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Landmark Court of Appeal case secures special educational needs rights for disadvantaged children

Published:

Hampshire County Council v GC [2026] EWCA Civ 20

The Court of Appeal today handed down judgment in a test case which significantly strengthens the rights of children with special educational needs (SEN) and their parents. It will affect thousands of children and hundreds of local authorities.  Tom Gillie and Roisin Swords-Kieley represented the successful parents in the Court of Appeal.

The mother of the child said: “It’s been a huge journey and has been testing at times but what has kept us going is that this will have huge implications not only for SEND military families but also for foster children and wider SEND families generally. We are so thrilled with the outcome and as SEND parents we’ve had to fight continuously. Hopefully this will help other families by making the process slightly easier for them and ensuring that they don’t have to go through the same hardship we have.”

Addressing the Court of Appeal on behalf of the parents, Tom Gillie made clear: “Local authorities have the power to make decisions which have life-long consequences for disadvantaged children with disabilities and additional needs and their families. There is therefore a substantial inequality of power between children with SEN and their families on one hand, and, on the other, local authorities.”

Facts

Hampshire County Council is home to the Royal Navy, Army and the RAF and many armed service personnel live in its area. An Officer of the Royal Navy from Fareham has a child, T, with significant SEN. Hampshire maintained an Education and Health Care Plan (EHCP) for the child under which SEN provision was provided. The naval Officer was deployed by the Royal Navy abroad in the service of the nation. The deployment was temporary and his children and his wife accompanied him. The family rented out their house in the UK and were deployed to a British base. The Ministry of Defence facilitated SEN provision for T in a school abroad.

The council initially said it would freeze T’s EHCP so that it remained in place and could be implemented on T’s return to the UK, at the end of the deployment. But then, with no notice, and without any consultation whatsoever with the parents, the child or the school, the council decided to cease to maintain the EHCP, and therefore SEN provision for the child. The reason given was that the child had moved out of the local authority’s area. Therefore, the council was no longer responsible for him because, for a council to be responsible for a child with SEN, section 24 of the Children and Families Act 2014 requires the child to be “in the local authority’s area”. Hampshire contended that this meant the child had to be physically present in the local authority’s area. The council’s actions were, in the words of the Court of Appeal, a “wholesale and egregious” breach of its duties.

T’s parents brought an Appeal of Hampshire’s decision in the First Tier Tribunal. The parents said that they were being disadvantaged by the father’s military service for the country. The Tribunal decided that Hampshire remained responsible for the child despite his temporary absence abroad. Further, the council had failed to consult with the parents and the school before deciding to withdraw (or cease) the EHCP and SEN support. That was a breach of the mandatory legislative requirements of the Special Educational Needs and Disability Regulations 2014. For those reasons, the council was barred from ceasing to maintain T’s EHCP, and the SEN provision which went with it.

The council appealed to the Upper Tribunal and then to the Court of Appeal.

Court of Appeal decision

The appeal was heard before Lord Justice Bean, Lady Justice King and Lord Justice Stuart-Smith.

The Court unanimously ruled that:

  1. “There is a fundamental and frightening inequality of power” between children with SEN and their parents on one hand and local authorities on the other; local councils have the power to take decisions that have lifelong consequences for children and their families. “Consultation with the child or young person, the child’s parents and the child’s school is of fundamental importance to the fair and proper operation of the SEN system”.
  2. Local authorities are responsible for children with SEN who are not merely present in their area, but who are “ordinarily resident” in their area. This means that children who are temporarily absent abroad or in a different part of the UK, even for lengthy periods of months or years, will nevertheless retain their rights to an EHCP maintained by the local authority where they ordinarily reside. This is particularly important for children in care, the children of armed forces personnel and the children of separated or divorced parents.
  3. The fact that the local authority may not be able to implement and provide the SEN provision set out in an EHCP while a child is out of the area is no excuse for ceasing to maintain an EHCP. The Children and Families Act 2014 has two mechanisms which allow the local authority effectively to “pause” or to “freeze” the plan in those circumstances: either, by satisfying themselves that the parents of the child have organised suitable alternative SEN provision for the duration of the absence, or by reassessing the needs of the child for the period he or she is absent from home.
  4. In this case, the local authority had committed “egregious and manifest breaches” of the procedural safeguards. More widely, a local authority’s decision to cease to maintain an EHCP will be liable to be held invalid and set aside by a Tribunal if it the council takes the decision without following the procedural requirements in Regulation 31 of the Special Educational Needs and Disability Regulations 2014, which include duties to consult with the parents and the school, and to provide the parents with information about how to challenge the local authority’s decision (among other duties). Further, any of the following decisions of local councils, if taken in breach of the mandatory regulations which govern them, including consultation, will be liable to be held invalid and set aside:
    1. a decision not to secure an EHC needs assessment, or a needs re-assessment for the child or young person;
    2. a decision that it is not necessary for special educational provision to be made for the child or young person in accordance with an EHCP;
    3. where an EHCP is maintained for the child or young person, decisions about
      1. the child’s or young person’s special educational needs as specified in the plan;
      2. the special educational provision specified in the plan;
      3. the school or other institution named in the plan, or the type of school or other institution specified in the plan;
    4. a decision of a local authority not to secure the amendment or replacement of an EHCP it maintains for the child or young person following a review or re-assessment.

Impact on parents and local authorities

The Court of Appeal’s judgment will have significant consequences. It broadens the category of SEN children for whom local authorities are responsible and gives teeth to the procedural safeguards designed to protect young people and parents.

It means that local authorities will now have to take much more care to actually comply with the mandatory procedural steps they are required to take when making important decisions to do with SEN provision. Local councils will need to make sure they have the staff and processes in place to consult properly with parents before taking decisions about their children. If councils do not, they may well find that their decisions are invalidated by a Tribunal.

Parents of SEN children are in a much stronger position than previously. They now have a clear and meaningful right to be consulted and to be listened to, and a tool to ensure that the local authority abides by the correct process when making decisions about them, and is held to account if it fails to do so.

Local authorities may no longer refuse to provide EHCPs to children who temporarily move to live elsewhere. Instead, local authorities remain responsible for maintaining EHCPs for children who ordinarily live in the local area and cannot assume that an absence is not temporary simply because it is not short-lived. This is particularly important for children in care who are put in short-term placements outside the local authority, the children of parents in military service who accompany their parents on deployment, and children of separated or divorced parents who split their time between each. In all cases, local authorities must maintain EHCPs unless it is clear that the child is not merely absent on a temporary basis.

Click here to read the full judgment.