Upper Tribunal rules on ‘ordinary residence’ in context of special educational needs

In London Borough of Enfield v Edwards & Anor (SPECIAL EDUCATIONAL NEEDS [2026] UKUT 268 (AAC) (14 July 2026), Upper Tribunal Judge Stout clarified that in particular, placement of a child or young person in accommodation arranged by a local authority may result in a change of ordinary residence for the purposes of the CFA 2014, even though responsibility for social care services remains with the placing authority. 

The judge noted this is “consistent with government policy” that the local authority where the child lives knows its local schools and educational provision better, so is better able to assess whether the child needs special educational provision, on top of what is ordinarily available.

The appeal arose out of proceedings before the First-tier Tribunal in an appeal brought under section 51(2)(c)(ii) and (iii) of the CFA 2014 by the first respondent young person (TE) in respect of his special educational provision and placement to be specified in his EHC Plan.

The appeal was principally concerned with:

1. the interpretation and application of the 'ordinary residence' test that the Court of Appeal in Hampshire County Council v GC and anor [2026] EWCA Civ 20 (Hampshire) held applies when determining which local authority is responsible for an Education Health and Care Plan (EHC plan) for the purposes of section 24 of the Children and Families Act 2014 (CFA 2014); and,
2. the jurisdiction of the First-tier Tribunal to make such a determination.

Outlining the case background, the judge noted: “TE's circumstances are complex and there have to date been four local authorities who have at various times been named as respondents to the proceedings before the First-tier Tribunal.

“This appeal to the Upper Tribunal is brought against the First-tier Tribunal's decision.… which determined that the appellant, the London Borough of Enfield, was the appropriate respondent as at that date, and accordingly removed the second respondent, the London Borough of Haringey as respondent.”

The appeal to the Upper Tribunal was stayed pending the decision of the Court of Appeal in Hampshire.

The Court of Appeal in Hampshire County Council v GC and anor [2026] EWCA Civ 20 held that the question of whether a child or young person is 'in' a local authority's area for the purposes of section 24 of the CFA 2014, and thus the responsibility of that local authority for the purposes of Part 3 of that Act, is to be determined by reference to the child or young person's 'ordinary residence'.

In the present case, Upper Tribunal Judge Stout held that the 'ordinary residence' test to be applied is that set out by the House of Lords in R v Barnet LBC, ex p Shah [1983] 2 AC 309, as further explained by the Supreme Court in R (Worcestershire County Council) v Secretary of State for Health and Social Care [2023] UKSC 31, [2023] 1 WLR 2790.

The judge held that the approach to 'ordinary residence' for the purposes of a local authority's social services functions (as set out by the Supreme Court in R (Cornwall Council) v Secretary of State for Health [2015] UKSC 46, [2016] AC 137) does not apply in the special educational needs context.

Accordingly, a child or young person's 'ordinary residence' for the purposes of the CFA 2014 may be different to their 'ordinary residence' for the purposes of the social care functions of the local authority.

The judge further held that when dealing with an appeal under section 51 of the CFA 2014, the First-tier Tribunal has jurisdiction as part of its case management powers under rule 9 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008/2699) to determine which local authority is responsible for a child or young person's special educational needs, and must do so if there is a dispute, so as to ensure that the responsible local authority is the respondent to the proceedings at all material times.

The appeal brought by the London Borough of Enfield was dismissed.

Lottie Winson