Hampshire County Council v GC & Anor

For Part 3 of the Children and Families Act 2014, whether a child is in a local authority’s area is generally determined by ordinary residence, not physical presence on a particular date. Temporary overseas absence may leave responsibility unchanged. A First-tier Tribunal hearing a statutory appeal against cessation of an EHCP may decide whether mandatory procedural requirements were breached and may set aside the decision, although breach is not automatically fatal in every case. A local authority may maintain an EHCP during temporary absence where suitable alternative provision exists or the plan can be reassessed and amended. Inability to implement existing provision abroad is not, by itself, a ground for cessation.

Hampshire County Council ceased maintaining T’s EHCP after T and his parents moved from Hampshire to Dubai for a fixed Royal Navy deployment. The Council did not consult the parents or school and failed to give the required appeal information. The First-tier Tribunal upheld the appeal and directed that the plan be maintained, effectively frozen. Upper Tribunal Judge West upheld that result, holding that the procedural defects were material, T remained ordinarily resident in Hampshire, and the plan could be maintained during the deployment. The Council appealed on the Tribunal’s jurisdiction, the meaning of “in the authority’s area”, and the interaction between maintaining an EHCP and securing its provision.

Disposition. The appeal was unanimously dismissed. There was no order as to costs by agreement.

1. Jurisdiction. A statutory appeal under section 51 of the Children and Families Act 2014 is not confined to a free-standing merits review. The First-tier Tribunal may determine whether a decision to cease maintaining an EHCP was taken in breach of mandatory procedural requirements governing that decision, and may set the decision aside. A parent is not required to bring parallel or prior judicial review proceedings. The approach was consistent with Foster [1993] AC 754 and the need for ready access to the specialist tribunal identified in R(Kumar) v Hillingdon LBC [2021] PTSR 686.
2. Procedural breach. Non-compliance with regulation 31 does not automatically invalidate every cessation decision. The Tribunal must assess the breach in context. Significant consultation may mean that a minor breach is immaterial. Here, there was no consultation, the failures were wholesale and egregious, and the procedural error was integral to the cessation decision. The decision was therefore liable to be held invalid and set aside.
3. Residence. The phrase “in the authority’s area” in section 24 imports an ordinary residence test rather than a simple physical presence test. The question is one of mixed fact and law. Relevant circumstances include the duration, conditions and purpose of the absence, the intention to return, retention of a home in England and continuing connections. The ordinary residence principles discussed in R (Cornwall Council) v Secretary of State for Health [2015] UKSC 46 supported that approach. T remained ordinarily resident in Hampshire because the deployment was time-limited, the family intended to return, the parents retained their home and the family maintained links with England. A permanent overseas move, or a trial move continuing for a substantial period, might produce a different result.
4. Implementation. The absolute duty under section 42(2) did not require cessation of the EHCP merely because its existing provision could not be implemented abroad. Suitable alternative arrangements made by the parents could disapply that duty under section 42(5). The authority could also reassess and amend the plan under section 44(3). Since suitable provision had been facilitated by the Ministry of Defence, Hampshire could maintain the plan without implementing its existing contents, effectively freezing or pausing provision during the deployment.

1. Court of Appeal (Civil Division): The appeal was dismissed. The Court held that the First-tier Tribunal had jurisdiction to address the procedural breaches, T remained ordinarily resident in Hampshire, and the EHCP could be maintained during the temporary deployment. There was no order as to costs.
2. Upper Tribunal (Administrative Appeals Chamber): Upper Tribunal Judge West upheld the First-tier Tribunal’s decision, holding that the cessation decision was invalid following breaches of regulation 31, that T remained ordinarily resident in Hampshire, and that the EHCP could be maintained.
3. First-tier Tribunal: The Tribunal upheld the parents’ appeal against cessation and held that Hampshire County Council could not cease to maintain T’s EHCP.