Herts County Council EHCP delays found unlawful in High Court

EHCPs are education, health and care plans for children with special educational needs and disabilities (SEND). Only 38 per cent of EHCPs in Hertfordshire are currently finalised within 20 weeks.

The ruling came after the parent of a child whose EHCP was delayed brought a judicial review case against HCC, which was heard by the High Court earlier this month.

The parent told us: "Like many parents of SEND children, we are upset and angry at the wilfulness of HCC to break the law and de-prioritise resources away from some of the most vulnerable children in society.

"We did not take this action lightly and HCC expended huge public resources in attempting to defend the indefensible.

"We hope this judgement and order will discourage the defendant [HCC] and others from repeating their unlawful conduct and that the judgement will help other parents secure their rights and provision for their children in future".

On December 30 last year, the father of the child - who will be referred to as W - had requested an assessment to see whether she should qualify for an EHCP.

HCC are required to conduct an assessment if they accept that the child "may" have SEND - a low bar.

But in a letter dated February 8, 2023, HCC declined to give W an assessment, stating that they felt there was a "more suitable pathway" to support her needs.

They listed a number of purported reasons for their decision, but the judge felt there was a "strong case" that their response "does not make sense ... it looks as if [HCC] have a standard letter rejecting such an application and the person completing the letter is supposed to fill in the relevant details ... The letter does not directly address the statutory test as to whether W 'may' have SEN."

HCC did not disclose any documents explaining who made the decision that W did not meet the threshold, or why they made that decision.

When W's father applied for a review of the decision, HCC refused to grant it. He then appealed to a tribunal, but on April 5 - before the tribunal took place - HCC changed their position and agreed to conduct the assessment.

They did not disclose any documents explaining why they had reversed their original decision.

Even after agreeing to conduct an assessment, HCC were slow in making it happen. The law states that EHCPs must be completed "as soon as practicable" and "in any event within 20 weeks of the local authority receiving a request for an EHCP needs assessment".

In W's case, HCC took it upon themselves to reset the clock and give themselves 20 weeks to complete the EHCP from the day they had reversed their decision. The judge confirmed that this was "mistaken", and that the 20 weeks runs from the original date when the request for an assessment was made by the parent.

While HCC admitted to W's father that they had breached their duties under the Children and Families Act 2014 and SEND Regulations 2014, they said that the delay in getting an assessment was caused "by lack of information from both an educational psychologist and from CAMHS".

They could not confirm when W could expect a finalised EHCP, and added that they were "investigating the possibility" of outsourcing the psychologist assessment, but warned that "this is not able to happen until September 2023".

The judge said that the approach demonstrated in HCC's response "was not consistent with a public authority that recognised the seriousness of having breached its legal obligations and was determined to remedy them as quickly as possible".

When legal proceedings began, W's assessment had still not been completed.

The judge confirmed that HCC had "acted unlawfully in failing to complete the finalised EHCP within the statutory period" and confirmed that the council "will be acting unlawfully each time that it fails to complete an assessment and prepare the EHCP within the time period specified in the Regulations".

The judge also criticised HCC's handling of the case. HCC's main defence was that the issue should be dealt with by the tribunal, and that "there was no room for judicial review". The judge disagreed with that argument.

HCC had also said that they "intended to contest the whole of the claim" and that they had "at all times" acted in accordance with the relevant legislation.

But the judge wrote in response: "It cannot be right that the response of a public body to a judicial review claim is to say that it has 'times acted with regard to [sic]' its legal obligations when, in fact, it knows that it has acted in breach of those obligations.

"The lack of a candid position by [HCC] is, to say the least, unfortunate and is not consistent with its duties to the court."

HCC said they "are committed to clearing the backlog of cases", but when W's father asked when that may happen, the judge found that HCC are "unable to say" when that will be.

And there may be more to come in this case. The father of W also made broader claims that what happened to his daughter is not an isolated incident, but "typical" in Hertfordshire, and that the county council "is acting in a systematically unlawful manner".

He believes that HCC is "managing demand by refusing a significant number of meritorious applications for assessments and only conceding the need for assessments after parents exercise their right of appeal".

The judge made no comment on that in this judgement, but gave W's father 28 days to make a decision on whether to advance with this wider, systemic case.

W's father has also made a "relatively modest" claim for damages. If he cannot reach agreement with HCC, that claim will be transferred to Watford County Court for resolution.

Responding to this story, a spokesperson for HCC said: “We are aware of the High Court’s judgement in this case and we would like to apologise to the family involved.

"We are committed to working in partnership with young people, parents, carers and schools to ensure that all children with SEND and EHCPs in Hertfordshire receive the support they need and deserve.

“There are more than 36,500 children and young people identified in Hertfordshire schools as having SEND, and we have seen a 185 per cent increase in children and young people with EHCPs since 2015.

"We know that we’ve struggled to keep up with that increase and that’s why SEND improvement is a key priority for both the county council and local NHS.   

“We understand the issues faced by children, young people and their families in Hertfordshire and the court heard that we have already put in place a strong strategy to address this, including an additional ongoing £5million investment into statutory SEND services and creating 1,000 new SEND school places between 2018 and 2026.”

While there has been a 185 per cent increase in children and young people with EHCPs since 2015, the judge commented that "the majority of that growth was in the early years and the growth last year was at five per cent".