Case overview

Local authorities (LAs) must secure the special educational provision in a child or young person’s EHC plan for them under section 42(2) Children and Families Act 2014 (the Duty to Secure Provision). This judicial review case was about whether the LA had breached this duty to a young person with complex needs and should be ordered to put his special educational provision in place.

In April 2024, the young person’s placement told the LA that it would have to stop at the end of the academic year because it could no longer meet his needs and had staffing issues. The LA accepted this but failed to put any special educational provision in place at the start of the Autumn term and still hadn’t done so by the hearing on 20 November 2024.

In the summer, the LA consulted schools without telling the parents about them. In August the LA said it planned to put a package of education otherwise in place in the family’s home, despite the parents explaining that this was not an option over a month earlier.

By the time of the hearing, the LA was arranging a placement in a supported living home where education otherwise than in a college would be delivered from December but the details were not finalised.

The LA argued that it was impossible for it to do anything better or faster to secure the young person’s special educational provision so it wasn’t breaching its Duty to Secure Provision, or alternatively it was only a “technical” breach, and the Court should not issue an order against it.

The Court disagreed with the LA and concluded:

• there had been no special educational provision since September so the LA was breaching the Duty to Secure Provision
• it could have anticipated this and in April 2024 should have immediately started a thorough search for an alternative placement for September onwards
• the parents not being aware of the schools the LA was consulting was a failure in communication
• the LA should have discounted providing education in the family home when the parents explained this wasn’t possible, and
• a mandatory order against the LA was required to provide certainty that the LA would secure the young person’s special educational provision in a short timeframe.

What does this mean?

Whether an LA has failed to secure the special educational provision in an EHC plan, is “a binary question” with a yes or no answer which can’t be qualified. When answering this question, there’s no such thing as a “technical breach” - either the LA has put the provision in place or it hasn’t.

When the Court decides an LA has breached a legal duty, the starting point is that it should order a remedy. In deciding whether to grant a mandatory order (an order requiring the LA to do something), the Court must consider:

1. the need for contingency planning so LAs can deal with unexpected costs/calls for resources
2. if the LA had notice of potential difficulties with complying with its duty (in this case the Duty to Secure Provision) and failed to react in good time
3. the impact of the breach of duty on the person the LA owes the duty to (in this case, the impact of the lack of provision on the young person) - if it’s very serious and their need is very pressing an order may be justified despite wider potentially disruptive effects for the LA
4. if the LA has taken steps to rectify the situation, and
5. the need not to cause unfairness by prioritising the claimant.

(These factors come from a Supreme Court case concerning homelessness support, this case and earlier case law confirm they are relevant to LAs’ duty to secure special educational provision in EHC plans).

In cases concerning the education of children and young people “speed must be of the essence”.

As soon as it appears likely that there will be a period in which the special educational provision in a child or young person’s EHC plan will not be secured, the LA should take all reasonable steps to put alternative arrangements in place to avoid the child or young person missing the provision they’re entitled to.

If an LA fails to proactively try to prevent breaching its Duty to Secure Provision it will be more likely that the Court will order it to secure the special educational provision, even after only a short period of the LA failing to do so.

The full decision for R(JSH by his father and litigation friend, RRB) v Westmorland and Furness Council [2024] EWHC 3362 (Admin) is available online.

See also our 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.