Hampshire County Council v GC and GC (SEND): [2024] UKUT 128 (AAC)

• it remained responsible for the child  

• could “pause” providing the EHC plan whilst the family was overseas, and 

• because the LA had failed to complete the required statutory process before deciding to cease to maintain the plan. 

The LA appealed this decision to the Upper Tribunal and was unsuccessful.  

The Upper Tribunal made clear that a decision to cease to maintain an EHC plan under section 45(1) CFA 2014 will be invalid if it is taken in breach of the mandatory requirements of regulation 31 of The SEND Regulations 2014 (although the judge noted that future case law may deal with a situation where the breach is minor because substantially all of the requirements are met and the parent/young person isn’t disadvantaged, which wasn’t the situation in this case where the breach was “obvious and blatant”). 

The Upper Tribunal also grappled with what being in an LA’s area means for the purposes of an LA being responsible for a child or young person under the CFA 2014. Being in an LA’s area may involve physically being present in it, but this isn’t the definitive test: The question involves considering whether the child or young person is ordinarily or habitually resident in that area (even if there is a temporary absence – in this case, caused by the parent’s deployment overseas as part of the Royal Navy). 

Habitual residence will have “a certain duration which reflects an adequate degree of permanence”, although the law does not lay down any minimum time requirement. For habitual residence to transfer to somewhere else (in this case, due to the overseas deployment that the child accompanied their parent to), there has to be an intention of “lasting character” to make the other place the “permanent or habitual centre of [their] interests”– so the duration of the absence alone doesn’t change where someone’s habitual residence is. All the circumstances must be considered. 

In this case, there were a number of relevant facts that indicated that the family’s habitual residence hadn’t changed and remained in Hampshire: 

• the family only moved because of the father’s deployment by the Royal Navy, which was anticipated to be for 3 years  

• the family did not intend to settle permanently in Dubai and would be returning to Hampshire no matter where the father was posted in the UK (the Royal Navy makes arrangements for this type of arrangement, known as “get you home” arrangements) 

• they kept their house in Hampshire, even though it was rented out  

• the Navy provided their housing and education in Dubai and offered them a return flight to the UK each year to keep in touch with their family during the deployment overseas, and 

• the child continued to be paid UK benefits and their father remained a UK tax payer. 

Finally, LAs have discretion under section 45 CFA 2014 to continue to maintain a plan where they are “no longer responsible” for a child or young person: This section of law sets out that an LA “may” stop an EHC plan when it’s no longer responsible, it does not say it must. In this case, that discretion didn’t apply because the child was found to still be in the LA’s area so it had to continue their plan. Where the LA remains responsible for an EHC plan but the child or young person is absent from the area, then the LA could simply maintain the status quo pending the family’s return to the UK. 

What does this mean? 

When considering whether or not a child or young person is in its area, LAs must consider whether their absence means they are no longer habitually resident: and the duration of any absence alone won’t determine this. All the specific circumstances must be considered. 

Section 45(1) CFA 2014 contains discretion to cease to maintain an EHC plan not an obligation to do so (so it’s always open the LA to continue to maintain a child or young person’s plan). 

Section 42(5) CFA 2014 means the LA is not obliged to secure the special educational provision in an EHC plan if the parent has made suitable alternative arrangements. So, there are circumstances in which an EHC plan may be maintained but temporarily not implemented by the LA.  

It is imperative that the LA follows the process laid out in regulation 31 of The SEND Regulations 2014 before deciding whether to cease to maintain a plan – failure to do so to a parent/young person’s disadvantage will invalidate the decision. 

The full report for Hampshire County Council v GC and GC (SEND) [2024] UKUT 128 (AAC) is available online. It includes other references to law and guidance, including that which is specifically relevant to children with parents in the armed forces.