The Secretary of State for Education, in exercise of the powers conferred by section 38(1) of, and paragraph 5 of Schedule 17 to, the Coronavirus Act 2020¹, issues the following notice.

Modification of section 42 Children and Families Act 2014

1. The Secretary of State for Education by this notice modifies in relation to England section 42² (duty to secure special educational provision and health care provision in accordance with an education, health and care plan) of the Children and Families Act 2014 (the 2014 Act) in the manner described in the table in paragraph 5 of Schedule 17 to the Coronavirus Act 2020, so that any duty imposed on a person by that section is to be treated as discharged if the person has used reasonable endeavours to discharge the duty during the period specified in this notice.

2. The Secretary of State for Education considers that the issuing of this notice is an appropriate and proportionate action in all the circumstances relating to the incidence or transmission of coronavirus for the following reasons:

(a) Since 20th March 2020 educational institutions, including schools and further education colleges, and registered childcare settings in England have remained open for vulnerable children and young people, and for children of critical workers in order to reduce the spread of coronavirus.

(b) On 28th May 2020, the government confirmed that its tests for wider opening of educational institutions and registered childcare settings had been met. From 1st June 2020 primary schools and registered childcare settings in England have been asked to welcome back certain groups of children. From 15th June 2020, secondary schools, 16 to 19 and further education settings have been asked to provide some face-to-face support to certain other groups.

(c) The Secretary of State for Education has previously issued two notices modifying section 42 of the Act, in the manner described in paragraph 1. The most recent notice was issued on 28th May 2020. The specified time period of that notice was 1st June 2020 to 30th June 2020³.

(d) Section 42 of the 2014 Act requires a local authority to secure the special educational provision specified in an education, health and care (EHC) plan and for health commissioning bodies to arrange any health care provision described in a plan. Whilst most local authorities’ special educational needs and disability (SEND) capacity is now greater than it was early in the outbreak, it is still not possible for local authorities and responsible health commissioning bodies in England fully to meet their duties under section 42 of the 2014 Act in the current situation for the following reasons:

(i) Children and young people with EHC plans are expected to attend education settings where it is determined, following risk assessment, that their needs can be as safely or more safely met in the educational environment. However, the majority of children and young people with EHC plans are still not attending education settings⁴ although numbers are increasing. It will still not be possible for all children and young people with plans to attend their education settings in July on a full time basis for various reasons, including:

(A) they are clinically extremely vulnerable;

(B) they attend a special school that is operating an attendance rota;

(C) the provision set out in an EHC plan is needed in order for the child or young person to be sufficiently safe, but the local authority or health commissioning body is not yet able to secure or arrange in full that provision because of staff shortages or the implementation of protective measures; and

(D) the reason set out in (ii) below.

This means that in many cases it will still not be possible for local authorities and health commissioning bodies to continue to secure and arrange the special educational provision and health care provision that would normally be delivered in an education setting.

(ii) Where children and young people are attending an education setting their normal educational programme will probably be disrupted for reasons such as the implementation of protective measures. This means that in many cases it will not be possible to deliver the special educational provision specified in EHC plans that would normally be delivered through the setting’s normal educational programme (for example, through a differentiated curriculum).

(iii) The response to the outbreak has required some health commissioning bodies to redeploy some staff or re-prioritise some services to meet the immediate needs of their communities. Whilst staff are beginning to return to their former roles, it will be some time before health commissioning bodies return to full capacity. This means that it may not be possible in all cases to arrange in full health care provision specified in EHC plans.

(e) Consideration has been given to whether there are any options available as an alternative to giving this notice, for example:

(i) Whether this notice should be limited to specified areas of the country or to any specified persons or descriptions of persons or by any other matter. However, the relevant factors that are making it impossible for local authorities and health commissioning bodies to secure or arrange the provision in EHC plans in full apply across England (principally the fact that the majority of children and young people are not attending education settings and, where they are, it is likely that settings’ usual educational programmes will be disrupted). Based on this, the modified section 42 duty needs to apply across the whole of England without any limitation.

(ii) Whether all the provision specified in EHC plans could be delivered remotely to those children and young people who are at home and not in their usual education setting. However, although remote delivery may sometimes be possible, it is not considered that this would represent an effective alternative for the following reasons:

(A) It is not possible for all the required provision as specified in EHC plans to be delivered remotely (for example, social skills training in small groups).

(B) Where health commissioning bodies have redeployed staff to respond to the coronavirus outbreak, health providers may not have sufficient staff capacity to deliver all provision remotely.

(C) The limitations of remote working may make it impossible to deliver provision in this way for all families.

(D) Even if a remote equivalent were to be provided for each aspect of provision specified in an EHC plan, this would not constitute securing or arranging the provision as specified. Delivering a therapy session by video, for example, cannot achieve exactly the same things as delivery in person and it is the latter that will feature in relevant plans.

(f) It is likely that these temporary changes will have some negative impact for children and young people with EHC plans, in that during the period of this notice a child or young person’s provision may be different or reduced to that which is set out in their EHC plan. This is the case both in relation to children and young people who are not currently in their education setting, because it is not possible to secure or arrange provision at their home; and for those in their education setting where (as explained above) securing or arranging the full provision may still not be possible. The full provision not being available in an education setting may also make it impossible or hinder an effective transition back to their education setting for those who have been at home. The modification is, however, proportionate for the following reasons:

(i) The modification allows local authorities and health commissioning bodies to adapt to the changing situation in their specific area, based on the nature and demands of the coronavirus outbreak locally, workforce capacity and skills, and the needs of each individual with an EHC plan.

(ii) The modification enables local authorities and health commissioning bodies to arrange reasonable alternatives to the usual service during the coronavirus outbreak, such as by delivering therapies remotely.

(g) The matters above are relevant to all of England.

Specified period

The specified period in this notice starts at the beginning of 1st July 2020 and finishes at the end of 31st July 2020.

¹ 2020 c.7.

²2014 c.6.

³ The notices can be viewed at this link: https://www.gov.uk/government/publications/modification-notice-ehc-plans-legislation-changes

⁴ Data on attendance in education and early years settings during the coronavirus (COVID-19) outbreak can be viewed at this link: https://www.gov.uk/government/publications/coronavirus-covid-19-attendance-in-education-and-early-years-settings

Signed by or on behalf of the Secretary of State for Education: Gavin Williamson

Date of signature: 29th June 2020