[2024] UKUT 128 (AAC)

On 26 September 2023, shortly before the hearing, Clifford Chance, who were acting pro bono on behalf of the parents, sought to adduce fresh evidence in the form of a witness statement of even date from T’s father,pursuant to Rule 15(2)(a) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the 2008 Rules”).

T’s parents submitted that, pursuant to rule 15(2)(a), the Tribunal could admit further evidence whether or not it was available to a previous decision maker or would be admissible in a civil trial in the UK. They wished to introduce the witness statement to correct an error in the decision of the Tribunal, namely that T did not meet the definition of being ordinarily resident in the Council’s area. That error failed to take account of the fact that their absence from the Council’s area was as part of a naval deployment, how the residency of the family of naval personnel on deployment was treated by the Navy and UK authorities and, consequently, how that understanding of their residency was relied upon by T’s parents themselves. The Council’s case was that T was not resident in its area and that error was of material importance to the case. Evidence on that point was therefore clearly material to the proper determination of the case, which required a determination of ordinary residence as it pertained to T’s parents, as naval personnel. (In fact, to be strictly accurate, the question or ordinary residence was not raised in the decision of the Tribunal under appeal, but in the grant of permission to appeal by Judge Ozen.) They submitted that the case was likely to be of importance and interest to other service personnel families and to local authorities with duties towards children and young people of such families. As such, a case with such importance should not be decided without reference to facts which were material to the Tribunal's determination. They submitted that they did not have the benefit of legal advice in front of the Tribunal at first instance and had only been in receipt of legal advice on a pro bono basis relatively recently. The application was therefore being made at the earliest opportunity. Whilst material to the matters in front of the Upper Tribunal, the factual information contained within the witness statement was straightforward and factual and its admission would not prejudice the Council. It would, however, significantly prejudice T’s parents and any other service personnel families who might be impacted by the determination of the Upper Tribunal in this case, should the evidence not be admitted and duly considered.

What T’s father said in that statement was that

“A.

Reasons for the Witness Statement

6.

On 14 June 2023, [Judge] Ozen … issued a decision which granted Hampshire County Council (the "LA") permission to appeal the FTT Decision to the Upper Tribunal (the "PTA Decision").

7.

In paragraph 14 of the PTA Decision, Judge Ozen concluded that "from the evidence available to [her], it does not appear that the [Respondents] retained an address in the LA’s area." The Judge noted that it therefore appears that T does not meet the definition of being ordinarily resident in the LA’s area.

8.

I am submitting this witness statement to respectfully correct Judge Ozen's inaccurate statement that my family and I did not retain an address in Hampshire. This topic did not come up during the conduct of the proceedings in front of the FTT and it didn't occur to me to raise it.

9.

After I became aware of the inaccurate statement in the PTA Decision dated 14 June 2023, I worked with the National Autistic Society to seek pro bono legal advice from solicitors at CC and a barrister from Matrix Chambers in relation to the appeal.

10.

Due to their limited availability, it has taken a number of months to identify counsel who would be available to provide legal advice and attend the upcoming appeal hearing, and who can advise on the legal issues, including the significance of the "ordinary resident" test. Upon receiving advice, the privilege over which is not waived, I submit a witness statement addressing this discrete issue, which I have endeavoured to do promptly and without delay.

B.

History of Residence in Hampshire

History of residence

[Note: I have significantly redacted the next few paragraphs, not out of any disrespect for T’s father’s significant and longstanding naval service, but to minimise the risk of T being identified]

11.

I … have been employed by the Royal Navy since February 2006.

12.

I was born and raised in my family's home in Hampshire. My dad was also in the Navy, based in Portsmouth, and my mum was from Hampshire as well so I describe myself as "Hampshire born and bred". After joining the Navy in 2006, I was based in [Scotland and Plymouth] but maintained a residential address at my parents’ house [in] Fareham, Hampshire. Hampshire has always been 'home' to me.

13.

In July 2012, my now wife … and I purchased a freehold property [in] Southsea, Portsmouth. After we married in 2013, [we] continued to live at this address.

14.

In August 2014, we purchased a freehold property [also in] Fareham. We moved into the property immediately after and lived there until my deployment to Dubai.

15.

T was born in 2015 and has lived [at our home] since birth. He attended [C] Primary School in Fareham from September 2019 to July 2021. He was issued an EHCP by the LA in October 2019, and received full educational support from the LA.

Deployment

16.

My deployment to Dubai, UAE started in July 2021 and was expected to last 3 years.

17.

Whilst I have always been based in the Portsmouth area in Hampshire, I have gone on 3 deployments (Bahrain in 2018, Scotland in 2006, Plymouth in 2008 and various 6 months deployments on ships). These were on my own without my family accompanying me. In my experience this is really common for servicemen in the Navy, more so than for the other armed forces, and the Navy provided practical and financial support for me to return back to Hampshire during those times. For example, during my deployments to Scotland and Plymouth, I would commute back from the Naval base to my residential address in Portsmouth every weekend to see my family. In the Navy, this is called "weekending", a recognised form of commuting between a naval base and home, and the Navy paid for my transportation costs of commuting back home. I've seen some recent reports on how common maintaining your home residence and "weekending" is in the Navy [this was a reference to the report at

https://nff.org.uk/wp-content/uploads/2019/06/NFF_KCMHR_Full_Report.pdf]

Presumption of return to Hampshire

18.

We went to Dubai with a very clear understanding that Hampshire remained home and we would be returning to Hampshire after the end of the deployment, because it is the only place my family has lived in and is where we intend to continue to live upon return. This is clear from the following:

18.1

We retained ownership of [our house in Fareham] and secured a tenancy contract for [it] for a term of 12 months, with a 3-month notice period. The tenancy started a few weeks before our departure to Dubai, but we remained in Hampshire until we left for Dubai, staying at my parents’ house [in] Fareham. The lease was renewed in 2022.

19.

The Navy also shared the same understanding that my family and I would return to Hampshire. The Navy offers all personnel on deployment a "get you home" allowance. My family and I were offered one free round-trip flight each from Dubai to London every year so we could visit our family in Hampshire.

20.

Hypothetically, in the case of any emergency requiring deployed personnel to vacate the country they are deployed to, the Navy would be responsible for providing us with suitable temporary accommodation while we find more permanent housing for relocation. The Navy would have to move us back to our place of work or where our family networks are. For us, that is and has always been Portsmouth. It is very clear that the Navy agrees.

Return to the UK

21.

We returned to the UK on 16 July 2023, following a shortening of my deployment in Dubai.

21.1

In early summer 2023, I was informed by the Navy of the possibility that I would complete the deployment early and return to the UK. Around the same time, the lease was up for renewal on our Hampshire property. As the end date of my deployment had not been confirmed, we were not sure if we would remain in for another year or return early. Therefore: (a) We applied to schools in both Dubai and Hampshire for T (b) We renewed the tenancy of [our home] property for 12 months to make sure that it was rented out if we were not going to come back early. It is due to expire in July 2024.

22.

Ultimately we did return early and our house will not be available until at least next summer. The Navy therefore arranged military service accommodation in our home area, [elsewhere in Fareham], which is a rental property arranged by the Navy. We plan to stay here for at least the upcoming school year because it would be good for T not to move around too much. We want T to have some stability and predictability in his routines. We expect to move back to [our own house] at some point in the future.

23.

It has been confirmed that my current role with the Navy will be based in Hampshire for at least the next 2 years. At the end of my current role in two years, I get a degree of choice in what role I go into and I hope to stay near Portsmouth. Even if I am based out of Hampshire in the future, my wife, T and our other children would remain living in our house.

C.

Status of Residence during Overseas Naval Deployment

24.

Whilst I maintained my property back in Hampshire, during our time in Dubai the Navy provided housing and education for the family, which I understand to be normal procedure for all military family deployments overseas. During this time each family member held British Diplomatic passports and we were the umbrella of the FCDO during this time on post, this was on behalf of the Royal Navy, whilst we were in the UAE. In the British Embassy there were UK based staff (diplomats) and locally employed staff. As UK-Based staff, I was a British taxpayer whilst overseas and under the rules and regulations of the UK.

25.

During the deployment, [my wife], T and I all had British diplomatic passports. We lived in Navy-assigned housing in Dubai and were treated as staff based in the UK Embassy. I was a "crown servant" and, for tax and benefit purposes, I remained a tax resident in the UK and was employed and paid by the Crown. We continued to be paid UK benefits and disability allowance for T as all military personnel deployed overseas and their accompanying immediate family members remain UK residents. Particularly in relation to the support available for T, understanding that this was the position was important to me when deciding if I was going to take my family with me to Dubai.”

The Council opposed the introduction of the new evidence.

However, at the outset of the hearing, I told the parties that in my view, given that both sides sought to have the appeal heard as in essence a test case with wider ramifications for the families of service personnel and local authorities, the additional evidence should be admitted since otherwise the case might have to be decided only on the narrow point on which the Tribunal below determined the appeal, namely the Council’s admitted failure to apply regulation 31 of the 2014 Regulations properly. In particular, what lay at the heart of the appeal was the question of whether the responsibility for the maintenance of an EHCP under s.24 of the 2014 Act if the child or young person “is in the authority’s area” and the question of whether an authority might cease to maintain an EHCP under s.45 if “the authority is no longer responsible for that child or young person” was governed by a test of ordinary or habitual residence or some other test. To determine what was being treated by both sides as a test case without the admission of obviously relevant evidence which bore on the subject of ordinary or habitual residence would have defeated the very object of the exercise since the Tribunal below had not heard any oral evidence and had not made any determination as to the question of residence.

On that basis, after a short adjournment to take instructions, Mr Line, albeit with some reluctance, agreed that the further witness statement from T’s father should be admitted and I have proceeded and determined the appeal on that basis. For the avoidance of doubt I make clear that I admit the witness statement of T’s father pursuant to rule 15(2)(a) of the 2008 Rules in accordance with the overriding objective.

In his submissions on behalf of the Council, Mr Line made four preliminary points: