Education, Health and Care Plans – Dispute Resolution
8th October, 2024
It is well reported that some local authorities are facing severe difficulties complying with their statutory obligations in relation to EHC Plans.
This is leading to an increasing number of SEND Tribunal appeals against decisions about EHCPs for children with special educational needs.
EHCPs set out the resources and help a child may need in order to access their education. Local Authorities must issue an EHCP within 20 weeks of a parent or school asking for one. BBC News has cited that eight councils met the deadline in fewer than 5% of cases in April to December last year, with growing demand becoming difficult for local authorities to meet. This difficulty has been attributed to a number of factors, including insufficient funding and a shortage of educational psychologists causing delays.
The increase in challenges is continuing, and the Tribunal’s most recent quarterly update (released on 3 October 2024) reported that SEND Tribunal receipts have increased by 78% compared with the same quarter last year. Many local authorities simply do not have the staff resource to deal with the increasing number of claims.
In addition, local authorities are also facing an increasing number of High Court judicial review challenges in relation to EHCPs. Such claims can be costly and time-consuming for local authorities, and can pose several significant risks such as adverse costs orders, and the potential that a judge will make a mandatory order which, if breached, could lead to the local authority being held in contempt of court.
The recent case R (on the application of L, by his litigation friend and mother, LC) v Hampshire County Council [2024] is illustrative of these risks. This case involved a judicial review claim in which the Claimant challenged the Council’s failure to secure the special educational provision contained in the Claimant’s EHCP. The Council put forward a defence that delay in securing the EHCP provisions was partially due to lack of available educational psychologists, the sudden termination of the special educational provision provider, and that the EHCP was a ‘large and complex plan’ which had made it difficult to comply with the duty to provide it. However, the claim for judicial review succeeded, with the judge stating that the Council’s conduct was ‘characterised by drift and delay’. The following orders were made: a declaration that the Council was in breach of its statutory obligation under s42 of the Children and Families Act 2014, as it had failed to secure the special educational provision under the Claimant’s EHCP; a mandatory order that the Council must provide the Claimant with their full EHCP provision within 5 weeks; and an adverse costs order against the Council.
JS (by his litigation friend) v Cardiff City Council [2022] is an (albeit rare) example of a case where the Council was found to be in contempt of Court because it had failed to comply with a mandatory order requiring the implementation of a care and support plan. The Council was also ordered to pay indemnity costs, and apologised in open Court.
How can we help?
Ward Hadaway has specialist Education teams who are able to help, handle and manage risks associated with the provision of EHCPs, including defending First Tier SEND Tribunal claims and judicial reviews. We understand the challenges that come with managing EHCPs, and we are able to provide the expert guidance and assistance required.
If you are facing a dispute at present, please do get in touch with Robert Glassford who will be able to advise you and your team on the best course of action, for other matters relating to Education please contact Graham Vials
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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