Case overview

Local authorities (LA) have a legal duty to make sure a child or young person receives the special educational provision set out in section F of their EHC plan (section 42(2) of the Children and Families Act 2014).

In this judicial review case section F contained various provision, including an education otherwise package led and coordinated by an educational psychologist (EP) and provision by a learning support assistant (LSA). Despite the EHC plan being 10 months old, the child had received very little of the provision within it. At no point during that period had all of his provision been in place. This had a significant detrimental effect on him.

The LA accepted it had breached its duty to secure all of the child’s special educational provision but argued that it should not be ordered to do so. The LA said the delay was due to a lack of available professionals, initially an EP, that its failure to comply with its duty related to third parties so was beyond its control and that a mandatory order would not be just as it was “already making best endeavours to secure the provision”.

It's discretionary whether the High Court makes this type of order. When deciding if it should do so, the Court must consider the following (non-exhaustive) list of factors:

1. The need for contingency planning.
2. Whether the authority had been on “notice in the past of a problem in relation to the non-performance of its duty but failed to take the opportunity to react to that in good time.”
3. The impact on the individual to whom the duty is owed.
4. Whether the authority had been taking steps to remedy the situation.
5. The need not to cause unfairness to others by prioritising the Claimant.

The LA agreed that the impact on the child was severe but argued it should be given more time to put his provision in place.

The High Court decided the LA had been aware of its failure for a significant period and had the opportunity to make contingency plans and proactively resolve the issues. For example, by exploring ways to obtain educational psychology support (noting a private EP could be an option) and moving faster to find an LSA provider when support from a previous one ended.

The High Court rejected the LA’s argument that it shouldn’t issue it an order because it was reliant on third parties, noting LAs often engage third-party providers to deliver the provision in EHC plans.

The High Court declared that the LA was in breach of its legal duty to secure the special educational provision in the child’s EHC plan, ordered it to do so within 5 weeks and to pay the costs of the judicial review claim.

What does this mean?

The case reiterates that LAs have an “absolute duty” to secure all the special educational provision in section F of an EHC plan under section 42(2) of the Children and Families Act 2014. Its duty is not just to use its “best endeavours” or try, it must make sure the child receives all of the special educational provision in their EHC plan.

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”.

The High Court expects LAs 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 LSAs), would not be a valid reason for an LA failing to comply with its duty to secure it in most cases.

The full report for L, R (On the Application Of) v Hampshire County Council [2024] EWHC 1928 is available online.

See also out information on enforcing section F on an EHC plan and other case law on LAs’ responsibility to secure the special educational provision in a child or young person’s EHC plan.