A parent attempted to judicially review the refusal of the local authority (“LA”) to provide the speech and language therapy specified in a Statement of SEN. The High Court refused the application for judicial review, and the parent appealed to the Court of Appeal. IPSEA joined as an intervener in the appeal. 

The parent’s position was that the LA had an absolute duty to arrange the provision specified and that the provision itself couldn’t be specified in such a way as to give the LA the ability to change it outside of the statutory processes of amendment (following E v Rotherham MBC).

The Statement read:

"Over a period of 1 month [N] will receive a minimum of 1 hour's speech and language therapy intervention. This will include some time directly working one-to-one with [N] and some in-class time to model ways of working to reinforce her communication skill… In addition [N] will continue to be included in blocks of group therapy sessions for six weeks at a time subject, as previously, to continuing review. Should a change in clinical need be identified this will take immediate effect." (IPSEA’s underlining.)

The LA failed to provide the group therapy sessions. It argued that it was not obliged to provide them because various other arrangements were in place, the overall objective identified in the Statement was being achieved, and it would be counter-productive and contrary to the interests of the child to provide group therapy. In particular, emphasis was placed on the underlined words, which it was suggested gave the LA discretion to refuse to provide the sessions if they thought they would not be in the child's interest.

The Court of Appeal found that the High Court had been in error in agreeing with the LA:

The interpretation put on this Statement by the judge suffers from the same vice as the Statement in the Rotherham case. It allows the LEA unilaterally to vary the Statement as and when it appears to be appropriate. That is not how the legislative provisions are intended to work.”

This confirms that LA’s have an absolute obligation to make the provision set out in a Statement (or now in an EHC plan, under s. 37(1) Children and Families Act 2014). An LA cannot unilaterally vary the provision set out in a Statement or an EHC plan – it must follow the proper procedures for amending the document. If the situation changes, the Statement or EHC plan can be amended, but the LA always has a duty to implement it in its current form.

The case report for N v North Tyneside Council [2010] EWCA Civ 135 is available online.

For more information see our sections on what an EHC plan should contain; changing an EHC plan; and complaining when the provision in an EHC plan is not made.