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 local authority 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
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
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
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
Contact the local authority in writing
If the school's response is unsatisfactory or the provision is still not being delivered, write to the local authority'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 local authority'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
Escalate if necessary
If the local authority does not respond adequately, you can: request an early annual review; make a formal complaint to the local authority 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 local authority 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 local authority to convene a review meeting. The EHCP can be amended to make provision clearer or more specific.
Formal complaint to the local authority
Most local authorities 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 local authority'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 local authority citing the section 42 duty
- You have kept copies of all correspondence
- You know your escalation route if the local authority 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