[2024] UKUT 128 (AAC)

So far as material, the Children and Families Act 2014 (“the 2014 Act”) provides that

“22 Identifying children and young people with special educational needs and disabilities

A local authority in England must exercise its functions with a view to securing that it identifies—

(a)

all the children and young people in its area who have or may have special educational needs, and

(b)

all the children and young people in its area who have a disability.

…

24 When a local authority is responsible for a child or young person

(1)

A local authority in England is responsible for a child or young person if he or she is in the authority's area and has been—

(a)

identified by the authority as someone who has or may have special educational needs, or

(b)

brought to the authority's attention by any person as someone who has or may have special educational needs.

(2)

This section applies for the purposes of this Part.

…

42 Duty to secure special educational provision and health care provision in accordance with EHC Plan

(1)

This section applies where a local authority maintains an EHC plan for a child or young person.

(2)

The local authority must secure the specified special educational provision for the child or young person.

…

(5)

Subsections (2) and (3) do not apply if the child's parent or the young person has made suitable alternative arrangements.

(6)

“Specified”, in relation to an EHC plan, means specified in the plan.

…

45 Ceasing to maintain an EHC plan

(1)

A local authority may cease to maintain an EHC plan for a child or young person only if—

(a)

the authority is no longer responsible for the child or young person, or

(b)

the authority determines that it is no longer necessary for the plan to be maintained.

…

(4)

A local authority may not cease to maintain an EHC plan for a child or young person until—

(a)

after the end of the period allowed for bringing an appeal under section 51 against its decision to cease to maintain the plan, where no such appeal is brought before the end of that period;

(b)

after the appeal has been finally determined, where such an appeal is brought before the end of that period.

(5)

Regulations may make provision about ceasing to maintain an EHC plan, in particular about—

(a)

other circumstances in which it is no longer necessary for an EHC plan to be maintained;

(b)

circumstances in which a local authority may not determine that it is no longer necessary for an EHC plan to be maintained;

(c)

the procedure to be followed by a local authority when determining whether to cease to maintain an EHC plan.

…

51 Appeals

(1)

A child's parent or a young person may appeal to the First-tier Tribunal against the matters set out in subsection (2), subject to section 55 (mediation).

(2)

The matters are—

…

(f)

a decision of a local authority under section 45 to cease to maintain an EHC plan for the child or young person.

…

83 Interpretation of Part 3

…

(6)

A reference in this Part to a child or young person who is “in the area” of a local authority in England does not include a child or young person who is wholly or mainly resident in the area of a local authority in Wales or who would be wholly or mainly resident in the area of a local authority in Wales were it not for provision secured for the child or young person under Part 2 of the Additional Learning Needs and Education Tribunal (Wales) Act 2018”.

The Special Educational Needs and Disability Regulations 2014 (“the 2014 Regulations”), so far as material, provide that

“Transfer of EHC plans

15(1) This regulation applies where a child or young person in respect of whom an EHC plan is maintained moves from the area of the local authority which maintains the EHC plan (“the old authority”) into the area of another local authority (“the new authority”).

(2)

The old authority shall transfer the EHC plan to the new authority (“the transfer”) on the day of the move or, where it has not become aware of the move at least 15 working days prior to that move, within 15 working days beginning with the day on which it did become aware.

(3)

From the date of the transfer—

(a)

the EHC plan is to be treated as if it had been made by the new authority on the date on which it was made by the old authority and must be maintained by the new authority; and

(b)

where the new authority makes an EHC needs assessment and the old authority has supplied the new authority with advice obtained in pursuance of the previous assessment the new authority must not seek further advice where the person providing that advice, the old authority and the child’s parent or the young person are satisfied that the advice obtained in pursuance of the previous assessment is sufficient for the purpose of the new authority arriving at a satisfactory assessment.

(4)

The new authority must, within 6 weeks of the date of the transfer, inform the child’s parent or the young person of the following—

(a)

that the EHC plan has been transferred;

(b)

whether it proposes to make an EHC needs assessment; and

(c)

when it proposes to review the EHC plan in accordance with paragraph (5).

(5)

The new authority must review the EHC plan in accordance with section 44 of the Act before the expiry of the later of—

(a)

the period of 12 months beginning with the date of making of the EHC plan, or as the case may be, with the previous review, or

(b)

the period of 3 months beginning with the date of the transfer.

(6)

Where, by virtue of the transfer, the new authority comes under a duty to arrange the child or young person’s attendance at a school or other institution specified in the EHC plan but in the light of the child or young person’s move that attendance is no longer practicable, the new authority must arrange for the child or young person’s attendance at another school or other institution appropriate for him or her until such time as it is possible to amend the EHC plan.

(7)

Where, by virtue of the child or young person’s move, another commissioning body becomes the responsible commissioning body for that child or young person, the original responsible commissioning body must notify the new responsible commissioning body of the move on the day of the move or where it has not become aware of the move at least 15 working days prior to that move, within 15 working days beginning on the day on which it did become aware.

(8)

Where it is not practicable for that new commissioning body to arrange the health care provision specified in the EHC plan, it must, within 15 working days beginning with the date on which it became aware of the move, request that the new local authority makes an EHC needs assessment or reviews the EHC Plan, and where the new local authority receives such a request it must comply with that request.

…

Procedure for determining whether to cease to maintain EHC plan

31(1) Where a local authority is considering ceasing to maintain a child or young person’s EHC plan it must—

(a)

inform the child’s parent or the young person that it is considering ceasing to maintain the child or young person’s EHC plan; and

(b)

consult the child’s parent or the young person;

(c)

consult the head teacher, principal or equivalent person at the educational institution that is named in the EHC plan.

(2)

Where, following that consultation the local authority determines to cease to maintain the child or young person’s EHC plan, it must notify the child’s parent or the young person, the institution named in the child or young person’s EHC plan and the responsible commissioning body of that decision.

(3)

When notifying the child’s parent or the young person of its decision to cease to maintain the EHC plan, it must also notify them of—

(a)

their right to appeal that decision;

(b)

the time limits for doing so;

(c)

the information concerning mediation, set out in regulation 32; and

(d)

the availability of—

(i)

disagreement resolution services; and

(ii)

advice and information about matters relating to the special educational needs of children and young people; and

(e)

the First-tier Tribunal's power to make recommendations under the Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017.

The Education (Areas to which Pupils and Students Belong) Regulations 1996 (“the 1996 Regulations” or “the Belonging Regulations”) provide that