Rukhsana Koser explains key implications of the COVID-19 outbreak for parents of children with SEN
School closures and EHC plans
As parents, you will know how best to keep your child safe and, if it is safer for your child to be at home at this time, you are fully entitled to keep them at home, even if your child’s school or local authority (LA) is offering them education as a child with an education, health and care (EHC) plan. Just because they are not in school does not mean the child will lose their school place or the provision in Section F of their EHC plan.
If you consent to changes to, or reductions in, your child’s provision contained in Section F of the EHC plan during this outbreak you will not be considered to have agreed a permanent change to support recorded in your child’s EHC plan.
Coronavirus Act 2020
The Government introduced new legislation in response to COVID-19 which allows LAs to use their reasonable endeavours to ensure that provision and support in Section F of the EHC plan continues to be available to meet EHC needs and to prioritise their efforts to support those with the most complex needs. The Coronavirus Act 2020 offers flexibility to LAs in respect of Special Educational Provision (detailed in Section F of the EHC plan) enabling LA’s not to deliver some or all of the provision contained in an EHC plan if it is not reasonable to do so at this time.
Obviously, the risk of temporarily downgrading the duties of the LA means that parents and young people could find it difficult to take action against the LA to enforce provision required to meet their child’s needs in the interim. The correct way forward will need to be considered on a case by case basis.
The right to appeal local authority decisions
The current situation may impact on parents obtaining a right to appeal if the whole SEN administrative process is slowed down due to LA staff being off sick.
If you have a decision letter from the LA now notifying you of your right of appeal to the SEND Tribunal, especially if you have received a final amended EHC plan naming your child’s secondary or post-16 educational placement, I strongly advise you to use your right of appeal and to prepare and lodge your appeal as quickly as possible (and obviously within two months of the decision letter at the latest) so it is registered and in the system. If, once your appeal is registered, you need to delay the timetable, this can be done by completing the Request for Change form, but you will have the security of Tribunal supervision and timetabling to move matters forward.
SEND Tribunal hearings and appeals
SEND Tribunal hearings are proceeding and are being conducted via telephone or video conference. So it is important that you check that your witnesses will be able to join your hearing by telephone or video conferencing.
The SEND Tribunal continues to process recent appeals that have been lodged by parents or their representatives. This is excellent news. However, appeals will now run on a 20 (not 12) week timetable. I expect that the appeal process may be slower, which simply reinforces the need to lodge appeals promptly. On the other hand, this may ease the extreme pressure on the Tribunal brought on by higher levels of cases requiring a hearing, and give you more time to prepare your case, plan your appeal and obtain the evidence to support your case.
EHC needs assessments
While the Government has stated that they are considering flexibility for LAs regarding the EHC process and timescales, no further information has yet been provided.
In the meantime, parents should expect LAs to proceed with EHC needs assessments and annual reviews within the normal statutory timescales and deadlines. In particular, please note that young people/parents should still have got an amended EHC plan by 31 March if the child or the young person is transitioning to post-16 education. If this has not happened for you, contact the LA immediately or seek legal advice. The appeal timetable for phase transfers will still be 12 weeks.
Requests for EHC needs assessments should be made promptly and LAs currently have to continue processing requests and assessments within the statutory time limits and avoid causing a back log.
However, EHC needs assessments are the most likely area to be significantly affected by school closures and social distancing, especially when professionals like LA educational psychologists are unable to meet the child in person and/or in school, which is best practice. Therefore, if you put your EHC assessment request in now, even if there is a delay professionals can contact you and arrange a prospective assessment date and obtain paper information and/or have a telephone appointment with you to move the process on until they are able to assess again in person.
The Government may change the timescales for holding annual reviews of EHC plans. If your child’s annual review is coming up, it may be postponed for the foreseeable future.
However, if your LA and school are willing, annual reviews can be completed through telephone or video conferencing. This is an opportunity for all working in this area to try to work in a different way and should ensure delays to the requirement to review EHC plans are avoided. Only pursue this though, if you are dissatisfied with the support your child is receiving. If you have no complaints about the provision recorded in Section F, you do not have to agree to the annual review. The provision in the EHC plan will remain the same.
If you are at the start of the process, I strongly suggest that you put in your request for an EHC needs assessment for your child as soon as possible, as there is a high chance it will be refused in any event and you will need to challenge the refusal through an appeal, which has a three month timetable. Don’t delay as experience suggests that the LA may well refuse the assessment if you wait until normality returns.
Please note: the situation with COVID-19, including government guidance and the law, is changing very rapidly. The information in this article was checked by the author on 30 March 2020.
About the author
Rukhsana Koser is a solicitor at Education Lawyers, part of Langley Wellington LLP Solicitors.