Hampshire County Council v GC & Anor

A local authority’s decision to cease maintaining an education, health and care plan is invalid where it is made in manifest breach of the mandatory consultation and notification requirements in Special Educational Needs and Disability Regulations 2014, regulation 31.

For section 24 of the Children and Families Act 2014, a child is in an authority’s area if ordinarily or habitually resident there. Physical presence is not decisive. A service child temporarily abroad with a parent on an overseas armed-forces deployment may remain ordinarily resident in the English authority’s area.

The power in section 45 to cease maintaining a plan is discretionary. Where suitable alternative arrangements are made, section 42(5) can relieve the authority of the duty to secure specified provision while the plan remains maintained.

Hampshire County Council appealed against a First-tier Tribunal decision allowing the parents’ appeal from its decision to cease maintaining their child’s EHCP. The child, who had special educational needs, accompanied his Royal Navy father on a planned overseas posting to Dubai.

The Council had neither consulted the parents and named school nor given the information required by regulation 31 of the Special Educational Needs and Disability Regulations 2014. The First-tier Tribunal held that it could not cease the plan and described the plan as capable of being frozen or paused during the deployment.

By the Upper Tribunal hearing, the family had returned to England and a new plan had been issued. The Upper Tribunal nevertheless heard the academic appeal because it raised issues of general importance. The central issues were the effect of the procedural breach, whether the child remained in the authority’s area, and whether the plan could remain maintained while provision was not secured abroad.

1. Appeal dismissed. The First-tier Tribunal did not err in allowing the parents’ appeal. The Council’s failures to consult the parents and named school, and to give the prescribed appeal and mediation information, were egregious breaches of regulation 31. That regulation is mandatory. A decision under section 45(1) of the Children and Families Act 2014 made in breach of those requirements is invalid. Minor non-prejudicial defects after substantial consultation were left open.

2. The First-tier Tribunal had jurisdiction, on the statutory appeal under section 51, to determine the factual and legal basis of the cease-to-maintain decision. It was not confined to judicial-review principles. A general appeal permits the Tribunal to decide for itself whether the authority reached the correct conclusions of fact, law and judgment.

3. Section 24 imports an ordinary or habitual residence test, rather than a test of physical presence. A child temporarily overseas because of a parent’s armed-forces deployment may remain in the English authority’s area. On the evidence, the family’s stay in Dubai was temporary. Their home, intended return, family connections and enduring integration remained in Hampshire. The Council was therefore still responsible and could not rely on section 45(1)(a).

4. The First-tier Tribunal’s observations about comparative disadvantage to service children were obiter, but disclosed no legal error. “Freezing” or “pausing” is not statutory terminology. Properly understood, it meant maintaining the plan without securing its specified provision while suitable alternative arrangements were in place. Section 45 confers a discretion, not a duty, to cease maintaining a plan. Section 42(5) may relieve an authority of the section 42(2) duty where it has satisfied itself that suitable alternative arrangements have been made.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the Council’s appeal and upheld the First-tier Tribunal’s conclusion that the cease-to-maintain decision was invalid: [2024] UKUT 128 (AAC).
• First-tier Tribunal (HESC) (Special Educational Needs and Disability): allowed the parents’ appeal against the Council’s decision to cease maintaining the EHCP and ordered continued maintenance of the plan (decision dated 30 March 2023; Tribunal reference EH850/22/00221).