with Ollie Persey, Barrister, Garden Court Chambers and Adam Mercer, solicitor, Sinclairslaw
A recent High Court judicial review has found Hampshire in breach of its legal duty to secure the special educational provision written in section F of his Education Health and Care Plan (EHCP). Today’s article is from the lawyers involved in the case, barrister, Oliver Persey of Garden Court Chambers, and solicitor, Adam Mercer of Sinclairslaw, about what happened and what you can do if the same happens to your child. It’s definitely a bookmark article!
What can you do to make sure the LA puts into place all the provision in your child’s EHCP? by Ollie Persey and Adam Mercer
In R(L, by his litigation friend and mother, LC) v Hampshire County Council [2024] EWHC 1928 (Admin), the High Court reaffirmed that the duty in section 42 of the Children and Families Act 2014 to secure special educational provision (‘SEP’) in an EHCP is an absolute duty and not a best endeavours duty.
The High Court granted a mandatory order requiring the local authority to put in place all SEP in L’s EHCP within five weeks. The High Court also provided helpful guidance about what is required for a local authority to comply with their ‘absolute duty’. A more detailed summary of the decision can be found here.
1. Know the timescales and let the LA know you know!
In L, the High Court emphasised that “speed must be of the essence […] given the critical impact of lack of educational provision on a child’s wellbeing and future” [59]. By law, there are very strict time limits that local authorities need to comply with when securing the SEP specified in an EHCP. In R(BA) Nottinghamshire County Council at [37], the High Court confirmed that the ‘bulk’ of SEP should be put in place within five weeks of an EHCP being finalised. The basis for this is the requirement in Regulation 44(2)(e) of the Special Educational Needs and Disability Regulations 2014/1530 that an amended EHCP should be issued within five weeks of a Tribunal order.
2. Don’t be afraid of utilising a judicial review
If a local authority does not comply with its ‘absolute duty’, this may well be enforceable by an application for judicial review. If there is a breach of the duty at the time that the case reaches the High Court, the ‘starting point’ is that a mandatory order requiring the local authority to comply will be granted.
The first stage of judicial review is a ‘pre-action protocol’ (often referred to as a ‘PAP’) letter. This is a legal letter setting out the basis of a proposed claim. There is legal aid available for this work, however, legal aid is ‘means tested’. It is important to note that a child or young person’s parent(s)’ financial means are generally assessed (in addition to the child or young person’s means) for this stage of work. If a family does not qualify for legal aid but cannot afford a solicitor, there are alternative initiatives that might be able to assist with a PAP letter, for example, the judicial review ‘PAP Project’ coordinated by charity SOS!SEN.
If a local authority does not concede following the PAP letter and remains in breach of its absolute duty to secure SEP, it is worth considering getting legal advice from a legal aid solicitor about whether to lodge a claim for judicial review in the High Court. At this stage, generally only the child or young person’s financial means are taken into account for the means test (rather than the child or young person AND parental means being combined being taken into account). As such, many more children and young people are financially eligible for legal aid at this stage as opposed to the pre-action stage. Unfortunately, there is a severe shortage of specialist legal aid providers and therefore finding a legal aid solicitor with capacity to assist can be difficult.
Judicial review is complex and there is cost risk if you lodge a claim in the High Court without legal aid in place. Judicial review proceedings must be issued promptly; (“speed must be of the essence”) 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 SEP.
3. Keep a paper trail
At the oral hearing in L, the Claimant’s legal team highlighted what the High Court described as “a long chain of correspondence […] chasing [the Defendant] for updates” [24]. The Court subsequently concluded (at [61]) that “the Defendant has not been proactive at resolving these issues and that it is apt to describe their conduct as characterised by drift and delay.” The significance of the correspondence was remarked upon by the Judge at the hearing after handing down the judgment. The correspondence clearly showed that if left to their own endeavours, the local authority would not take proactive action and as such a mandatory order was required.
If you know what SEP is and is not being delivered, you may wish to keep a diary documenting the SEP that the local authority is and is not delivering. This may become valuable evidence in a judicial review.
Try to identify alternative options
The High Court was clear that failures by third parties (such as private providers of SEP) are not an excuse for a local authority breaching its absolute duty. The High Court noted at [63] of its decision in L:
“The Defendant has been on notice of its failure to comply for a significant period and this Claim has been ongoing for many months. The Defendant has therefore had the opportunity to put contingency plans in place if necessary and to move proactively to resolve issues including (for example) exploring other ways to obtain EP support (perhaps via the private market) and to move much faster than it has in order to find another provider to replace ABC.”
In our experience, if a local authority suggests that there is no provider available, or that a provider will only be available in several months’ time, it is very helpful evidence for a Claimant to be able to show that there are options available immediately.
This evidence could help to demonstrate to the High Court that the local authority has not been sufficiently ‘proactive’ in attempting to secure SEP and/or has discounted options because it has overly rigid rules about which providers it will contract with.
Adam Mercer is a solicitor at Sinclairslaw. Ollie Persey is a barrister at Garden Court Chambers.
Also read:
- SEND judicial review and how LAs spin tales about “litigious” parents
- EHCP Annual Review: Our stats show there’s nothing annual about them…
- Parent campaigners: We must suspend the SEND Safety Valve programme: Here’s why, and how
- What’s the law when a council says it can’t comply because of resource issues, though it’s “trying its best”
- What can the SEND Tribunal do if a local authority misses an EHCP appeal deadline? A case study.
- Failure to specify and quantify SEND reports – what options do families have?
- EOTAS: Education Otherwise Than At School. What is it, and can I get it?
- Ten top tips to get a ‘good’ Education, Health and Care Plan for your child
- Misinformation and misconceptions: Busting some SEND law myths
- Deputyship and mental capacity for young people at the SEND Tribunal
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