Q. If special educational provision is identified in section F of an Education, Health and Care plan (EHCp), is it the responsibility of the local authority who maintains the document to ensure this provision is provided?
Most definitely, yes!
It is surprising why this is still not understood by everyone involved in educating children or young people who have an EHCp as this point was clear even when their predecessors, statements of special educational needs, existed.
A brief history helps us understand the point being made.
The case of R v London Borough of Harrow ex parte M [1997] ELR 62 (often referred to as ex parte M) established that a local authority is responsible for ensuring the educational provision identified in a statement of special educational needs is provided even when provision is delivered by a third party such as the NHS.
All generally went well until N v North Tyneside Council [2010] EWCA Civ 135 the Court of Appeal had to step in and had to stress that a local authority was under an obligation to ensure that the special education provision identified was provided.
If anyone is concerned that the above only applies to the old regime of special educational needs, they needn’t be. Section 42 The Children and Families Act 2014 address the “Duty to secure special educational provision and health care provision in accordance with EHC Plan” and s42(2) states:
“The local authority MUST secure the specified special educational provision for the child or young person.”
So that’s the end of it.
This means that if you are a parent of a child with an EHCp who isn’t getting the special educational provision identified in Section F, or indeed a young person in the same position, you must take it up formally with the local authority. Further, if you are a school or post 16 provision who is not being given sufficient finance to provide the special educational provision in an EHCp, take it up with the local authority maintaining the document.
Talem Law
8th January 2020