Page 38 - SEN107 SEN Magazine July-August 2020
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Lucy Atherton describes the effects of various government measures on SEN law. Coronavirus and young people’s legal rights V arious 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 And it seems likely there will be a ‘staggered’ return, with some years going back before others 38 SEN 107 senmagazine.co.uk SEN law