[2024] UKUT 128 (AAC)

On 29 February 20244 the parents made a further supplementary submission following new guidance from the Department of Education on that day entitled ‘Guidance for local authorities on the treatment of education, health and care plans when a child or young person moves out of or into their area’ (“the 2024 Guidance”). (Footnote: ⁴) They submitted that the new guidance supported their previous submissions and that counsel was bound to bring it to the attention of the Upper Tribunal. Although I had not made any directions for further supplementary submissions, in the light of the fact that this has taken on the nature of a test case, it seemed to me that it was appropriate to accept the further submissions by both parties.

The parents relied on the following paragraph in the new Guidance

“A local authority has discretion over whether to cease to maintain an EHC plan when they are no longer responsible for the child or young person – for example, when the child or young person moves out of the local authority’s area. There is no requirement on the local authority to cease an EHC plan in these circumstances. A local authority has the power to maintain the plan.

Where a child or young person has moved outside of England and the local authority is determining whether to cease to maintain an EHC plan, local authorities are best placed to decide what factors they need to consider. They must make decisions on a case-by-case basis. Factors that the local authority may wish to consider in making their decision in this scenario are likely to include (but may not be limited to):

• whether the move is expected to be permanent or temporary

• if the move is expected to be temporary:

• the expected length of time that the child or young person will be outside of England

• where they expect to live on return to England”

They submitted that the 2024 Guidance was entirely concordant with their position:

contrary to the Council’s contention, it was not bound to cease to maintain the plan once a child moved abroad. Instead, it had discretion to maintain it

the relevant legislation should be construed as having a test of ordinary residence with a distinction between temporary and permanent absence

they submitted that the 2024 Guidance supported their contention that the Council ought to have followed the statutory consultation procedures before reaching any decision (which it failed to do) and, further, that it therefore failed to consider material considerations before making its decision. The 2024 Guidance provided that:

“Where a local authority is considering ceasing to maintain a child or young person’s EHC plan, they must:

• inform the child’s parent or the young person that they are considering this

• consult the child’s parent or the young person

• consult the headteacher or principal of the school or the equivalent person at any other educational institution that is named in the EHC plan

Following this, if the local authority decides to cease to maintain the EHC plan, they must notify:

• the child’s parent or the young person

• the institution named in the EHC plan

• the responsible health commissioner

The local authority has various duties over notifying the child’s parent or the young person of its decision to cease to maintain the EHC plan. These include notifying them of their right to appeal that decision and the time limits for doing so. The local authority must continue to maintain the EHC plan until after:

• the end of the period allowed for bringing an appeal against its decision to stop maintaining the plan (where there is no such appeal before the end of that period)

• the appeal has been finally determined (where the parent or young person has made an appeal before the end of that period)”.