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• 24 Feb 2025

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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.

Whilst the duty to secure the provision in Section F is absolute, the Court retains a discretion on remedy should a judicial review challenge be brought. An LA may argue that the Court should not make a ‘mandatory order’ (an order requiring the LA to secure the provision) if it can show that it has “taken all reasonable steps” to comply with the duty and must file detailed evidence on this. This issue was considered in the context of housing in R (Imam) v Croydon LBC [2023] UKSC 45 #40-60, 66-71, including a discussion of the factors the Court would use to exercise its discretion. The Court has applied Imam in R (HXN) v LB Redbridge [2024] EWHC 443 (Admin) #93-98, R (L) v Hampshire CC [2024] EWHC 1928 (Admin) #59-70 and R (JSH) v Westmorland and Furnes Council [2024] EWHC 3362 (Admin) #73-91, and on the facts of each of those cases, made a mandatory order requiring SEP in the EHCP to be delivered within 5 weeks.

Separately, the Integrated Care Board is under an absolute duty to secure the provision in Section G of the EHC Plan: CFA2014 s42(3), R (A) v NCLICB [2024] EWHC 2682 (Admin) #69.

More: >01.01 Why does the Noddy Guide refer to the EA1996... 



Noddy No-nonsense Guide

24 Feb 2025

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