Shots fired! Secretary of State in legal challenge over SEND Coronavirus changes

With Polly Sweeney, solicitor from Rook Irwin Sweeney

The relaxation to the duties on local authorities to make the provision in Education, Health and Care Plans (EHCPs) has left thousands of disabled children and young people without the hard-won legal protection to ensure they are afforded an adequate education during the coronavirus pandemic.

But one parent Deanna, took the decision to challenge this decision to sweep away children's legal rights, on behalf of her 16-year-old disabled daughter, Amber Shaw.

UPDATE: The notice that brought these changes into effect has this evening (Friday 29 may) been extended until June 20th 2020. Read the updated notice here. Meanwhile, disabled children are expected to be back in school from now, regardless of their year group and with their legally-backed plans replaced by "reasonable endeavours". Read our thoughts on that here

Solicitor, Polly Sweeney from Rook Irwin Sweeney, who representes Amber and her family, explains what has happened in the case so far.

Polly Sweeney
Polly Sweeney
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Challenging the coronavirus legal changes to SEND by Polly Sweeney, Rook Irwin Sweeney

On 7 May 2020, Amber Shaw, a 16-year-old who is being supported by her mother, Deanne, started her legal challenge against the recent decisions of the Secretary of State for Education to:

  1. Make a Notice downgrading the duty in section 42 of the Children and Families Act 2014 to a ‘reasonable endeavours’ duty – this Notice currently expires on 31 May 2020, but the Secretary of State may issue a new Notice for June 2020, and;
  2. Introduce regulations relaxing a range of timeframes in the SEN and Disability Regulations 2014 where a ‘coronavirus exception’ applies. These regulations will remain in force until 25 September 2020, but again could be extended. 

Amber has an Education, Health and Care Plan (EHCP) and is currently out of school during the coronavirus pandemic. Amber and her mother are concerned that Amber is not currently getting the provision she needs that is set out in her EHC Plan.

They are also worried that Amber’s amended EHC Plan has not yet been finalised as part of the phased transfer review process and that the relaxation of the timescales will cause delays in her local authority having to comply with any Tribunal orders if she needs to appeal. This is a crucial stage in Amber’s education as she is transferring to college in September. Any further delays will risk having a significant impact on her transition.

A pre-action letter before claim was sent to the Secretary of State challenging those decisions on a number of legal grounds including:

  1. That there has been a failure to consult before making these decisions.
  2. That it was ‘irrational’ for the Secretary of State not to lay the Amendment Regulations before Parliament for any period before their introduction.
  3. That the decision that it was appropriate and proportionate to make the Notice was irrational as the reasoning given by the Secretary of State was flawed.
  4. That the Secretary of State has breached his duties under section 7 of the Children and Young Persons Act 2008 as he did not consider the implications of the decisions on children’s welfare. 

A response was received to the letter on 22 May 2020. The Secretary of State has confirmed he contests all grounds of claim and will not withdraw either the Notice or the Regulations. 

However, he has confirmed that the relevant guidance will be amended to make it clear that the ‘coronavirus exception’ also applies to all binding orders of the Tribunal such as those relating to EHC Plans and placements. The letter pointed out that the guidance currently does not recognise this issue.

Lack of consultation

In responding to the challenge that there should have been a consultation, the Secretary of State has said that discussions took place with “representatives of local authorities, representatives of parents of children with SEND and a number of specialist SEND organisations”. His lawyers have provided some redacted annexes but requested that these are kept confidential. We have contacted the organisations who represent parents and children with SEND and asked them for their views. We have also asked the Secretary of State to urgently disclose further documents which he relies on in his response.

Amber and her mother now await further news on whether the Notice will be extended from 1 June 2020 (UPDATE: See above, this has now been extended until 30th June). Once further disclosure has been obtained, Amber and her mother will decide whether they want to issue judicial review proceedings challenging the Amendment Regulations and any Notice that is made to cover June 2020.

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About Polly

Polly Sweeney is a nationally recognised expert in public law and human rights with a strong commitment to access to justice and promoting the rights of vulnerable people. She is the Co-Chair of the Law Society’s Mental Health and Disability Committee and a contributing author to the leading publication LAG Disabled Children Handbook (2nd and 3rd editions). She regularly provides training to organisations as well as individuals promoting awareness of legal rights and duties.

Be sure to sign up for post alerts if you haven't already as we have an SNJ In Conversation video/podcast interview coming up with public law barrister and all-round SEND superhero Steven Broach who discusses this and answers your questions about SEND and social care law during Coronavirus.

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