[2024] UKUT 128 (AAC)

the position given that that legislative amendment was apparently not made good

the DCFS 2009 “Guidance on Looked After Children with Special Educational Needs placed out-of-authority”.

So far as the legislative history of the relevant Belonging Regulations is concerned, the interpretation provision in the Regulations in their original form stated that

“(2)

References in these Regulations to the place where a person is ordinarily resident are references to the address where that person is habitually and normally resident apart from temporary or occasional absences, except that no school pupil shall be treated as being ordinarily resident in the area of an education authority by reason only of his residing as a boarder at a school which is situated in the area of that authority.

(3)

References in these Regulations to the person responsible for a school pupil are to—

(a)

the parent with parental responsibility for him,

provided that if the parents of a school pupil with parental responsibility for him live in different education authority areas—

(i)

the person responsible for the pupil shall be the parent with parental responsibility for him with whom the pupil is habitually and normally resident,

(ii)

if the pupil is habitually and normally resident with more than one parent with parental responsibility for him, the person responsible for the pupil shall be the parent who is ordinarily resident nearest to the school attended by the pupil or to the place at which the pupil receives education otherwise than at school,

(iii)

if the pupil is not habitually and normally resident with a parent with parental responsibility for him, the person responsible for the pupil shall be the parent who is ordinarily resident nearest to the school attended by the pupil or to the place at which the pupil receives education otherwise than at school; or

(b)

where there is no parent with parental responsibility for him, to the person (not being a local authority) who has care of him when he is not attending school or living in boarding accommodation or in hospital”.

Regulation 2 was amended by regulation 2(3) of the Education (Areas to which Pupils and Students Belong) (Amendment) (England) Regulations 2009 which provided (with effect from 24 June 2009) that

“(3)

In regulation 2, after paragraph (3) insert—

“(4)

These Regulations do not apply for the purpose of determining which authority’s area a child is in for the purposes of section 321(3) of the Education Act 1996.””.

The new regulation 2(4) was itself amended by regulation 5(2) of the Special Educational Needs (Consequential Amendments to Subordinate Legislation) Order 2014 (with effect from 1 September 2014) to the effect that

“(2)

In regulation 2(4) (interpretation) insert at the end “and section 24 of the Children and Families Act 2014””,

so that regulation 2(4) now reads

“(4)

These Regulations do not apply for the purpose of determining which authority’s area a child is in for the purposes of section 321(3) of the Education Act 1996 and section 24 of the Children and Families Act 2014”.

My directions were not a general invitation to reargue what had already been argued and to the extent that paragraphs 3 to 13 of the Council’s supplementary submissions and paragraph 4 of the parent’s supplementary submissions seek to reargue the respective cases by way of summary I have not set them out here.