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Arranging EHCP provision: how long is 'reasonable'?
When a local authority (LA) issues an EHCP, it must arrange the provision specified in Section F (s42 Children & Families Act 2014). The question of what is ‘reasonable’ time to implement Section F was examined in the recent case of BA, R (On the Application Of) v Nottinghamshire County Council  EWHC 1348 (Admin).
The child, BA, has a rare metabolic condition with significant physical and neurological symptoms and “substantial, complex, severe long-term special educational needs”. BA’s condition is degenerative and life limiting. For him “every day is important.”
Following an appeal to tribunal, an EHCP was issued for BA in May 2020. At the time, a national Covid lockdown was in place and BA was not attending school. He returned to school in September 2020, but some of the speech and language, occupational therapy and physiotherapy provision specified in the EHCP were not being provided. When challenged, the LA accepted that not all of the provision was in place but said it had not been possible because of the pandemic restrictions and because BA had not been in school. It said it was taking reasonable steps to secure the EHCP provision, and if the NHS could not offer the provision then private therapists would be commissioned.
After further Covid lockdowns, BA returned to school in February 2021. A large number of specific items of provision in the EHCP were still not in place.
At judicial review the LA argued the EHCP provision was now secured: it was commissioned and was being implemented, and there was a programme of action identified by the therapists. The LA only had to comply within a "reasonable time" not "immediately" or "forthwith".
Her Honour Judge Coe QC found that therapists for BA were only properly in place by the end of March 2021 - almost a year after the EHCP was issued - and programmes were still being compiled in the last few days before the hearing. A number of provisions were still outstanding - for example, staff were not fully trained; BA had no appropriate chair in place to manage his postural seating needs; and there were unresolved issues in relation to his physiotherapy programmes.
HHJ Coe said that regardless of Covid, a year was not a reasonable period of time to implement EHCP provision. There had been a statutory five-week period for the LA to implement the EHCP after the tribunal appeal, and the bulk of the provision at least should have been in place within that time.
S.42 CFA is an absolute and non-delegable duty (R (on the application of N) v North Tyneside Borough Council  EWCA Civ 135). There is no "best endeavours" defence.
HHJ Code acknowledged that between 1 May 2020 and 31 July 2020, following emergency Coronavirus legislation, there was only a reasonable endeavours duty to secure EHCP provision, but that did not affect her decision at the present time. The LA had been, and still was, in breach.
HHJ Coe accepted that the LA had made “real strides in recent weeks”, and the outstanding elements were limited and/or “in train”, but noted it was the issuing of the claim, the grant of permission for judicial review and the impending hearing date that had encouraged the LA to take proactive and constructive steps to secure the EHCP provision. Given the history, she considered it necessary to make a mandatory order.
The LA was ordered to implement the EHCP in full within four weeks, and to pay BA’s costs in bringing the action.
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I am so happy at the outcome, I don't think we would have had such a comprehensive service from any other law firm, and you took the worry away...I do not regret a single second of the whole process, apart from the bit before you got involved.
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