[2024] UKUT 128 (AAC)

In its decision of 30 March 2023 (after an oral hearing on 20 March 2023) the Tribunal found that

“Appeal

1.

[The Appellants] appeal under section 51(2)(b) of the Children and Families Act 2014 against the LA’s decision to cease to maintain an Education Health and Care Plan (EHCP) for their son, T.

Attendance

2.

T’s father attended the hearing, representing himself. He was back in the UK at the time of the hearing, and so we did not have any jurisdictional issues in relation to giving evidence. Mrs Jo Wieczorek represented the LA. There were no other witnesses in attendance for either party.

Mode of hearing

3.

The hearing was held remotely by video, using a Kinly platform. We considered that all issues could be determined in a remote hearing. Both parties said that they were content for the appeal to be heard remotely.

4.

We had no difficulty with connecting everyone to the hearing and we were satisfied that both parties had effectively engaged with the appeal as a video hearing.

Background to the appeal

5.

T is 7 years old and in year 3 at [School] in Dubai. T has diagnoses of Autism Spectrum Disorder (ASD) and Global developmental delay (GDD).

6.

T started school in Reception at [C] Primary School in September 2019 and his first EHCP was issued on 14 October 2019. T had individualised literacy and numeracy programmes provided for in Section F of his EHCP, amongst other provision, in order to help address his significant barriers to learning.

7.

In August 2021, T and his family moved to Dubai for three years due to his father’s deployment there with the Royal Navy. The family had been told by an email from Ms Sawka, their case worker at the LA, dated 1 April 2021, that T’s EHCP would be paused until the family returned to Hampshire in August 2024.

8.

The appellants received a letter by email from the LA dated 19 November 2021 notifying them that T’s plan would cease from “this date”. The appellants received a further letter by email dated 19 January 2022, setting out that “the local authority has now ceased to maintain the Education, Health and Care plan for T”.

9.

The LA maintained their position that they had ceased to maintain T’s EHC Plan until the hearing on 20 March 2023. The LA took the position that the appellants had no standing to bring an appeal to the Tribunal of this decision, and they refused to enter mediation with the appellants.

10.

The Appellants issued an appeal on 22 May 2022, which the LA sought to have struck out. By order of Tribunal Judge Brownlee on 22 September 2022 the application to strike out the appeal was refused. The appeal was adjourned on one occasion due to [T’s father’s] lack of availability to attend the original hearing date, but was ultimately re-listed for hearing on 20 March 2023.

11.

At the commencement of the hearing on 20 March 2023, Mrs Wieczorek, the LA solicitor, conceded that the letters sent to the appellants on 19 November 2021 and 19 January 2022 did not comply with regulation 29 and 31 of the Special Educational Needs and Disability Regulations (SEND Regs) 2014. She also conceded that the LA must maintain the plan until the end of the period of notice for ceasing to maintain a plan, but because the letters had been defective, this time had never started to run. She also conceded that the plan must be maintained until such time as an appeal against the decision to cease to maintain had been determined. For all these reasons, Mrs Wieczorek confirmed that the LA has now reinstated T’s EHC Plan.

12.

The LA’s position at the hearing was that the Tribunal should conclude that the LA may cease to maintain T’s EHC Plan due to the fact that they cannot carry out their non-delegable duties to maintain his EHC Plan because they cannot secure the provision for T when he is outside the LA in Dubai.

Preliminary matters

13.

In preparation for the hearing, the LA provided a bundle of documents which contained 217 paginated pages.

14.

We also received some late evidence in the form of an email from [T’s father], dated 27 February 2023, which sets out that [his] deployment to Dubai is ending a year early in the summer of 2023. We have decided that it would be in accordance with the overriding objective to allow the Appellant to adduce this late evidence as the LA has had ample time to consider it, and it is relevant to the issues in dispute.

Issues

15.

The LA position is that we should dismiss the appeal and allow the LA to cease to maintain T’s EHCP because the LA is prevented from securing the provision [he] requires under Section F, by virtue of the fact that [he] is currently attending a school in Dubai.

16.

The Appellants’ position is that s45 of the CFA 2014 sets out that the LA may cease to maintain an EHCP when the LA is no longer responsible for the child or young person, but there is no requirement that they must cease to maintain. It is the Appellants’ position that the LA should instead “freeze” T’s EHCP until he returns to the UK, which the Appellants say is what was promised to them by the email of Ms Sawka dated 1 April 2021, but is also how other LAs deal with the issue of children from Service families.

Legal Framework

17.

Section 45 of the Children and Families Act (CFA) 2014 specifies when a LA can cease to maintain an EHCP. It is supplemented by regulation 29 of the Special Educational Needs and Disability Regulations 2014 and paragraphs 9.199 to 9.205 of the Special Educational Needs and Disability Code of Practice: 0 to 25 years (January 2015). We have regard to this legal framework.

18.

S45 of CFA 2014 provides that:

(1)

A local authority may cease to maintain an EHC plan for a child or young person only if-

(a)

The authority is no longer responsible for the child or young person […]

(5)

Regulations may make provision about ceasing to maintain an EHC plan, in particular about-

[…] (c) the procedure to be followed by a local authority when determining whether to cease to maintain an EHC plan.

19.

Regulation 31 of the SEND Regs 2014 provides that:

(1)

Where a local authority is considering ceasing to maintain a child or young person’s EHC plan it must—

a)

inform the child’s parent or the young person that it is considering ceasing to maintain the child or young person’s EHC plan; and

b)

consult the child’s parent or the young person;

c)

consult the head teacher, principal or equivalent person at the educational institution that is named in the EHC plan.

(2)

Where, following that consultation the local authority determines to cease to maintain the child or young person’s EHC plan, it must notify the child’s parent or the young person, the institution named in the child or young person’s EHC plan and the responsible commissioning body of that decision.

(3)

When notifying the child’s parent or the young person of its decision to cease to maintain the EHC plan, it must also notify them of—

a)

their right to appeal that decision;

b)

the time limits for doing so;

c)

the information concerning mediation, set out in regulation 32; and

d)

the availability of—

(i)

disagreement resolution services; and

(ii)

advice and information about matters relating to the special educational needs of children and young people.

20.

Reg. 15 of the SEND Regs 2014 which deals with the transfer of EHC plans provides that:

(3)(a) the EHC plan is to be treated as if it had been made by the new authority on the date on which it was made by the old authority and must be maintained by the new authority.

21.

The SEND code of practice provides at 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 potential disadvantages 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.

Evidence

22.

We did not hear oral evidence from the parties in relation to the appeal. It was agreed that the issues in dispute today, related to application of the CFA 2014, the SEND Regs 2014 and the Code of Practice.

Findings of the Tribunal

23.

We carefully considered all the written evidence submitted to the Tribunal in advance and contained in the hearing bundle, together with the submissions made by [T’s father] on behalf of both Appellants, and Mrs Wieczorek for the LA (even if we have not mentioned it within the decision). We also took account of the Code of Practice and the relevant sections of the Children and Families Act 2014, SEND Regulations 2014 and statutory guidance.

24.

As a Tribunal, we note that the wording of s45 of CFA 2014 is that the LA may cease to maintain the EHCP of a child or young person for whom they are no longer responsible. We note also that if they decide to exercise that power to cease to maintain the EHCP, they must follow the procedure set out in reg. 31 of the SEND Regs 2014. The LA conceded in the hearing on 20 March 2023 that they have not correctly followed that procedure. We find, that having made that concession, the LA should also have conceded the appeal, because it is mandatory that they comply with reg.31 and they have not. Having failed to comply with the mandatory requirements of reg. 31, the LA cannot cease to maintain T’s EHCP, even at the conclusion of this appeal.

25.

We need go no further in deciding the merits of the appeal in these circumstances. However, we note that if [T] had moved to a different LA, rather than his family being posted overseas with the armed forces, his EHCP would not have come to end on the LA ceasing to maintain, but instead been transferred to the new LA. 10.55 of the Code of Practice directs that 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.

26.

For the LA to cease to maintain [T]’s EHCP, in circumstances where he is expected to return to the UK, would be to put him at a significant disadvantage to children or young people who simply move between local authorities within the UK. In order for the LA to act consistently with 10.55 of the Code of Practice, we find that they should not cease to maintain T’s EHCP, but instead should implement a “freezing” or “pausing” of his EHCP. It is self-evident that the LA cannot comply with its duty to secure the provision in Section F of T’s EHCP whilst he attends school in Dubai, but to require [him] to commence the process of applying for an EHCP afresh on the family’s return to the UK, may well result in T being without the provision he requires for a considerable portion of that academic year. A process where all parties are agreed that the EHCP is frozen for a period of time is a proportionate response to mitigate the disadvantage T would otherwise suffer as a Service child.

27.

The LA has made an offer that they will commit to providing T with the funding previously in place under his EHCP until a new EHCP process could be completed. However, this would place T at significant disadvantage, due to the fact that [his father], as Service Personnel, may yet be posted to a different LA in the UK, and T would have to start the EHCP application process in that new LA with no guarantee of funding in the meantime. If, however, the LA “freezes” T’s EHCP, then it would be transferred to the new LA pursuant to Reg. 15.

28.

Therefore, we have concluded that Hampshire County Council may not cease to maintain T’s EHCP.”

Consequent upon its findings, the Tribunal made an order that the Council should continue to maintain an EHCP for T.