Does a tribunal take into consideration where a parent lives? Or are decisions based on where the child lives?
I have been speaking to a parent who has 50/50 custody with her ex-husband. He lives in Camden and she lives in Hertfordshire. Her son has an EHCP with Camden who are objecting to their choice of school in Section I (in fact, in August Camden pushed the whole EHCP onto Hertfordshire Council despite knowing the Mother is about to move out of Hertfordshire).
Because the Mother has to move house (her lease comes to an end in 3 weeks) the children will live with the ex-husband full time for the next few weeks. On 12 Sept, they go to Tribunal to appeal section B, F and I. Will the Tribunal take into account the child is living in Camden at that point? Or does the Mother need to find a place in Camden before the Tribunal date? The outcome they want is for Camden to stop pushing the EHCP onto Hertfordshire and deal with it in borough.
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28 Aug 2025
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Can't answer yes or no.:
Does the Tribunal look at where a parent lives, or where the child lives?
The law is clear that it is the child’s residence, not either parent’s, that determines which local authority is responsible for an EHCP. The duty is owed by the authority in whose area the child “is”. Only one authority can be responsible at any time (Children and Families Act 2014, s.24(1); JG v Kent County Council v Secretary of State for Education [2016] EWHC 1102 (Admin), [2016] ELR 377, para 121).
Ordinary residence
The Tribunal looks at the child’s ordinary residence — where the child has their home for settled purposes. This was explained in R v London Borough of Barnet, ex parte Shah [1983] 2 AC 309 (HL), 343 (per Lord Scarman) and approved by the Supreme Court in R (Cornwall Council) v Secretary of State for Health [2015] UKSC 46, [2016] AC 137, para 23. The Upper Tribunal confirmed that ordinary (or habitual) residence is the test in Hampshire County Council v GC [2024] UKUT 128 (AAC), para 206.
Temporary moves
A temporary or short-term arrangement does not change responsibility. The courts have made this clear: a child remains the responsibility of their existing local authority unless there is a genuine, settled move into a new area (JG v Kent County Council v Secretary of State for Education [2016] EWHC 1102 (Admin), para 133; Hampshire County Council v GC [2024] UKUT 128 (AAC), paras 225–226).
Shared care
Even with 50/50 custody, the law does not allow joint responsibility for an EHCp. Only one authority can be responsible, decided on the facts of where the child is ordinarily resident. In practice, this often links to where the child goes to school, is registered with a GP, and has their main routines.
Funding and disputes
The Special Educational Needs and Disability Regulations 2014 (SI 2014/1530) do not allow more than one authority to share responsibility for or fund an EHCP. Disputes between local authorities about responsibility or funding cannot be decided by the Tribunal. These must be resolved separately, through judicial review or referral to the Secretary of State (see JG v Kent County Council v Secretary of State for Education [2016] EWHC 1102 (Admin), para 143).
Applying this here
In your scenario, the EHCP is currently with Camden. The child’s stay with the father in Camden while the mother secures new housing looks temporary, so Camden should remain responsible at Tribunal. Hertfordshire would only take over if there was a genuine, settled move into that area before the hearing. The Tribunal should base its decision on where the child lives, not where either parent lives.
Conclusion
The Tribunal will focus on the child’s ordinary residence. Here, the arrangement appears temporary, so Camden remains responsible. Hertfordshire would only become responsible if there were a genuine, settled move into its area before the hearing, triggering a transfer under regulation 15 the Special Educational Needs and Disability Regulations 2014 (SI 2014/1530).
Obviously this isn’t legal advice, but I hope it’s of some help. I’ll look forward to reading any other answers or thoughts people may have.
28 Aug 2025
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