08.22 Is the duty on the LA to secure the provision in Section F absolute?

Noddy 'no-nonsense' Guide

Noddy 'no-nonsense' Guide
Authors: David Wolfe QC, Leon Glenister
14 Feb 2022

Answer Now

A: SenseCheck

  • 1 Yes
  • 0 No
  • 0 Other


  • 14 Feb 2022
  • Yes


    Yes. “The word "secure" [in CFA2014 section 42] is an ordinary English word and needs no gloss - what is plain is that the duty has no "reasonable endeavours" escape clause available to excuse failure to secure the provision specified”: ZK v LB Redbridge [2020] EWCA Civ 1597#13, R (BA) v Nottingham CC [2021] EWHC 13348 (Admin) #27.

    In N v North Tyneside BC [2010] EWCA Civ 135, N sought to compel delivery of speech and language therapy in her Statement (now EHCP) by judicial review. The Administrative Court refused to compel delivery. The Court of Appeal held that to be wrong. The obligation under the EA1996 s324(5) on an LA to arrange the SEP specified in a statement of SEN was absolute (now under CFA2014 section 42). It was not merely a “best endeavours” obligation which was satisfied where the LA had arranged most of the elements of Part 3 (now section F) of the statement (now EHCP) and considered that the child did not require the others (despite the FTT having decided to the contrary). A provision in a statement which purported to allow an LA to change provision without amending the statement was unlawful.  See also BA v Nottinghamshire CC [2021] EWHC 1348 (Admin) #37 applying North Tyneside and emphasising that the period allowed for an LA to amend an EHCP following an FTT order is the time during which the required SEP is to be put in place.

    More: Why does the Noddy Guide refer to the EA1996 and cases related to it when SEN law is now in CFA2014?

    Noddy 'no-nonsense' Guide

    Noddy 'no-nonsense' Guide
    Authors: David Wolfe QC, Leon Glenister