"The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future." 29. The conditions that will generally need to be met before this court may exercise its discretion to entertain an academic appeal were summarised by Lord Neuberger MR in Hutcheson v Popdog Ltd (News Group Newspapers Ltd, third party)[2011] EWCA Civ 1580 ,[2012] 1 WLR 782 at [15]: "(i) the court is satisfied that the appeal would raise a point of some general importance; (ii) the respondent to the appeal agrees to it proceeding, or is at least completely indemnified on costs and is not otherwise inappropriately prejudiced; (iii) the court is satisfied that both sides of the argument will be fully and properly ventilated."
“I agree that it is necessary to distinguish a situation where there has been a permanent move from one which is temporary or transitory”
“to require T to commence the process of applying for an EHCP afresh on the family’s return to the UK, may well result in T being without the provision he requires for a considerable portion of that academic year”
“a local authority may cease to maintain an EHC plan for a child”
“It should be noted that reg 2(4), as inserted by SI 2009/1301 for England and SI 2009/1338 for Wales, provides that these Regulations do not apply for the purpose of determining the education authority responsible for identifying, assessing, making and maintaining statements and performance of other functions under Pt 4 of the EA 1996 relating to children with special educational needs. This change effectively reverses R (L) v Waltham Forest LBC and Staffordshire CC[2007] EWHC 2060 (Admin) ,29 June 2007 – see, further, the 'Regulations' note to s 579, B [4149].”
“The decision to amend the Belonging Regulations follows the judgement in the case of a looked after child (LAC) with an SEN statement placed by Waltham Forest in Staffordshire (R (on the application of L) v the (1) London Borough of Waltham Forest and (2) Staffordshire County Council). The judgement said that the Belonging Regulations had wider application than just for assigning which authority had financial responsibility in inter-authority recoupment cases and, in particular, were applicable when deciding which authority is responsible for identifying a child’s SEN, assessing the child, and drawing up and maintaining an SEN statement. The Department’s view has been that the Belonging Regulations do not apply for this purpose and its guidance is that it should be the authority where the LAC is placed rather than home/placing authority that should carry out these SEN duties, recouping the costs from the home authority.”
“(4) These Regulations do not apply for the purpose of determining which authority's area a child is in for the purposes ofsection 321(3) of the Education Act 1996 andsection 24 of the Children and Families Act 2014 .”
“A reference in this Part to a child or young person who is “in the area” of a local authority in England does not include a child or young person who is wholly or mainly resident in the area of a local authority in Wales.”
“The forthcoming Children, Skills and Learning Bill will address the meaning of the term “in their area”. (3). guidance from a public authority about the interpretation to be given to a statutory term might be persuasive authority: Hyman and another v Revenue and Customs Commissioners[2022] EWCA Civ 185 ,[2022] STC 358 at [31]. The Guidance produced by the Department repeatedly provided for an ordinary residence test. Thus, the 2009 Guidance on Looked After Children with Special Educational Needs placed out-of-authority at p.4 set out that “The term ‘in their area’ is not defined in the legislation. In line with established practice, the Department construes this phrase to mean ‘ordinarily resident in their area”
"Regulations under this Act may make different provision for different cases, circumstances or areas and may contain such incidental, supplemental, saving or transitional provisions as the Secretary of State thinks fit."
"(4) For the purposes of this Act a person shall be treated as belonging, or as not belonging, to the area of a particular local education authority in accordance with regulations; and any question under the regulations shall, in the case of a dispute, be determined by the Secretary of State."
"(1) This regulation shall apply to the exclusion of any other regulation which would otherwise apply to such a person. (2) This regulation shall apply in the case of a child who is looked after by a local authority..." [I interpose there that it is common ground before me that JL is a child who is looked after by the London Borough of Waltham Forest for this purpose.] "(a) for whom a statement of special educational needs is maintained underPart III of the Education Act 1993 , [I interpose, as I have mentioned, that has been superseded by subsequent legislation and the reference today would be to Part IV of the 1996 Act] or (b) who is registered as a pupil at a special school, or (c) who is a patient in hospital, and receives education either in a special school established in a hospital or education referred to insection 298(1) of the Education Act 1993 otherwise than at school, or (d) who is a further education student. (3) Such a person shall be treated as belonging to the education authority area which coincides with or includes the area of the local authority which looks after him."
“The Belonging Regulations 1996 determine to which areas pupils and students belong for the purposes of determining claims relating to inter-authority recoupment and which LEA [local education authority] is responsible for considering an application for a mandatory award”
“The "habitual residence" of a child, within the meaning of article 8(1) of the Regulation, must be established on the basis of all the circumstances specific to each individual case.” iv) Simple physical presence is not by itself sufficient. At para 38 in A’s case the court said: “In addition to the physical presence of the child in a member state, other factors must be chosen which are capable of showing that that presence is not in any way temporary or intermittent and that the residence of the child reflects some degree of integration in a social and family environment.”
“the duration, regularity, conditions and reasons for the stay on the territory of a member state and the family's move to that state, the child's nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that state must be taken into consideration.”
“the intention of the person with parental responsibility to settlepermanently with the child in another member state, manifested by certain tangible steps such as the purchase or rental of accommodation in the host member state, may constitute an indicator of the transfer of the habitual residence”
“In that regard, it must be stated that, in order to distinguish habitual residence from mere temporary presence, the former must as a general rule have a certain duration which reflects an adequatedegree of permanence. However, the Regulation does not lay down any minimum duration. Before habitual residence can be transferredto the host state, it is of paramount importance that the person concerned has it in mind to establish there the permanent or habitual centre of his interests, with the intention that it should be of a lastingcharacter. Accordingly, the duration of a stay can serve only as an indicator in the assessment of the permanence of the residence, and that assessment must be carried out in the light of all the circumstances of fact specific to the individual case.”
“54. As a general rule, the environment of a young child isessentially a family environment, determined by the referenceperson(s) with whom the child lives, by whom the child is in fact looked after and taken care of. 55 That is even more true where the child concerned is an infant. An infant necessarily shares the social and family environment of the circle of people on whom he or she is dependent. Consequently, where, as in the main proceedings, the infant is in fact looked after by her mother, it is necessary to assess the mother's integration in hersocial and family environment.” ix) In exceptional circumstances a person may have no habitualresidence: A’s case at para 43.”
“It has also been recognised that a generous interpretation ought to be given to a tribunal's reasoning. It is to be expected, of course, that the decision will set out the facts. That is the raw material on which any review of its decision must be based. But the quality which is to be expected of its reasoning is not that to be expected of a High Court judge. Its reasoning ought to be explained, but the circumstances in which a tribunal works should be respected. The reasoning ought not to be subjected to an unduly critical analysis.”
“It is well established, as an aspect of tribunal law and practice, that judicial restraint should be exercised when the reasons that a tribunal gives for its decision are being examined. The appellate court should not assume too readily that the tribunal misdirected itself just because not every step in its reasoning is fully set out in it.”