[2024] UKUT 128 (AAC)

So far as the fourth ground of appeal is concerned, I accept Mr Gillie’s submissions as set out in paragraph 101 above that the conclusions which the Tribunal reached about the significant disadvantage to T in paragraph [26] of its decision were entirely open to it as a matter of fact and law for the reasons which he gave, namely that not maintaining the EHCP while T was abroad, by reason of his father’s naval deployment, put him at a disadvantage compared to children who simply moved between local authorities in the UK. The particular disadvantage which the Tribunal identified (and which it was entitled to identify) was set out in the penultimate sentence of paragraph 34, namely the risk that

“to require T to commence the process of applying for an EHCP afresh on the family’s return to the UK, may well result in T being without the provision he requires for a considerable portion of that academic year”.

It is true that the Council had sought to ameliorate that position by virtue of the assurances which it gave as to providing funding equivalent to that catered for in his old EHCP when he returned, pending a fresh EHC needs assessment, but as the Tribunal noted in paragraph [27] that still placed him at a significant disadvantage due to the fact that his father might yet be posted to a different area in the UK and T would have to start the EHCP application process in that new local authority area with no guarantee of funding in the meantime. By contrast, if the Council simply maintained the status quo, T’s EHCP would be transferred to the new local authority pursuant to regulation 15 of the 2014 Regulations. Moreover, there would be no guarantee if similar cases arose with other service families in other local authority areas in the future that another local authority would commit to providing additional support to a returning service child on his return to the UK to mitigate or remove any disadvantage caused by his absence.

As to the question of “freezing” or “pausing” the EHCP, I agree with Mr Line that those words do not appear in either the 2014 Act or any of the subordinate Regulations, but that does not assist him. What the Tribunal was plainly saying was that, in the circumstances of T’s case, the Council could maintain the EHCP, but that it was not obliged to take steps to secure the provision specified within it.

I accept that the s.42(2) duty is an absolute one (in the sense that it is not merely a “best endeavours” duty laid on a local authority) and that the duty is non-delegable, but I am satisfied that the 2014 Act permits a local authority in circumstances such as these to maintain an EHCP without breaching its statutory duty. Mr Line raised the spectre of the local authority being placed in breach of statutory duty by the Tribunal’s decision, but it seems to me that the reality is that no action would, or could sensibly, be taken by a child’s parents against the local authority in circumstances such as these if it simply maintained the status quo pending the family’s return to the UK at the end of the deployment and that the problem which Mr Line sought to raise was in reality something of a chimera.

The provisions of s.45(1) bestow a discretion on the authority to cease to maintain an EHCP, not an obligation on it to cease to maintain it. As the Department of Education itself observed, rightly in my judgment (see the email of 25 April 2022)

Moreover, by virtue of s.42(5) of the 2014 Act, the Council was not obliged to “secure the specified special educational provision” in the EHCP if “the child's parent has made suitable alternative arrangements”. Mr Line contended, which I accept, that it was for the local authority to satisfy itself that suitable alternative provision had been made and the Council in the present case had not done so (see paragraph 58(7) above).

Nor did Mr Gillie dispute that, but I agree with him that that does not assist the Council for the reasons which he gave as set out in paragraph 106 above, not least because the Council had precluded itselffrom considering and answering the question of suitable alternative arrangements, firstly by contravening regulation 31 of the 1996 Regulations by failing to consult with the parents and secondly by erroneously stopping its analysis prematurely at the mere fact that T had been transferred to Dubai. In those circumstances it would not be permissible or proper for the Council to rely on its own breaches of duty to benefit from its own failure.

If therefore there are circumstances in which an EHCP might be maintained, but temporarily not implemented, the Council’s argument to the contrary must fall.

The question of whether there was suitable alternative provision has now fallen by the wayside in any event, but if it had been a live issue at the time of the hearing, it could either have been determined by the Council on review or assessment of the EHCP or by the Tribunal pursuant to its power to amend the educational provision in the EHCP and to make any other consequential amendments under regulation 43(2)(f) of the 2014 Regulations.