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The SEND Code Of Practice
The SEND Code Of Practice
Again so far as is material, the SEND Code of Practice provides that
“Maintaining special educational provision in EHC plans
Relevant legislation: Section 42 of the Children and Families Act 2014
9.133 Where the child’s parent or the young person makes alternative arrangements, the local authority must satisfy itself that those arrangements are suitable before it is relieved of its duty to secure the provision. It can conclude that those arrangements are suitable only if there is a realistic possibility of them being funded for a
reasonable period of time. If it is satisfied, the authority need not name its nominated school or college in the EHC plan and may specify only the type of provision. This is to avoid the school or other institution having to keep a place free that the child’s parent or the young person has no intention of taking up.10 Children and young people in specific
circumstances…
10.8 A significant proportion of looked after children live with foster carers or in a children’s home and attend schools in a different local authority area to the local
authority that looks after them. Local authorities who place looked after children in another authority need to be aware of that authority’s Local Offer if the children haveSEN. Where an assessment for an EHC plan has been triggered, the authority that carries out the assessment is determined by Section 24 of the Children and Families Act 2014. This means that the assessment must be carried out by the authority where the child lives (i.e. is ordinarily resident), which may not be the same as the authority that looks after the child. If a disagreement arises, the authority that looksafter the child, will act as the ‘corporate parent’ in any disagreement resolution, as described in Chapter 11.…
Children of Service personnel
10.53 The Children’s Education Advisory Service (CEAS) within the Ministry of Defence provides advice and guidance to Service parents, educational establishments and local authorities on educational issues relating to Service children, including issues
relating to SEN. Service Children’s Education (SCE) provides mainstream education for Service children in some overseas locations. As the education, health and socialcare resources available overseas are different from the UK, MoD services complete an MoD Assessment of Supportability Overseas (MASO) for all Service children with complex needs before an overseas posting is agreed. Personal Budgets agreed in
the UK cannot be transferred to SCE locations overseas.10.54 Children whose parent(s) are Service personnel may face difficulties that are unique to the nature of their serving parent’s employment. These needs may arise from:
• service induced mobility: Service personnel may relocate more often than the rest of the population and, sometimes, at short notice. Such transitions should be well managed to avoid Service children with SEN
experiencing delays in having their needs assessed and met• the deployment of serving parents to operational arenas, while not constituting SEN in itself, may result in a Service child experiencing anxiety, dips in educational performance and/or emotional difficulties. Children may
also be affected similarly by siblings’ deploymentAction to take in respect of Service children with SEN
10.55 In having regard to this Code of Practice and in meeting the aspirations of the Armed Forces Covenant, which attempts to eliminate or mitigate some of the potentialdisadvantages faced by Service families, all those with statutory responsibilities towards Service children with SEN should ensure that the impact of their policies,administrative processes and patterns of provision do not disadvantage such children because of their Service-related lifestyle”.
- Heading
- Introduction
- Background
- The Tribunal’s Decision
- Permission to Appeal
- Ground 1: the Tribunal erred by concluding that the Council was not entitled to cease to maintain T’s EHC Plan. T was no longer in the Council’s area; therefore the decision to cease to maintain was c
- The Legislative Framework
- “ Interpretation
- The SEND Code Of Practice
- The Armed Forces Covenant: the Council
- The Factual Background
- The Extent of the Issue
- The New Evidence
- the s.42(2) duty had been described as absolute and non-delegable: R(M) v Harrow LBC [1997] ELR 62, R(N) v North Tyneside BC [2010] EWCA Civ 135 at [27], R(ZK) v Redbridge LBC [2020] EWCA Civ 1597 at
- regulation 2(4) of the 1996 Regulations was clear that the definition in regulation 2(2) was confined to the application of the 1996 Regulations and had no bearing on the question of which local autho
- the role of the Tribunal in an appeal was to stand in the local authority’s shoes as at the date of the hearing. It performed an inquisitorial function and remade the decision, as opposed to performin
- The First Ground of Appeal
- The Second Ground of Appeal
- The Third Ground of Appeal
- as per Ground 4, the Tribunal erroneously concluded that an EHCP could be paused or frozen The Fourth Ground of Appeal
- Judge Ozen considered that it was relevant to ask whether the Council remained responsible for T during his time in Dubai. She cited the 1996 Regulations as being relevant to that question, a position
- in any event, in R(G) it was held that it was for a local authority to determine whether an individual lived in its area (for the purposes of a provision in the predecessor legislation which was equiv
- 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
- Disposal
- at the time of the hearing, and when permission to appeal was granted, T was still in Dubai
- S.45 of the 2014 Act (“the statutory procedure issue”)
- The legislative provisions governing an authority’s decision to cease maintaining an EHCP
- The decision below
- “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
- S.24 of the 2014 Act (“the local authority area issue”)
- Purported jurisdictional issue
- R(G) was not authority for the proposition that the question whether a child lived in a local authority’s area could only be challenged by judicial review. That case simply stated that the question wa
- the Tribunal plainly was empowered to determine whether a child was or was not in the local authority’s area as part of its jurisdiction under the 2014 Act . That was a necessary and natural corollary
- Ordinary residence test
- the regulation determined residence expressly according to a test of ordinary residence. That was consistent with the other legal provisions set out above. It was further evidence that s.24 imposed a
- the residence of a child would almost always be aligned with the residence of his primary carer (save for some very narrow exceptional circumstances). It would be illogical for the question of residen
- Temporary absence
- the only place where T and his family had lived was Hampshire: “ We went to Dubai with a very clear understanding that Hampshire remained home and we would be returning to Hampshire after the end of t
- the Navy acknowledged that T’s home and family remained in Hampshire: “ The Navy also shared the same understanding that my family and I would return to Hampshire. The Navy offers all personnel on dep
- T’s family and social network was in Hampshire: “ Hypothetically, in the case of any emergency requiring deployed personnel to vacate the country they are deployed to, the Navy would be responsible fo
- the Navy recognised that T’s home area was Hampshire and had arranged for replacement accommodation there for him on return from Dubai: “ Ultimately we did return early and our house will not be avail
- The Second Ground of Appeal
- the judgment below had to be considered holistically: it was clear that the Tribunal considered all the documentation before it and turned its mind to questions of law and fact. It formed its own view
- The Third Ground of Appeal
- The Fourth Ground of Appeal
- Finding of prejudice was permissible
- the Council asserted that “ Contrary to the Tribunal’s analysis, it is not ‘unfair’ that individuals in the latter scenario lose their right to an EHC Plan – that is just a consequence of them moving
- the Council asserted that the “ Tribunal appears to have assumed that transferring an EHC Plan under regulation 15 procedure guarantees continuity of provision in the terms of the inherited EHC Plan ”
- Pause of EHCP
- the Code of Practice provided, inter alia, that local authorities should ensure that their provision did not disadvantage children because of their parents’ lifestyle, including deployment and to cons
- the Armed Forces Covenant contained in the 2006 Act required the local authority, when exercising that discretionary power, to have due regard to the unique obligations of, and sacrifices made by, the armed forces
- s.45(1) bestowed a discretion on a local authority to cease to maintain an EHCP: “a local authority may cease to maintain an EHC plan for a child”. That was also, apparently, the view of the Secretary
- the question before the Tribunal was whether the Council came to the correct conclusion that “T is no longer in full-time education or training in England from September 2021. Accordingly, T’s Educati
- the Council precluded itself from answering the question of suitable alternative provision by (i) contravening regulation 31 of the 1996 Regulations by failing to consult with the parents and (ii) by
- The 1996 Regulations/The Belonging Regulations
- the effect of the amendment effected by the insertion of regulation 2(4) in light of that background the statement in paragraph 2.4 of the consultation paper to the effect that “The forthcoming Children, Skills and Learning Bill will address the mean
- 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”
- The Council’s Further Submissions
- in R(L) the Court at paragraph 17 expressly found that regulation 7 of the Belonging Regulations applied on the facts. (Footnote: 1 ) However, in the present case, the parents were not able properly t
- the decision was inconsistent with R(G) , a later authority. It was evident from the judgment in R(G) that the High Court heard full argument about ordinary/habitual residence principles and cited rel
- the Belonging Regulations had been amended since the decision in R(L) by insertion of regulation 2(4). The case of R(G) considered the Belonging Regulations in their amended form, which was another re
- The 2009 consultation paper
- the intention, but in any event certainly the form , of the amendment to the Belonging Regulations implemented through regulation 2(4) was completely at odds with that approach The effect of the amendment effected by the insertion of regulation 2(4)
- The statement in paragraph 2.4 of the consultation paper
- The DCFS 2009 Guidance
- Conclusion
- The Parents’ Submissions
- s.24(1) of the 2014 Act should be interpreted as denoting a test of ordinary residence the judgment in R(L) was no longer good law. The legal effect of regulation 2(4) of the Belonging Regulations was simply that they did not dictate the meaning of s
- Submissions
- guidance from a public authority about the interpretation to be given to a statutory term might be persuasive authority: Hyman and another v Revenue and Customs Commissioners [2022] EWCA Civ 185 , [20
- The Parents’ Further Submissions
- The Council’s Further Submissions
- there was no reference to the Belonging Regulations – supporting the Council’s position that they were irrelevant
- the Department supported the Council’s contention that the decision to cease to maintain was discretionary and could arise in situations where a family moved abroad (page 4 of the Guidance). Consisten
- it did not consult with T’s parents as required by regulation 31(1)(b)
- disagreement resolution services; and advice and information about matters relating to the special educational needs of children and young people; and
- Jurisdiction
- R(G)
- The Belonging Regulations
- the intention, but in any event certainly the form , of the amendment to the Belonging Regulations implemented through regulation 2(4) was completely at odds with that approach
- A Child “in the Authority’s Area”
- R(Stewart)
- The Armed Forces Act 2006
- https://researchbriefings.files.parliament.uk/documents/CBP-9072/CBP-9072.pdf .)
- Application of the Ordinary/Habitual Residence Test
- The Second Ground of Appeal
- The Third Ground of Appeal
- The Fourth Ground of Appeal
- Conclusions