Inclusion Now 53 – Legal Question

The Local Authority has a legal duty to ‘secure’ the special educational provision in your child’s Education Health and Care Plan (EHCP). In practice this usually means the local authority providing funding to your child’s school and the school using that money to arrange for the provision to be delivered.

If, as a consequence of the local authority’s funding cuts, your child’s provision is reduced or stopped then the legal remedy for addressing this issue is by way of judicial review. If successful, the court could order that such provision is arranged, and consequently, funded.

For a judicial review of this type to be successful the provision in Section F of the EHCP must be properly specified and quantified so that it is clear to the court what provision your child requires, such as how often they are to receive it, for how long and who is to provide it. If provision is vague, such as providing for “access to 1:1 support” rather than, for example, “20 hours of 1:1 support each week to be provided by an experienced Teaching Assistant”, this would make judicial review proceedings highly unlikely to be successful even if the child had received a certain amount of provision historically.

A judicial review would be brought against the local authority that maintains your child’s EHCP and not the school although they may be an interested party. It is important to act quickly as a judicial review must be brought as soon as possible and usually within three months of the act complained of, although when there is a failure to provide provision the timeframe usually continues to run as this is seen as an ongoing failure. The Court will nevertheless still require anyone who brings a claim for judicial review to do so quickly and without delay so it would be important for advice to be sought quickly. Legal aid is available for these types of actions based on the child’s means.

If the local authority wishes to change provision in a plan, the annual review would provide them with the opportunity to do this. Similarly, if you are concerned that your child’s provision is not sufficiently specified and quantified, your child’s annual review is a good opportunity for you to raise this and request amendments be made to the plan. Any amendments suggested (by either the parent, school or local authority) should be based on the child’s needs and not based on budget/financial resources.

Following an annual review, the local authority must issue a decision letter stating whether or not they intend to amend an EHCP and, if they do, what amendments they are making. This letter should set out a right of appeal to the Special Educational Needs and Disability Tribunal which allows a parent to challenge the contents of an EHCP and therefore ensure that the provision in the plan is properly specified and quantified. Any appeal should be lodged within 2 months of the date of this letter so it is important that parents act quickly if they have concerns.

Thomas Mitchell

Thomas is a solicitor with Simpson Millar and specialises in Education and Community Care law
www.simpsonmillar.co.uk