By Rebecca de Winter, Paralegal at SEN Legal
The Coronavirus Act 2020 contains provision, which if comes into force, will reduce the Local Authorities “absolute duty” to ensure the provision in a child's EHC Plan is in place, to one of "reasonable endeavours". This legislation is not yet in force, and currently the “absolute duty” under Section 42 of the Children and Families Act continues to apply.
My colleague James Brown published an earlier article about the proposed changes to the duty for a local authority to provide the provision in your child’s EHC Plan under the new legislation, but today we saw for the first time a Local Authority try to use this proposed change in the law to avoid their lawful duty.
This begs the question- what will "reasonable endeavours" mean in reality?
As this law is brand new, and indeed, not in force yet, we currently do not know exactly how the courts will interpret "reasonable endeavours". What we can do is make an educated prediction on what may or may not amount to “reasonable endeavours” by a Local Authority.
It is likely to be a matter of fact and degree, for example if your child’s EHC Plan states they should be educated in small classes of 10 pupils, this may be impossible for the Local Authority to achieve in the current climate due to school closures and limited staffing numbers. It is likely to be considered the Local Authority have met their duty to take "reasonable endeavours" if your child is in a larger class if there is no alterative placement due the present circumstances.
We have received enquiries from parents who query whether in the circumstances, it would be “reasonable” for the Local Authority to make preferential arrangements, if it isn’t possible for them to make arrangements for small class sizes, for obvious reasons. Again, this would be a matter of fact and degree. If the staffing is available for your child to receive some form of 1:1 tuition via video link, then that may well be “reasonable”.
However, we would suggest in the current climate it is very unlikely that Local Authorities will be able to arrange such 1:1 provision, given that the more limited staffing pool available are trying to meet the needs of the needs of keyworker and vulnerable children who are attending school, something in an entirely new school setting. Additionally, there are the needs of other children who are considered vulnerable who are not attending schools (such as those who require free school meals), who schools are still catering for at this time of emergency.
If your child’s EHC Plan provides for 1 hours Speech and Language Therapy a week, it could be argued that in order for the Local Authority to meet their duty to take “reasonable endeavours” they should consider alternatives ways of delivering this therapy. The therapy could be delivered by video call if the child is able, or the Speech and Language Therapist could speak to parents and train them to continue the therapy at home. It may even be possible to have the therapy at home with social distancing. The same would apply for occupational therapy, Counselling or Physiotherapy.
If your child receives an ABA programme in school and the tutors cannot attend school but can attend the home environment, it is likely that would be a ‘reasonable’ amendment.
It is a case of using common sense to ensure as much as possible provision continues.
Whilst the duty to deliver provision will be reduced under the Coronavirus Act, if it is enacted, be assured it has not been removed altogether. It is extremely unlikely that the Courts will allow the wording in this new legislation to become a blank cheque and allow the Local Authority to cease to make Special Educational provision in any form, for children and young people with EHC Plans.
It is likely we will see an increase in Local Authorities attempting to hide behind “reasonable endeavours” as we have today, so please remember -if there is a will, there is usually a way. If you are told this or are concerned your Local Authority are not complying with their duty please do not hesitate to contact us at customerservices@senlegal.co.uk – we can help.
©Rebecca de Winter