To mark the first birthday of Talem Law we would like to celebrate with a myth buster addressing one of the most common queries that people put to us, namely:
“My son/daughter has X special educational provision named in section F of their EHCp but it is not delivered. When I raise this with the school I am told that there is nothing that can be done as ….. [they don’t have the budget/ the NHS haven’t provided a therapist etc etc]. Is this correct?”
In short, no.
The reason for this is that in s 42(2) The Children and Families Act 2014 it makes clear that
The local authority must secure the specified special educational provision for the child or young person.
The said responsibility is reflected in para 9.131 of the SEN Code of Practice:
When an EHC plan is maintained for a child or young person the local authority must secure the special educational provision specified in the plan. If a local authority names an independent school or independent college in the plan as special educational provision it must also meet the costs of the fees, including any boarding and lodging where relevant.
Hence excuses relating to budgets, availability of therapists simply carry no weight. Indeed, rather than shrugging its shoulders in such cases, s 66(2) The Children and Families Act 2014 states that:
If a registered pupil or a student at a school or other institution has special educational needs, the appropriate authority must, in exercising its functions in relation to the school or other institution, use its best endeavours to secure that the special educational provision called for by the pupil’s or student’s special educational needs is made.
This means that they cannot sit by passively whilst a child’s / young person’s special educational needs remain unmet because the local authority has not secured the required special education provision.
One thing that parents/ young people need to be aware of when the EHCp is being drafted is that, if the language used in section F is vague and unspecific, then the local authority can effectively be relieved of its duty to secure. For example, if the EHCp specifies a number or hours per week of speech and language therapy from a speech and language therapist, it is much easier to see where a local authority has breached its statutory responsibility than would be the case if the EHCp simply stated “a speech and language therapy programme delivered in school”
So, what is to be done if the local authority has failed to secure the provision? There are two options. Firstly, parents/ young persons can seek permission to judicially review the local authority. This may attract public funding, and this can be checked by ringing Civil Legal Advice on 0345 345 4 345. In the alternative, the local authority official complaints procedure can be used then, if this is not successful, the matter can be referred to the Local Government and Social Care Ombudsman who can in investigate the matter and recommend remedial action.
Finally, we would like to offer a huge thank-you to everyone we have worked with during the last year. We look forward to pursuing our development in 2018/19 and, most of all, we want to continue to provide high quality legal services to our clients.
1st November 2018