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• 24 Feb 2025

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Yes. The duties in relation to EHCPs are owed by the LA who is “responsible” for the CYP, and an LA “is responsible for a [CYP] if he or she is in the authority’s area”: CFA2014 s24(1). Only one authority can be responsible: JG v Kent CC [2016] EWHC 1102 (Admin) #121.

Whether a child is “in the area” of an authority is decided by reference to “ordinary residence” rather than physical presence: Hampshire CC v GC [2026] EWCA Civ 20 (AAC) #72. It should be noted though that GC concerned an LA ceasing an EHCP where the child went overseas; and a previous case involving a child moving between authorities (and the EHCP being transferred) considered that “the features identified in the ordinary residence cases are…no more than indirect pointers” as to whether a CYP has moved: JG  #134 (this case was not cited in GC). However, the Noddy suggests that it is likely GC now applies generally to CFA2014 s24(1) and the ordinary residence test will be applied in both situations.

To the extent ordinary residence is the test, in GC the CA referred to R (Cornwall Council) v Secretary of State for Health [2015] UKSC 46, in which the adopted test was whether a person “has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether or short or of long duration….And there must be a degree of settled purpose”. The CA also referred to the “habitual residence” test in A v A (Children: Habitual Residence) [2013] UKSC 60 #224 in which it was said “a child will share the habitual residence of his parents with whom he lives” and it has “a certain duration which reflects an adequate degree of permanence, although the law does not lay down any minimum duration. However, before habitual residence can be transferred to 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 lasting character. 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.”

[updated 01/03/26]



Noddy No-nonsense Guide

24 Feb 2025

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