Case overview

The parent brought a SEND Tribunal appeal against the local authority (LA)’s refusal to carry out an EHC needs assessment for their child. During the appeal the LA conceded but no consent order was sought.

Following the EHC needs assessment, the LA decided to issue an EHC plan but was late in doing so. The parent made an application for judicial review regarding the delays in finalising his child’s EHC plan. This case relates to that judicial review application.

The LA considered it had 20 weeks from the date it conceded the appeal to issue the EHC plan. The High Court said no:

• If the LA had sought a consent order after it conceded the SEND Tribunal appeal, the deadline for issue of the finalised EHC plan would have been within 14 weeks of the date of a direction being made by the SEND Tribunal. 
• However, because no consent order was sought, the deadline for issue of an EHC plan which the LA had to comply with was within 20 weeks of the original EHC needs assessment request.

The High Court noted the increase in EHC needs assessments and the onerous duties placed on LAs by The SEND Regulations 2014 but saw that “these are not duties to use ‘best endeavours’ to complete assessments within defined periods but are hard edged legal duties” (paragraph 17) (our emphasis).

It also looked at the significantly high number of SEND Tribunal appeals the LA had conceded and felt these figures “strongly suggest that there are serious questions about the way in which the local authority carries out its initial decision-making functions given that something approaching 99% of appeals in a recent year were either conceded in advance of a hearing or lost at a hearing. That outcome strongly suggests something has gone seriously awry with the local authority's initial decision-making function" (paragraph 12).

The High Court found that the LA had acted unlawfully in failing to complete a finalised EHC plan within the statutory period and issued a declaration. A mandatory order was not required as the EHC plan had been issued by the time the application was heard.  

What does this mean?

This case confirms some key legal points:

• unless SEND Regulation 10(4) applies, LAs will be acting unlawfully each time that they fail to finalise EHC plans within the timescales specified in The SEND Regulations 2014
• where LAs concede SEND Tribunal appeals after the response and do not seek a consent order giving them directions as to the deadline to issue an EHC plan, then the original deadlines continue to apply and must be complied with, and
• where an LA agrees to undertake an EHC needs assessment but fails to complete it within the statutory deadline, that failure a) cannot be the subject of an appeal to the SEND Tribunal and b) can be reviewed via an application for judicial review.

The full case report for  W, R (On the Application Of) v Hertfordshire County Council [2023] EWHC 3138 (Admin) is available online.

For more information see our pages on what happens in an EHC needs assessment, settlement or withdrawal of appeals, and judicial review.