For full details of the notice, click here.
Ordinarily, the CFA2014 states that when a child or young person has an EHC Plan, the local authority MUST ‘secure’ the special educational provision for the child or young person (in Section F). In other words, there is a duty to provide all provision set out in a Plan.
The new modification temporarily downgrades this requirement. The local authority can now discharge their duty to secure special educational provision if they have used their REASONABLE ENDEAVOURS to do so.
Gavin Williamson gives lots of reasons in his Notice for downgrading this duty, which you can read by following the link. Many of these are entirely legitimate reasons, as public bodies are facing unprecedented pressure during this crisis.
However, if you are a child or young person, or a parent, the current public health crisis is a worrying time in any event. It will be worrying for all parents to understand that now, there is no duty to provide special educational provision that your child has already been assessed as needing.
During the (very quick) passage of the Coronavirus Act 2020 through Parliament, the Labour front bench suggested altering Sch 17, para5(6) to a requirement to take ‘all practicable steps’ to discharge the duty to provide special educational provision. This would have been a stronger safeguard for children and their families, but it was rejected by the government. Vicky Ford, the children’s minister, wrote in an open letter that the alterations “strike the right balance in these difficult times”.
But remember – there is still a duty to undertake reasonable endeavours! Creative thinking is required, and you know your child best. Do you think you would be able to arrange better education yourself if you received money from the local authority to commission it? Consider asking for a personal budget, and then a direct payment so you can commission the provision in the EHC plan yourself.
Local authorities too must be creative when delivering provision – what can be delivered remotely? They need to show that compliance is not possible, because of issues they are facing due to Coronavirus – they need to justify their decision. A blanket refusal to consider alternative ways of supplying provision is unlikely to be lawful.
The goalposts have moved – but they still exist! If you feel that your child’s education is suffering because a local authority is relying on this new modification, or you are facing any other issue concerning your child’s EHCP, get in touch with our specialist education team on 01926 354704 or email firstname.lastname@example.org.