Councils are responsible for children with SEN who are “ordinarily resident”, even when temporarily abroad: Court of Appeal

In Hampshire County Council v GC & Anor [2026] EWCA Civ 20, the Court of Appeal found that the Upper Tribunal was right to hold that the child (T) remained “ordinarily resident” in Hampshire, and that the council could “quite properly have decided to maintain the EHCP without implementing its contents”, while the family was abroad.

Lord Justice Bean said: “Use of the ordinary residence test is in my view consistent with public policy and in particular with the Armed Forces Covenant to which Hampshire has subscribed for some years. On the Appellant’s construction, Hampshire might cease to maintain the EHCP whenever T accompanies his father abroad on deployment. Upon T’s return to this country there would be no SEN provision in place and the process to obtain a new EHCP would have to begin from scratch.

“[…] Far better that on T’s return to the UK, with the EHCP still in place, he can continue to have SEN support without any gaps and without the family having to grapple with a new assessment process.”

This case concerned the provision of an EHCP for a boy, T, who was born in 2015. He has a diagnosis of Autistic Spectrum Disorder and Global Development Delay. T attended primary school in Hampshire from September 2019, and his first EHCP was issued in October 2019.

T’s father, GC, is a Chief Petty Officer in the Royal Navy.

In August 2021, the Royal Navy deployed GC to a British military installation in Dubai. The move was initially to be for three years but was later reduced to two.

The family, including T, moved to Dubai. T’s needs were to be supported by provision facilitated by the Ministry of Defence.

Lord Justice Bean said: “It was understood by all that the family would return to their home in Hampshire at the end of the deployment (which they did). One of the Council’s case workers emailed the Respondents to say that T’s EHCP would be ‘paused’ until the family returned.”

In November 2021, however, the council notified the respondents that T’s EHCP would cease from “this date”. No consultation had occurred.

In January 2022 GC received a further letter from the county counciil confirming that “the local authority has now ceased to maintain [T’s EHCP]”.

The council had decided that it was not necessary to maintain the EHCP while T was not resident in the local authority’s area; and that his needs would have to be reassessed if he returned. They had, however, stated that they were committed to expediting the EHCP reassessment process upon T’s return.

A First-tier Tribunal (FTT) hearing took place remotely in March 2023 when the family were still in Dubai, but due to return at the end of July 2023. The appellant conceded that it had not performed a consultation before ceasing to maintain T’s EHCP.

At the outset of the hearing in March 2023, the council conceded that the letters sent to the parents did not comply with regulations 29 and 31 of the SEND Regulations.

The local authority was required to maintain the plan until the appeal against the decision to cease to maintain it had been determined.

In its decision handed down on 30 March 2023 the FTT stated:

“The LA conceded in the hearing on 20 March 2023 that they have not correctly followed that procedure. We find, that having made that concession, the LA should also have conceded the appeal, because it is mandatory that they comply with reg.31 and they have not. Having failed to comply with the mandatory requirements of reg. 31, the LA cannot cease to maintain T’s EHCP, even at the conclusion of this appeal.

“[…] For the LA to cease to maintain [T]’s EHCP, in circumstances where he is expected to return to the UK, would be to put him at a significant disadvantage to children or young people who simply move between local authorities within the UK. In order for the LA to act consistently with 10.55 of the Code of Practice, we find that they should not cease to maintain T’s EHCP, but instead should implement a “freezing” or “pausing” of his EHCP. It is self-evident that the LA cannot comply with its duty to secure the provision in Section F of T’s EHCP whilst he attends school in Dubai, but to require [him] to commence the process of applying for an EHCP afresh on the family’s return to the UK, may well result in T being without the provision he requires for a considerable portion of that academic year.

“[…] Therefore, we have concluded that Hampshire County Council may not cease to maintain T’s EHCP.”

In July 2023, the FTT (Tribunal Judge Ozen) granted permission to appeal.

In September 2023, a fresh EHCP was issued for T at his new mainstream junior school.

However, when the appeal came before Upper Tribunal Judge West (the Judge), both sides agreed that he should hear the appeal because the issues involved were likely to be of general importance in other cases concerning service personnel with families, and to local authorities with duties towards the children of such families.

Judge West was critical of Hampshire’s procedural failings. He said he was satisfied that the council had committed “egregious and manifest breaches” of reg 31 of the SEND Regulations.

Meanwhile, he rejected the local authority’s argument that the Tribunal had no jurisdiction to determine whether or not there had been a breach of regulation 31.

The judge held: “I am satisfied that the provision in s.24 of the 2014 Act which stipulates that, when a local authority is responsible for a child ‘in the authority’s area’ who has been identified by the authority as someone who has, or may have, special educational needs, that includes a person who is ordinarily or habitually resident in that area, but is temporarily absent by virtue of [his] parent’s overseas deployment as a part of the armed forces of the Crown.

“It follows that if a child or young person is ordinarily or habitually resident ‘in the authority’s area’, notwithstanding such temporary absence elsewhere, the local authority remains responsible for the child or young person and may not therefore cease to maintain the child’s EHCP on the basis that it cannot comply with s.45(1)(a) and demonstrate that it “is no longer responsible” for the child or young person. In summary, s.24 of the 2014 Act imports an ordinary or habitual residence test, as Mr Gillie contended, rather than a presence test, as Mr Line contended.”

On 9 October 2024, Andrews LJ granted permission to appeal on three grounds:

• Ground 1 (the jurisdiction question): The Upper Tribunal erred by concluding that a procedural defect occurring before the registration of an appeal, or the decision which was subject to that appeal (in this case a failure to consult), could constitute the basis for upholding the appeal by the Tribunal.
• Ground 2 (the residence question): The Upper Tribunal erred by concluding that the test for determining if a child or young person is in the area of a local authority is one of ordinary / habitual residence.
• Ground 3 (the implementation question): The Upper Tribunal erred in its approach to s.42(2) of the CFA 2014 by concluding that a local authority must maintain an EHCP in cases where the child or young person is absent from its area.

On ground one, Lord Justice Bean observed that the procedural error cannot be separated from the decision to cease to maintain the EHCP - noting that “each was integral to or intertwined with the other”.

He said: “I would amend the Judge’s statement of the law in paragraph 162 of his judgment to read as follows:

“A decision to cease to maintain an EHCP under s.45(1) of the 2014 Act will be liable to be held invalid and set aside by the FTT if it is taken in breach of the mandatory requirements of Reg. 31 of the 2014 Regulations.” [emphasis added by Bean LJ]

He continued: “Consultation with the child or young person, the child’s parents and the child’s school is of fundamental importance to the fair and proper operation of the system. Nevertheless, as the Judge pointed out, there may be cases where there has been significant consultation and the breach of reg. 31 is not material. Plainly this case, where there was a total lack of consultation, is not one of them. The breaches were, as the Judge held, ‘wholesale and egregious’. The procedural error cannot be separated from the decision to cease to maintain the EHCP. Each was integral to or intertwined with the other.

“The answer to the jurisdiction question [What is the jurisdiction of the First-tier Tribunal under s.51 of the Children and Families Act 2014 (“the 2014 Act”)? In particular, may the Tribunal uphold an appeal on the basis of a procedural error (or multiple procedural errors) made by a local authority?] is therefore ‘yes’. But in the present case this is only the prelude to the critical issue of whether, while T and his parents were temporarily in Dubai, he was nevertheless ‘in the area’ of the local authority. If he was, then (subject to ground 3) the local authority were in breach of their duty to him. If, however, on a proper interpretation of s.24 he was not “in the area” of the council, then the procedural issues are academic.”

Turning to the issue of residence, Lord Justice Bean noted that the applicability and utility of the ordinary residence test in SEN cases is confirmed by the guidance provided by the Department for Education and its predecessors over many years.

He said: “As long ago as 2009 the Department set out in its Guidance on Looked After Children with Special Educational Needs placed out-of-authority that:

“The term ‘in their area’ is not defined in the legislation. In line with established practice, the Department construes this phrase to mean ‘ordinarily resident in their area’. This means that an SEN assessment must be carried out by the authority where the child is ordinarily resident.”

Lord Justice Bean observed: “Use of the ordinary residence test is also in my view consistent with public policy and in particular with the Armed Forces Covenant to which Hampshire has subscribed for some years.”

He agreed with the Upper Tribunal judge that the important features of the present case were that:

a) the deployment of T’s father to Dubai was for a strictly limited period (set at 3 years though in the event he and the family returned after 2 years) and the intention was clearly that they would then return to Hampshire;

b) the parents retained ownership of their home in Fareham, Hampshire, although they rented it out;

c) the Royal Navy paid for an annual return flight for GC and his family from Dubai to England to help them maintain contact with relatives in England.

On these facts, the Upper Tribunal was right to hold that T remained ordinarily resident in Hampshire, Lord Justice Bean said.

He added: “Not every move of a family abroad will have a factual background pointing to a child’s ordinary residence remaining in an English local authority. If a family relinquish ownership or the tenancy of their home in England and move abroad together because one of the parents has obtained a permanent job abroad, it may be very difficult to argue successfully that the child remains ordinarily resident in England for s.24 purposes. Less straightforward may be a situation where the family move for what is intended to be a trial period. As time then passes, it will be increasingly difficult to argue that the child remains ordinarily resident in the area.”

Such cases will have to be considered on the facts as and when they arise, the Court of Appeal judge said.

Finally, turning to the implementation question, Lord Justice Bean acknowledged that the statutory scheme contains two mechanisms by which a local authority may maintain an EHCP even if the provision specified within it cannot, or need not, be implemented:

• Section 45(5) of the 2014 Act allows a local authority to maintain an EHCP without implementing its contents where parents arrange alternative provision which the local authority considers suitable.
• A local authority also has a power to reassess what provision is necessary in an EHCP under s.44(3) of the 2014 Act.

He said: “Where a child is temporarily abroad such that current EHC provision cannot be implemented, there is nothing to stop a local authority from amending the contents of an EHCP to reflect a change in what is necessary for the child; but that does not justify ceasing to maintain the EHCP. Here, suitable alternative provision was found by the Respondents, facilitated by the Ministry of Defence. The council, because of their failure to consult as they should have done, were unaware of this. But if they had made proper enquiries they could quite properly have decided to maintain the EHCP without implementing its contents as s.45(5) permits: or, in the apt words of the FTT, effectively to ‘freeze’ or ‘pause’ the provision of education themselves.”

The appeal was dismissed. Lady Justice King and Lord Justice Stuart-Smith agreed.

Lottie Winson