- 14 Feb 2022
No. CFA2014 s42(2): Where an EHCP is in place, the “local authority must secure the specified special educational provision for the child or young person” (i.e. LA and not parents) unless the LA has satisfied itself that the parents have voluntarily made suitable alternative arrangements for SEP to be made in which case no duty falls on the LA to secure the SEP: CFA2014 s42(5), COP2015 #9.131-9.136.
It follows that an EHCP cannot lawfully specify (in section F or as a placement in section I) provision which the LA has in mind would be made by parents without those parents having volunteered to do so: A v Cambridgeshire  EWHC 2391#59-60. By extension, an EHCP cannot effectively require elements of provision to be provided by “carers” who are privately funded by parents or (perhaps from a damages payment) the child/young person themselves: TW and KW v Hampshire County Council  UKUT 00305 (AAC) #23-26.
It follows that the FTT should look at what an EHCP requires of parents and ask whether it is “educational” or “special educational provision”: KW v Rochdale  EWHC 1770 #26. See thus for example, T v Hertfordshire CC  EWCA Civ 927#50, in which the FTT lawfully found that there was no need for educational provision out of school hours (there was merely a need for “consistency of approach”). Parents or carers becoming involved outside of the school day in reinforcing what has been done in school and by trying to act consistently with it is not in itself necessarily SEP (though it may be for the particular child/young in question: TA v Bowen & Solihull  EWHC 5#39, TW and KW v Hampshire County Council  UKUT 00305 (AAC) #27.
01.01 Why does the Noddy Guide refer to the EA1996 and cases related to it when SEN law is now in CFA2014?
08.13 Is there a particular rule about when a child requires out of hours SEP?
09.337 Can parents agree to provide some EOTAS?
0 This is helpful