On 30 April 2020, the Secretary of State for Education published a notice temporarily modifying the duty in section 42 of the Children and Families Act 2014 to secure special educational provision and health care provision for children and young people in accordance with Education Health and Care (EHC) Plan. Prior to that notice, section 42 placed an absolute duty on local authorities to secure that provision. Following the notice, local authorities were required only to use “reasonable endeavours” to secure that provision. This first notice was explained in my earlier post.
Yesterday, on 2 July 2020, the Secretary of State published new guidance confirming that “…unless the evidence changes, we will not be issuing further national notices to modify the EHC duties, but will consider whether any such flexibilities may be required locally to respond to outbreaks“. This means that, subject to any change in the evidence or any local measures, section 42 duties will apply in the ordinary way from August onwards.
Interestingly, this change in the government’s approach follows judicial review proceedings commenced in June challenging the decisions to downgrade legal duties to children with SEND (details of which can be found here).
The announcement will come as a welcome relief to parents of children with EHC plans concerned about local authorities failing to provide adequately for those needs at a time when children with EHC plans are being encouraged to return to school.
It is to be welcomed that the notice has been published some weeks ahead of the reinstatement of the absolute section 42 duty to secure provision. This will hopefully allow local authorities enough time to ensure that all educational provision in EHC can once again be secured from August.
However, the announcement contains the large caveat that the government will continue to consider local notices to respond to local outbreaks. The power to modify the section 42 duty in a “specified area” is found in paragraph 5(2) of Schedule 17 to the Coronavirus Act 2020. With a local lockdown already in place in Leicester, and further localised outbreaks of the virus being reported in other parts of the country, future local modifications of the section 42 duty remain a real possibility.