[2024] UKUT 128 (AAC)

“the process of consulting the child and obtaining their views is integral to the decision-making processes of the local authority” under s.45(1),see R(Milburn) at [45].

upon the presentation of an in-time appeal, the ceasing decision was suspended and had no legal effect until the appeal was determined. The requirements of notification and information imposed by regulation 31ensured that all parents knew of their right to appeal and could trigger the suspension of the local authority’s decision. In that respect the procedure mandated by regulation 31 went to the very heart of the effectiveness of a decision under s.45(1) and was integral to it.

In the instant case, the Council took the decision to cease maintaining the EHCP without any consultation and notified the parents without alerting them to their right to appeal to the Tribunal (see the letters of 19 November 2021 and 19 January 2022).

Third, the protective nature of the legislative regime also supported the parents’ submission. The purpose of the legislation was the welfare of children and the purpose of s.45 was to protect children with SEN from having their special educational provision withdrawn without proper consideration by the local authority. That tended towards a protective construction of s.45(1) and (5): proper consideration by the local authority was secured by the fact that, without it, its decision would be invalid.

For those reasons alone, the parents submitted that the Tribunal should dismiss the appeal: it was incapable of disturbing the primary conclusion of the Tribunal.

Without prejudice to that position, they set out their submissions on the rest of the grounds of appeal below. In summary, the judgment below disclosed no error of law and the Council’s challenge was, in reality, nothing more than a disagreement with the Tribunal’s secondary conclusions.