Court of Appeal to hear appeal by council this week in case concerning military service and Education, Health and Care Plans

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 a number of grounds, including that the First-Tier Tribunal erred by concluding that the council was not entitled to cease to maintain T’s EHC Plan.

The Upper Tribunal dismissed the local authority’s appeal. 

A statement on the Matrix Chambers website following the grant to Hampshire of permission of appeal 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.”

The Court of Appeal hearing will be live streamed.

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.