BA, R (On the Application Of) v Nottinghamshire County Council

Section 42 of the Children and Families Act 2014 imposes an absolute and non-delegable duty to secure the special educational provision specified in an Education, Health and Care Plan. Commissioning services or having programmes in train does not itself establish compliance. The court assesses whether provision has been secured at the hearing, allowing reasonable implementation time in context. A year was not reasonable in this case. A current breach may justify a mandatory order despite genuine recent efforts and limited outstanding provision. The order may be briefly deferred or qualified where appropriate.

A child with complex, life-limiting special educational needs sought judicial review of Nottinghamshire County Council’s failure to provide services specified in his Education, Health and Care Plan, issued on 14 May 2020 after a successful First-tier Tribunal appeal. The claim alleged breach of section 42 of the Children and Families Act 2014. The central issue was whether the council had secured the specified provision by the hearing on 12 May 2021 and whether declaratory and mandatory relief should be granted. The court confined the claim to current breaches, while considering the history insofar as it informed the remedy.

Claim succeeded. The court declared that the defendant was in breach of its section 42 duty, granted a mandatory order and awarded costs.

1. Section 42 imposed an absolute and non-delegable duty to secure the special educational provision specified in the EHCP. There was no best-endeavours defence. The temporary reasonable-endeavours regime arising from emergency Coronavirus legislation did not affect the position at the hearing. The court relied on and applied R (on the application of N) v North Tyneside Borough Council [2010] EWCA Civ 135.
2. The operative question was whether the provision had actually been secured by the hearing date. Commissioning providers and identifying future programmes did not necessarily satisfy the duty. The court found that several matters remained outstanding, including staff training, communication arrangements, sensory occupational therapy, appropriate seating, postural care and aspects of physiotherapy.
3. Even allowing a reasonable implementation period and taking account of the pandemic, approximately one year was not reasonable. The five-week period built into the statutory scheme was intended to allow preparation, and the bulk of the provision should have been available within that period. The pandemic had only a limited effect on implementation in the circumstances.
4. A mandatory order was appropriate despite the defendant’s genuine recent efforts and the fact that the remaining provision was limited or in train. The history of excessive delay justified preserving the impetus to complete implementation. Consistently with the dicta of Sedley LJ in R (on the application of N) v North Tyneside Borough Council [2010] EWCA Civ 135, operation of the order was briefly deferred. The defendant was required to implement the EHCP within four weeks, except that the chair provision was allowed six weeks. The declaration concerned current breaches only; past breaches were not determined.

This was a first-instance judicial review. The EHCP followed the claimant’s successful appeal to the First-tier Tribunal, whose decision was promulgated on 28 February 2020. An application for interim relief was refused by Mr Justice Lane on 30 December 2020. Permission to apply for judicial review was granted by Mr David Lock QC, sitting as a deputy judge of the High Court, on 19 March 2021.