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The Factual Background
The Factual Background
The factual background is set out in paragraphs 5 to 12 of the Tribunal’s statement of reasons, but for the sake of clarity it is worth reiterating that T has special educational needs arising from his diagnoses of Autistic Spectrum Disorder (“ASD”) and Global Developmental Delay (“GDD”). In August 2021 he and his family moved to Dubai due to his father’s deployment there with the Royal Navy. At that time the deployment was expected to last for three years.
On 1 April 2021 Ms Sawka, one of the Council’s case workers suggested that T’s EHCP would be “paused” until his return in summer 2024 and would be resumed when they returned, endorsing a comment made by his school’s SENCO. The view was subsequently taken by the Council that the case worker had mis-advised T’s parents on that point, of which they were subsequently informed.
On 19 November 2021, the Council gave notice of its decision to cease to maintain T’s EHCP. The reason given was that he no longer resided in the local authority’s area and that, if he returned, he would be subject to re-assessment. That was confirmed by a brief letter to the same effect on 19 January 2022. His parents appealed against that decision on 22 May 2022, although it took until 20 March 2023 for a hearing of the appeal to take place.
On 2 February 2022 the Council’s Assistant SEN Manager wrote to T’s parents to the effect that
“You are unhappy with the County Council’s decision to cease your son’s Education, Health and Care (EHC) plan and the funding that is associated with the plan. This is because of your family relocating due to your
posting overseas in the UAE for 3 years as an employee of the Royal Navy.There are two elements to this complaint that I will address. The first is the information that you have been provided with by officers of the County Council, the
second relates to the decision to cease T’s EHC plan.
Regarding the first element of your complaint, I have upheld your complaint. The reason for this is that you were provided with incorrect information by T’s
previous caseworker, Ms Jeanette Sawka. It is clear from the email you have provided that Ms Sawka advised you that the funding attached to T’s EHC plan
will ‘pause’. It is a reasonable assumption that you took this to mean the EHC plan would continue in some form and be reinstated upon a return to Hampshire.Ms Sawka no longer works for Hampshire County Council, so I am unable to discuss this with her. However, as a matter of course the SEN Service will receive a refresher training session on duties to pupils with EHC plans, covering specifically the MODLAP principles, upon moving in and out of Hampshire.
I apologise unreservedly to you that you have been provided with incorrect information and any distress this has caused.
To address the second element of your complaint, I must explain the legislative considerations for the County Council.
When a pupil is no longer resident in a particular local authority, that authority becomes no longer responsible for them. This includes where a pupil leaves the
country, including where a service child relocates. The MODLAP principles seek to facilitate continuity for a pupil, however they do not override the legislation.
Furthermore, there is no principle in the MODLAP that permits an EHC plan to be maintained while a child is overseas; EHC plans have no function outside of
England. The MODLAP does provide principles and agreements to minimise barriers to accessing education, which I will refer to later in my letter.In the event that T returns to Hampshire, which you indicate is the intention, then a new EHC assessment will be required; presuming that is the legislative
requirement at the time. This would be essential as T’s needs, as would any young person, may change over time. This applies to all English local authorities.I cannot see that the decision to cease T’s EHC plan was flawed, and as such I do not uphold this part of your complaint. I do hope that this explanation assures
you that this is not a case of the County Council reneging on an agreement; rather that you were provided with incorrect information which I have now been able to clarify for you. The County Council must work within the legislative framework and there is no power that I can determine to continue to maintain T’s EHC plan while he is not resident in the country.Summary
I have considered the impact on T returning to Hampshire and requiring a new assessment. In doing so, I have considered the MODLAP principles:• Each MODLAP local authority commits to reduce to the absolute minimum, the amount of time service children with SEND are out of education following transition to a new local authority area.
• Local authorities agree that consultation with schools for placement of a service child with SEND, will occur prior to the arrival of the family into the
area – subject to an official letter from the MOD confirming the relocation date and where all necessary records have been provided to the new local
authority at least 30 days ahead of the family’s arrival date. An expectation is implicit within this set of agreed principles, that the originating local authority or appropriate authority (including MOD schools), will ensure all necessary child records (including MOD SCANs and EHC plans) have been provided to
the new local authority within 15 days from when they first become aware of the move. This agreement is subject to parents or carers having given a minimum of 45 days’ notice to their current local authority ahead of their move.As such, upon notification of return to Hampshire and providing that the above conditions are met, a request for a new assessment for T will be considered
upon notification of a return to the authority. Furthermore, all young people have a right to a mainstream school place. Upon securing a placement for T, the County Council will offer to provide, as an exceptional agreement to T, interim funding to that school equivalent to T’s current level of EHC funding while an assessment is underway. However, I need to be clear that this offer is based on the legislation as it exists today, and that any changes made by the Department for Education are outside of the control of the County Council”.
At the time of the hearing before the Tribunal, the family were still based in Dubai. Late evidence was admitted at the hearing which indicated that the deployment would end about a year early in July 2023, but it was not completely clear where T’s father would next be deployed. It is not in dispute that the family did subsequently return to Hampshire, but that could not be known definitively at the date of the hearing.
At the hearing it was conceded by the Council that it had not fully complied with the 2014 Regulations when it ceased to maintain T’s EHC Plan. Nevertheless its position at the hearing was that the Tribunal should conclude that it was entitled to cease to maintain the ECHP because it was not able to carry out its non-delegable duties to maintain the EHCP whilst he was in Dubai and thus outside the Council’s 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