[2024] UKUT 128 (AAC)

Mr Line submitted that at paragraphs 24-25 the Tribunal held that the Council was not entitled to cease to maintain, because (which was not in dispute) there had been no consultation in accordance with regulation 31 of 2014 Regulations.

As was clear from s.24 of the 2014 Act, the duties under Part 3 of the Act only applied to a local authority in relation to a child or young person where that individual was “in the authority’s area”.S.45(1)(a) correspondingly stated that a local authority might cease to maintain an EHCP where it was no longer responsible for a child or young person. Those provisions were interrelated, such that, if an individual were no longer in a local authority’s area, then the local authority was no longer responsible for him and that created a lawful basis on which it might exercise discretion to cease to maintain his EHCP.

In T’s situation, he ceased to be in the Council’s area when he moved to Dubai. The above analysis applied and that created a lawful basis on which the Council could cease to maintain his EHCP. As at the time of the hearing in March 2023, when the Tribunal was standing in the Council’s shoes, T remained in Dubai, where he had been situated since around August 2021. He was not due to return until July 2023, but it was not clear where he would return. Thus the circumstances which applied when the Council took its decision to cease to maintain also applied when it heard the appeal.

For the Tribunal to conclude that the Council was not entitled to cease to maintain the EHCP because of procedural defect prior to that decision and that decision was thereby invalidated was circular. If that were right, then then there would not have been a decision against which to appeal and the Tribunal would not have had jurisdiction to determine the appeal either.

Moreover, the Tribunal had no jurisdiction to determine whether there had been a public law breach in relation to compliance with the 2014 Regulations. Although the Council made no admission in relation to the point, procedural impropriety might, depending on circumstances, be capable of invalidating a cease to maintain decision made by a local authority under s.45 of the 2014 Act. However, to establish that, an affected person would need to commence judicial review proceedings and obtain a declaration and/or quashing order from the High Court. In circumstances where that had not been done (as here), then the decision to cease to maintain the EHCP stood as lawful because it had not been overturned by the High Court, but instead the parents had submitted an appeal under s.51 of the 2014 Act.

As to s.45(4) of the 2014 Act, that was a protective provision which merely delayed the implementation of a local authority’s decision to cease to maintain until such point as the time for appealing had expired or, if there had been an appeal, until the appeal was finally determined. That did not give scope for the Tribunal to order that the maintenance of an EHCP should be paused or frozen after the determination of an appeal in an appellant’s favour. Nor did it provide a basis for the Tribunal to uphold the appeal in a situation where, as here, s.24 of the 2014 Act did not apply, thus justifying the Council’s decision to cease to maintain.

S.45(5) was an enabling provision which permitted the making of regulations inter alia in relation to the procedure to be followed by a local authority when determining whether to cease to maintain an EHCP. It did not create a freestanding mandatory duty in relation to the procedure created by regulation 31 pursuant thereto. It was accepted that regulation 31(1) stated that there “must” be a consultation before a cease to maintain decision was made, but, as above, there was no public law challenge to the non-compliance with that provision and the prior procedural failing could not invalidate a decision which had then been appealed.

In the circumstances, prior procedural failings could not create a basis for the Tribunal to conclude that the Council’s decision was invalidated or for the appeal to be determined in the parents’ favour. The only proper conclusion for the Tribunal to reach was that, notwithstanding the admitted procedural failings, the Council had ceased to maintain T’s EHCP and it was for the Tribunal to determine the appeal against that decision in the ordinary way as at the date of the hearing. As T was residing in Dubai, then s.45(1)(a) was still engaged, meaning that the appeal should have been dismissed.