Educational provision

The local authority (“LA”) has a legal duty to ensure that the special educational provision specified in section F of an Education, Health and Care (“EHC”) plan is delivered (this is set out in section 42 of the Children and Families Act 2014).

In practice, the school or college attended by the child or young person will be carrying out the majority of the provision.  It is best to discuss any problems with your child’s teacher and head teacher first, to see if a quick solution can be found. However, if this does not resolve matters and your child is not receiving the special educational provision specified in his EHC plan, you should contact the LA – you can use our model letter as the starting point for your complaint. The LA must do whatever is necessary to ensure the provision is made, even if this means the LA paying for it privately.

It is the LA’s legal duty to ensure that staff have the correct financial resources, training and equipment. The LA must also ensure any therapies such as speech and language therapy, occupational therapy or physiotherapy or the services provided by CAMHS (Child Adolescent Mental Health Service) which are set out in Section F are delivered. For example if an hour’s speech therapy is required every week, this is likely to be delivered by the NHS, but it is the LA’s responsibility to ensure this is done.

There is no defence to a failure to secure the special educational provision in an EHC plan. There was a brief period between 1 May 2020 and 31 July 2020 when the duty was less strict due to the COVID-19 pandemic but this no longer applies. This was confirmed by the High Court in BA, R (on the application of) v Nottinghamshire County Council [2021] EWHC 1348 (Admin). That case also made clear that the LA is obliged to implement the provision from the date the plan is issued, including in circumstances where the plan is issued following a tribunal order in line with regulation 44(2)(e) of the Special Educational Needs and Disability Regulations 2014.

In the case of R v London Borough of Harrow ex parte M [1997] ELR 62, the LA argued that they were not responsible for delivering the occupational therapy, speech and language therapy and physiotherapy set out in the Statement (the earlier version of EHC plans), because they had made the request to the health authority therefore their own duty had been fulfilled. The court disagreed and ruled that the LA’s duty is owed personally to the child; it is non-delegable and can be enforced by mandatory order of the court following an application for judicial review.

This principle was upheld in a judgment by the Court of Appeal in R (on the application of N) v North Tyneside Borough Council [2010] EWCA Civ 135. The judges held that the Statement identified the provision, and the LA had to ensure that it was provided. It was not open to the LA unilaterally to change the Statement as and when they thought that was appropriate. If the situation changed, the Statement could be amended, but the LA always has a duty to implement it in its current form.

Health and social care provision

Health care provision specified in section G of the EHC plan is the legal duty of the local Clinical Commissioning Group or responsible commissioning health body to provide. If this is not being provided you will need to complain to the relevant health body.

For social care provision, in the case of those under 18, social care provision which is being provided under the Chronically Sick & Disabled Persons Act 1970 must be set out in Section H1 and must be provided by the LA under that Act. For a young person over 18, the care element of the plan may be provided by adult services under the Care Act 2014. If this is not being provided you will need to complain to the social care department of your LA.

What to do if the LA is not providing the special educational provision required

The information above shows why it is important for Sections F, G and H of the EHC plan to set out in specific terms exactly what is required. If it is not specific, it will be harder to enforce exactly what is needed. You can find out more about what an EHC plan should contain here.

If you are having difficulties getting the support you need because your EHC plan is not specific enough, you should consider asking for it to be amended at annual review, or appealing it to the First-tier Tribunal (Special Educational Needs and Disability).

If your EHC plan is clear about what is needed but it is still not being provided, you can use our model letter to complain.

If you do not receive an adequate response, you may wish to escalate your complaint to the Local Government and Social Care Ombudsman. Alternatively, if complaining to the Ombudsman is not appropriate – for example, because the matter is serious and urgent – you may need to consider judicial review.