maintain an EHCP, but only a decision taken on mandated grounds according to a mandated process would be valid.

Second, the steps set out by regulation 31(consultation, notification and the provision of information about how to appeal) were all integral to the effectiveness of the decision itself. That strongly suggested that the local authority’s compliance with regulation 31 was a condition precedent for a valid exercise of its decision pursuant to s.45(1):