If you’ve ever wondered how local authorities handle Education, Health and Care Plans (EHCPs) when families temporarily move abroad, the recent case of Hampshire County Council v GC and another sheds some light on the issue. This case involved a child, referred to as T, whose father was deployed to Dubai with the Royal Navy. Hampshire County Council decided to stop maintaining T’s EHCP, arguing that since T was no longer physically present in their area, they weren’t responsible for his plan. T’s parents challenged this decision, and the case eventually made its way to the Court of Appeal.
What was the issue?
The big question was whether Hampshire County Council could lawfully stop maintaining T’s EHCP while he was temporarily living abroad. The Council argued that their responsibility only applied to children physically present in their area. They also claimed they couldn’t meet their legal duty to provide the support outlined in T’s EHCP while he was overseas. On the other hand, T’s parents argued that T was still “ordinarily resident” in Hampshire, even though he was temporarily in Dubai, and that the Council had failed to consult them before making its decision.
What did the court say?
The Court of Appeal sided with T’s parents. Here’s why:
1. Ordinary residence matters: The court clarified that the phrase “in the authority’s area” under the Children and Families Act 2014 refers to where a child is ordinarily or habitually resident—not just where they’re physically present. Since T’s move to Dubai was temporary, he was still considered ordinarily resident in Hampshire, meaning the Council was still responsible for his EHCP.
2. Procedural errors: The Council didn’t follow the rules. Regulation 31 of the Special Educational Needs and Disability Regulations 2014 requires local authorities to consult parents before deciding to stop an EHCP. Hampshire County Council didn’t do this – which was a significant procedural failure.
3. Temporary absences don’t mean the end of an EHCP: The court pointed out that local authorities can maintain an EHCP even if they can’t fully deliver the support while a child is temporarily away. Stopping the EHCP would have left T without proper support when he returned to the UK, forcing his family to start the assessment process all over again.
4. Discretion, not obligation: The court noted that local authorities have discretion under the law to decide whether to stop maintaining an EHCP. In this case, the Council wasn’t required to stop T’s plan, especially since his parents had made suitable arrangements for his education while abroad.
Why does this matter?
This case is a big deal for families who might need to temporarily move out of their local authority’s area, whether for work, military service, or other reasons. It reinforces the idea that local authorities can’t just stop an EHCP because a child isn’t physically present – they need to consider the child’s ordinary residence and follow proper procedures. It also highlights the importance of the Armed Forces Covenant, which aims to protect service families from being disadvantaged due to their unique circumstances.
For parents of children with special educational needs, this case is a reminder of the protections in place under the Children and Families Act 2014. It also serves as a cautionary tale for local authorities to ensure they’re following the rules when making decisions about EHCPs.
How can we help?
Our dedicated Education Law team provide legal support to parents and caregivers of children and young people with SEN. Discover how we can support you today and contact us for an initial consultation, where we can discuss your specific situation and provide guidance on how our education law services can assist you.
