Responsibility for EHCP Provision Delivery

In 2024 the High Court considered this question in the case  JSH (by his father and litigation friend RRB) v Westmorland and Furness Council. In this case a young adult with a Plan, who was aged 17, had attended a special school until April 2024 when the setting became unsuitable for his needs. However, a new placement was not arranged in time for the new academic year.

Local authorities pressuring schools

In many cases we have seen local authorities telling schools and parents that the school is responsible for ensuring that provision set out in section F of the Plan is delivered. Whilst there may be decisions to be made about whether health care provision or social care provision should be treated as special educational provision, and therefore included in section F or elsewhere, both the SEND Code of Practice and the Children and Families Act 2014 are clear that ultimate responsibility for ensuring that special educational provision is made rests with the local authority, unless the child’s parent has made suitable arrangements.

The High Court considered whether, by failing to secure educational provision for the young person from September 2024, the local authority had failed to deliver the provision specified in section F of the Plan, and was therefore in breach of section 42 of the Children and Families Act 2014 which requires that the local authority must secure the specified special educational provision for the child or young person.

In this case it was held that the local authority had failed to act, despite being aware since April 2024 of the need to put provision in place. The local authority had therefore breached its statutory duty and was subject to a mandatory order requiring it, within 5 weeks, to put in place the required provision.

Be aware of the local authority’s duties

One of the most helpful steps that a school can take to protect its position is to fully understand the extent of the duties which are placed on the local authority and to push back here necessary. That includes the duty to conscientiously consult with Schools on placements and the duty  for local authorities to deliver special educational provision set out in a Plan. This High Court decision confirms the position in respect of the duty placed on the local authority, and clarifies that it is for the local authority, not the school, to ensure that special educational provision is arranged.

Managing funding challenges

Funding challenges which schools are experiencing mean that it is even more vital for schools to understand the duties placed on the local authority in respect of a Plan and ensuring that appropriate provision is made. Where top-up funding is necessary, local authorities must make payments in a timely fashion on a basis agreed with the school. The Department for Education can step in and consider remedial action where there is clear evidence that a local authority is not meeting its obligations.

If a school becomes aware of funding issues for a child with an EHCP it should first request an emergency annual review to initiate dialogue with the local authority without delay. It is important whenever a school is challenging the local authority to ensure that clear and detailed costs provision maps for each child with SEN are created to ensure that the school’s position is reinforced with relevant data and evidence.

We support schools day to day seeking to challenge the local authority, whether it be to challenge being named in a plan or to challenge funding, including before the Secretary of State.