By James Brown, Specialist Solicitor
As some of you will have seen and read, the Government introduced new legislation on 25th March 2020, the Coronavirus Act 2020. There are lots of important points to this new act, but this post is to focus on the apparent relaxing of your Local Authority’s duty to provide the provision within your child’s EHC Plan. Our website has lots of detailed posts in relation to the new legislation, so please do use this.
Prior to the outbreak of this pandemic and prior to the Coronavirus Act 2020 being passed, Local Authorities had an absolute duty to provide the specified provision within an EHC Plan. There was no negotiation on this, or any discussions about if they could afford it. It was an absolute duty. This was contained in Section 42(2) of the Children and Families Act 2014. This is what ensured your Local Authority kept delivering the provision.
There were concerns amongst many that this new legislation would simply do away with this duty. However, this is not the case.
The Coronavirus Act has the power to temporarily amend this duty so that Local Authorities are able to instead use ‘reasonable endeavours’ when securing the provision within an EHC Plan, rather than an absolute duty to provide, which is a lesser duty. If the LA take reasonable endeavours and it proves not possible to deliver the provision, they will be discharged of their duty and will not have to deliver it.
Reasonable endeavours is fact dependent and a degree of flexible and creative thinking will be needed, to think of what reasonable steps can be taken to ensure the provision can be delivered.
The reality, as we go through the coming weeks and months, is that services may close, 1:1s may need to self-isolate or become unwell. This national emergency calls for open minds and collaboration about how we can creatively deliver provision more than ever, to ensure children/young people with special educational needs can continue to get the care and support they need.
Further, the Act does not allow the LA to simply use the ‘reasonable endeavours’ duty as a starting point at this time. The duty under Section 42(2) remains. It is only when the Secretary of State issues such notice that this will apply. We anticipate this notice will come soon. We will of course update at that time.
Until such time, the absolute duty to provide the provision remains.
What is clear from this Act, is that it is not acceptable for your Local Authority to simply say they will not deliver the provision within your child’s EHC Plan. If you have been told this or are concerned your Local Authority may take this approach, please do get in contact with us. We are here to help.
For further detail of this new legislation please visit here.
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