Second Notice confirms EHCP duty modification continues in June

01 Jun 2020 By Imogen Proud

The Secretary of State for Education has published a second Notice which continues to modify the duty on local authorities in England in relation to Education, Health and Care (“EHC”) Plans throughout June 2020.

The Notice confirms that for the period 1 June until 30 June 2020 the duty under section 42 of the Children and Families Act 2014 will be modified as it was in May. Prior to the Notices, local authorities were under an absolute duty to secure the specified educational provision in a child’s EHC Plan. The Notice means that local authorities are able to continue for another month instead to use ‘reasonable endeavours’ when securing the provision.

The extent to which this constitutes (continued) ‘relaxation’ of the duty depends ultimately upon how the courts interpret ‘reasonable endeavours’. It will be a dramatic lessening of the duty if, when a local authority’s provision is judicially reviewed, the Administrative Court finds that a local authority did discharge its ‘reasonable endeavours’ duty because the attempts that it made to secure the specified provision were not irrational in the circumstances (ie not so unreasonable that no reasonable local authority could have made them). DfE Guidance may assist the courts. This was updated on 29 May 2020 but continues to stress that “the notice does not absolve local authorities … of their responsibilities” and they “must consider for each child and young person with an EHC plan what they can reasonably provide in the circumstances during the notice period”. The Notice is not a ‘get out of jail free’ card for local authorities, who will be unlikely to succeed in defending judicial reviews where they have not considered what could reasonably have been provided to a given child eg remote provision of therapies.

The rationale behind the Notice is set out at (d) of the Notice. Although the wording has changed from May, the substance remains largely unchanged. Local authorities are experiencing Covid-19-related reductions in SEND staff capacity. It may not be possible for all children with EHC Plans to attend their education settings. Even where they do attend, the normal educational programme will probably be disrupted. The relaxation is therefore said to be an appropriate and proportionate action. The proffered rationale has been criticised by some SEND practitioners who argue that the reasoning does not justify the extent of the relaxation.

The Notice was signed earlier last week (the handwritten date appears to be either 26 or 28 May) but it was not published until late on Friday 29 May, giving schools and local authorities just two weekend days to plan the provision they would make for those returning to school the following Monday (1 June 2020). If a third Notice is to follow for July, which looks likely, it would certainly be preferable for those tasked with making specified provision to be told further in advance. Indeed, if there is not to be a July Notice, and the absolute duty is to return, it would seem an even longer lead-in time would be required in order that local authorities can ensure all educational provision in EHC Plans will once again be secured.

See Alex Littlewood’s earlier blog post about the previous Notice for May.