EHCP Provision Not Being Made — What You Can Do | EHCP Clarity
EHCP Enforcement Guide

What to Do When EHCP Provision Is Not Being Made

If the provision specified in your child's EHCP is not being delivered, the local authority is breaching an absolute statutory duty. This guide explains what section 42 of the Children and Families Act 2014 requires, how to document the gap, and what escalation routes are available — from writing to the LA through to formal complaints.

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Quick answer

Under section 42 of the Children and Families Act 2014, the LA has an absolute duty to secure the provision specified in an EHCP — there is no 'best endeavours' defence. If provision is not being delivered, document the gap, write to the LA citing s.42, and if necessary escalate to a formal complaint or the Local Government Ombudsman.

The absolute duty under section 42

Section 42 of the Children and Families Act 2014 imposes an absolute duty on local authorities to secure the special educational provision specified in an EHCP. The courts have confirmed that this duty is unconditional — the LA cannot rely on resource constraints, school difficulties, or staff availability as excuses for non-delivery.

The duty applies to everything specified in Section F of the EHCP. Every item in Section F must be delivered as written. If Section F says weekly SALT, it must be weekly. If it says 25 hours TA support, it must be 25 hours. Anything less is a breach.

Common examples of provision not being made

  • Speech and language therapy specified as weekly but delivered monthly or not at all
  • Teaching assistant support hours specified but not provided due to staffing shortages
  • Specialist literacy or numeracy interventions named but not yet started
  • Small group teaching specified but child placed in whole-class setting
  • Access arrangements specified (e.g. reader, extra time) not implemented in assessments
  • Specified placement not arranged — child still waiting months after the EHCP was issued
  • OT equipment or sensory support specified but not provided

What to do when provision is not being made

  1. 1

    Review the EHCP carefully

    Read Section F of your child's EHCP carefully. List every item of provision specified. Note the frequency, duration, and any other conditions (e.g. 'delivered by a qualified SALT', 'in small group of no more than 3'). This is your benchmark — anything in Section F must be delivered.

  2. 2

    Document the gap

    For each provision listed in Section F, record what is actually being delivered. Get evidence from school (timetables, logs, communications with SENDCO), from your child, and from your own observations. Note dates, missed sessions, reduced hours, and any explanations given.

  3. 3

    Contact the school SENDCO in writing

    Write to the SENDCO describing the specific provisions not being delivered. Reference the EHCP and the relevant Section F provisions. Ask for confirmation of what is and is not being delivered, and a plan to restore full delivery. Request a written response.

  4. 4

    Contact the LA in writing

    If the school's response is unsatisfactory or the provision is still not being delivered, write to the LA's SEN caseworker. State that the provisions in Section F of the EHCP are not being delivered and that this is a breach of the LA's absolute duty under section 42 of the Children and Families Act 2014. Request a written response and a remediation plan with a specific timeline.

  5. 5

    Escalate if necessary

    If the LA does not respond adequately, you can: request an early annual review; make a formal complaint to the LA using their complaints procedure; complain to the Local Government Ombudsman; or seek specialist legal advice about judicial review or other remedies. Keep all correspondence — it will be essential.

Documents and evidence to gather

  • A copy of your child's current EHCP (especially Section F)
  • A written log of which provisions are not being delivered (with dates)
  • School timetables or session logs showing actual provision delivered
  • Communications with the SENDCO about provision delivery
  • Any responses from the LA to previous complaints
  • Medical or professional evidence of impact on your child if provision has lapsed

Escalation routes

Early or emergency annual review

Request an early review of the EHCP. This formally documents the provision gap and requires the LA to convene a review meeting. The EHCP can be amended to make provision clearer or more specific.

Formal complaint to the LA

Most LAs have a two-stage formal complaints process. A complaint citing breach of the section 42 duty should prompt a formal response and may result in remediation.

Local Government & Social Care Ombudsman

The Ombudsman investigates service failures by councils. Failure to secure EHCP provision is a common and well-established category of complaint. The Ombudsman can recommend financial remedies and apologies.

SENDIST Tribunal (for content disputes)

If the root cause of non-delivery is that Section F is inadequately specified, an annual review followed by an appeal about the EHCP contents may be the right route.

Judicial review

In serious cases of persistent breach, judicial review of the LA's failure to fulfil its section 42 duty may be available. This requires specialist legal advice and should be a last resort.

Provision enforcement checklist

  • You have reviewed Section F and listed every provision that should be delivered
  • You have documented exactly what is and is not being delivered (with dates)
  • You have written to the SENDCO describing the gap and asking for a plan
  • You have the SENDCO's response (or noted that they have not responded)
  • You have written to the LA citing the section 42 duty
  • You have kept copies of all correspondence
  • You know your escalation route if the LA does not respond adequately

Common mistakes when provision is not being made

  • Raising concerns verbally instead of in writing — always create a written record
  • Accepting school assurances without documented evidence of what is actually being delivered
  • Not referencing section 42 CFA 2014 in your written complaint — be explicit about the legal duty
  • Waiting months before escalating — the longer provision is missing, the greater the impact on your child
  • Not requesting an early annual review — this is often the fastest formal route

Frequently asked questions

What is the LA's duty under section 42?
Under section 42 of the Children and Families Act 2014, where an EHCP specifies educational provision, the local authority has an absolute duty to secure that provision. This is not a duty to use 'best endeavours' or to 'try' — it is an unconditional obligation. If an EHCP names provision and it is not being delivered, the LA is in breach of a statutory duty.
What counts as 'provision not being made'?
Any provision specifically described in Section F of the EHCP that is not being delivered, or is being delivered at lower hours/frequency/intensity than specified. Common examples: SALT specified as weekly but delivered fortnightly; TA support hours specified as 25 hours but actual provision is 15; specialist literacy intervention named but not started; a specified placement that has not been arranged.
What should I do first if provision is not being made?
Document the gap and contact the school SENDCO and the LA in writing. Describe specifically what provision is not being delivered and refer to the relevant section of the EHCP. Ask for a written response and a plan to restore provision. Keep all correspondence — it will be important if you need to escalate.
Can I go to the Ombudsman about provision not being made?
Yes. The Local Government and Social Care Ombudsman (LGSCO) can investigate LA failures to secure EHCP provision as maladministration or failure in service. The Ombudsman can recommend remedies including financial compensation and apologies. However, the Ombudsman process is typically slower than other routes and is better suited to cases where provision has failed over an extended period.
Can I take the LA to judicial review?
Judicial review is a legal challenge to the lawfulness of a public body's decision or action. It can be used where the LA is failing to fulfil its absolute duty under section 42. JR is complex, expensive, and should only be considered with specialist legal advice. It is typically a last resort after other routes have been exhausted.
What if the school says it cannot deliver the provision?
The duty to secure provision under section 42 lies with the LA, not the school. If the school cannot deliver what is in the EHCP, the LA must find a way to ensure it is delivered — either by supporting the school in delivering it, or by arranging alternative provision. The LA cannot use the school's inability to deliver as an excuse for non-delivery.
What if my child is not in school?
If your child is not attending school (for example due to anxiety or medical absence), the LA still has a duty under section 42 to secure the educational provision specified in the EHCP. The LA may also have duties under section 19 of the Education Act 1996 to provide alternative education if your child is absent from school for reasons of illness.
Should I request an emergency annual review?
If provision is significantly not being delivered and there is a risk of deterioration, you can request an early or emergency annual review of the EHCP. This can be a useful step to formally document the gap, trigger the LA's involvement, and potentially update the EHCP to ensure clearer specification of provision going forward.

Related guides

Sources and further reading

This is general information, not legal advice. EHCP Clarity helps parents organise and prepare their own materials. It does not provide legal advice, legal representation, or tribunal advocacy, and nothing on this page should be relied on as a substitute for advice about your specific situation. For free independent expert support, contact IPSEA, SOS!SEN, or your local SENDIASS. For legal representation, instruct a SEND solicitor.