Which LA is responsible when a looked after child is placed in a different LA’s area for the purpose of an EHCP?
- Sarah Davidson
- Sep 2, 2024
- 8 min read
Relevant statutory and regulatory framework
A local authority is ‘responsible’ for a child/YP for the purposes of Part 3 of the Children and Families Act 2014 (“CFA 2014”) if that child/YP is [Section 24(1) CFA 2014]:
In the local authority’s area, and: -
Has been either - (i) identified by the LA as someone who has or may have SEN; or (ii) is brought to the LA’s attention by any person as someone who has or may have SEN.
Sections 37(1)(b) and 42(2) of the CFA 2014 require a local authority who has made an EHC plan to maintain it and secure the special educational provision in it.
Section 45(1) of the CFA 2014 provides that a local authority may cease to maintain an EHC only if (a) it is no longer responsible for the child/YP or (b) it determines that the plan is no longer necessary.
Section 47 of the CFA 2014 provides that “regulations” can be made to make provision for an EHC plan to be transferred from one local authority to another “where the other authority becomes responsible for the child or young person”.
The relevant regulation made under this section is Regulation 15 of the Special Educational Needs and Disability Regulations 2014 (“2014 Regulations”). These regulations apply where a child/YP “moves from the area of the local authority which maintains the EHCP into the area of another local authority”. In this situation, the old authority would be required to transfer the Plan to the new authority, at which point the new authority becomes responsible for it. This regulation only applies to a local authority in England.
The question of when a child ‘moves’ out of one local authority’s area and into another was explored by the court in JG, MG v Kent County Council v TG [2016] EWHC 1102 (Admin). This remains the leading High Court case on determining when a child has ‘moved’ for the purposes of an EHCP.
TG was a 14-year-old child diagnosed with unsocialised conduct disorder with mixed neurodevelopment difficulties, who lived in Kent. Following a series of violent outbursts, TG’s father, MG, took TG on an ‘extended holiday’ to MG’s parents’ house in Sunderland, until Kent County Council (‘KCC’) either arranged for a residential school placement for TG, or provided some alternative accommodation in Kent for TG and MG.
KCC consequently took the view that TG had ‘moved’ to Sunderland and transferred his educational file there. A claim was subsequently launched alleging that KCC had behaved unlawfully in treating Sunderland as responsible for TG’s education.
The court (Nicol J) held that KCC had acted unlawfully for the purposes of Regulation 23 of the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001 (now replaced with Regulation 15 of the SEND Regulations). Key factors in the court’s decision were:
The fact MG saw this departure from Kent as temporary, not least because it involved separation from his wife and other children.
MG expected to be away from home for three months, as this was the length of time he thought it would take KCC to make the alternative arrangements for TG.
MG and TG’s departure was prompted by fear of TG’s violent outbursts, and how these could affect other children in the family home.
The court noted that permanent moves must be distinguished from temporary moves but gave no general guidance on how to do so. Every case will turn on its facts, but the court’s approach in JG shows that the intention of the moving party regarding the length and permanency of the move when it takes place will be significant.
There were two key determinations made in the case of JG v Kent:
The first is the question as to whether a child has ‘moved’ requires a distinction between “a situation where there has been a permanent move from one which is “temporary or transitory”. The Judge held that a “purely temporary, short-term absence” is not sufficient to say a child/YP has ‘moved’.
Secondly, the Judge held that features identified as relevant in ‘ordinary residence’ cases are of assistance but only as “indirect pointers” for the purposes of the EHCP statutory regime. Therefore ‘ordinary residence’ is not the appropriate (or at least sole) test to determine whether a person has moved for the purpose of an EHCP.
The Education (Areas to which Pupils and Students Belong) Regulations 1996 (SI 1996/615) (“the Belonging Regulations”) do not determine responsibility for who makes and maintains a statement of SEN – they have nothing to do with the question as to which LA is ‘responsible’ under the CFA 2014. Rather, the Belonging Regulations specify the area to which a child belongs for the purposes of recoupment under section 207 of the Education Act 2002 (“the 2002 Act”) and the Inter-authority Recoupment (England) Regulations 2013 (SI 2013/492) (“the Recoupment Regulations”).
The Recoupment Regulations make provision for recoupment of the cost of educating looked after children by one local authority from another. The regulations provide that an English local authority can recoup such costs from another English local authority as follows:
Where a looked after child has an EHCP or attends a special school and a local authority (referred to as ‘the providing authority’) incurs cost-making provision for their education, the local authority to which the child belongs (referred to as ‘the home authority’) must pay the providing authority such amount as the two authorities may agree: regulation 5.
Where the providing authority provides primary education, secondary education or part-time education where the child is under 5, to a looked after child belonging to the area of the home authority, the home authority may pay to the providing authority such amount as the authorities may agree: regulation 8.
Where the young person with an EHC plan is over 18, he is not a looked after child anymore and so recoupment is not possible.
So where does the High Needs Funding 2023-2024 Operation Guidance come into play, and how does this affect the existing statutory and regulatory framework?
The High Needs Funding 2023-2024 Operational Guide provides that:
When a local authority places a looked after child with an EHC plan in another local authority’s area (for example, with foster parents), the local authority where the looked after child lives (is wholly or mainly resident) becomes responsible for maintaining their EHC plan (including paying any top-up funding), in the same way as any child or young person who moves from one local authority’s area to another.
Therefore, in terms of which local authority is responsible under Section 24(1) of the CFA 2014 the guidance is unchanged. The law outlined above applies and the local authority where the child lives (regardless of which local authority looks after that child), is responsible for maintaining their EHCP.
However, the guidance does seem to depart from previous practice in its treatment of the recoupment regulations as they apply to looked after children.
While the new guidance acknowledges that ‘The Inter-authority Recoupment (England) Regulations 2013 permit the local authority where a looked after child with an EHC plan lives to recoup the cost of primary or secondary education, which includes additional SEND educational provision (for example, the costs of top-up funding), from the local authority responsible for looking after the child;’ the guidance stipulates that: ‘recoupment of education costs will not normally be appropriate.’
The rationale set out for this policy is that ‘2018 the high needs funding formula and associated arrangements have been designed to ensure that local authorities’ allocations of funding for SEND are based on the characteristics of the children and young people living in their area, including any looked after children. In addition, there are adjustments to reflect the costs relating to the movement of pupils and students living in one local authority area who receive their education in another local authority area.’
The guidance goes on to identify circumstances however where inter-authority recoupment may remain appropriate. These are:
For cross border pupils (Wales);
In the case of emergency or temporary placements by the local authority responsible for the looked after child/children. In these cases, ‘it may be reasonable for the placing local authority to pick up the costs (via recoupment) until a more permanent placement is made and/or the transfer of the EHC plan is arranged.’
Where a temporary placement decision of the local authority responsible for the looked after child/children has an unreasonable short-term financial consequence for another local authority because they have not had time to plan for the expenditure from their high needs budget.
Costs of additional SEND provision for young people in FE provisions cannot be recouped, even in the circumstances outlined in Para 16.
Further, recoupment is not available for pupils with SEN who are over the age of 18:
‘The Inter-authority Recoupment (England) Regulations 2013 apply only to looked after children (up to their eighteenth birthday), and so do not apply to those aged 19 or over. Once they are no longer looked after, the recoupment regulations no longer apply.’
How might LA’s challenge decisions over disputes as to who should be responsible for a looked after child’s EHCP?
The appropriate avenue for disputes in this area would be Judicial Review, and/or a complaint to the Department for Education under Section 496 of the Education Act 1996.
Case law highlights that it is for the originating local authority to apply the relevant law and guidance in determining to which local authority a child belongs (JG v Kent), . The question of whether a child/YP has ‘moved’ is for the originating authority to determine and is subject only to challenge on traditional judicial review grounds (para 143, JG v Kent).
Such decisions can also be challenged via Section 496 of the Education Act 1996 (“EA 1996”), which provides that:
If the Secretary of State is satisfied (either on a complaint by any person or otherwise) that a body to which this section applies have acted or are proposing to act unreasonably with respect to the exercise of any power conferred or the performance of any duty imposed by or under this Act, he may give such directions as to the exercise of the power or the performance of the duty as appear to him to be expedient (and may do so despite any enactment which makes the exercise of the power or the performance of the duty contingent upon the opinion of the body).
The relevant bodies for the purpose of Section 496 EA 1996 include ‘any local authority in England’ (section 496(2) EA 1996).
Summary and Conclusion
In conclusion, this is a technical and potentially confusing area of law, and different councils have differing approaches.
The relevant test to determine whether a child is ‘in the local authority’s area’ for the purpose of Section 24(1) Children and Families Act 2014 (and ‘moved’ for the purpose of the 2014 Regulations) is found in the leading case of JG v Kent. This case determined that the move should have a degree of permanence – that a “purely, temporary or short-term absence” is not sufficient. The case also clarified that it is for the LA who currently holds the EHCP to decide whether the child has moved for the purpose of Section 24 CFA 2014.
The Belonging Regulations have no relevance to the question of which LA is responsible, it is only relevant for the purpose of recouping the cost of educating looked after children by one local authority from another (the Recoupment Regulations).
The High Needs Funding framework since 2018, outlined in the recent Operational Guidance published by the Department for Education (2023-2024) establishes that ‘the recoupment of educational costs will not normally be appropriate’ and will only be appropriate in specific circumstances. The rationale for this is that High Needs Funding budgets should be designed to include Looked After Children who move into a local authority’s area.
The SEND Tribunal does not have jurisdiction to determine which LA should be responsible for a child/YP. It is for the placing local authority to decide whether the new local authority becomes responsible for the EHCP (in line with the statutory and regulatory framework). This decision can be challenged by way of judicial review and/or Section 496 Education Act 1996.
Disputes in this area can be difficult and sensitive, and therefore it's important to get specific legal advice in your particular case.
Sarah Davidson, Senior Paralegal at SV Law
2nd September 2024
This blog contains general information about law and legal practice. The information is not advice and should not be treated as such.
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