BA, R (on the application of) v Nottinghamshire County Council [2021] EWHC 1348 (Admin)

Case overview 

The local authority (LA) was ordered by the SEND Tribunal to amend the child’s education, health and care (EHC) plan, but it failed to do so within the five week deadline set out in The SEND Regulations 2014, regulation 44 (2) (e). There was then significant delay in the LA putting in place the special educational provision specified in the plan, so the child’s parent applied for judicial review.   

What does this mean? 

The LA has a legal duty to secure the special educational provision set out in an EHC plan. This is set out in section 42 (2) Children and Families Act 2014 (CFA 2014). Any failure to do this is unlawful and there is no defence that the LA can rely upon to justify it. This duty is absolute and “non-delegable” which means the LA cannot pass the duty on to another body (such as the health service or a school), even if that body will deliver the provision in practice.  

When the SEND Tribunal orders for an EHC plan to be amended, the LA has a legal duty to issue the final amended EHC plan within five weeks of the order being made. Failure to ensure the special educational provision is in place by the time the amended EHC plan is issued (i.e. within five weeks of the order) will be a breach of the LA’s duty under section 42 (2) CFA 2014. This will be grounds for complaint and potentially for judicial review. 

You should also be aware that if the SEND Tribunal only orders the LA to amend the name of the school or other institution in section I of an EHC plan (or the type of school or institution specified) then it must issue the final amended EHC plan within two weeks of the order being made. This is set out in The SEND Regulations 2014, regulation 44 (2) (f) 

The full case report for BA, R (on the application of) v Nottinghamshire CC [2021] EWHC 1348 (Admin) can be viewed online. 

For more information, see our pages on enforcing your EHC plan, complaining when the provision in an EHC plan is not made and general advice for all appeals.