Local Authority's Absolute Duty to Provide Special Educational Provision

Summary

The recent case of the King (on the application of L, by his Litigation Friend and mother, LC) and Hampshire County Council 2024 (“L & Hampshire”) reaffirms that the duty contained in Section 42 of the Children and Families Act 2014 to secure special educational provision detailed in an Education and Health Care Plan (EHCP) is an absolute duty. It was confirmed that it is not sufficient for a local authority to use its best endeavours to provide special educational provision; it must provide it.

Background

The High Court in L & Hampshire heard a claim for judicial review in which the claimant, L, challenged Hampshire County Council’s (“Local Authority”) failure to secure the special educational provision contained in Section F of L’s EHCP. L sought a declaration that the Local Authority had breached Section 42 of the Children and Families Act 2014 by failing to secure the provision and further a mandatory order from the Court that the Local Authority must secure all special educational provision stated within Section F of  L’s EHCP immediately and in any event by 9.00 am on a certain date. The Local Authority accepted that it was in breach of Section 42 of the Children and Families Act and did not defend the making of a declaration to that effect. However, it did resist the making of the mandatory order. 

 

Facts of the case

L, at the time of the hearing, was 11 years old. He is a disabled child diagnosed with Attention Deficit Hyperactive Disorder (ADHD), Autism Spectrum Disorder (ASD) and Paediatric Acute-onset Neuropsychiatric Syndrome (PANS). L had an EHCP maintained by the Local Authority since 23 April 2020, and the current plan at the time of the hearing was issued on 11 September 2023 following a successful SEN Tribunal appeal. In a decision issued by the SEN Tribunal on 7 August 2023, the Tribunal ordered that L must have Education Otherwise than at School (EOTAS) as specified in Section F of L’s EHCP.

It had been ten months since the current EHCP was deemed issued; however, for much of that period, very little of the EOTAS package detailed in Section F was provided to L. The EOTAS package was meant to be a “carefully designed curriculum” coordinated by an educational psychologist, amongst other things. 

Unfortunately, despite the best efforts of L’s solicitors, L was unable to secure the special educational provision at the pre-action stage. Various reasons were given for certain elements of the EHCP not being secured. There was constant “delay and drift” by the Local Authority, including where promises as to the meeting of deadlines to secure certain provision were provided and subsequently not met.  

The legal reasoning of the High Court

Both counsel for L and the Local Authority made representations relating to whether a mandatory order should be ordered in the circumstances. Sarah Clarke KC, sitting as deputy judge of the High Court, having heard the representations, confirmed that the starting point in cases such as these is that Section 42 of the Children and Families Act 2014 imposes an absolute and non-delegable duty on Local Authorities to provide the provision in an EHCP. This is not a “best endeavours obligation”. It was also confirmed in cases concerning the education of children: “Speed must be of the essence,” given the critical impact of lack of educational provision on a child’s wellbeing and future. 

The judge stated that whilst she accepted that, in part, the failure to secure the provision was not due to the fault of the LA as regards to a shortage of available Educational Psychologists and the sudden termination of a service provider of a contract, it was clear from the evidence that the Local Authority had not been proactive at resolving the issues concerning the delivery of Section F of the EHCP. The judge also highlighted a complete failure of the Local Authority to put in place any contingency plans whilst they sought to put in place the special educational provision detailed in the plan. 

Comment

Alongside the confirmation that Section 42 of the Children and Families Act 2014 is an absolute duty, there are some further key points to be aware of coming from the decision of the High Court. Firstly, there are very strict time limits that Local Authorities must comply with when securing special educational provision specified in an EHCP after a decision of the SEND Tribunal. The High Court has confirmed in a previous case that the “bulk” of special educational provision should be put in place within five weeks of an EHCP being finalised. This requirement is also set out in Regulation 44(2)(e) of the Special Educational Needs and Disability Regulations 2014, although this regulation does not use the word “bulk”. 

The case highlights the importance of the judicial review process for parents and young people who, for whatever reason, are not receiving special educational provision for their child or for themselves. If a Local Authority does not comply with Section 42 of the Children and Families Act 2014 and its absolute duty to secure special educational provision, it may well be the case that an application for judicial review is a suitable course of action. The first stage of judicial review would be a pre-action protocol letter, and whilst, more often than not, such a letter is sufficient to persuade the Local Authority to comply with its legal obligations, in the event that the letter is unsuccessful, a claim for judicial review is available. Indeed, legal aid may well be accessible to a potential claimant as it is only the child or young person’s financial means that are taken into account rather than the child or young person and their parents. 

Judicial review is complex, and there are costs risks if you make a claim in the High Court without legal aid in place. 

Judicial review proceedings must be issued promptly; therefore, it is important not to delay in seeking legal advice if you are concerned that a Local Authority may be in breach of its duty to secure special educational provision.