Many members of the Armed Forces have children with special education needs. What should happen to special educational needs provision when those children accompany their parents abroad on military deployment?
Clifford Chance have instructed Tom Gillie, leading Roisin Swords-Kieley, in Hampshire County Council v GC, to represent the respondent parents of a child with special educational needs in the Court of Appeal. The Child’s parent is an officer of the Royal Navy. The appeal concerns two important matters to do with children with special educational needs (SEN):
- The relationship between section 45 (1) Children and Families Act 2014, which gives local authorities a power to cease maintaining Education and Health Care Plans (EHCPs), and the Special Educational Needs and Disability Regulations 2014, which regulate the procedure a local authority must follow to exercise that power (‘the statutory procedure issue’); and
- The threshold test of residence, rendering a local authority responsible for a child with SEN ‘in its area’, in section 24 Children and Families Act 2014 so far as it applies to the children of military families on temporary deployment with His Majesty’s Armed Forces.
Tom Gillie represented the successful respondent parents in the Upper Tribunal. The Upper Tribunal’s judgment set out two important principles that were advanced by the Respondent parents. First, that in order validly to cease maintaining a child’s ECHP, a local authority must comply with the procedural right to consultation contained in the Reg 31 of the Special Educational Needs and Disability Regulations 2014. Second, that section 24 Children and Families Act 2014 denoted a test of ordinary residence in a local authority’s area, so that local authorities continue to have a duty to maintain an EHCP for children who are temporarily absent from the local authority while their parents are deployed abroad in the armed forces.
The Upper Tribunal’s judgment under appeal can be found here.