The “relaxation” of responsibilities local authorities have to students with education, health and care plans (EHCPs) will have a serious impact on students, the chief executive of a specialist college has warned.
David Ellis, who runs National Star, has said that temporary changes to the law by the Department of Education will lead to huge variation in provision offered to students with special educational needs and disabilities across the country.
On 30 April, the DfE announced that there would be modifications to section 42 of the Children and Families Act 2014, and that local authorities and health commissioning bodies must use their “reasonable endeavours” to secure or arrange provision.
Under the act, an EHCP is a legally binding document, and children and young people are legally entitled to the provision the plan states they need. The temporary changes to the law mean that this legal obligation has been lifted.
In the guidance, the DfE said: “This means that local authorities and health bodies must consider for each child and young person with an EHC plan what they can reasonably provide in the circumstances during the notice period.
“For some individuals, this will mean that the provision specified in their plan can continue to be delivered; but for others (because of the impact of coronavirus (Covid-19) on local authorities or health commissioning bodies) the provision may need temporarily to be different to that which is set out in their EHC plan.”
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Mr Ellis said it was “just such a vague statement” and that there will be huge variation across the country depending on who is making the decision on what is deemed reasonable.
He said: “The individual students who come to us get a combination of education, therapy and health. If a local authority is only going to be using 'reasonable endeavours', the door is open for them to say, 'actually, this individual student doesn't need physiotherapy or speech and language therapy – just the education package is good enough'.
“That drives cart-and-horse through the package. Sometimes you can’t access education unless you have the associated therapy to support you. With speech and language, part of the package is learning to use a communicator; if you don’t have the speech and language support there, then that’s a whole part of learning that has gone out the window.
“The whole point is: at the moment, if it’s in an EHCP, there is a legal requirement to deliver the service. If you no longer have that obligation to offer that service, it becomes 'we tried but we couldn’t quite find a way of doing it' or 'we couldn't find the money to fund it'.
“It just all starts to unravel. We made huge gains to get the Children and Families Act to lock in statutory entitlement and, actually, it feels like there’s a danger of going backwards.”
'Losing ground we've gained over decades'
Last year, the House of Commons Education Select Committee said that while the Children and Families Act 2014 had been good in principle, it had been "let down by failures of implementation. The 2014 reforms have resulted in confusion and at times unlawful practice, bureaucratic nightmares, buckpassing and a lack of accountability, strained resources and adversarial experiences, and, ultimately, dashed the hopes of many".
Mr Ellis said that he was worried the “reasonable endeavours” adjustment may become permanent: “My main concern is that because the system doesn't work at the moment, it might be seen as an opportunity to reduce statutory entitlement as a means of trying to make it work.
"If local authorities haven’t got funding for something then they don’t have to fund it. If they use that excuse to then put things right, we are going to be losing ground that we have gained over the last decades”.
Mr Ellis also raised concerns around the assessments required around EHCPs. Current guidance from the DfE states that where it is not reasonably practicable or impractical to conclude an action within the statutory timescale because of the incidence or transmission of Covid-19, "the local authority or other body to whom that deadline applies will instead have to complete the process either as soon as reasonably practicable or in line with any other timing requirement in the regulations being amended".
But Mr Ellis warned that if EHCP assessments weren’t comprehensive enough, students would be affected for years to come. He said: “If the assessment is not done appropriately and done according to ‘best endeavours’, that will undermine the services the student has for years to come.
“The timing issues are also important. The DfE says that in an academic year cycle, everything is sorted by March for a September intake. That just is not reality, so come September there will be students unable to start because they haven’t got an EHCP.
“The system creates NEET (not in education, employment or training) students, and if this is the only type of student that won’t start in September, call that for what it is, it is discrimination.”
'Water down provision'
Clare Howard, chief executive of special colleges umbrella organisation Natspec, said that they recognised it was "a time for pragmatic approaches" but that the temporary changes to SEND law must not be seen as giving permission to local authorities to automatically water down provision for children and young people with SEND.
She said: "They should only make changes to provision as a last resort – where the current situation makes it impossible to deliver everything the child or young person needs. Local authorities only having to use ‘reasonable endeavours’ rather than having a legal duty to secure provision is certainly a worry. While some local authorities will pull out all the stops, we are concerned that others could use this modification of legislation as an excuse to offer very little indeed.
"The recent Education Committee SEND Inquiry report and the NAO [National Audit Office] report revealed the inadequacies of the system long before the coronavirus struck. The pandemic cannot be blamed for the host of underlying issues that were already there; we must not allow it to trigger a further decline in provision either."
A DfE spokesperson said: “Our first priority remains the safety and wellbeing of vulnerable children, including those with special educational needs and disabilities (SEND). Schools and early years settings remain open for them to attend where it is appropriate for them to do so, and we know that frontline professions are working hard to deliver the best care and support possible for all children with education, health and care plans.
“These are unprecedented times and we know responding to this pandemic may put additional pressure on services. These temporary amendments will allow councils and health services to focus their attention on the most urgent needs during the outbreak. Local authorities, health services and education settings must continue to work together to support children and young people with SEND and their families.”