[2024] UKUT 128 (AAC)

the parents relied on s.42(5) of the 2014 Act, but the Council did not make any decision as to the school in Dubai being a suitable alternative arrangement. The decision to move to Dubai and find an alternative school for T, was made unilaterally by the parents, although of course it was acknowledged that deployment abroad was a feature of his father’s employment. Paragraphs 9.132-133 of the Code of Practice stated that it was for a local authority to determine if alternative arrangements were suitable, in the absence of which it was not relieved of its duty under s.42(2) (see White v Ealing LBC [1998] ELR 2303 at pp.223H-224A.36 In this case, the Council made no such determination. Accordingly, s.42(5) did not apply in this case, nor did the Tribunal make any finding that it did. It was also, in any event, far from clear if the consequence of s.42(5) applying would be that the s.42(2) duty was paused or frozen – as opposed to be discharged altogether (which, the Council suggested, was the more likely conclusion).

it was not clear what the purpose of maintaining the EHCP (even in a paused or frozen state) would be in T’s circumstances. His absence from Hampshire was for a period of two years. His SEN would obviously need to be re-assessed upon his return after this period, with the EHCP under appeal being significantly out of date by that point and a new school would need to be found for him (as indeed transpired). There was no dispute that, upon returning to Hampshire, s.24 of the 2014 Act applied again to T’s circumstances. On the facts of the case, the Council was also committed to providing additional support to T when he returned, to mitigate or remove any disadvantage caused by his absence.

the parents cited the Armed Forces Act 2006. That was not referred to by the Tribunal in its decision, nor was it raised at the hearing before it; it was therefore irrelevant to the appeal. In any event, The Council submitted that s.343AA(1) of the Act did anything more than create a “have regard duty”, in relation to which the Tribunal had no jurisdiction.