Families take first step in legal action over Surrey SEND provision

Families of children and young people with special educational needs and disabilities (SEND) have taken the first step towards legal action against Surrey County Council over concerns that essential educational provision set out in Education, Health and Care Plans (EHCPs) is not being delivered.

Specialist SEND lawyers at Irwin Mitchell have sent a formal pre-action letter to the council on behalf of four affected young people and Measure what Matters, an initiative examining transparency and accountability in local government. If the Council’s response is not satisfactory, it could lead to the families seeking a Judicial Review.

The proposed challenge concerns whether the council’s commissioning, funding and internal approval processes are unlawfully delaying or preventing children and young people from receiving the provision they are legally entitled to. It encompasses arrangements for commissioning special educational provision, personal budgets and direct payments.

The four cases sit within wider concerns reported to Measure What Matters. During September 2026 alone, the initiative received reports concerning 71 children and young people experiencing difficulties with the approval, commissioning or funding of their educational provision for the start of term. For many, this provision is their only access to education because they are unable to attend school.

The families of the four children and young people aged between eight and 22, say they have been left without all of the educational provision specified in their EHCPs. The families argue that extended delays in commissioning, funding and internal approval processes have prevented all of the provision in their EHCPs from being secured.

Issues described in the letter include:

• Delays affecting specialist mentoring and other support
• An Education Otherwise Than At School (EOTAS) package for one child, funded via a personal budget, where funding for existing providers has not been agreed
• A child who remained without significant elements of their EOTAS provision
• A family who say elements of their child’s therapeutic and educational support have either not been put in place or are being delivered by providers without confirmed funding arrangements, leaving continuation uncertain.

Under section 42(2) of the Children and Families Act 2014, local authorities are required to secure the special educational provision specified in an EHCP. The pre-action letter argues that Surrey County Council's practices are unlawfully frustrating that duty.

Abigail Hands, a specialist SEND solicitor at Irwin Mitchell, said: 

“These families have turned to us because they are deeply concerned that children and young people are not receiving all of the educational provision set out in their EHCPs.

 

“Internal commissioning and funding processes should not stand in the way of the support that children and young people are legally entitled to receive.

 

“We have now asked Surrey County Council to urgently address our clients’ concerns and explain what action it will take to ensure that every child and young person they are responsible for receives the provision they are entitled to.”

A spokesperson for Measure what Matters said: “For children who cannot attend school, a failure to commission or fund their provision can mean being left at home, with no access to education or specialist support for weeks, sometimes months. The impact on children and their families can be devastating.

"Complaints, Ombudsman findings, political pressure, media investigations and individual legal action have already exposed serious failures in Surrey’s processes and secured vital help for some children. Yet resolving one child’s case appears to leave the practices behind it untouched. One child’s education is restored. Another family starts the same fight. Those without the resources, capacity or strength to keep challenging are left behind.

"This is why this challenge targets the council’s processes. Resolving individual cases is not enough when the same practices and policies leave children without provision again and again. Public authorities have discretion over how they organise their services. They cannot organise away their responsibilities.”

The council has been asked to respond by 4pm on 26 October 2026. The letter states that, without a satisfactory response, the families and Measure what Matters reserve the right to issue judicial review proceedings and seek interim relief.

Steve Broach KC and Eleanor Leydon of 39 Essex Chambers are instructed as Counsel in this matter.