Due to the current Coronavirus situation there are challenges for all local authorities to continue to meet the law, as set out in the Children and Families Act 2014, specifically to adhere to section 42; the duty to secure special educational provision, health and care provision in accordance with an education, health and care plan (EHCP).
In response to this, the Secretary of State for Education gave notice that some aspects of the law on education, health, and care (EHC) needs assessments and plans would be temporarily changed.
This was to give local authorities, health commissioning bodies, education settings, and other bodies who contribute to these processes, more flexibility in responding to the demands placed on them by Coronavirus.
The changes are detailed in two ways:
A notice from the Secretary of State for Education issued under the Coronavirus Act 2020 to modify section 42 of the Children and Families Act 2014. This says that the duty on local authorities or health commissioning bodies to secure or arrange the provision is temporarily modified to a duty to use ‘reasonable endeavours’ to do so.
This arrangement initially lasted up to the 25th May and extended to the 30th June through a new notice issued on 29th May. A further notice has now been issued to take the arrangement up to the 31st July.
The Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 (the ‘Amendment Regulations’). This means that there are ‘easements’ relating to the timescales for carrying out EHC needs assessments and plans.
This currently remains in force and lasts up to the 25th September.
All other aspects of SEND law remain unchanged.
The changes are temporary, which means that the statutory guidance, as laid out in the SEND Code of Practice, 0-25, will not be updated. The changes, however, will be kept under review for the foreseeable future.
As a local authority, we recognise the impact of the current situation on children, young people, their families and our partners across education, health, and care. We continue, however, to be committed to providing the best support and provision for all children and young people, inclusive of those with special educational needs and/or disabilities.
The following questions and answers are based on the Government guidance and outline the key changes for the next period of the Coronavirus response.
As you will all be aware, the situation is fast changing and dependent on direction from the Government. We will provide further updates as soon as we are aware of any changes to circumstances or moves towards re-opening schools and working, in a phased way, back to ordinariness.
Secretary of State notification of modifications
The Secretary of State has notified of modification to section 42 of the Children and Families Act 2014; the duty to secure special educational provision, health and care provision in accordance with an EHCP. This arrangement initially went up to the 25th May, extended to 30th June and further extended to the 31st July.
The decision has been made so that the duty is to be treated as carried out if relevant organisations have used ‘reasonable endeavours’ to discharge their duty during the current period.
This is because the current situation may make it more difficult for us and health partners to secure or arrange the full range of provision in an EHCP, e.g. it may not be possible for professionals, such as educational psychologists, and health therapists to provide their usual level of service in relation to the EHC needs assessment and plan processes.
Any changes to provision, albeit temporary, should be recorded for each child or young person for future reference.
Amendments to the existing regulations
From 1st May to 25th September 2020, the regulations, which cover most of the statutory timescales for the EHC needs assessment and plan processes, will be temporarily modified.
This means that timescales for specific processes being concluded may be modified, if they are affected by a reason relating to the transmission or incidence of Coronavirus.
This may be because it may not be ‘reasonably practicable’ or ‘impractical’ for a local authority, health commissioning body or others to conclude the process in question.
The modified duty will provide an expectation, however, for the duty to be discharged, ‘as soon as reasonably practicable’ or ‘as soon as practicable’.
In some cases, we may still be able to secure or arrange the provision as set out in an EHCP. Where this cannot be delivered, what can be done to deliver provision differently will be considered and alternative arrangements may be put in place. This will be dependent on, e.g.
- The capacity of specialist staff to deliver interventions.
- The extent of the arrangement’s schools can make to provide school or home packages.
- Access to IT and internet at home.
In usual circumstances we must comply with the following timescales:
- Notification on whether the carry out an assessment by week 6.
- Decision on whether to issue an EHCP by week 16.
- Issuing a final plan by week 20.
Now, if it is impractical for us to meet these statutory timescales because of a reason relating to the incidence or transmission of Coronavirus, we will, instead, reach those decisions as soon as practicable.
At this challenging time, it remains vitally important that we work together across the local authority, health services, education settings and families identify appropriate ways forward.
Co-production and effective communication remain as important as ever.
We want to ensure that children, young people and parents/carers are provided with the information, advice and support necessary to enable them to participate effectively in discussions and decisions about support.
The local SENDIAS service also has a critical role to play in supporting young people and families.
At this point in time, annual review requirements remain in place. However, the government has legislated to provide extra flexibility for local authorities over the timing of these reviews.
For example, where it is impractical for us to complete an annual review of an EHCP within the prescribed timescales, for a reason relating to the incidence or transmission of Coronavirus, then we must complete it as soon as reasonably practicable.
Annual reviews may, in the current circumstances, need to take a different form. However, it is important that they continue so that we can ensure that the child or young person, has the right provision, is at the centre of the process and can engage in a meaningful way.
A review meeting, even if briefer than usual, can be reassuring for parents, children and young people as it will ensure that their EHCP is up to date and that they can receive appropriate provision.
We have already completed this year’s required transfer reviews for children and young people moving between key phases of education, e.g. between primary and secondary schools, from secondary school to a post-16 provision or apprenticeship, or moving between post-16 institutions.
There is no change to the statutory deadlines for these reviews.
The Amendment Regulations came into force on 1st May. If consideration of a request for an EHC needs assessment or one of the processes that may follow was in progress on that date, then the relevant exception to the timings in the Amendment Regulations could apply if Coronavirus has caused a delay.
However, if the final deadline for an EHCP happened before the 1st May, the new regulations do not apply.
The duty on early years providers, schools and colleges to co-operate with the local authority in the performance of its SEND duties remains in place.
Close working and communication between all parties is a central element in ensuring that children and young people receive appropriate provision.
The expectation in the SEND Code of Practice is that we give early years providers, schools and colleges up to 15 calendar days to respond to a proposal to name their institution in an EHCP and this remains in place.
Therefore, while settings may remain closed to most children and young people, we look to them to make arrangements that enable them to continue to respond to consultations on future admissions during this period.
Schools and settings should remain able to engage effectively in this aspect of the EHCP process.
We recognise, however, that staff absence due to illness, self-isolation, etc. may affect the speed with which a setting can reply.
In such circumstances, the school or setting needs to communicate with us about a possible delay in responding.
Whilst the Secretary of State for Education now has powers under the Coronavirus Act 2020 to temporarily disapply the duty to admit, he has not issued any such notice to do so at this time.
An early year’s provider, school, college or other setting named in an EHCP must, therefore, admit a child or young person if they are named in the EHCP.
If a setting is temporarily closed, they must still admit. In the case of a school or college, the child or young person must be placed on roll and treated in the same way as other pupils or students who belong to the setting.
Wherever possible we will continue with statutory processes, e.g. we may be able to carry out observations of a child or young person if they are still in a setting where this can be done in ways consistent with guidance on reducing the transmission of Coronavirus.
New ways of working, however, are needed in the current exceptional circumstances, e.g. we have already started to run virtual advisory panels by a secure online meeting platform to assist with decision-making.
We are also actively gathering information by phone or by other methods.
Despite our commitment to innovative and flexible ways of working, we recognise that the current situation may make it more difficult for us and our health partners to secure or arrange all the elements of the special educational and health provision in an EHCP. This may be because:
- The child or young person is not currently attending an early year’s provider, school, college or other setting.
- Social distancing guidelines may disrupt an education settings normal learning programmes for those who are still attending and may make certain interventions impractical.
- The resources and services to secure the provision are reduced, e.g. because of illness, self-isolation or the need to direct staff resources differently.
Blanket policies about the provision to be secured or arranged will not be made. In deciding what provision must be secured or arranged we will look at the needs and specific circumstances affecting each child or young person.
Where a child or young person’s needs have changed, it may be necessary to conduct an early review of their EHCP.
Temporary changes to the law only affect various statutory timescales for processes relating to an EHC needs assessment and plan.
All the other requirements of the processes remain unchanged, which means that we must still:
- Consider requests for a new EHC needs assessment or re-assessment.
- Secure all the required advice and information to be able to issue a plan.
- Have regard to the views and wishes of a child, the child’s parent or a young person when exercising SEND functions.
- Give parents/carers or the child or young person at least 15 days to give their views and make representations on the content of a draft plan.
- Include all the required advice and information in any final EHCP.
- Ensure the provision set out in the final plan is in line with the statutory requirements for any EHCP.
- Carry out reviews and re-assessments of EHCPs (although there can, in some circumstances, be flexibility over the timing of an annual review).
- Make decisions, including those over the content of any EHCP, in accordance with the statutory framework, based on the individual needs, provision and outcomes for the child or young person.
Clearly these are unprecedented times. One aspect of this is that most children and young people who have EHCPs are not currently attending their usual education setting.
In most instances, we, along with schools and settings will be able to work with families and partners to agree a mutually satisfactory arrangement for the time being.
However, where a parent or young person may be dissatisfied about ours or our health partners actions over how we have discharged our modified duties, or about the timeliness relating to EHC needs assessments or plans have been progressed, then effective ways of resolving disagreement are crucial.
In the current fast-changing and complex situation, it is particularly important that we have effective ways of resolving such disagreements swiftly, wherever possible, using established decision-making mechanisms within the local area.
Therefore, the complaints mechanisms described in chapter 11 of the SEND Code of Practice are unchanged. However, the Local Government and Social Care Ombudsman has suspended all casework activity.
In cases where disputes arise, the SENDIAS service will continue to have a key role to play in supporting families in finding the best way forward.
Of course, we try to resolve all issues regarding the EHC processes, without the need to escalate these. However, where we have not been able to do that, the right of appeal to the First-tier Tribunal (SEND) remain unchanged.
HM Courts and Tribunal Service has confirmed that its service will continue during the Coronavirus period and that the tribunal is making efforts to conclude as many appeals as possible, particularly for those relating to phase transfers.
In the same way that we are finding new ways of working, guidance from the tribunal indicates that it will be increasingly using phone, video and other technology to conduct its business during the current period.
The tribunal continues to hear cases that fall within its remit. These have not been changed.
The national trial, which extends the power of the First-tier Tribunal (SEND), to health and social care is also continuing.
The trial means that the tribunal will be able to make non-binding recommendations on health and social care aspects of EHCPs.
The Government has announced their plans for how and when there will be an adjustment in the response to the coronavirus (COVID-19) crisis, including the phased return of some children and young people to school from 1st June, at the earliest.
The planning framework for this can be accessed via the link at the end of this document. It has been designed to support those in schools, settings and academy trusts, including mainstream, special, and alternative provision, to prepare for and decide arrangements to enable more children and young people to return to education.
The framework will be developed further by the Government, who are planning to work with the profession to produce more detailed guidance ahead of 1st June 2020.
This will be alongside updates to existing guidance, as necessary, ahead of 1 June. They will also be producing operational guidance for childcare settings and colleges, in addition to further advice for schools.
All schools are different, and it is not possible for the government, or us, as a local authority, to set specific national or local guidelines that could be universally applicable. The aim of the Government framework is to support:
- School leaders and trusts to start to think through the steps they might need to take to open their schools for more children and young people.
- A starting point from which schools, settings and trusts may choose to develop their own plans.
Schools, settings and trusts, however, will need to make their own judgments on how to plan for the safe opening of their establishments based on their knowledge of their community and premises.
Schools, settings, trusts and local authorities will continue to work closely with parents and staff as they normally would, when agreeing the best approaches for their circumstances.
If your child or young person has previously been approved by the Travel Assessment Panel for transportation, then this can continue.
However, during this period, there may be changes to the regular arrangements.
We cannot guarantee stringent social distancing due to the nature of some vehicle types or because personal care is sometimes required to attend to children’s individual needs.
Safety, however, is paramount to everything we do and therefore we have introduced enhanced safety measures such as limiting numbers of passengers to vehicles as well as strict cleaning routines.
Because of this, in the first instance, we are asking parents if they would prefer to transport their own children and young people to and from schools if they have the means to do so.
They will be able to claim a personal travel budget in order to support this at 60p per mile for up to four journeys per day (home to school then back in the morning then the same again in the afternoon).
If providing your own transportation is not possible, we will arrange this. However, it may mean that your child or young person is on a vehicle and/or with a driver/passenger assistant who is unfamiliar to them.
In order to maintain social distancing as much as possible we may need to use additional vehicles and therefore, we cannot guarantee a normal service.
Because of this we recommend that you work closely with the school/setting and that you prepare your child or young person for any changes.
We will work closely with schools and educational settings to determine how to manage any changes to start and finish times.
We will do everything possible that is within our control to support staggered start and finish times however, it may not always be possible if resources are not available.
If this is the case, we will communicate with schools, educational settings and parents/carers to establish the best way forward to meet the needs of all parties.
We understand how important social distancing is and we are working to maintain this as much as possible.
It must be understood however, that in some types of vehicles, a two-meter distance would be impossible.
We are therefore, making sure that the following controls are in place to minimise any risks:
On a minibus
- We are seating children and young people diagonally from each other to place as much distance between them as possible.
- No children will be seated together unless they are from the same household.
- There will be a maximum number of passengers depending on the size of the minibus.
In a five-seater car
- One child or young person will be seated diagonally from the driver in the back seat.
- A second child, young person OR the passenger assistant will be seated at the other side of the back seat behind the driver.
- Windows will be wound down to allow for good air circulation.
There is a strict cleaning requirement that we are insisting all our vehicle providers have in place.
All surfaces are to be cleaned before and after each journey that a child or young person takes.
Passenger assistants have access to Personal Protective Equipment (PPE) including sanitiser in accordance with Government guidelines. They will encourage children to wash their hands after each journey.
Gloves will be worn if a Passenger Assistant must attend to a child or young person and these will be disposed of correctly after each use.
We are still processing applications for school transport and are currently working hard on applications for the start of the new academic year.
If you wish to apply for school transport our application form can be obtained from our website at School travel for children with special educational, disability or mobility needs (SEND).
Our next Travel Assistance Panel dates are 18th June and 16th July and your application will need to be approved at one of these panel meetings to guarantee transport at the start of September.
Our local area schools and settings are working in line with government guidelines to ensure that social distancing is maintained, where possible, to limit the spread of the Corona Virus (COVID 19).
Settings are working towards implementing reasonable protective measures, to support social distancing in their environments such as:
- A phased return of more children and young people.
- Halving class sizes (up to 15 in each group).
- Rearranging classrooms and workshops with sitting positions that are two metres apart.
- Keeping small groups of children and young people together throughout the day to avoid larger groups mixing.
- Reducing ‘pinch points’, e.g. dropping off and picking up times, lunch and breaks, through a staggered approach.
- More utilisation of outdoor space, wherever possible.
- Reducing any unnecessary travel on coaches, buses or public transport where possible.
It is noted that each school and setting’s circumstances will be slightly different.
Settings will be required to consider refreshing risk assessments and other health and safety advice for children, young people and staff considering recent government advice, to identify protective measures.
Schools and settings will also need ensure that all health and safety compliance checks have been undertaken before opening.
Current government guidelines do not recommend the use of PPE for most staff in education, childcare and children’s social care settings.
This means that staff will not require PPE beyond what they would normally need for work, even if they are not always able to maintain a two-meter distance from others.
PPE is only needed in a very small number of cases, including:
- In the case of children, young people and learners whose care routinely involves the use of PPE due to their intimate care needs, they should continue to receive their care in the same way.
- PPE should be worn if a two-meter distance cannot be maintained from any child, young person or other learner displaying coronavirus symptoms.
For information on how school are being guided to work safely in specific situations, including where PPE may be required please see the section on ’How to work safely in specific situations, including where PPE may be required’ in the government guidance.
The key messages for continuing to prevent the spread of infection in school environments are:
- Minimise contact with those who are unwell. Those who are showing symptoms of coronavirus, or have someone in their household who is, should not be in a school or setting.
- Clean your hands thoroughly for 20 seconds and more frequently. Everyone should use running water and soap to wash their hands and dry them thoroughly or alternatively use alcohol hand rub/sanitiser, ensuring that all parts of the hands are covered.
- Clean surfaces that are touched frequently. All education, childcare and children’s social care settings have been advised to follow the Public Health England (PHE) guidance on cleaning for non-healthcare settings.
- Minimise contact and mixing. Schools and settings have been advised to, as much as possible, alter the environment of their setting, such as room layout, and timetables to minimise contact and mixing with in the school environment.
Catch it, bin it, kill it!
Everyone should avoid touching their mouth, eyes and nose. Everyone should cover their mouth and nose with disposable tissues when they cough or sneeze. If one is not available, it is advised to sneeze into the crook of your elbow, not into your hand. Dispose of tissues into a disposable rubbish bag and wash/clean hands immediately.
All schools/settings need to carry out a full risk assessment before children and young people return to education.
Parents/carers are advised to consult the Government guidance on SEND risk assessment during the coronavirus outbreak for more information and contact schools or settings for further information regarding risk assessments and revisiting these periodically.
Once a child or young person begins to attend a school or setting again, it is not necessary to keep carrying out further risk assessments.
Government guidance about the actions for education and childcare settings to prepare for wider opening from 1st June say that children and young people who have been classed as clinically extremely vulnerable due to pre-existing medical conditions have been advised to continue shielding.
We do not expect people in this category to be attending school or college, and where possible they should continue to be supported to learn or work at home as much as possible.
Clinically vulnerable (but not clinically extremely vulnerable) people are those considered to be at a higher risk of severe illness from coronavirus. Few if any children and young people will fall into this category, but if they do, medical advice should be followed.
Alternatively, if there are concerns about a child or young person’s medical condition and returning to school, contact with their GP should be sought and medical advice followed.
Specialist settings should will be working with local authorities, health partners and families to ensure that decisions about attendance are informed by existing risk assessments for their children and young people, which should be kept up to date.
In addition to education staff, many professionals support the needs of children and young people with SEND, e.g. Educational Psychologists, Specialist Teachers, School Nurses and Therapists.
Schools and settings will be assessing the risk associated with external services working in a face-to-face capacity with children or young people in their environment on a case-by-case basis.
Where it is deemed as essential, these services may access settings with permission from the school. Where possible, however, external services will continue to be provided in a virtual manner.
If face-to-face services are to be provided, it is recommended that the service implements all reasonable protective measures in line with the guidance released for education settings.
Will staff still work ‘hands-on’ with children and young people who cannot adhere to strict hygiene practices?
It is recognised that some children and young people with SEND present behaviours that can be challenging to manage in the current context, such as licking or spitting uncontrollably.
It will be impossible to provide the care that some children and young people need without close hands-on contact.
In these circumstances the Government guidance on ‘conducting a SEND risk assessment during the coronavirus outbreak’ is important. The guidance advises that staff need to increase their level of self-protection, such as minimising close contact and having more frequent hand-washing and other hygiene measures and regular cleaning of surfaces.
School and settings will also undertake risk assessments in line with the guidance and, in addition, it is recommended that they follow the Public Health England guidance on cleaning in non-healthcare settings.
If anyone in an education or childcare setting becomes unwell with a new, continuous cough or a high temperature, or has a loss of, or change in, their normal sense of taste of smell (anosmia), they must be sent home and will be advised to follow the COVID-19: guidance for households with possible coronavirus infection guidance.
If a child or young person is awaiting collection, they will be moved, if possible, to a room where they can be isolated behind a closed door, depending on their age, with appropriate adult supervision as required. If it is not possible to isolate them, they should be moved to an area which is at least two metres away from other people.
PPE should be worn by staff caring for the child or young person while they await collection if two metres distance cannot be maintained, e.g. for a child with complex needs.
Access to testing is available to all essential workers. This includes anyone involved in education, childcare or social work, including both public and voluntary sector workers, as well as foster carers.
Essential workers and other eligible groups can register and book a test for themselves and/or their household member(s) if they have coronavirus-like symptoms.
This service allows employers to refer essential workers for testing, who are self-isolating either because they or member(s) of their household have coronavirus symptoms.
Once settings open to more children and young people from the 1st June 2020, staff and pupils in all settings will be eligible for testing if they become ill with coronavirus symptoms, as will members of their household.
This will enable children and young people to get back to childcare or education, and their parents or carers to get back to work, if the test proves to be negative.
A positive test will ensure rapid action to protect classmates and staff in schools and settings.
There are three ways to get a test via a self-referral portal:
- Book an appointment at a regional testing site.
- Book an appointment at a mobile testing unit.
- Request a home delivery test.
Education settings as employers can also book tests through the employer referral portal email@example.com.
The self-referral portal for testing can be accessed here https://www.gov.uk/apply-coronavirus-test.
The Council are currently working with National and regional colleagues to establish a contract tracing programme locally. Updates will be provided once this is in place.
- Secretary of State modification notice issued under the Coronavirus Act 2020 to modify section 42 of the Children and Families Act 2014: https://www.gov.uk/government/publications/changes-to-the-law-on-education-health-and-care-needs-assessments-and-plans-due-to-coronavirus/education-health-and-care-needs-assessments-and-plans-guidance-on-temporary-legislative-changes-relating-to-coronavirus-covid-19
- Annex A: details of the amendments to the existing Regulations: https://www.gov.uk/government/publications/changes-to-the-law-on-education-health-and-care-needs-assessments-and-plans-due-to-Coronavirus/annex-a-details-of-the-amendments-to-the-existing-regulations
- Risk assessment: advice on SEND risk assessments
- Coronavirus guidance:
- Actions for educational and childcare settings to prepare for wider opening from 1st June 2020: https://www.gov.uk/government/publications/actions-for-educational-and-childcare-settings-to-prepare-for-wider-opening-from-1-june-2020
- Implementing protective measures in education and childcare settings: https://www.gov.uk/government/publications/coronavirus-covid-19-implementing-protective-measures-in-education-and-childcare-settings