Page 13 - SEN107 SEN Magazine July-August 2020
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plan) and instead they would only need to show that they had used “reasonable endeavours” to discharge their duties. Did the guidance say anything else? Yes, the guidance was extremely detailed (it had been clearly drafted over a long period of time) and also explained how the accompanying Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 could now affect how things would work. It also explained the effects of the changes but said that timescales for the key elements of the processes relating to EHC needs assessments and plans were unchanged. It explained and gave examples of how local authorities might need to adapt to manage the processes relating to EHC needs assessments and plans, as well as issues such as annual reviews which they said may, in the current circumstances, need to take a different form from the usual. For example, it said that they may need to have information gathered electronically for it and the meeting may need to be held by phone or as a virtual meeting with professionals contributing to the review perhaps needing to base their opinion on information already available, or in discussion with the family, because they might not be able to meet the child or young person directly. It added that: “While meetings might take a different format, they should still involve all the key professionals wherever possible.” What was the reaction? Unsurprisingly, there were concerns expressed by some involved personally and professionally with children and young people with SEN, including those representing them indirectly through their parents. A number of people expressed concerns that it would be difficult to now challenge any failure to exercise “reasonable endeavours” in any case. Some people also expressed concern about the significant relaxation of deadlines now for many of the steps in the EHC assessment/plan process, pointing out that local authorities were being given wide-ranging powers/grounds to delay doing many things which they would otherwise need to do with much stricter deadlines. However, it was also noted that the wording in the regulations provided that the relevant authority would not have complete carte blanche of not complying with legal deadlines, unless they could clearly show that it was “… for a reason relating to the incidence or transmission of coronavirus.” So what has actually been affected? With respect to timescales, the changes are wide-ranging and the key timescales which have been relaxed by the regulations are: • the need to respond to request for EHC needs assessments; • decisions whether to issue EHC plans after an assessment; • the preparation and issue of EHC plans; • annual reviews; • mediation processes; and • actions required by local authorities and health commissioning bodies after Tribunal decisions making non-binding recommendations under the National Trial. However, it is also very important for me to point out that, whilst these are extensive changes and relaxations, they are only meant to be of a temporary nature, although the disruption also caused by school closures means that there could well be many cases where the usual timescales slip considerably. It is also important for me to point out that a number of things have not changed, such as: • the duty on an local authority to consider new requests for EHC needs assessments; • the need for a local authority to still secure all the required advices during an assessment before it can make a decision on whether or not to issue an EHC plan; • the opportunity for parents or young persons to provide their views and make representations on the content of any draft EHC plan; • the rights of appeal to the SEND Tribunal (although they have now adopted video hearings, as well as allowing more cases to be dealt with through paper hearings). About the author Specialist SEN solicitor Douglas Silas is the Managing Director of Douglas Silas Solicitors. SpecialEducationalNeeds.co.uk @douglassilas @douglassilas SEN laww ■ Deadlines may be relaxed because of the new law. senmagazine.co.uk SEN 107 13 SEN la