Lucy Atherton describes the effects of various government measures on SEN law.
Various measures have been taken by the government in light of the COVID-19 outbreak, most significantly with the closure of schools. There are also measures which specifically affect children and young people with special educational needs (“SEN”), including temporary changes to the law around Education, Health and Care (“EHC”) needs assessments and EHC plans.
The below information is accurate at the time of writing (7 May 2020) but the situation is developing quickly. It is still not clear how long schools might be closed, and it seems likely there will be a ‘staggered’ return, with some years going back before others.
What are children and young people with SEN’s entitlements when schools are closed?
Although schools have been ordered to largely close, some ‘vulnerable children’ are entitled to continued education at school. Vulnerable children include those who have a social worker and those with an EHC plan. The majority of children with SEN, who receive SEN Support at school but do not have an EHC plan, would be expected to stay home unless they have a social worker or a parent or carer who is a key worker.
Do schools have to allow all children with EHC plans to attend?
No – it will depend on whether they would be safe or safer attending school rather than staying home.
New guidance on SEN risk assessments has been issued by the Department for Education (“DfE”) to help local authorities (“LAs”), in collaboration with schools and parents, assess the risks of both options. This might include revisiting provisional risk assessments to see if they remain appropriate over time.
The guidance explains that where a child or young person with an EHC plan will be safer at home, the DfE recommends they stay at home. Where they will be as safe or safer at an education setting, the DfE recommends they attend the education setting.
It also makes some suggestions about what provision might be possible to deliver in or to the home. You might want to read this guidance to prepare for discussions with your local authority and setting.
If you believe your child needs to attend school but their school is closed, the government’s advice is to speak to the local authority who should redirect you to a local school in your area that your child can attend. The DfE guidance for schools about temporarily closing includes a reference to ‘hubs’, suggesting that “shared provision through multi-school or early years hubs and clusters is an option being considered in some areas”. Talk to your school, or your LA if the school has closed, to find something that could be put in place.
If you feel strongly that your child needs to continue receiving (at least some) educational input, the key thing to flag is if there could be a risk to their health, wellbeing or safety if they do not receive a particular provision or intervention.
What if I don’t want to send my child to school, for example because they have a weakened immune system?
If you feel it would be too high risk because your child, or if someone else in your family, is at particularly high risk, there is no requirement to send your child to school. In such a scenario it is likely that the risk assessment carried out by the local authority will conclude that the child would be safer remaining at home. The new guidance reiterates that ultimately it is for parents or the young person to decide whether a child or young person with an EHC plan should continue to attend or return to school or college.
If my child has an EHC plan, does the local authority still have a legal duty to deliver that provision?
From a legal perspective this remains the case, and this is presumably why the Government has chosen to allow children with EHC plans to continue attending school (provided the benefits outweigh the risks). However, given the likely disruption to staffing, it may be very difficult for schools or LAs to deliver precisely the provision in the EHC plan.
The Coronavirus Act 2020 has temporarily amended the absolute duty to make the provision in an EHC plan (section 42 of the Children and Families Act 2014) to a ‘reasonable endeavours’ duty. This means that during the specified period the LA needs to do whatever it reasonably can to put provision in place, but if they cannot do so they would not necessarily be breaching the law. This currently applies from 1 May 2020 to 31 May 2020, but this period may be extended.
The DfE guidance on EHC needs assessments and plans during the COVID-19 crisis explains how this might work in practice. For example if the child is attending school:
- due to staffing issues there may need to be alterations to the frequency and timing of the delivery of provision in school, for example, moving to a part-time timetable (the guidance also states there should be adjustments to home-to-school transport arrangements to facilitate this);
- if the school is closed, there may need to be a temporary placement in another school or a local hub.
- If the child is staying at home and it is not possible for direct therapy to be delivered in the home setting, the guidance suggests alternatives such as:
- a speech and language therapist delivering sessions via video link
- the parent and child travelling to receive the therapy
at suitable premises, where this can be done in ways consistent with guidance on reducing the transmission of coronavirus (COVID-19)
- an occupational therapist or a physiotherapist video linking to a child’s home and modelling exercises that the parents could do with their child.
Again, if there could be a risk to the child or young person’s health, wellbeing or safety if they do not receive a particular provision or intervention, raise this with your school and LA without delay. The guidance on SEN risk assessments referred to above may help your discussion.
5. Do local authorities still need to carry out EHC needs assessments?
The DfE guidance on EHC needs assessments and plans during the COVID-19 crisis makes clear that requests for an assessment must continue to be considered. Decisions about whether or not to assess will continue to be made solely on the legal test; an LA must assess where it is satisfied that (a) the child or young person has or may have SEN and (b) they may require support through an EHC plan.
If an LA refuses to assess, then it must notify the parents or young person, informing them of their right to appeal. However, the deadlines which previously applied to LAs when considering EHC needs assessment requests have been relaxed. Where it is not reasonably practicable or it is impractical for an LA or other body to meet certain deadlines “for a reason relating to the incidence or transmission of coronavirus (COVID-19)”, they must instead complete that step as soon as it is practicable for them to do so.
The timeframes have also been relaxed in relation to a number of other processes relating to EHC needs assessments and EHC plans. The instances where statutory timeframes have been relaxed are:
- the handling of requests for EHC needs assessments, decisions whether to issue plans and the preparation and issue of plans
- annual reviews of plans
- the processes relating to mediation
- the processes where there is a change of LA or health commissioning body for a plan
- the process for reviewing direct payments
- the actions that the LA or health commissioning body must take following an SEND Tribunal hearing.
These changes are included in the Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 (the ‘Amendment Regulations’), which amend the timescales in the SEN and Disability Regulations 2014.
These changes are in force until 25 September 2020. Importantly, they do not apply where the deadline had already passed before 1 May 2020 – because the Amendment Regulations can only be relied on for the period since they came into force.
6. Will SEND Tribunal appeals continue?
The SEND Tribunal has confirmed that hearings will be on paper or by telephone (and, where the technology permits, by video) from Monday 23 March 2020. The Tribunal has published guidance on how telephone and video hearings will be used during the COVID-19 outbreak. With these measures, it is expected that there should be no need to adjourn hearings, even though they may not be able to take place in person.
About the author
Lucy Atherton, Senior SEN Lawyer, IPSEA (Independent Provider of Special Education Advice). IPSEA offers free and independent legally based information, advice and support to help get the right education for children and young people with all kinds of SEN and disabilities. We also provide training on the SEN legal framework to parents and carers, professionals and other organisations.