Council to appeal Upper Tribunal decision in dispute over military service and Education, Health and Care Plans

Hampshire County Council is appealing a decision by the Upper Tribunal that there was a failure to consult in relation to its decision to cease to maintain a child’s Education, Health and Care (EHC) Plan on the basis that the family were no longer in its area.

The case concerned a family who moved to Dubai for two years because the father was deployed there as part of his naval service.

Their son, T, was, at the time, in year 3 at a school in Dubai. T has diagnoses of Autism Spectrum Disorder (ASD) and Global developmental delay (GDD).

The local authority had ceased to maintain T’s Education, Health and Care (EHC) Plan pursuant to s.45 of the Children and Families Act 2014, on the basis that the family were no longer in its area.

The parents appealed this decision in the First-tier Tribunal. At this point, the family were still stationed abroad, but due to return.

The Tribunal upheld their appeal on the basis of the local authority’s failure to consult, but also went on to comment that it was possible to ‘pause’ or ‘freeze’ an EHC Plan during the period of absence.

The local authority appealed this decision in the Upper Tribunal on four grounds:

1. The Tribunal erred by concluding that the council was not entitled to cease to maintain T’s EHC Plan. T was no longer in the council’s area; therefore the decision to cease to maintain was correctly made notwithstanding any procedural failings that had been conceded by the council.
2. The Tribunal erred in its approach to the appeal. It should have re-determined the decision to cease to maintain based on whatever evidence it had before it, standing in the council’s shoes. Instead, it exercised a quasi-judicial review approach to its decision which was not in accord with its functions in a statutory appeal.
3. The Tribunal erred by taking into account irrelevant considerations, namely: past procedural failings; a comparison between children moving abroad and those who moved between local authorities; an incorrect assumption that transferring a plan to a different local authority would necessarily result in it being maintained on an ongoing basis; an incorrect belief that ceasing to maintain the EHCP created unfairness or prejudice to T; and an incorrect belief that it was permissible to ‘pause’ or ‘freeze’ an EHCP. Alternatively, the decision was perverse.
4. The Tribunal erred by concluding that the duty to maintain an EHCP could be paused or frozen.

The Upper Tribunal dismissed the local authority’s appeal. However, Hampshire County Council is now to challenge the decision in the Court of Appeal.

A council spokesperson said: “It would not be appropriate to comment while this matter remains subject to an ongoing legal process.”

Tom Gillie of Matrix Chambers represented the respondent parents in the Upper Tribunal. Together with Roisin Swords-Kelly, he has been instructed on the appeal to the Court of Appeal.

A statement on the Matrix Chambers website said: “The Upper Tribunal’s judgment set out two important principles that were advanced by the parents.

“First, that in order validly to cease maintaining a child’s ECHP, a local authority must comply with the procedural right to consultation contained in the Reg 31 of the Special Educational Needs and Disability Regulations 2014.

“Second, that section 24 Children and Families Act 2014 denoted a test of ordinary residence in a local authority’s area, so that local authorities continue to have a duty to maintain an EHCP for children who are temporarily absent from the local authority while their parents are deployed abroad in the armed forces.”

Lottie Winson

See also: Armed forces families and SEND - Alex Line looks at the wider lessons from an Upper Tribunal ‘test case’ concerning armed forces personnel with SEND children.