Keep up to date with latest legal developments
Attempting to keep track of the ever-evolving government position on Coronavirus has been compared, by one colleague, to herding cats, and frankly it’s difficult to disagree. The situation in which we find ourselves is fast-moving and, with few signs of it decelerating, there remains much uncertainty as to what the coming months hold for children with SEN.
The Coronavirus Act 2020, however, means we now have some indication of how the government intends to proceed. The Act received the royal assent on 25th March, less than a week after publication of the first draft of the Coronavirus Bill. The provisions relating specifically to education are set out in two schedules, Schedule 16 and Schedule 17.
As many of you will know, section 42 of the Children and Families Act 2014 requires local authorities to arrange the provision set out in an EHC Plan. The courts have persistently stated that the duty is absolute and that the contents of an EHC Plan must be implemented to the letter (see for example, R (On the Application Of) v London Borough of Camden  EWHC 3354 (Admin), a case in which my colleague, Christopher Barnett, successfully acted for parents.) Schedule 17 of the Coronavirus Act, however, provides for this absolute duty to be disapplied and replaced with a lesser duty to use ‘reasonable endeavours.’
Families will undoubtedly be anxious to know what ‘reasonable endeavours’ means and what they are entitled to expect from their local authority over the coming weeks and months. Sadly, the answer to this is somewhat unclear, not least as the new Act does not define the term and because, as of yet, no guidance has been issued to authorities.
So, how will local authorities and the courts choose to interpret the expression ‘reasonable endeavours’? There are a number of possibilities.
‘Reasonable endeavours’ is a well-established legal concept but one that figures more commonly in a commercial law than in the area of SEN. It is the least onerous of the three so-called endeavours obligations (obligations that require a party to try to do something rather than commit to doing it absolutely) the other two being ‘best endeavours’ and ‘all reasonable endeavours.’ Features of reasonable endeavours are;
- the person that owes the duty is allowed to consider his/her own interests;
- that person needn’t take any action which is detrimental to him or her;
- the person can take account of the likelihood of success;
- the duty is often defined by reference to an objective standard of what an ordinary; competent person might do in the same circumstances; and
- it will be assessed by reference to the circumstances that exist at the time of delivery, which may of course change, requiring less or more effort.
Additionally, whilst an “all reasonable endeavours” obligation generally requires a person to go on trying until a point is reached when all reasonable courses of action have been exhausted, a party subject to a ‘reasonable endeavours’ obligation will only be required to adopt and follow through one course of action, regardless of its success.
Alternatively, one can look to public law for guidance. At least three sources may play a role.
The first is the duty that applies, in normal circumstances, to schools under section 66 of the 2015 Act in respect of children with SEN but no EHC plan. This requires a school to use its ‘best endeavours’ to identify and meet the needs of such children. Again, the term ‘best endeavours’ is not defined but the SEN Code if Practice does set out various measures that a school will be required to take. One possible approach, therefore, is to take the view that the level of rigour a local authority is currently required to go to in respect of a child with an EHC plan is somewhere below that which a school normally would in respect of a child with no EHC Plan, whilst obviously taking into account the fact that the needs of the latter are likely to be more serious and thus worthy of greater attention.
A second approach would be an analogy with the duty to make reasonable adjustments in respect of disabled pupils under the Equality Act 2010. The duty, which is the subject of technical guidance published by the Equality and Human Rights Commission, is not absolute. As many readers will be aware, it requires a provider to consider what disadvantages a pupil faces and what steps would be required to remove or ameliorate those disadvantages. The question of whether any given adjustment depends on a number of factors such as; cost; resources; practicability; health and safety; and the interests of other pupils.
A third approach would be to turn to the classic public law concept of Wednesbury unreasonableness and proceed on the basis that, unless the course of action adopted by a local authority is one which no reasonable authority would adopt, or is one that overlooks relevant points or takes account of irrelevant ones, it will be acceptable.
It remains to be seen how local authorities will approach the interim duty or what approach the courts will take should they be called upon to resolve disputes. However, there seems little doubt that parents will be entitled to expect significantly less than normal, not least as, contrary to what was at first thought, it seems that children with EHC Plans will not automatically be entitled to continue attending school during the pandemic.
Government guidance published on 22nd March suggests that this is not so and that the right of children with EHC Plans to continue accessing placements will be subject to a risk assessment to be carried out by the setting in conjunction with the local authority and parents. After noting that many children with EHC plans can safely remain at home, the guidance makes the following remarks about risk assessment;
‘They will need to consider a number of different risks to each individual, including:
- the potential health risks to the individual from COVID-19, bearing in mind any underlying health conditions. This must be on an individual basis with advice from an appropriate health professional where required
- the risk to the individual if some or all elements of their EHC plan cannot be delivered at all, and the risk if they cannot be delivered in the normal manner or in the usual setting
- the ability of the individual’s parents or home to ensure their health and care needs can be met safely
- the potential impact to the individual’s wellbeing of changes to routine or the way in which provision is delivered
We expect most children and young people with EHC plans will fall into the following categories:
- children and young people who would be at significant risk if their education, health and care provision and placement did not continue, namely those who could not safely be supported at home. This may include those with profound and multiple learning difficulties, and those receiving significant levels of personal care support. Local authorities will need to work with the individual’s educational setting – especially residential special schools and specialist colleges – as well as local health partners, to ensure they are able to remain open wherever possible. This may mean deploying staff from other education settings, to keep staffing ratios safe
- children and young people whose needs can be met at home, namely those who are not receiving personal care from their educational setting, or whose limited need for personal care can be met in their family home.
As well as requiring settings to do a huge amount of work in a short space of time, the above has the potential to produce unsatisfactory results. Again, it is unclear how a family goes about challenging a setting or local authority whose decision they are unhappy with.
It is possible that further guidance will be forthcoming. However, for now, parents would be well-advised to take the following steps…
- Make contact with the placement and local authority and make enquiries about the provision they intend to offer over the coming months.
- If the proposals fall short of what is needed, ask the local authority/setting to do more, and say why. Point out that there is still a duty to use reasonable endeavours and ask for an explanation as to what you are asking for goes beyond this.
- The onus will then be on the setting/authority to explain why it cannot do more.
- If the reasons given are unconvincing and your child’s needs are being neglected, it may then be possible to challenge the authority by way of judicial review.
If you are currently being affected by any of the issues discussed above, feel free to contact a member of our specialist team for an initial discussion about how we may be able to help.
Robin Jacobs, Barrister