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COVID-19: school closure impact on special educational needs (SEN) provision

With the government announced closures last Friday for schools in England it’s important to note that children of key workers and vulnerable children are still to be accommodated in school when there really is no alternative.

The government guidance makes it clear this option is only available to those who absolutely need it: keyworker parent/s who are critical to the the COVID-19 response and whose children cannot be safely cared for at home.

One parent as a ‘key worker’ is sufficient

The government has issued guidance on who comes within the ‘children of key workers’ category indicating that both parents need not be ‘key workers. One parent in that role will suffice, which is important to note since the media reports that some schools have been trying to enforce a ‘both parents’ rule. However, it is recommended that wherever possible children do stay at home.

Keeping your child at home

Where keyworker parents do not wish for their child to remain in school, they can keep them at home (especially if they consider their child to be vulnerable with underlying health issues such as severe asthma) without facing the risk of potential non-attendance proceedings. Indeed, there are a growing number of resources online to keep those children informed, amused and interested during this time.

Information for parents and carers about the closure of schools and other educational settings following the outbreak of coronavirus (COVID-19) can be found on the gov.uk website:

www.gov.uk/government/publications/closure-of-educational-settings-information-for-parents-and-carers

Children with SEN needs and disabilities

However, key workers or not, parents of children with identified Special Education Needs (SEN), often also in need of support for associated physical disabilities, will be most concerned about how their child’s educational needs and other vital support services will be continued.

The government definition of ‘vulnerable children’ includes those with an Education, Health & Care Plan (EHCP) and those with a social worker. Special schools, including independent and residential schools are to stay open wherever possible, but this is likely to be with reducing staffing levels.

Many schools have already prepared home packs for education to continue, including online portals and resources, however not all schools are going to be able to stay open, so some children will be asked to attend a different school.

Obligation to provide SEN support to be lessened

The anticipated Coronavirus Bill is expected to water down the current absolute legal duty on local education authorities to make provision in an EHC plan (under s.42 Children and Families Act 2014) to simply making “reasonable endeavours” to provide that detailed and precise support. The duty on schools to admit a child, where that school is named in their EHC plan (s.43 Children and Families Act 2014) may also be disapplied for the time being, given school closures.

SEN Tribunal appeals will continue

SEN Tribunal appeals will still go ahead, however, they will be on a “papers only” basis or by telephone (or video link where possible) from today, Monday 23 March 2020. This will initially be for three weeks and will then be reviewed. The arrangements for these hearings will be confirmed to parties two days in advance, and the Tribunal asks people not to phone to chase unless it is less than two days until their hearing.

Should a school refuse a request from concerned parents who want their child to continue to attend (either because they consider their child to be vulnerable or they are a key worker) or if they are currently going through a Tribunal appeal, help, guidance and redress may be available by speaking to their Local Authority in the first instance or contacting our Education Law team to see what we can do to assist.

Disclaimer

This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

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