L, R (on the application of) V Hampshire County Council

A local authority’s duty under section 42 of the Children and Families Act 2014 to secure the special educational provision specified in an EHCP is absolute and non-delegable. It is not a duty merely to use best endeavours. Where breach is established, the ordinary position is that effective relief should be granted. A mandatory order may be refused only for cogent reasons, assessed objectively by the court. Relevant considerations include contingency planning, prior notice of the problem, the impact on the child, the authority’s steps to remedy the breach and possible unfairness to others. Reliance on third-party providers does not, without more, justify refusing an order. In education cases, speed is especially important.

The claimant, an 11-year-old disabled child, challenged Hampshire County Council’s failure to secure substantial elements of the special educational provision specified in section F of his EHCP. The EHCP followed a First-tier Tribunal order requiring education otherwise than in school. Although the Council accepted that it was in breach of section 42 of the Children and Families Act 2014, it opposed a mandatory order, relying on difficulties in obtaining an educational psychologist, the unexpected termination of a provider’s services and continuing efforts to secure alternatives. The central issue was whether declaratory relief was sufficient or whether the court should compel compliance by a specified date.

1. Claim succeeded. The Council was declared in breach of section 42 of the Children and Families Act 2014, and a mandatory order was made requiring it to provide the claimant’s full EHCP provision by 16 August 2024.
2. Section 42 imposes an absolute and non-delegable duty. It is not a best-endeavours obligation. In education cases, speed must be of the essence because delay can seriously affect a child’s education, wellbeing and future. The Council bore the burden of showing why a mandatory order should not be made.
3. The principles in (R)Imam v Croydon London Borough Council [2023] UKSC 45 applied. The ordinary position following an established breach is that a remedy should be granted. The court must exercise its discretion cautiously and objectively, considering matters including contingency planning, prior notice, the impact on the individual, steps taken to remedy the breach and unfairness to others.
4. The Council had been aware of its non-compliance for a substantial period. Its assurances that provision would shortly be secured had repeatedly failed to materialise. Its conduct was characterised by drift and delay, and it had not shown that it had taken all reasonable steps to comply.
5. Shortages of professionals, the termination of a provider’s services and reliance on third parties did not justify refusing relief. Otherwise, mandatory orders could rarely be made in education cases. A previous stay had not secured compliance, and a declaration alone would not provide a practical and effective remedy. Future EHCP review and amendment mechanisms did not displace the need to address the claimant’s present statutory entitlement.
6. No evidence showed that prioritising the claimant would cause injustice to others. The Council was ordered to pay the claimant’s reasonable costs, with detailed assessment of publicly funded costs.

The claimant’s EHCP followed a First-tier Tribunal decision dated 7 August 2023 requiring education otherwise than in school. Permission for judicial review was granted on 21 December 2023. The High Court then granted declaratory and mandatory relief.