A parent asks:
Who is legally responsible for making sure what is in the statement/Education, Health and Care Plan is implemented?
What is the legal claim on when it is not? I know it is not Educational Malpractice because that does not include legislated legislation (Statement/EHC) I was told it is most likely Personal Injury - is that so?
Where is the precedent located, which case, for any breach of Statement vs. an SEN?
The LA is responsible for securing provision in the EHC plan in accordance with s.42 of the Children and Families Act 2014 or s.324 of the Education Act 1996 for a Statement. When a local authority fails to comply with its legal duty to make the provision specified in the EHC plan or Statement, the parents or a young person can make an application for Judicial Review.
An application for Judicial Review must be made by a solicitor to the High Court for breach of statutory duty. Firms with public law Legal Aid contracts are able to bring cases for Judicial Review for those who are financially eligible. For information about legal aid, see http://www.justice.gov.uk/legal-aid
Judicial Review is the way that courts supervise how public bodies exercise their powers. It is not available as a remedy where there are effective alternative remedies. The court does not decide the merits of a particular case in a judicial review or replace the decision of a public body with theirs. They consider, instead, how the public body carried out their duties and check that decisions were lawful.
It is therefore necessary to ensure that the Statement or EHC plan is clear and specific to claim that there has been an unlawful act by the LA in their failure to provide the provision as stated.