By Holly Littlewood, Barrister, Spire Barristers

In the recent case of Hampshire County Council v GC and another [2026] EWCA Civ 20, the Court of Appeal has handed down an important judgment on the statutory duties which local authorities owe to children and young people with SEND, under the Children and Families Act 2014 (“CFA”). In particular, this case addresses:

• Whether a failure to consult a child’s parent or young person before deciding to cease to maintain an Education, Health and Care Plan (“EHCP”) could form the basis of a successful appeal against such a decision;
• The test for determining whether a child or young person is “in the authority’s area” for the purposes of section 24 CFA;
• The legal mechanism by which the duty to secure the special educational provision specified within an EHCP may be “paused”, whilst a child or young person is temporarily absent from a local authority area.

Factual and procedural background

 This case concerned a boy, T, with diagnoses of autism spectrum disorder and global developmental delay, who lived with his family in Hampshire. Hampshire County Council (“the LA”) maintained an EHCP for T.

T’s father, GC, was an officer in the Royal Navy, and in August 2021, GC was deployed to Dubai. The family, including T, relocated to Dubai, with the intention that they would return to Hampshire at the end of GC’s deployment.

The LA initially informed T’s parents that his EHCP would be “paused” whilst T was living in Dubai. However, in November 2021, without consulting T’s parents, the LA notified T’s parents that T’s EHCP had been ceased.

T’s parents appealed the LA’s decision to the First-tier Tribunal (SEND) (“the FTT”) under section 51(2)(f) CFA. In March 2023, the FTT allowed T’s parents’ appeal, and ordered the LA to continue to maintain T’s EHCP. The LA appealed the FTT’s decision to the Upper Tribunal (“UT”). By the time of the UT hearing in October 2023, T and his family had returned to live in Hampshire, and the LA had issued a fresh EHCP for T at his new mainstream junior school. Nonetheless, it was agreed as between the parties that the appeal should proceed, given that the issues under consideration were of general importance.

The FTT’s decision was upheld in the UT (see Hampshire County Council v GC and another [2024] UKUT 128 (AAC)), and was subsequently upheld in the Court of Appeal.

The implications of a failure to consult

 Regulation 31 of the Special Educational Needs and Disability Regulations 2014 (“SEND Regs”) provides that, where a local authority is considering ceasing to maintain an EHCP, it must consult the child’s parent or young person, along with the child’s head teacher (or equivalent). Further, where a local authority has decided to cease to maintain an EHCP, it must notify the child’s parent or young person of that fact, and of their right to appeal.

It was not in dispute that the LA had failed to follow this procedure in T’s case (described by the UT as “egregious and manifest” breaches). The question was: what were the implications of this failure for the outcome of the appeal?

The FTT held that, because the LA had not followed this procedure, its decision was invalid, regardless of the merits or otherwise of the substantive decision. The UT agreed with the FTT’s analysis, albeit that it left open the question of whether minor infringements of regulation 31, which did not result in prejudice to the child’s parents or young person, might not invalidate the subsequent decision.

The Court of Appeal held that, whilst the failure to follow this procedure did not automatically invalidate a local authority’s decision, it could be taken into account by the FTT when deciding whether to allow any subsequent appeal, on a fact-specific basis. As such, the Court of Appeal confirmed that “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 as per original).

Test for determining whether a child or young person is “in the authority’s area”

 Section 24 CFA provides that a local authority in England owes duties under Part 3 of the CFA to children and young people “in the authority’s area”. The question was: how should “in the authority’s area” be interpreted? The LA contended for a “physical presence” test, whereas T’s parents contended for an “ordinary or habitual residence” test.

The meaning of “in the authority’s area” had previously been considered by the High Court in G v Kent County Council [2016] EWHC 1102 (Admin), in the context of an equivalent statutory provision in the Education Act 1996 (the predecessor legislation to the CFA). In that case, it was held that the test was whether there had been a “permanent move”. Further, it was held that, whilst the features for determining ordinary residence (such as voluntary adoption, settled purpose and duration) might be “of assistance” in determining whether a child was in the authority’s area, they could be no more than “indirect pointers”.

The UT in Hampshire County Council v GC disagreed with the conclusion reached in G v Kent County Council, and determined that the correct test was one of ordinary (or habitual) residence.

The Court of Appeal confirmed that the correct test was one of ordinary residence. The Court of Appeal held that the proposed “physical presence” test did not withstand scrutiny, when applied to obvious hypothetical scenarios such as a child accompanying a parent on a fixed-term deployment abroad; a child living between separated parents’ homes (in different local authority areas) in a shared care arrangement; or a looked-after child being placed in an out-of-area placement.

The Court of Appeal held that, on the facts of T’s case, he remained ordinarily resident in Hampshire. Important features leading to this conclusion were that GC’s deployment was for a strictly time-limited period; that the family’s intention was to return to live in Hampshire; that they continued to own their home in Hampshire (albeit that it was rented out); and, that the Royal Navy paid for an annual flight for GC and his family to return to England, to support them to maintain contact with relatives.

The legal mechanism for “pausing” an EHCP

 Section 42(2) CFA 2014 places an absolute and non-delegable duty on a local authority to secure the special educational provision specified within a child or young person’s EHCP.

The LA argued that, if it was required to maintain T’s EHCP whilst he was living in Dubai, it would be unable to secure the special educational provision specified in T’s EHCP, and would therefore inevitably find itself in breach of its statutory duty under section 42(2) CFA. Both the UT and the Court of Appeal rejected this argument, holding that there were two legal mechanisms via which an EHCP could effectively be “paused”: via section 42(5) CFA (suitable alternative arrangements) or section 44(3) CFA (EHC needs re-assessment).

Firstly, section 42(5) CFA provides that the duty to secure special educational provision does not apply where the child’s parent or the young person “has made suitable alternative arrangements”. In such circumstances, the local authority continues to maintain the EHCP, but without implementing its contents. In T’s case, suitable alternative arrangements had been made, in the form of a school in Dubai, facilitated by the Ministry of Defence.

 Secondly, section 44(3) CFA provides that a local authority may re-assess a child or young person’s education, health and social care needs if it thinks it necessary. The Court of Appeal held that, where a child is temporarily abroad such that current EHC provision cannot be implemented, there is nothing to stop a local authority re-assessing the child’s needs under section 44(3) CFA to reflect a change in what is necessary for the child.

Further, as submitted by T’s parents, the fact that a local authority is unable to secure the special educational provision specified in an EHCP (whether because the child or young person is temporarily abroad, or otherwise), would not be a lawful basis for ceasing to maintain that EHCP in any event.

Conclusion

 This case is likely to have significant implications, both for service personnel who have children with EHCPs, and for other categories of children who may live temporarily outside of their local authority area. It broadens the scope of local authorities’ responsibilities for children with SEND, to those that are ordinarily resident in their area, as well as those who are physically present. Further, it emphasises the “fundamental importance … to the fair and proper operation of the system” of consultation with the child or young person, the child’s parents, and the child or young person’s school.  

Holly Littlewood is a barrister at Spire Barristers, specialising in Court of Protection and education law. She can be contacted on 0113 200 2400 or by email at hlittlewood@spirebarristers.co.uk.

This article is written for general information purposes. It does not constitute legal advice, and should not be relied on as such.

 Holly Littlewood, Barrister, Spire Barristers