| SPOTLIGHT |
When children and young persons with Education, Health and Care Plans (EHCPs) move between boroughs, the local authorities involved have different duties depending on whether they are a child or young person, and whether they are currently ‘looked after’. Sarah Davidson and Ellie Mullett seek to unpick the applicable statutory, regulatory, and case law provisions, and highlight issues which can arise as a result of their intersection.
Moving between boroughs
Part 3 of the Children and Families Act 2014 (‘CFA 2014’) states the duties of local authorities in respect of EHCPs. Section 24 of the CFA 2014 states that these duties are owed by a local authority to children and young people ‘in the local authority’s area’.
When a child or young person moves out of the area of the local authority which maintains their EHCP and, into that of another, the previous local authority are to transfer their EHCP to that new authority, in accordance with Regulation 15(1)-(2) of the Special Educational Needs and Disability Regulations 2014/1530 (‘SEND Regulations’). The transferred EHCP will then be treated as though it was made by the new local authority on the date on which it was made by the old local authority (SEND Regulations 2014, Regulation 15(3)(a)).
The question of when a child ‘moves’ out of one local authority’s area and into another was explored by the court in JG, MG v Kent County Council v TG [2016] EWHC 1102 (Admin).
TG was a 14-year-old child diagnosed with unsocialised conduct disorder with mixed neurodevelopment difficulties, who lived in Kent. Following a series of violent outbursts, TG’s father, MG, took TG on an ‘extended holiday’ to MG’s parents’ house in Sunderland, until Kent County Council (‘KCC’) either arranged for a residential school placement for TG, or provided some alternative accommodation in Kent for TG and MG.
KCC consequently took the view that TG had ‘moved’ to Sunderland and transferred his educational file there. A claim was subsequently launched alleging that KCC had behaved unlawfully in treating Sunderland as responsible for TG’s education.
The court (Nicol J) held that KCC had acted unlawfully for the purposes of Regulation 23 of the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001 (now replaced with Regulation 15 of the SEND Regulations). Key factors in the court’s decision were:
The court noted that permanent moves must be distinguished from temporary moves but gave no general guidance on how to do so. Every case will turn on its facts, but the court’s approach in JG shows that the intention of the moving party regarding the length and permanency of the move when it takes place will be significant. The decision about whether or not a child has ‘moved’ is to be made by the original local authority in accordance with these principles.
Moving and Belonging Regulations: Looked after children under 18
JG concerned a child who was not looked after and had moved (or rather, not moved) from the area of one local authority to another. But for looked after children, and children who attend boarding school or who are resident in hospital, the Education (Areas to which Pupils and Students Belong) Regulations 1996/615 (the ‘Belonging Regulations’) prescribe the local authority to whom they belong.
When a looked after child (as defined by section 22(1) of the Children Act 1989, or, as the case may be, s74(1) of the Social Services and Well-being (Wales) Act 2014) is placed in accommodation outside of the area of the local authority who looks after them, administrative responsibility for their EHCP will pass to new local authority. But, regardless of where their education takes place, the child will be treated as ‘belonging’ to the placing local authority (Regulation 7 of the Belonging Regulations). This means the local authority to whom the child ‘belongs’ retains financial responsibility for the EHCP, and so the local authority who provide their education under the EHCP can recoup the costs of doing so under the Inter-authority Recoupment (England) Regulations 2013 (the ‘Recoupment Regulations’).
The Belonging Regulations also stipulate that a child with an EHCP does not ‘move’ by way of attending boarding school, even if they do not return home for the holidays. Instead, they are treated as belonging to the area where the person responsible for them ordinarily resides, or, if there is no such responsible person (or the responsible person does not reside in the area of an education authority), the child will be treated as residing in the area of the local authority that maintains the plan (Regulation 4 of the Belonging Regulations). Similar provisions are in place for those children who are resident in hospital (Regulation 6 of the Belonging Regulations).
The Belonging Regulations have no application once the child turns 18, and as such, an individual aged 18 or over could be considered to have ‘moved’ to a new local authority by way of the fact they attend boarding school in that local authority’s area. Or, even if they have not ‘moved’, the fact the Recoupment Regulations no longer apply to out-of-borough education for those aged 18 and over will mean the local authority tasked with providing the education will not be able to recover the costs of doing so.
Young people: overlap of adult social care and educational provisions
For those over 18, section 39 of the Care Act 2014 covers residence for non-EHCP matters. Section 39(1) states that where the needs for care and support of the adult can only be met if the adult is living in accommodation in England of a type specified in regulations, that adult will be treated as ordinarily resident in the area where they were ordinarily resident immediately before they began to live in that accommodation. The specified accommodation is listed in the Care and Support (Ordinary Residence) (Specified Accommodation) Regulations 2014, and covers care home accommodation, shared lives scheme accommodation, and supported living accommodation.
‘Ordinarily resident’ is not defined in the legislation, but there are pointers to be found elsewhere:
The Care and Support Statutory Guidance says it is a question of fact and degree, with factors to consider including time, intentions, and continuity (paragraph 19.14). Lord Scarman, in the case of R v Barnet LBC ex parte Shah [1983] All ER 226, said it ‘refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration’.
Essentially, section 39 means a local authority cannot export the duties owed to an adult to whom section 39 applies because, for example, lack of suitable local placements means they have to be placed out of area, or because they chosen to live closer to family.
But, because JG governs when a child or young person has ‘moved’ for the purposes of EHCP administration, there are frequently situations where one local authority retains responsibility for eligible needs, while another local authority is responsible for providing (and funding) the education contained in an EHCP. This particular oddity could be ripe for future challenge, in a case where the court could be asked to consider whether the fact somebody receives education in a particular local authority could tip the balance of ordinary residence towards in their favour.
Relevance for Tribunal Proceedings
The question of whether a child or young person has ‘moved’ is challengeable only by way of judicial review, on the basis of Wednesbury unreasonableness. This is a high bar, and while it did succeed in JG, it is certainly unlikely to succeed where there is any degree of permanance to the child or young person’s move.
But, taking a step back, the statutory and regulatory provisions risk causing great difficulty when a lack of provision in a local authority’s own area means the special education needs of a young person must be met outside their area. The new local authority is unlikely to welcome the responsibility of providing potentially very expensive provision, which they had no say in deciding. This is less of an issue for children to whom the Belonging Regulations apply, but it is still something worth bearing in mind.
Some cases where a child has moved will also be borderline, as where there is a greater degree of permanence to the child’s move than in JG, but where it is always known that they are only to remain in the receiving local authority for a finite period of time. This can make it hard for local authorities to decide whether to defend any judicial reviews which are brought.
Conclusion
The overlap of the applicable statutory, regulatory, and case law principles means the task of deciding who has responsibility for a child or young person’s EHCP has become more complex than it needs to be. However, the principles are crucial to understand, so that any disputes about administrative or financial responsibility can be swiftly resolved. But change could be on the horizon, if the right circumstance arises for a challenge to JG to be brought.
Sarah Davidson and Ellie Mullett are paralegals at SV Law.
