COVID-19 and the delivery of provision in EHC plans

March 19th, 2020

In my last post, I set out the Secretary of State for Education’s recent announcement that while schools generally are to close, education is still to be provided to certain categories of children, including key workers, children with social workers (presumably those with a children in need plan), and all children with EHC plans. The last category of children, those with EHC plans, will in the current circumstances pose significant challenges for local authorities and schools. While there are many issues to work through, here are some preliminary observations –The duty to deliver the provision in sections F and I of all EHC plans is ultimately on each local authority, rather than on the school: see section 42, Children and Families Act 2014. It is cast as an absolute duty. The statutory scheme has no built-in exception for pressing national emergencies.

It is possible that Government may take steps in relation to this, but there is no indication thus far that it intends to do so. Steps could potentially be taken through the Civil Contingencies Act 2004, or by separate legislation. The Government’s statement on the Coronavirus Bill (the text of which is not yet out at the time of writing) states that it will include “easing the burden on frontline staff – by reducing the number of administrative tasks they have to perform, enabling local authorities to prioritise care for people with the most pressing needs, allowing key workers to perform more tasks remotely and with less paperwork …”. That appears directed at NHS and social care staff, and not the delivery of EHC plans.

Although the duty to deliver sections F and I of all EHC plans is absolute, if in practice it is not possible to deliver the provision stated in the plans, due to supervening emergency, there is little that a court is likely to do other than scrutinise the reasonableness of the local authority’s handling of the situation. In the past judicial review claims have been filed from time to time, in situations where a local authority found a particular element of EHC plans impossible to deliver for a time, e.g. because OT provision could not be sourced within reasonable travelling distance. Those claims were usually compromised by a consent order in which the local authority undertook to use all reasonable endeavours to make the provision in the EHC plan as soon as it was possible to do so.

Where an individual EHC plan cannot practically be delivered, the usual approach is to arrange an urgent review of the plan. That is highly unlikely to be feasible as a general response to the current situation, given the numbers affected.

While more details are awaited from the DfE, the statement made by Gavin Williamson, to the extent that it refers to continued education of children with EHC plans, only says that education should be provided to that group of children (and other named groups). It does not specifically require schools to stay open in order to do that. It also says nothing about the delivery of EHC plans. Thus, it could be that local authorities decide to close all or certain schools, and provides for those children whom the Secretary of State / DfE requires continued provision be made for, elsewhere than at their usual school.

The Secretary of State’s statement also does not set out the minimum steps local authorities must take to comply with the new expectations, including those for children with EHC plans. The minimum requirement is obviously to keep children safe. Any education provided in addition to keeping children safe, will depend on local circumstances. Beyond providing a building, minimum safe staffing levels, and any other steps to ensure children are safe, the level of education and special educational provision provided by the local authority can only be that which it is reasonably able to provide in the circumstances. As the present crisis develops, and particularly in the hardest hit areas such as London, that may in some areas be very little indeed.

Jonathan Auburn

11KBW

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