The case centred on a Royal Navy officer’s child who has significant SEN. Hampshire Council withdrew the child’s Education, Health and Care Plan (EHCP) and the specialist provision that comes with it, when the family was temporarily deployed abroad with the military. The council claimed it was no longer responsible as the child was not physically in its area.
In a unanimous decision, the Court of Appeal firmly rejected this interpretation. The judges ruled that a council’s responsibility is tied to where a child is ‘ordinarily resident,’ not merely physically present. This means children who are temporarily abroad, in care placements outside the area, or living with separated parents retain their right to an EHCP from their home local authority.
The court emphasised a ‘fundamental and frightening inequality of power’ between families and councils, and that ‘consultation with the child or young person, the child’s parents and the child’s school is of fundamental importance.’ It found Hampshire’s actions, taken without any consultation, constituted “egregious and manifest breaches” of legal safeguards.
The ruling clarifies that councils cannot cease an EHCP simply because they cannot deliver provision during a temporary absence; they must instead use mechanisms to ‘pause’ the plan. It also established that any major SEN decision, such as refusing an assessment or amending a plan, made without following mandatory consultation rules, is liable to be overturned by a tribunal.
The judgment will force local authorities nationwide to overhaul decision-making processes, ensuring proper consultation and maintaining support for vulnerable children during temporary moves, thereby empowering thousands of families to hold councils to account.
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