EHCPs: school or local authority responsibility?

In this briefing, associate Erin Smart explores where legal responsibility for EHCP provision truly lies, explains the effect of section 42 of the Children and Families Act 2014, and addresses common misconceptions faced by parents when provision is not delivered.

Section 42 places a non-delegable legal duty on the local authority to secure the special educational provision specified in a child’s EHCP.

In simple terms:

• If an EHCP says provision must be delivered, the local authority must make sure it happens
• This duty exists regardless of cost, staffing issues, or school capacity; and
• The duty applies to all children with an EHCP, including those educated in maintained schools, academies, free schools, and alternative provision.

The law does not say that the local authority can pass this duty to a school. It can arrange provision through a school, but ultimate responsibility remains with the local authority at all times.

Schools have duties under education law (for example, reasonable adjustments and best endeavours), but they are not responsible for securing EHCP provision.

Key legal points:

• A school cannot be held legally liable for failure to deliver EHCP provision;
• A local authority cannot lawfully argue that lack of funding or staffing excuses non-delivery; and
• Even where funding is delegated to a school, the local authority retains ultimate responsibility.

This distinction matters because parents are often incorrectly told:

• “The school hasn’t asked for the funding”
• “The school is responsible for provision”
• “We can’t intervene in school decisions”

Legally, these statements are wrong. If provision is missing, the local authority is in breach of Section 42.

The way funding is arranged is an internal matter for the Local Authority and parents do not need to prove that funding is insufficient. Failure to fund properly is not a defence to failure to deliver provision.

If an EHCP requires provision above that usually in a mainstream school, such as, 1:1 support; therapies; specific interventions; or specialist teaching, then the Local Authority must ensure the school has sufficient resources to deliver those requirements.

Similarly, if an independent school is named in Section I of a child’s EHCP, in accordance with section 63 of the Children and Families Act 2014, the local authority is responsible for funding the placement. 

While the legal duty sits with the local authority, many parents, understandably, approach their child’s school first. As above, however, the school is not ultimately responsible for the provision. Therefore, it is in both the parents and school’s best interest to secure the funding required for provision and parents have the ability to challenge this directly with the local authority.

Some tips in order to evidence the local authority’s failure:

• Requesting written confirmation. Ask the school to confirm in writing which EHCP provisions are not being delivered, and whether this is due to funding or staffing limitation
• Asking the local authority directly. Parents can write to the Local Authority requesting confirmation of how Section 42 duties are being met and the details of funding allocated to secure each element of provision
• Avoid entering into discussion with the local authority in which you are encouraged to be patient, cooperative, and understanding. Advocate confidently and take decisive action when a child’s needs are not being met

If provision is missing or inconsistent, parents have several options.

Firstly, and, in our experience, the most effective, would be to send a Pre-Action Letter (Judicial Review) to the local authority. As above, Section 42 creates an absolute duty, therefore, enforcement is through judicial review, not the SEND Tribunal. A pre-action letter sets out the legal breach; has a short deadline to comply (usually 2 weeks); and often results in rapid action without court proceedings. If this is not successful, you can then challenge through Judicial Review. 

Secondly, parents can make a complaint and to the local government and Social Care Ombudsman (“LGSCO”). However, this takes significant time and, where a breach is ongoing, will not result in fast action to get the child the provision that is required. Therefore, this option is more relevant where there has been a breach which has been resolved and parents are looking to recoup the expenses incurred during the gap. For example, where parents have had to fund private therapy sessions or “catch up” sessions are required, the LGSCO has previously issued decisions requiring local authorities to reimburse parents for their expenses or provide additional funding for the catch up sessions needed. The LGSCO can also award payments to parents for the stress caused by the local authority failures. In order to pursue a complaint with the LGSCO, it is often necessary to have exhausted the local authority's complaints process in the first instance. 

Erin Smart is an associate in the education law team. She advises on a wide range of educational issues and specialises in special educational needs, including assisting clients to apply for Education Health and Care (“EHC”) needs assessments and EHC plans.