SPOTLIGHT

A zero sum game?

The number of SEND tribunal cases is rising and the proportion of appeals ‘lost’ by local authorities is at a record high. Lottie Winson talks to education lawyers to understand the reasons why, and sets out the results of Local Government Lawyer’s exclusive survey.

Armed forces families and SEND children

Alex Line looks at the wider lessons from an Upper Tribunal ‘test case’ concerning armed forces personnel with SEND children.

Hampshire County Council v GC & GC [2024] UKUT 128 (AAC) is an important case (described by Upper Tribunal Judge West in his decision as a ‘test case’) concerning a family who moved to Dubai for two years because the father was deployed there as part of his naval service.

The local authority ceased to maintain their child’s 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. There are requirements set out in the Special Educational Needs and Disability Regulations 2014 in relation to consultation before local authorities take such decisions which, in this case, the local authority had not complied with. By the time of the hearing of the appeal to the First-tier Tribunal, the family were still stationed abroad, but were 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 to the Upper Tribunal.

The facts of the case are concerned with the context of service families, but the Upper Tribunal’s decision is potentially of wider importance in relation to the issues of:

  1. The extent to which the Tribunal is entitled to take into account, and determine an appeal under s.51 of the 2014 Act, based on procedural omissions made by a local authority before a statutory appeal to the First-tier Tribunal is registered.
  2. The test to apply to the question of whether a child is in the area of a local authority for the purposes of ss.24 and 45(1)(a) of the 2014 Act, which the Upper Tribunal found was an ordinary/habitual residence test.
  3. The approach taken to the duty of a local authority to secure special educational provision found in an EHC Plan pursuant to s.42(2) of the 2014 Act (oft described in the case law as a mandatory and absolute duty) in cases where a child or young person is not physically present in the local authority’s area for a period.

The Upper Tribunal’s decision can be found here.

Alex Line is a barrister at Outer Temple Chambers. He acted for the local authority.