Case overview

The SEND Tribunal ordered certain special educational provision to be specified in an EHC plan for a teenage boy with complex special educational needs.

After the amended EHC plan was issued, the local authority (LA) failed to put in place some of the ordered provision and the child’s parents applied to judicially review the LA’s failure to do so. This was also not the first time their son had been without his required provision.

The parents wanted the High Court to order the LA to put in place the missing provision. The LA said the High Court should not do this, because the reasons the LA had not put the provision in place was due to:

• the parents’ alleged “rude” behaviour to school staff, which the LA claimed led to tutors not wanting to continue working with the child (although this had no bearing on future applicants for the tutor role)
• a shortage of the required specialist tutors, and the LA said that the school had tried to recruit a tutor, and
• a possibility the EHC plan may be amended at the next (already overdue) annual review, and the provision not being provided could be potentially be reduced/ removed.

The High Court looked at the LA’s arguments and, on the facts, said no - a mandatory order was required to make sure the LA secured the required provision. This meant that the LA was given 5 weeks to put all the missing support in place, or be in breach of a court order.

What does this mean?

This case confirms that LAs have an absolute obligation to make sure the special educational provision set out in an EHC plan is put in place, as set out in section 42 of the Children and Families 2014.

LAs cannot pass the responsibility for securing provision in an EHC plan onto a school. The overall responsibility sits with the LA.

If efforts are made by a school to put provision in place but these do not result in the provision being made for some reason, the LA must make sure the provision is made.

The right to receive the special educational provision specified in an EHC plan is owed by the LA to the child or young person directly, not to their parents. If there is an additional challenge in place, such as a breakdown of the relationship between a school and the parents, it is the duty of the LA to try to overcome that challenge.

The Judge in this case noted that the parents had, on occasion, behaved insensitively to school staff and unreasonably but recognised that this was likely due to their frustration, and maybe even trauma, caused by the extent to which they had had to fight to have their son’s needs met. The Judge recognised that the responsibility for that frustration lay with the LA, which had not done what it could – and should – have done to provide the support as specified in the EHC plan.

The full case report for HXN, R (On the Application Of) v London Borough of Redbridge [2024] EWHC 443 (Admin) is available online.

For more information see our pages on enforcing an EHC plan and judicial review.