Hampshire County Council v GC & Anor

Factual and Procedural Background

This opinion, delivered by Judge Bean, concerns Company A's decision to cease to maintain an Education, Health and Care Plan (EHCP) for a disabled child ("Child") when the family temporarily relocated to The State due to the Parent's service in Company C. Child was born on 15 June 2015, diagnosed with Autism Spectrum Disorder and Global Developmental Delay, and had an EHCP issued on 14 October 2019. The family retained ownership of their home in The City but rented it during their absence. Company A notified the Respondents that the EHCP was ceased in November 2021 without consultation, and later confirmed cessation in January 2022. The Respondents appealed under s.51(2)(f) of the Children and Families Act 2014, which stayed Company A's decision pending determination. The First-tier Tribunal (FTT) upheld the appeal on 30 March 2023, finding mandatory regulatory breaches and directing that Company A may not cease to maintain the EHCP. Company A obtained permission to appeal to the Upper Tribunal; the family returned to The City in July 2023 and a fresh EHCP was issued in September 2023. The appeal proceeded to this court where Judge Bean heard submissions and concluded as set out below.

Legal Issues Presented

1. Jurisdiction question: What is the jurisdiction of the First-tier Tribunal under s.51 of the Children and Families Act 2014 — in particular, may the Tribunal uphold an appeal on the basis of a procedural error (or multiple procedural errors) made by a local authority?
2. Residence question: What is the meaning of "in the authority's area" in s.24 of the 2014 Act — does the test for Part 3 responsibility depend on ordinary/habitual residence or on physical presence?
3. Implementation question: Are there circumstances in which a local authority may maintain an EHCP without securing the provision set out in the plan, and how can a local authority give effect to that duty in such circumstances?

Arguments of the Parties

Appellant's Arguments (Company A)

• Company A accepted the regulatory breaches but submitted the FTT/Upper Tribunal extended the Tribunal's jurisdiction beyond its statutory remit by allowing procedural defects predating the appeal to invalidate the decision; such issues should be for judicial review in the High Court.
• Company A argued s.24 should be read as requiring physical presence in the authority's area (a presence test), not an ordinary/habitual residence test.
• Company A contended s.42(2) imposes an absolute duty to secure specified provision when an EHCP is maintained, so if provision cannot be secured while a child is abroad the authority may lawfully cease to maintain the EHCP; the Tribunal's approach creates practical difficulties.
• Attorney Line relied on statutory construction principles (citing R v Soneji) and emphasised that the Tribunal's jurisdiction relates to the decision to cease to maintain, not the antecedent process.

Respondents' Arguments

• The Respondents contended the Tribunal's jurisdiction is defined by the subject matter in s.51(2) and can include deciding that a decision is invalid for breach of mandatory regulations governing that decision (here Reg. 31).
• They submitted Reg. 31 is integral to the exercise of the power to cease to maintain and that allowing only High Court review would produce duplication, delay and undermine the specialist tribunal scheme.
• On residence, the Respondents argued for an ordinary/habitual residence test (relying on A v A and Departmental guidance) to avoid unfair consequences for Service children and those temporarily absent.
• On implementation, the Respondents submitted statutory mechanisms (s.42(5) and s.44(3)) permit a local authority to maintain an EHCP without implementing its contents where suitable alternative arrangements exist or reassessment is appropriate.
• Attorney Gillie emphasized public policy and the rule of law benefits of tribunal jurisdiction, and cited authorities (including Chief Adjudication Officer v Foster) by analogy.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Bean analysed the three grounds sequentially.

Jurisdiction: The court rejected the submission that challenges to mandatory procedural compliance (Reg. 31) must be pursued only by judicial review in the High Court. The FTT's jurisdiction under s.51 covers appeals against matters listed in s.51(2), and that jurisdiction extends to declaring a decision to cease to maintain an EHCP invalid where the decision was taken in breach of mandatory regulations governing that decision. The court amended the lower tribunal's formulation to state that a s.45(1) decision "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". The court recognised that not every procedural defect will invalidate a decision where breach is immaterial, but in this case the failures were wholesale and integral to the decision.

Residence: The court rejected a simple physical presence test for s.24 responsibility and adopted an ordinary/habitual residence test informed by A v A and statutory guidance. The court explained that ordinary residence better allocates responsibility, avoids perverse outcomes (especially for Service children and looked-after children), and is consistent with statutory language such as s.83(6) and long-standing guidance. Applying the ordinary residence test to the facts (limited-duration deployment, retention of home ownership in The City, intended return, and other factors) the court concluded Child remained ordinarily resident in The City and thus within Company A's area.

Implementation: The court identified statutory mechanisms permitting a local authority to maintain an EHCP without securing its specified provision where appropriate: s.42(5) (suitable alternative arrangements by parents) and s.44(3) (reassessment power). The court held that where suitable alternative provision exists, or the authority properly amends/reassesses the plan, maintaining an EHCP without implementation is permissible; this supports the FTT's practical approach of "freezing" or "pausing" an EHCP in analogous circumstances. The court found Company A had not made requisite inquiries and had failed to consult, so it could not lawfully cease to maintain Child's EHCP.

Holding and Implications

DISMISSED

Holding: The appeal by Company A is dismissed. The court held that (i) the FTT has jurisdiction under s.51 to set aside a decision to cease to maintain an EHCP where the decision contravenes mandatory procedural requirements governing that decision (Reg. 31); (ii) "in the authority's area" in s.24 is to be assessed by reference to ordinary or habitual residence rather than mere physical presence; and (iii) statutory mechanisms (s.42(5), s.44(3)) permit a local authority to maintain an EHCP without implementing its specified provision where appropriate.

Implications: The direct effect is that Company A may not lawfully cease to maintain Child's EHCP given the procedural breaches and the finding that Child remained ordinarily resident in Company A's area while temporarily abroad. The court endorsed the FTT's pragmatic approach (described as "freezing" or "pausing") as consistent with the statutory scheme. By agreement there will be no order as to costs.