The starting point in considering the current situation in lockdown are the relevant provisions of the Coronavirus Act 2020 (the Act) which came into force on the 31 March 2020.
The Coronavirus Act 2020
The Act in essence states that the Secretary of State (SoS) can, by notice, relax statutory duties under other specific legislation/enactments. How does that then impact upon the relevant statutory provisions of the Children and Families Act 2014 section 42 which establishes the state’s “must” duty to secure specific special educational needs for children and young persons?
By section 38 of the Act, which deals with Temporary continuity: education, training and childcare, the SoS can give notice which disapplies or modifies certain statutory duties.
Schedule 17 5 (1)(b) and 6 refers specifically to section 42 of the Children and Families Act and states:
“Any duty imposed on a person by section 42 is to be treated as discharged if the person has used reasonable endeavours to discharge the duty.”
A local authority’s “must” duty in section 42 of the Children and Families Act is to secure specified special educational provision for a child or young person, as stated, in that child or young person’s Education, Health and Care Plan (EHCP). So the Act provides for the modification of the “must” duty to a “reasonable endeavours” duty if the SoS gives notice in compliance with the Act.
The Act limits the period of relaxation to a month and requires the SoS to state why the issue of his notice is considered to be an appropriate and proportionate action in all the circumstances relating to the incidence or transmission of coronavirus. The notice must take account of the Human Rights Act Article 2 protocol which addresses an individual’s right to education and the avoidance of discrimination.
As at the time that the Act came into force, the statutory duty under the Children and Families Act had not been modified and prior to that the Department for Education (DfE) SEND Risk Assessment Guidance dated 19 April 2020 stated:
“ At present the law in force in relation to EHC plans is unchanged, although we recognise that there will need to be some flexibility and are taking steps to deliver that as soon as possible. The Coronavirus Act 2020 includes temporary emergency powers to enable the Secretary of State, where appropriate and proportionate to disapply or modify legal requirements in the Children and Families Act 2014. The powers have not yet been used. We are currently gathering evidence to understand the situation on the ground to inform our approach. To allow more flexibility, we also anticipate making temporary changes, where appropriate, to the Regulations that set out some of the timescales for the EHC plan process. At the point at which the law changes we will provide formal guidance.”
The guidance also discusses the position regarding decisions to be made by parents/carers and local authorities (where children are in care) whether a child or young person should continue to attend his/her school or college but states:
“Although the duties on a local authority and any health bodies to secure provision under the EHC plan currently continues, in reality there may be times when it becomes very difficult to do so in practice… decisions on how provision is delivered should be informed by relevant considerations including staffing availability and risk assessments.”
The SoS’s notice to modify the duty was issued on 28 April 2020 and can be viewed here.
The potential for legal challenge by way of judicial review is perhaps obvious and if pursued following the issue of notice by the SoS are likely to centre around:
- The use of blanket policies by local authorities that don’t take into consideration individual circumstances.
- Arguments that local authorities are not using “reasonable endeavours” and what that means.
- The issue and content of the SoS’s notice.
The Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020
As from 1 May the DfE has relaxed the statutory timescales in four sets of regulations relating to the SEND system. It is stated that this relaxation of deadlines will allow bodies to deploy their resources more flexibly to respond to the coronavirus crisis.
- The Special Educational Needs and Disability (First – tier Tribunal Recommendations Power) Regulations 2017
- The Special Educational Needs and Disability (Detained Persons) Regulations 2015
- The Special Educational Needs and Disability Regulations 2014
- The Special Educational Needs (Personal Budgets) Regulations 2014
An overview of these regulations
How requests are made for EHC needs assessments, how local authorities must make decisions over whether to conduct assessments and issue EHCPs, how to keep EHCPs under review, the process for pursing appeals against decisions, the making and review of the payment of personal budgets and the taking of actions by local authorities and health commissioners following SEND First – tier Tribunal recommendations about meeting individual’s needs. The majority of which have statutory time limits.
Another relaxation is the additional requirement for local authorities to publish annual responses to comments from those with SEND and their parents and carers.
A copy of the Explanatory Memorandum to The Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 (the instrument by which the time limits are relaxed in the regulations listed above) which provides further detail and explanation can be found here.
Paragraph 7 of the memorandum sets out what is being done and why and makes reference to the approach to the modification of the pre-existing timescales to “as soon as reasonably practicable”. Once the regulation ceases to be in force, which is envisaged to be 25 September 2020, the usual timing requirements will resume.
One of the obvious areas for potential legal challenge here is an argument that what is being referred to as the “Coronavirus Exemption” is being used by public bodies to inappropriately relax statutory time limits, in any particular case, and that a blanket approach or policy is being applied.
How we can help
We regularly advise NHS commissioners and providers in relation to SEND proceedings in which they become involved from the perspective of the commissioning, funding and delivery of NHS services addressed at meeting special educational needs in the school environment for children and young people.
Don’t hesitate to get in touch if we can help you with any legal issues arising either generally or in relation to the challenging times in which we all find ourselves.