Third Notice confirms EHCP duty modification continues in July

30 Jun 2020 By Imogen Proud

On 29 June 2020, the Secretary of State for Education published a third Notice which modifies for a further month the duty on local authorities in England in relation to Education, Health and Care (“EHC”) Plans.

The Notice confirms that for the period 1 July until 31 July 2020 the duty under section 42 of the Children and Families Act 2014 will be modified as it was in May and June, meaning that local authorities are able to continue to use ‘reasonable endeavours’ when securing the provision in a child’s EHC Plan. Previously, the duty was an absolute one.

The Secretary of State is required to state in each Notice why he considers “that the issuing of the notice is an appropriate and proportionate action in all the circumstances relating to the incidence or transmission of coronavirus” (Coronavirus Act 2020, Schedule 17, paragraph 5(4)). The Third Notice comes as children with EHC Plans are being encouraged to go back to school, and means that upon their return they have no guarantees of the provision they will receive. There would seem to be a risk for the Secretary of State that some parents/carers may question whether the continued modification is appropriate and proportionate given the circumstances of the return to school, and a judicial review of this latest decision may follow. In a challenge on this basis, the Secretary of State would need to prove that his position in the Notice was a reasonable one.

See my earlier blog post on the June Notice and the continuing standards to which LAs will be held.

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