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High Court judge criticises failure by council to deliver EHC plan

Nottinghamshire County Council failed to adequately deliver a disabled child’s Education, Health and Care Plan (EHCP) the High Court has ruled.

Her Honour Judge Coe QC, sitting as a judge of the High Court, also said Nottinghamshire should pay the costs of the case brought by BA through his litigation friend and father PA.

BA said Nottinghamshire was in breach of its duty under Section 42 of the Children and Families Act 2014.

He is aged 10 and a rare degenerative metabolic condition called Sanfilippo syndrome and a diagnosis of Leber's amaurosis, a visual impairment.

BA also has diagnoses of severe autistic spectrum disorder, significant hearing impairment epilepsy and mood instability. He is wheelchair-dependent and his health will continue to deteriorate.

HHJ Coe noted: “Very sadly, the claimant's conditions are life-limiting and his life expectancy is early to mid-teens.”

In BA, R (On the Application Of) v Nottinghamshire County Council [2021] EWHC 1348 (Admin) the judge said: “It is not in dispute, therefore, that the claimant has substantial, complex, severe long-term special educational needs and that the provision in his EHCP (Section F) reflects that which is necessary for him. It is also not in dispute that for BA every day is important.”

Nottinghamshire argued that the ECHP’s provision was now in place, but BA said there remained specific outstanding items.

HHJ Coe said the ECHP was issued on 14 May 2020, yet therapists were only properly in place by the end of March 2021, “with evidence of programmes still being compiled in the last few days”.

Nottinghamshire argued that the statutory scheme builds in time to put the provision in place, but BA argued that one year was not a ‘reasonable time’ in which to provide these services.

“I find that [Nottinghamshire] has not implemented the provision it is required to do by Section F of the EHCP,” the judge said.

“Some elements cannot be described as having been ‘secured'. There has not been a determination of a communication system for BA. The training of all staff by the speech and language therapist has not yet happened. The sensory occupational therapy programme was supplied late on 11 May and while there have apparently been demonstrations and sessions with the occupational therapist, the staff have not yet been trained.”

HHJ Coe found “even in the context of a pandemic, one year is not a reasonable period of time”.

“I consider it is necessary to make the mandatory order given the history of this matter.”

Mark Smulian