[2024] UKUT 128 (AAC)

Thirdly, Mr Line submitted that the Tribunal’s decision was erroneous because it was influenced by irrelevant considerations, which were:

as per Grounds 1 and 2, it wrongly determined the appeal in the parents’ favour because of an admission by the Council that it had not consulted in accordance with regulation 31.

at paragraph 25-26, it made a comparison between children or young people who were abroad and those who moved between local authority areas. The two situations were not analogous. Regulation 15 of the 2014 Regulations catered for transfer of EHCPs where a child or young person moved to a different local authority area. It had no relevance to a situation where a child or young person moved abroad - beyond the territorial scope of the 2014 Act. The Tribunal essentially concluded that it was “unfair” that there were protections afforded to families in an inter-local authority transfer case, but not when families moved abroad, but fairness or equity was not a relevant consideration. Parliament had created protection in one situation, but not the other. It was for the Tribunal to apply the law as it stood, not to reach a decision which it thought equitable even though it did not reflect the law (i.e. pausing or freezing the s.42(2) duty). In any event, T’s situation was not unfair. Local authorities could not be expected to have legal obligations in relation to EHCPs which were impracticable to maintain because a child or young person was abroad for a lengthy period. If the child or young person returned to the local authority area, then s.24 of the 2014 Act would apply again and the identification and assessment duties in ss.22 and 36 would “bite”.

further as to paragraphs 25-26, the Tribunal wrongly assumed that regulation 15 of the 2014 Regulations guaranteed continuity of EHC provision for children or young people when they moved between local authority areas. That was incorrect, because the “new” local authority retained the power to re-assess or review and change the content of the EHCP (regulations 15(3)(b), (4)(b)-(c) and (5)). It would also be open to a new local authority to cease to maintain under s.45.

the Tribunal wrongly concluded that T would encounter detriment if he were required to undergo a new EHC needs assessment upon his return. However, his EHCP could not reasonably be subject to annual review whilst he was abroad for two years. During that period the EHCP inevitably became out of date. It would always have been necessary to re-assess him and produce a new EHCP on his return anyway. Pausing or freezing his EHCP thus did not actually create any benefit to him. Furthermore, the Council had put in place adjustments for T because he was a service child. As the Tribunal noted at paragraph 27 of the decision, the Council was committed to providing funding equivalent to that catered for in his old EHCP when he returned, pending a fresh EHC needs assessment. It had also given assurances that it would complete the assessment expeditiously.