NHS Children and Young Peoples Continuing care and EHC Plans
An important judgment, R (A) v North Central London Integrated Care Board [2024] EWHC 2682 (Admin) that confirms the mandatory duty on ICBs to provide care plans that spell out in detail, how the health care element of an EHCP will be delivered.
The case concerned a profoundly disabled 11-year old child who was eligible for Children and Young People’s NHS Continuing Care and had an Education Health Care (EHC) Plan that placed significant obligations on the health body to provide support. The health body delegated the production of the care plan to the registered provider it commissioned to provide the care. The court considered that it was lawful for an ICB to do this, but that this did not excuse the health body from ensuring such a plan was in place, was properly monitored and was adequate.
Although a ‘care plan’ is not referred to or described in the relevant legislation or guidance – the court noted (at para 61 of its judgment) that the SEND Code of Practice (para 9.69) states in respect of Section G, that provision:
should be detailed and specific and should normally be quantified, it should be clear how the provision will support achievement of the outcomes, demonstrate clarity as to how advice and information gathered has informed the provision specified and can choose to specify other health care provision reasonably required by the child or young person, which is not linked to their learning difficulties or disabilities, but which should sensibly be coordinated with other services in the EHC plan.
The court noted that the Special Educational Needs and Disability Regulations 2014 regulation 12(1)(g) requires the EHC plan to set out in Section G the health care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having special educational needs and that this must (via regulation 12(2)) be agreed by the responsible NHS commissioning body.
The court concluded (at para 50) that section 42(3) Children and Families Act 2014 imposes an absolute and non-delegable duty on the NHS body to arrange the specified healthcare provision and that this was not a ‘best endeavours’ obligation[1] and in the circumstances that relevant health body had not fulfilled this duty. It had not made sufficient efforts to secure an updated health care plan from the registered provider
[1] Citing R(L) v Hampshire County Council [2024] EWHC 1928 (Admin) at [42]
Posted 3 November 2024