[2024] UKUT 128 (AAC)

The statement at paragraph 2.4 of the consultation document was made in the context of the consultation rationale more generally, i.e. to reverse the effect of R(L). To the Council’s knowledge, the definition of “in the authority’s area” in s.24 of the 2014 Act was not subject to any further definition, save except for s.83(6):

“A reference in this Part to a child or young person who is “in the area” of a local authority in England does not include a child or young person who is wholly or mainly resident in the area of a local authority in Wales.”

That was likely to be aimed at the fact that the equivalent devolved SEND system in Wales was governed by a distinct legislative regime to which the 2014 Act did not apply and therefore that qualification was of no assistance to the issue in the present appeal.

Given that (i) the Belonging Regulations expressly applied a test of ordinary/habitual residence, (ii) the clear effect of regulation 2(4) was that the Belonging Regulations (and, thus, the ordinary residence test applied in them) was not relevant to the approach under s.24 of the 2014 Act and (iii) the ordinary/habitual residence approach was rejected by the High Court in R(G), the only safe conclusion which the Upper Tribunal could reach was that an ordinary/habitual residence test was not applicable to any question arising under s.24 of the 2014 Act.

The fact that Parliament might not have followed through on a possible intention to define the term ‘in the Local Authority’s area’ more specifically was, ultimately, irrelevant to the present appeal, because the Upper Tribunal must apply the statutory language which Parliament chose to adopt in s.24 of the 2014 Act as it found it. But it was certainly reasonable to infer that, if Parliament had wanted to use the terminology of ordinary/habitual residence in s.24, it could have done so in clear and unambiguous terms. Therefore, the absence of such wording must be taken to be deliberate. It would not be appropriate for the Upper Tribunal to impose a test on s.24 which went against the grain of what could be reasonably ascertained of Parliamentary intention.

There was nothing further to add to that question beyond what had already been stated immediately above.