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 has given notice that some aspects of the law on education, health, and care (EHC) needs assessments and plans are being temporarily changed.
This is 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 currently lasts up to the 25th May.
- 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 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.
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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 will last, up to the 25th May.
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 home learning programmes.
- 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.
- Secretary of State modification notice issued under the Coronavirus Act 2020 to modify section 42 of the Children and Families Act 2014: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/882290/CV19_Act_modification_notice_SEND.pdf
- 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