News story legal challenge

4th May 2020 • Emma Cooper

In the last few days, the Secretary of State for Education has issued a notice to modify section 42 of the Children and Families Act 2014, affecting education and EHCP’s.

The new guidance will apply from 1st May – 31st May 2020 and will modify the duty on local authorities to secure special educational provision and on health commissioning bodies to arrange health provision in accordance with EHCP’s, so that they can discharge this by using their ‘reasonable endeavours’.

The notice does not absolve local authorities (for special educational provision and social care) or health commissioning bodies (for health care provision) of their responsibilities under section 42: rather they must use their ‘reasonable endeavours’ to secure or arrange the provision.

This means that local authorities and health bodies must consider for each child and young person with an EHCP what they can reasonably provide in the circumstances during the notice period. For some individuals, this will mean that the provision specified in their plan can continue to be delivered; but for others (because of the impact of coronavirus on local authorities or health commissioning bodies) the provision may need temporarily to be different to that which is set out in their EHCP.

Once the notice expires or is cancelled, local authorities and health commissioning bodies would in all cases need to secure or arrange the full range of provision, as specified in the EHCP.

Essential considerations

In deciding what provision must be secured or arranged in discharge of its modified section 42 duty, the local authority and health commissioning body should consider:

  • The specific local circumstances (such as workforce capacity and skills and that of others whose input is needed to EHC needs assessments and plans processes, temporary closures of education settings, guidance on measures to reduce the transmission of coronavirus and other demands of the outbreak).
  • The needs of and specific circumstances affecting the child or young person.
  • The views of the child, young person and their parents over what provision might be appropriate

Importance of co-production

The guidance has stressed the importance of local authorities, health services, education settings and all those involved in the processes relating to EHC needs assessments and plans working with families to identify appropriate ways forward. It is a fundamental principle of the SEND system that children and young people with SEND and their parents need to be fully involved in decisions about their support. Co-production and effective communication remains key, both at the strategic level and in relation to individual cases.

Parent carer forums have an important role, working with local authorities and health commissioning bodies, to gather and feed in parents’ views on what can realistically be provided to children and young people in their area when the usual ways of working are under such strain.

Local authorities, health services and the other bodies involved in the processes relating to EHC needs assessments and plans should communicate regularly with the families of those children and young people with EHCP’s, or who are being assessed for plans or who apply for an EHC needs assessment.

Where the changes in the law affect what families experience, they need clarity as to:

  • What provision will be secured for each child and young person and the reason for any difference from what is specified in the EHCP.
  • When decisions will be made as part of the various processes relating to EHC needs assessments and plans.

It is also crucial that local authorities ensure that children, young people and parents are provided with the information, advice and support necessary to enable them to participate effectively in discussions and decisions about their support. The local SENDIASS has a critical role to play at this time. It is important that local authorities ensure that these services are sufficiently resourced to support families

Examples of alternative arrangements

The notice provides an extensive list of examples of alternative arrangements in light of the new temporary guidance, however, the following is a brief outline of what may be appropriate to consider in deciding what provision may be required:

  • What?
    Securing something different to the provision stated in the plan, for example in relation to availability of staff, availability of technology and any significant risk that may cause harm.
  • Where?
    Location where provision is to be provided may be altered, for example early years provider, school, college, community setting, home or clinic.
  • How?
    Frequency and timing of provision may be altered or modified in the light of available staff and risks that may cause harm.
  • When?
    Method of delivery may be altered, for example virtual rather than face-to-face and smaller rather than larger groups for teaching (where this can be done following the guidance on reducing transmission of coronavirus).
  • By whom?
    Changes to the person delivering the provision, for example a learning assistant under virtual supervision rather than a specialist therapist or teacher

Processes unchanged

Some of the processes over assessments and plans remain unchanged under the new guidance, including:

  • EHC needs assessment – a local authority must still consider requests for a new assessment.
  • Securing advice and information in order to be able to issue a plan.
  • Have regard to the views and wishes of a child, the child’s parent or a young person when carrying out its SEND functions under the Children and Families Act 2014.
  • Annual reviews – at the moment, annual review requirements remain in place, however the government has legislated to provide extra flexibility for LA’s over the timing of these reviews.

If you have questions about this new, temporary guidance or you need help with your child’s education or EHCP at this difficult time, you can submit your question to our latest Ask Our Experts education special. Email us your question by Thursday 7th May and legal experts Irwin Mitchell will answer your question for you.