[2024] UKUT 128 (AAC)

The short point is that what is said in the third ground of appeal does not vitiate the decision of the Tribunal because what was said in paragraphs [25-27] of its decision was obiter and not part of the ratio of the case, the Tribunal having made it clear at the outset of paragraph [25] that, given its conclusions in paragraph [24] of the decision, it need go no further in deciding the merits of the appeal.

However, in the event that those paragraphs do form an additional part of the ratio of the case, I am nevertheless satisfied that the challenge of the third ground of appeal fails for the following reasons:

for the reasons stated above in relation to the first ground of appeal, the Tribunal was not wrong to determine that failure to comply with the mandatory provisions of regulation 31 of the 2014 Regulations was fatal to the Council’s decision

there was no finding of “unfairness” on the part of the Tribunal in paragraphs [25] and [26] nor was the Tribunal suggesting that “fairness” or “equity” was a relevant consideration. What the Tribunal was doing in paragraph [25] of the decision was accurately illustrating the potential difference in treatment between a family moving to a different local authority in the country (when the EHCP would be transferred to another local authority) and one being posted overseas with the armed forces (when, on the Council’s argument, the EHCP would cease to be maintained). That would run counter to paragraph 10.55 of the Code of Practice which stated that

“In having regard to this Code of Practice and in meeting the aspirations of the Armed Forces Covenant [which the Council had signed in June 2011, see paragraph 17 above], 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”.

the Tribunal did not suggest or assume that transferring an EHCP guaranteed continuity of provision. I accept what is said by Mr Line as set out in paragraph above 53(3) above, namely that the new local authority would retain the power to reassess or review and change the content of the EHCP, but the Tribunal never stated in paragraph [26] that transferring an EHCP guaranteed continuity of provision.

the findings in paragraph [27] were open to the Tribunal to make on the material before it and in the circumstances as at the date of the decision. The Tribunal rightly recorded that the Council had made an offer that it would commit to providing T with the funding previously in place under his EHCP until a new EHCP process could be completed. However, at that time, and before the family’s early return to the UK, that would potentially have placed T at significant disadvantage in the event that his father, as a serviceman, might yet be posted to a different local authority areas within the UK, whereupon T would have had to start the EHCP application process in the new local authority area with no guarantee of funding in the meantime. In the circumstances which happened, the family returned to the same area and the Council completed the assessment for his new EHCP expeditiously, so that the problem did not in fact arise, but that situation was only resolved after the family’s return to the UK some time after the decision of the Tribunal on 30 March 2023.

I will deal with this point under Ground 4 below (though as will be seen I also reject the fourth ground as a ground of challenge).