Responsibility to ensure provision in EHC plan is made

BA, R (on the application of) v Nottinghamshire County Council [2021] EWHC 1348 (Admin): Where an education, health and care (EHC) plan is issued following a SEND Tribunal order, the local authority (LA) has five weeks from the date of the order until the final plan must be issued. The LA must secure the special educational provision set out in the EHC plan from the date it is issued. Any delay in putting the special educational provision in place will be a breach of the LA’s duty under section 42 (2) Children and Families Act 2014. 

HXN, R (On the Application Of) v London Borough of Redbridge [2024] EWHC 443 (Admin): This case confirms that if a school has made efforts to put in place the special educational provision specified in an EHC plan but been unable to do so, it is the responsibility of the local authority (LA) to make sure the provision is put in place. The LA cannot delegate this responsibility to a school. It is an absolute legal duty of an LA under section 42 of the Children and Families Act 2014. 

L, R (On the Application Of) v Hampshire County Council [2024] EWHC 1928: This case reiterates that:

• Local authorities (LAs) have an “absolute duty” to secure all the special educational provision in section F of an EHC plan (section 42(2) of the Children and Families Act 2014).
• Speed must be of the essence in doing so “given the critical impact of lack of educational provision on a child’s wellbeing and future”. Therefore, LAs must “move proactively”.
• LAs are expected to have contingency plans. Therefore, any issues with the availability of special educational provision delivered by third parties (such as a shortage of EPs, education otherwise providers or teaching assistants), would not be a valid reason for an LA failing to comply with its duty to secure it in most cases.

It also sets out the factors the High Court must consider when deciding whether to issue a mandatory order to an LA.

N v North Tyneside Council [2010] EWCA Civ 135: The LA has an absolute duty to ensure the special educational provision set out in an EHC plan is provided. The LA is not allowed to change an EHC plan without following the proper process for amendment.

R v Oxfordshire County Council ex parte Pittick [1996] ELR 153: If a school is not able to fund the special educational provision in the Statement or EHC plan from its own resources, the dutyto arrange and secure the provision remains with the LA. A dispute about funding between a school and an LA should never be the reason why a child or young person does not receive the special educational provision in their Statement or EHC plan. 

R v London Borough of Harrow ex parte M [1997] ELR 62: The LA is responsible for ensuring the special educational provision in a Statement (now an EHC plan) is made, even where the provision in question is actually provided by another body (in this case, the health service). If the health service fails to make the provision the LA must step in.

R (LB) v Surrey County Council [2022] EWHC 772 (Admin): Practical difficulties (including financial ones) are no excuse for an LA failing to secure the special educational provision in an EHC plan. It is an absolute duty of an LA under section 42 of the Children and Families Act 2014.