3.1 Precedents Cited

R v Soneji [2006] 1 AC 340

Hampshire relied on Lord Steyn’s discussion of statutory commands drafted in imperative form without express consequences for non-compliance, and the approach of asking whether Parliament intended “total invalidity”. The Court of Appeal treated this as background to the “automatic invalidity” debate, but effectively side-stepped any rigid rule: it accepted that not every procedural misstep must invariably nullify a decision, while holding that wholesale non-compliance with mandatory consultation/notification duties is paradigmatically material and can properly found the setting aside of the cessation decision.

Chief Adjudication Officer and another v Foster [1993] AC 754

Foster was central to rejecting the notion that procedural lawfulness had to be litigated separately by judicial review. The Court of Appeal invoked Lord Bridge’s concern about duplicated proceedings to support a practical and principled construction: Parliament created a specialist tribunal system for accessible, efficient adjudication; forcing parents into parallel High Court litigation to challenge procedural unlawfulness would undermine that design.

R v East Sussex CC ex p. Tandy [1998] AC 714

The Respondents cited Tandy to emphasise that courts should be slow to downgrade statutory duties into mere discretions. The case supported the characterisation of reg.31 as a mandatory procedural regime integral to the lawful exercise of the cessation power under s.45 CFA 2014.

R(Kumar) v Hillingdon LBC [2021] PTSR 686

The Court cited Collins-Rice J’s observation about “fundamental and frightening inequality of power” in SEN disputes to reinforce the policy rationale for tribunal-centred dispute resolution. This helped justify an interpretation that leaves parents able to secure effective remedies within the tribunal system rather than by expensive and complex High Court proceedings.

A v A (Children: Habitual Residence) [2013] UKSC 60; [2014] AC 1

The Upper Tribunal had drawn on A v A (including Lord Hughes’s discussion of permanence and intention) to analyse whether the family’s stay abroad was temporary. The Court of Appeal considered it unnecessary to delve into fine distinctions between habitual and ordinary residence, but accepted the general conceptual framework: a temporary, time-limited posting with a clear intention to return is inconsistent with a shift of the child’s enduring centre of life away from the English authority.

R (Cornwall Council) v Secretary of State for Health [2015] UKSC 46; [2016] AC 137

Cornwall was used as an analogy for allocating responsibility among public bodies where services are delivered away from the “home” area. The Court drew from Cornwall the resilience and administrative necessity of the ordinary residence test and the policy against “exporting” responsibilities by relying on the location of a placement. That reasoning supported reading s.24 CFA 2014 as anchored in ordinary residence rather than fluctuating physical presence.

3.2 Legal Reasoning

(A) Jurisdiction: can procedural breaches found a successful s.51 appeal?

The Court rejected a bright line between the “decision” and the “process”. Under s.51, an appeal lies against a decision to cease to maintain an EHCP. Where regulations prescribe mandatory steps governing the making of that decision (reg.31), the tribunal’s task necessarily includes deciding whether the decision can stand in light of non-compliance.

Importantly, the Court calibrated the consequences:

• it accepted that breach does not entail automatic invalidity in every case; rather,
• a cessation decision “will be liable to be held invalid and set aside” where taken in breach of mandatory reg.31 requirements—particularly where, as here, there was “wholesale and egregious” non-compliance.

This approach preserves flexibility for immaterial/minor breaches in future while ensuring that core fairness safeguards—consultation and informed notice of appeal rights—have real legal effect.

(B) “In the authority’s area”: ordinary residence, not physical presence

The Court treated “physical presence” as unworkable as a rule of legal responsibility: holidays, short absences, shared care arrangements, and placements of looked-after children would create instability and potentially allow duties to evaporate whenever a child crossed a boundary.

The Court therefore adopted an ordinary residence construction for s.24 CFA 2014:

• it aligns with long-standing allocation principles in public law (as reflected in R (Cornwall Council) v Secretary of State for Health);
• it matches Department for Education guidance construing “in their area” as “ordinarily resident” (persuasive though not binding);
• it supports continuity and prevents avoidable “resetting” of SEN protections after temporary absences.

On the facts, the overseas posting was for a strictly limited period; the family retained their home in Hampshire (albeit rented out); and the arrangement was structured to maintain continuing ties (including annual return flights). Those circumstances supported the finding that T remained ordinarily resident in Hampshire despite physical presence abroad.

The Court also found some textual support in s.83(6) CFA 2014 (the Wales carve-out) as indicating that “in the area” cannot be a crude presence test; the scheme recognises that responsibility follows residence/connection rather than day-to-day location.

(C) Implementation: how can an EHCP be maintained when provision cannot be secured abroad?

Hampshire argued that s.42(2) imposes an absolute, non-delegable duty to secure the provision in section F of the plan, and that impossibility of implementation justified cessation under s.45. The Court rejected that as a false dichotomy: the statute anticipates circumstances where an EHCP is maintained while the authority is not required (or cannot sensibly be expected) to secure the specified provision.

Two statutory mechanisms were emphasised:

1. s.42(5): the duty to secure provision does not apply if the parent has made “suitable alternative arrangements”, provided the authority satisfies itself of suitability. Here, alternative provision was facilitated by the Ministry of Defence; the Council’s failure to consult meant it did not ascertain those arrangements.
2. s.44(3): the authority can reassess and amend the EHCP if it considers it necessary, including to reflect temporary changes in deliverability or needs, without resorting to cessation.

The Court accepted that “freeze” or “pause” is not statutory terminology, but treated it as a practical description of maintaining the plan (and its legal continuity/transferability) while not actively commissioning the UK-based package during a temporary period abroad.

3.3 Impact

Tribunal-centred enforcement of procedural legality

The decision strengthens the practical enforceability of procedural safeguards in SEN administration. Local authorities cannot treat reg.31 consultation and appeal-notification obligations as “soft” duties, confident that the merits will be reheard anyway. The FTT can set aside cessation decisions where mandatory procedural duties were materially breached, avoiding parallel judicial review.

Continuity of responsibility during temporary absence abroad

For Part 3 CFA 2014, responsibility follows ordinary residence, not mere physical presence. This has significant implications for:

• Service families (where postings abroad are time-limited and return is intended);
• looked-after children placed out of area; and
• children in shared-care arrangements whose day-to-day location fluctuates.

It reduces the risk of “gaps” in provision on return and avoids forcing families into a fresh EHCP process purely because of temporary absence.

Clarified pathways for lawful “non-implementation”

Authorities confronted with practical non-deliverability abroad are directed toward statutory tools (s.42(5), s.44(3)) rather than using cessation as a blunt instrument. This is likely to influence local authority policy for overseas postings and other temporary relocations.

Armed Forces Covenant and service disadvantage

Although s.343AA Armed Forces Act 2006 post-dated key events, the Court treated the Covenant’s “no disadvantage” principle as consistent with (and supportive of) an interpretation that preserves EHCP continuity for service children during temporary deployments.

Limits and fact-sensitivity

The Court expressly cautioned that not every move abroad will preserve ordinary residence. Relinquishing a UK home and taking a permanent job abroad may point strongly the other way; “trial period” moves may become harder to characterise as temporary as time passes. Future disputes will remain fact-sensitive.