This article explains which parts of an EHCP must be provided, who is responsible for providing them and what to do if provision in a plan is not being provided.
Must the provision in an EHCP be provided?
Some sections of an EHCP are for information only and are not legally enforceable. An example is Section A. Other Sections of an EHCP are legally enforceable. Section F is the key legally enforceable education section. It must set out all of the Special Educational Provision (SEP) required to meet the Special Educational Needs (SEN) set out in Section B. Your LA has a legal duty to provide all of the provision detailed in Section F.
Who is responsible for making EHCP provision?
Your Local Authority (LA), not the school, has a statutory duty to ensure that all special educational provision in Section F on an EHCP is delivered.
Your local authority (LA) must make sure that all of the special educational provision specified in Section F of the EHC plan is delivered. This legal duty is set out in section 42(2) of the Children and Families Act 2014.
In practice, the day-to-day delivery of Section F provision is usually delegated to school, however the legal responsibility to make sure it is delivered remains firmly with the LA.
The LA is legally responsible to make sure that:
the school and college staff have the finances necessary for resources, training and equipment.
any therapies such as speech and language therapy, occupational therapy, physiotherapy, or the services provided by CAMHS (Child Adolescent Mental Health Service) are delivered, if these provisions are in Section F.
There is no legal defense for failing to secure the special educational provision in an EHC plan. The LA must also make sure that it provides sufficient funding to secure the provision specified in Section F.
What does the law and case law say about the LA’s duty to provide EHCP provision?
The LA:
must make sure the provision is made from the date the EHC plan is issued. BA, R (on the application of) v Nottinghamshire County Council [2021] EWHC 1348 (Admin) | (IPSEA) Independent Provider of Special Education Advice
cannot pass the duty onto to another body (such as the health service or a school). R v London Borough of Harrow ex parte M [1997] ELR 62 | (IPSEA) Independent Provider of Special Education Advice
must provide the provision set out in an EHCP, not something different. N v North Tyneside Council [2010] EWCA Civ 135 | (IPSEA) Independent Provider of Special Education Advice
cannot use practical difficulties (including financial ones) as an excuse for not providing provision in an EHCP. R (LB) v Surrey County Council [2022] EWHC 772 (Admin) | (IPSEA) Independent Provider of Special Education Advice
What should you do if your child is not receiving the provision set out in their EHCP?
1) Discuss it with school
Firstly, discuss any problems with your child’s SENCo and head teacher. You might be able to find a quick solution with the school.
2) Complain
If this does not resolve matters and your child is not receiving the special educational provision specified in their EHC plan, you should put in a formal complaint to your LA, not your child’s school.
IPSEA provides a model letter that you can use as a template to make your complaint. Use your LA’s online complaints process to submit the complaint. You can find this by online searching for the name of your LA + formal complaint.
Failure to deliver the special educational provision in an EHC plan is a very serious matter and may result in a child missing out on education all together, so if completing your LA’s complaints process is not appropriate or would take too long you may wish to consider judicial review instead.
3) Consider changes to the EHC plan
If your EHC plan is not specific about exactly what must be provided, by whom, how often and for how long, it will be much harder to enforce.
If you are having difficulties getting the support you need because the EHCP is not specific enough, you need to ask for an early annual review of the EHCP and use this process to improve the detail in Section F.
If your LA decides not to amend the EHC plan following the annual review, or if you still feel the provision in the plan is not specific enough, you can appeal to the SEND Tribunal.
4) Escalate the matter
If you complain to the LA and exhaust the LA complaints process, but do not receive an adequate response, you can escalate your complaint to the Local Government and Social Care Ombudsman.
Alternatively, you may want to consider judicial review.
So where do I go from here, how can Empowering Families of Children with SEND Ltd help me?
We have put together a number of support packages to help you to navigate the Tribunal process.
Our blog library is a good place to start particularly 'Help! I am not happy with the contents of my EHCP. What can I do?'
Find out blog library here
Empowering Families of Children with SEND Ltd also provide fully bespoke 1:1 mediation and appeal support with Anna & Sarah as part of their professional service, for details click here: Bespoke 1:1 support from Anna & Sarah
You can find testimonials to our bespoke service on our website and Facebook business page - here
We are, and always will be Stronger Together.
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