In March 2020, the Coronavirus Act was published and within it, the Secretary of State was permitted to give a notice which disapplies or modifies certain legal duties due to the transmission of COVID-19.
Modification to duty to provide SEN provision under s42 of Children and Families Act 2014
On 30 April 2020, the Secretary of State for Education issued a notice to modify section 42 of the Children and Families Act 2014.
Section 42 of the Children and Families Act 2014 details the absolute duty to secure special educational provision in accordance with an EHC Plan. This duty is imposed on Local Authorities and health commissioning bodies first and foremost, but, also then must be carried out by the school named in the EHC plan.
The notice from the Secretary of State has modified this from being an absolute duty. Instead, the duty on local authorities to secure special educational provision and on health commissioning bodies to arrange health provision in accordance with EHC plans, must be carried out using their ‘reasonable endeavours’.
Local Authorities and Health commissioning bodies in applying reasonable endeavours will look at what is realistic and achievable in individual circumstances. Delivery of provision may need to be adapted and delivered instead through remote learning or remote therapies. Therefore, the special educational provision detailed in a child/young person’s EHC plan may not need to be delivered exactly as stated in the plan, as long as the local authority and health commissioning bodies have shown that they have used ‘reasonable endeavours’ in discharging their duty.
The Secretary of States explains that the notice has been issued due to a number of reasons which include that local authorities have reduced numbers of staff, parents are opting to keep children with complex needs at home which restricts how provision can be delivered; and local authority and NHS staff are being deployed in other areas.
This notice is for a specified period from 1 May 2020 and finishes on 31 May 2020.
This notice will be concerning to parents of children and young people with EHC plans as it is often difficult enough without the above modification to direct local authorities and health commissioning bodies to carry out their duties. And for those children/young people with EHC plans still attending school, this may significantly impact on how their special educational provision is delivered, if at all.