Parents of youngsters with disabilities and special educational needs (SEN) are naturally worried that the Coronavirus Act could see the erosion of their children’s hard-fought-for rights.
The Coronavirus Act, which became law on 25 March 2020, allows the Secretary of State to amend certain aspects of SEN law, one example of which is the change from Local Authorities having an absolute legal duty to provide the provision within Section F of an Education, Health and Care Plan (EHCP) to a Local Authority having to use its “reasonable endeavours” to fulfil their duty.
Since the last post on Shoosmiths COVID-19 Hub, several concerned parents have contacted us with questions and concerns. Here are some typical examples and answers:
Are children with SEND vulnerable for the purposes of being able to go to school during the shutdown?
The Guidance, issued by the Department for Education on vulnerable children and young people (updated 1 April 2020) identifies ‘vulnerable children’ as those who have a social worker and those children/young people with an education, health and care plan (‘EHC plan’). Children with SEND but without an EHCP, such as those on SEN support would be expected to stay at home.
If a child has SEND but does not have an EHC plan are they considered vulnerable and able to attend school if their parents decide to send them?
Children with SEND who do not have an EHC plan are not considered ‘vulnerable’ under the current DfE guidance. Unless one parent is a key worker, the expectation is that these children will stay at home and parents do not have a choice to send them into school.
If a child is waiting for an EHC plan to be issued, and that process is underway by their Local Authority, the school has discretion to conduct a risk assessment to determine whether that child continues to attend school or if their needs can be met at home.
Can children considered ‘children in need’ for the purposes of the Children’s Act 1989 go to school?
Children in need will have a social worker allocated or be under the care of social services and are therefore considered to be ‘vulnerable children’. This means that they can go into school, subject to a risk assessment taking place.
Are parents of vulnerable children obliged to send their children to school during this period?
No. There will be vulnerable children with underlying health conditions who need to stay at home at present. Children with an EHC plan should be risk-assessed by their school, in conjunction with parents and the Local Authority, to decide whether they should attend school or whether their special educational needs can be met at home.
How does the Coronavirus Act impact assessments for EHC plans?
The Act does not alter the timescales or legal process Local Authorities must comply with for EHC needs assessments or issuing EHC plans. All timescales set out in the Children and Families Act 2014 and accompanying regulations and SEND Code of Practice remain in force. However, the guidance on vulnerable children and young people does state: “We are also proposing to amend regulations to provide for flexibility over matters such as the timescales in EHC needs assessments, and the reviews, re-assessments and amendments processes where particular cases are affected by the COVID-19 situation” so changes may be introduced in due course.
How will the new coronavirus legislation change the duty on local authorities to provide SEN support via making provisions in an EHC plan for children in need (s.42 Children and Families Act 2014)?
The Act allows for certain provisions to be temporarily modified or removed. One of these is s.42 Children and Families Act 2014 - the absolute duty on a Local Authority to secure the special educational provision for a child, specified in Section F of their EHC plan. The Secretary of State can change this absolute requirement to simply requiring that the Local Authority uses its ‘reasonable endeavours’ to deliver a child’s special educational provision.
This means that Local Authorities will need to look at alternative ways of ensuring children receive their required provision (e.g. if therapies can be offered by video link rather than in person). It is not simply an excuse for a Local Authority to advise that, as schools are closed, a child cannot receive any provision.
How will these changes come into force?
The Secretary of State is authorised, by Schedule 17, part 1 to issue a notice temporarily removing, or relaxing certain statutory provisions. Until, and unless such a notice is issued, the current statutory provisions under the Children and Families Act 2014, including s.42 remain legally in force.
The notice issued by the Secretary of State must state why such a notice is considered to be “appropriate and proportionate action…relating to the incidence and transmission of coronavirus” (Schedule 17, part 1, paragraph 5 (4)).
What sort of notice of any changes will be given?
Any notice issued by the Secretary of State can be for up to a month at a time, but important to note that repeated notices can be issued. The Secretary of State must publish the notice and do anything else considered reasonable to bring it to the attention of people likely to be affected by the notice. Whilst the Coronavirus Act does not specify the requirements around publication, it is likely that this will be done on the DfE website.
What provision can children with existing EHC plans expect at the moment?
Whilst children are still entitled to the provision detailed in their EHC plans, parents should be reasonable and manage their expectations. Understandably as the situation develops, it’s likely that an increasing amount of school staff and therapists will be self-isolating or become unwell. Therefore, efforts need to be made to consider other ways of children receiving provision (e.g. video link).
What is happening with EHC plan annual reviews - are they continuing?
The Coronavirus Act 2020 allows for the Secretary of State to temporarily disapply s.44 (1) Children and Families Act 2014 - the requirement for an annual review of an EHC plan to be held. The Secretary of State can only take this action, and issue a notice confirming this where it is considered to be ‘appropriate’ and ‘proportionate’.
Therefore, annual reviews are likely to be delayed until further notice.
Some Local Authorities and schools are continuing to carry out the review meetings remotely/by video link where possible, to ensure they do not have a significant backlog. For the time being SEND Tribunal appeals will also be conducted ‘remotely’ for at least the next three weeks, when the position will be reviewed. Arrangements for these hearings will be confirmed to interested parties two days in advance of the proposed hearing date.