The High Court found that where an EHC plan is issued following a tribunal order in line with SEND Reg 44(2)(e), the local authority (“LA”) is obliged to implement the special educational provision set out in the plan from the date it is issued. Any failure to do so will amount to a breach s. 42 of the Children and Families Act (“CAFA”) 2014.

Background to the judicial review

This case concerned a 10 year old boy with complex needs, including a rare degenerative metabolic condition called Sanfilippo syndrome; Leber's amaurosis; severe autistic spectrum disorder; significant hearing impairment; and epilepsy. In his case, these conditions were severe and life-limiting, such that his life expectancy was early to mid-teens.

The child had an EHC plan, the contents of which had been successfully appealed to the First-Tier Tribunal. On 28 February 2020, the Tribunal had ordered the LA to amend the plan to include a range of therapies that had not previously been provided. The plan was then issued on 14 May 2020 (breaching the five week deadline set out at Reg 44(2)(e)) of the SEND Regulations 2014), and there was then significant delay in the LA putting in place the provision specified in the plan.

When the plan was issued, the child was not attending school due to the national lockdown that was in place in response to the Covid-19 pandemic. He returned to school in September 2020 and yet some of the special educational provision set out in his EHC plan was still not being delivered, including features of the various aforementioned therapies.

Pre-action correspondence was sent to the LA in September 2020. In its response, the LA accepted that not all of the provision in the plan was in place, but it sought to justify this in light of the exceptional circumstances of the Covid-19 pandemic and the fact that the child had not been in school. The LA argued that it had used "reasonable endeavours” to implement the provision in the plan since it had been issued.

Litigation for judicial review commenced. The LA made efforts up until the date of the hearing to put in place the outstanding provision but was unable, at any point, to confirm the dates by which the provision would be in place.

The judgment

The duty to secure the special educational provision specified in an EHC plan set out at s. 42 CAFA 2014 is an absolute, non-delegable duty. This means that the LA is responsible for ensuring the provision is delivered; any failure to do so is unlawful and there is no defence that the LA can rely upon to justify this failure. The temporary exemptions which applied during the Covid-19 pandemic between 1 May 2020 and 31 July 2020 did not apply in this case. In any event, the judge found that the impact of the pandemic on the LA’s ability to implement the EHC plan was limited.

The judge rejected the LA’s argument that it only had to comply with its s. 42 duty within a "reasonable” time frame, rather than "immediately". She found that “even if the defendant is entitled to a reasonable time to implement the provision and even in the context of a pandemic, one year is not a reasonable period of time” (paragraph 37). She accepted the Claimant’s argument that the five week period built into SEND Regulations 2014 (Reg 44(2)(e)) to issue an amended EHC plan following an order by the SEND Tribunal, is designed to allow preparation for implementation, and the bulk of the child’s provision (at least) should have been in place within that time.

Although it was accepted that the LA had made “real strides” in the weeks since the claim had been issued, the judge considered it necessary to make a mandatory order, requiring the LA to implement the plan in full by four weeks from the date of the hearing, save for the provision of a specialist chair for which the LA was given six weeks to comply.

The full case report can be accessed here.

Implications of the decision

Following a SEND Tribunal order, if an LA has failed to ensure the special educational provision in an EHC plan is in place by the time the amended EHC plan is issued (i.e. within five weeks of the order) it will be in breach of its duty under section 42 Children and Families Act 2014. This will be grounds for complaint and potentially for judicial review.

The case also reiterates the fact that LAs cannot use the pandemic as an excuse for failing to deliver the provision in an EHC plan outside of the period during which the temporary legislative changes were in force (1 May 2020 to 31 July 2020).