On 30 April 2020, the government announced two important changes to special educational needs and disability (SEND) legislation. The aim of the changes is to give local authorities more flexibility in responding to the demands placed on them by coronavirus. This post explains those changes, and considers the scope for future legal challenges.
In the first of the two changes, the Secretary of State for Education published a notice temporarily modifying the duty in section 42 of the Children and Families Act 2014. Section 42 places a duty on local authorities and health commissioning bodies to secure special educational provision and health care provision for children and young people in accordance with Education Health and Care (EHC) Plans. The effect of the Secretary of State’s notice is to relax the section 42 duty so that local authorities and CCGs are now required only to use “reasonable endeavours” to secure the provision in an EHC Plan.
The “reasonable endeavours” modification was made using new emergency powers contained in the Coronavirus Act 2020 (see paragraph 5(6) of Schedule 17). The notice is in force for one month, from 1 to 31 May 2020, but can be extended by further notice.
Local authorities will no doubt rely on this relaxation to justify reductions in provision in EHC plans, and in some cases it may be appropriate for them to do so. However, as the new Government Guidance makes clear, the notice does not absolve local authorities of their responsibilities under section 42. Local authorities must still consider for each child and young person with an EHC plan what they can reasonably provide in the circumstances; any blanket decision to reduce or remove provision without such individual consideration would clearly be open to judicial review.
When considering what can reasonably be provided in the circumstances, the Guidance indicates that local authorities should consider what alternative arrangements can be made, including the use of technology, online learning, and provision of materials for home learning. Failure to consider such alternatives could also leave a local authority vulnerable to challenge, since it would be difficult in those circumstances to demonstrate the use of “reasonable endeavours”.
The second change is that the government introduced the Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 (the ‘Amendment Regulations’). The Amendment Regulations temporarily amend four other sets of Regulations which set out the statutory timescales in which certain processes relating to EHC assessments and plans must ordinarily be carried out.
Under the Amendment Regulations, where, for a reason related to coronavirus, it is not possible to carry out those processes within the normal time limit, the process must instead be completed as soon as practicable, or in some cases as soon as reasonably practicable. The timescales affected include the 6-week limit for deciding whether to proceed with an EHC needs assessment, and the 20 week limit for issuing EHC Plans. A full list of the amendments can be found in the Annex to the Government Guidance.
The amendments to the timescales for EHC processes do not authorise local authorities to stop following the statutory processes, but do allow them greater flexibility in doing so. A local authority must still consider requests for new EHC needs assessments or re-assessments, and cannot implement a general policy of refusing to consider new requests because of coronavirus. Any such policy would again be open to challenge via judicial review. Furthermore, a failure to comply with the time limits for any reason other than coronavirus remains unlawful and open to challenge.
Whilst this post focuses on the changes to SEND legislation that have already been implemented, it should be noted that there are many other important duties relating to SEND which may be disapplied or modified in the near future using the Secretary of State’s powers in Schedule 17 to the Coronavirus Act 2020. Any further changes to SEND legislation will be closely monitored by this blog.